Allianz Australia Insurance Limited v Wong
[2023] NSWPIC 106
•3 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Wong [2023] NSWPIC 106 |
| Claimant: | Wei Wong |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Gary Patterson |
| DATE OF DECISION: | 3 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 30-year-old male; claimant riding motorcycle through intersection when insured vehicle merged to the left colliding with the motorcycle; liability wholly admitted; right wrist fracture and soft tissue injuries to neck, right shoulder, right elbow and right knee; non-minor (now threshold) injury; plaster cast and physiotherapy; 2% whole person impairment so no entitlement to non-economic loss; claimant returned to work after one month on reduced hours; full duties from 3 – 6 months; occasional time off work for wrist stiffness; past economic loss; future loss of earning capacity; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved for $164,000. |
| determinations made: | CERTIFICATE OF DETERMINATION 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 clause 7.38 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 23 January 2020, the claimant, Wei Wong (“Mr Wong”), sustained injury in a motor vehicle accident at the intersection of Parramatta Road and Glebe Point Road in Sydney (“the accident”).
Mr Wong was riding his motorcycle through the intersection when the insured vehicle merged from lane two of three into lane one, colliding with Mr Wong’s motorcycle, causing him to be thrown onto the carriage way.
Police placed the insured driver at fault. The insurer wholly admitted liability for statutory benefits beyond twenty-six (26) weeks and common law damages.
Mr Wong suffered a scaphoid fracture of the right wrist, right shoulder strain, soft tissue injuries to the right knee, left elbow and neck. His right wrist was placed in a plaster cast. He had physiotherapy for his other injuries and has made a good recovery.
As the insurer has accepted that Mr Wong had non-minor injuries, he is entitled to payment of reasonable treatment and care for his accident-related injuries, for the rest of his life, pursuant to division 3.4 of the Motor Accident Injuries Act 2017 (“the MAI Act”).
Mr Wong was assessed by Dr Todd Gothelf, Orthopaedic Surgeon, on 11 March last. Dr Gothelf reports that Mr Wong had 1 month off work, returned on reduced hours and resumed a full duties after 6 months. Dr Gothelf records that Mr Wong is performing his full duties with no problems other than occasional wrist stiffness. He opined there would be no restriction or reduction in earning capacity. He assessed 2% whole person impairment for the wrist upper limb (shoulder and wrist).
Mr Wong currently is taking 7 days off work every two months because of ongoing stiffness in his right wrist. He performs soft exercises as recommended by his physiotherapist. He is to undergo a MRI scan of the right wrist which will inform further treatment.
Mr Wong accepts that he has no entitlement to an award of damages for non-economic loss. He does not wish to obtain an opinion from a medico-legal specialist in relation to permanent impairment. He has made a considered decision not to obtain independent legal advice.
The insurer has paid Mr Wong $11,711.70 for statutory weekly benefits and seeks credit for that sum.
Mr Wong and the insurer have agreed to settle the claim for a lump sum of $164,000.00 calculated as follows:
Description Amount Past economic loss $18,000 Future economic loss $146,000
The amounts allowed for past and future economic loss include provision for superannuation. The amount allowed for past economic loss includes $1,803 as the Fox v Wood component.
I have decided to approve the settlement.
THE RELEVANT LAW
Section 6.23(2) of the MAI Act requires approval of the settlement as Mr Wong is not legally represented.
Section 6.23(3) of the MAI Act provides that I am not to approve the settlement unless I am satisfied that it complies with any applicable requirements of, or made under, the MAI Act or the Motor Accident Guidelines (“the Guidelines”). I also must have regard to Procedural Direction MA3 – Approval of Damages Settlement.
Cause 7.37 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 assessed for the claim, where the matter to be assessed by me or another Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Wong, and taking into account any proposed reductions or deductions in the proposed settlement; and
(b) Mr Wong understands the nature and extent of the proposed settlement and is willing to accept the proposed settlement.
TELECONFERENCE ON 3 MARCH 2023
The insurer lodged the application for approval of the settlement which was referred to me for consideration. I held a teleconference on 3 March 2023 at which Mr Wong participated in person and the insurer was represented by Ms Amie Walsh.
Mr Wong and the insurer previously signed a Deed of Release which provided for a smaller amount of damages ($150,000) based upon an allowance of 15 working days per year off work for treatment of flareups in Mr Wong’s right upper limb.
After further discussion with his wife, Mr Wong then came to the belief that the provision for future economic loss was inadequate, as he currently is taking seven days off work every two months, which annualises to 42 days a year.
There was a discussion at teleconference about the lack of medical evidence to establish that Mr Wong will continue to need to take that much time off work indefinitely. There also was a discussion about the uncertainty of future economic loss as it is incapable of precise quantification. After further discussion, the parties agreed upon future economic loss calculated on the basis of 18 working days off work each year, until Mr Wong’s likely retirement age.
DOCUMENTS CONSIDERED
I had regard to all of the documents listed A1 to A33 in the insurer’s Application for Approval of Settlement and the following additional documents:
(a) The insurer’s further submissions made on 3 March 2023.
(b) Email from Mr Wong on 3 March 2023 to Mr Walsh in relation to superannuation calculation.
(c) Email from Mr Walsh in reply with amended Agreement for Release and Indemnity.
(d) Email from Mr Wong returning the signed amended Deed.
REVIEW OF THE EVIDENCE
The evidence has been reviewed sufficiently in the introduction (above).
Mr Wong confirmed that he has returned to his full duties at the Australian Taxation Office and is earning a higher duties allowance. He expects to continue working, in that or a similar position, until his normal retirement age. He currently is taking seven days off work every two months to recover from flareups of pain in his right upper limb. There is no medical evidence as to the likelihood of Mr Wong’s needing to take such time off work indefinitely. He accepts that he may need more or less time off work depending upon the progression of his condition.
Future economic loss has been calculated as follows:
$463.12 net per day x 18 days = $8,336.16 divide by 52 = $160.31 per day
As Mr Wong is 30 years of age, the calculation for the next 40 years is as follows:
$160.31 per day x 924.8 (5% multiplier for 40 years) = $148,254.68 x 85% = $126,016.47
That is grossed up to $146,000.00 to allow for superannuation at the rate specified by Mr Wong (15.4%).
DETERMINATION
Mr Wong is aware that this is a once and for all settlement and that he will not be able to seek further compensation, if the condition of his neck, both upper limbs and right knee deteriorates. He is satisfied with the settlement. He does not wish to obtain legal advice.
There will be no Medicare charge or worker’s compensation benefits deducted from the proposed settlement.
This application has been determined on the papers with the parties’ consent.
The insurer has increased its offer from $150,000.00, which previously was agreed between the parties, in response to concerns expressed by Mr Wong, after reconsidering his position. The insurer was not obliged to increase its offer as a Deed of Release had been signed by the parties.
Having regard to Mr Wong’s age, the medical evidence and Mr Wong’s evidence as to his residual earning capacity, I am satisfied that the proposed settlement is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines, in that it is relevantly:
“….. just, fair and reasonable and within the range of likely potential damages to be assessed for the claim, where the matter to be assessed by me, or another Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Wong, and taking into account any proposed reductions or deductions in the proposed settlement.”
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, the proposed settlement of Mr Wong’s claim for damages is approved.
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