Allianz Australia Insurance Limited v Villiers
[2023] NSWPIC 204
•5 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Villiers [2023] NSWPIC 204 |
| Claimant: | David Villiers |
| insurer: | Allianz Australia Insurance Limited |
| Member: | David Ford |
| DATE OF DECISION: | 5 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 71-year-old rider of a motorcycle involved in a collision at an intersection with insured motor vehicle; sustained fracture of the left tibia underwent surgery involving insertion of a locked nail; good recovery; claimant is retired; entitled to damages for non-economic loss only; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under Section 6.23(2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION DETERMINATIONS MADe 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was riding his motorcycle along Wyee Road at Morisset on 31 May 2019 when the motor vehicle being driven by the insured driver failed to give way to the claimant resulting in a collision at the intersection. Initially, the claimant was transported to Wyong Hospital but was later taken to Gosford Hospital.
At the hospital, he was diagnosed with having sustained a grade 1 open fracture of the left tibia. The tibia fracture was treated by the insertion of a locked nail. His treating orthopaedic surgeon was Dr Marchelleck. He remained in Gosford Hospital and was subsequently discharged. Dr Marchelleck in his report dated 29 July 2019 reported he was walking without a limp and has no pain at all.
In a further report from Dr Marchelleck dated 21 October 2019, it is reported he was walking well but struggles with pain going up ladders. It is noted the claimant had knee arthritis prior to his accident and there is no anterior knee pain to suggest there is a complication of the surgery. It is reported he is back doing everything he wants to do.
The claimant was born in 1952 and is presently 71 years of age. He now resides in the home of his brother. The insurer arranged for the claimant to be examined on a medico legal basis by Dr Frank Machart and I refer to his report dated 11August 2022. He is of the opinion the claimant does not require any further treatment but may need to take Panadol on occasions if he so requires. Dr Machart assessed the whole person impairment of the claimant at 12%, and accordingly he is entitled to damages for non-economic loss.
The claimant advised me that he wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only.
I consider the settlement is appropriate in all the circumstances of this case.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a, taking into the account the nature and extent of the claim and the injuries, disabilities, impairments, and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
TELECONFERENCE 1 MAY 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 1st May 2023. The claimant participated in person and the insurer was represented by Sonja Alechna.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for non-economic in the sum of $180,000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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