Allianz Australia Insurance Limited v Walters
[2024] NSWPIC 40
•1 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Walters [2024] NSWPIC 40 |
| CLAIMANT: | Carlos Walters |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 1 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 31 year old motorcyclist injured in a collision with insured motor vehicle; sustained an undisplaced intraarticular fracture of the left distal radius; absent from his employment for a period of 22 weeks and thereafter, returned to full time duties but does experience some discomfort and aching in the arm after prolonged activities during a working day; insurer conceded claimant had sustained a non-threshold injury; liability admitted; claimant is employed as a photographer and hospitality worker; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 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
Carlos Walters (the claimant) on 26 February 2020 was riding his motorcycle eastbound on Oxford St, Sydney in lane 3. The insured driver was driving his taxi motor vehicle in lane 2 and he commenced to make a U turn across the path of the claimant’s oncoming motorcycle a collision occurred between the claimant’s motorcycle and the insured vehicle and consequently, he sustained a fracture of the left distal radius.
An ambulance attended the scene of the accident, however, the claimant took himself to
St Vincents Hospital, where he was placed in a short back slab and discharged for further review at the orthopaedics outpatient clinic. He was assessed as having and undisplaced intraarticular fracture. Subsequent attendance at the fracture clinic resulted him in having the arm placed in a cast. He underwent further physiotherapy treatment up until about July 2020.The insurer admitted liability for the common law claim on 24 February 2023. The insurer has conceded he has sustained a non-threshold injury.
The claimant was born in 1992 and is presently 31 years ago. At the time of the accident, he was working as an events photographer. His wrist was immobilised for a period of six weeks and in this regard, the insurer has allowed an amount of $500 per week for loss of income for a period of 22 weeks until 6 July 2020.
He relocated to the Northern Rivers in July 2022 and is engaged in hospitality, photography work and Dee Jaying. At the teleconference, he confirmed he can carry out all of the duties required of him in his employment and in his self-employment but does experience some discomfort and aching after prolonged activities during a working day.
The insurer arranged for him to be examined on a medico legal basis by Dr John Mison, orthopaedic surgeon, and I refer to his report dated 9 November 2023. The claimant confirmed he had read this report and did not disagree with its contents. On page 3 of his report, I note the following, under the heading Current Status:
“The current status is that Mr Walters, while he has regained most of his strength, resilience and all his range of motion, still has some episodic left wrist pains which he describes to be around the dorsal midline of the left wrist extending up into the forearm.
Other Injuries
There were other injuries mentioned originally, which were some minor impacts to the left anterior knee resulting in, from his recollection, some discomfort, but not enough to be looked into any further. Similarly, he has also suffered some soft tissue strain to his shoulders, but these areas have all resolved.”
Dr Mison carried out a physical examination and viewed imaging reports. I note the following on page 4 of his report, under the heading, Opinion:
“Mr Walters as a result of his motorcycle accident in which he was not at fault, sustained an undisplaced left distal radius fracture with intra articular extension. He was treated appropriately with cast treatment and has had an appropriate amount of subsequent physiotherapy and has regained an excellent clinical outcome.
Mr Walters however still complaints of some intermittent left wrist pain, which is not altogether unsurprising, given that the fracture extended into the radiocarpal joint although undisplaced. There may still be expected to be some localised cartilage damage that might provoke episodic pain.
It is my opinion, although Mr Walters expressed a wish for some clarity with some further X rays, at this point in time, the treatment going forward would be unchanged the damage to the wrist, although on face value is minor, is likely to remain permanent. Regarding the other injuries sustained at the time of the accident to the shoulders and knees, these appeared to have completely resolved and would be judged to be minor bruises.”
I confirmed with the claimant he is right-handed. Dr Mison was of the opinion the claimant does not have current working and earning incapacity as a result of his injuries. Dr Mison noted although the claimant had pains in his wrist from time to time, he would not judge these to be significant enough to prevent him from working.
The insurer has proposed to resolve the matter for $38,000 less statutory benefits paid in the sum of $8,845.19. This results in a net sum to the claimant of $29,154.81. The calculation of the proposed settlement is as follows:
· non-economic loss nil
· past economic loss (Inc. Super and Fox v Wood) $13,000
· future economic loss $25,000
Total $38,000 less statutory benefits in the sum of $8,845.19, results in a net settlement of $29,154.81.
The claimant advised me he wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
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).
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 cl 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.
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, considering the nature and extent of the claim.
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 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.
PRELIMINARY CONFERENCE ON 22 JANUARY 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 22 January 2024. The claimant participated in person and the insurer was represented by Aimee Walsh.
Should I approve the settlement?
I am satisfied it is appropriate in this matter to assess damages for past economic loss and past superannuation in the sum of $13,000. Tax paid on statutory benefits is $444. Damages for future economic loss in the sum of $25,000. The net amount of settlement monies payable to the claimant is $29,154.81.
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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