Allianz Australia Insurance Limited v Wu
[2023] NSWPIC 496
•19 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
| CITATION: | Allianz Australia Insurance Limited v Wu [2023] NSWPIC 496 | |
| CLAIMANT: | Ji Wu | |
| INSURER: | Allianz | |
| MEMBER: | Hugh Macken | |
DATE OF DECISION: | 19 September 2023 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval section 6.23; pedestrian struck by car; deed signed by parties notes 50% contributory negligence; past economic loss calculations; future economic loss; contributory negligence assessed miscellaneous assessment; claimant crossed against red pedestrian light; insured driving at low speed should have allowed sufficient time to take evasive action; contributory negligence not greater than 61%; claimant blow to head ongoing headaches; post-traumatic stress disorder; claimant managing well, not losing time off work; medical material supports insurer’s contention of minimal ongoing disability; Held – settlement approved noting 50% contributory negligence. | |
| DETERMINATIONS MADE: | CERTIFICATE SETTLEMENT APPROVAL Issued under section 6.23 of the Motor Accident Injuries Act 2017
| |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 37-year-old woman who was injured when she was struck by a car at about 5.30am on 6 June 2018. She was crossing Erskine Street in the central business district of Sydney when the insured’s vehicle, which was making a right-hand turn hit her knocking her to the ground.
The deed signed by the parties, and the settlement of which both I am requested to approve makes a finding of 50% contributory negligence. The damages are calculated as past economic loss totalling $1,494.31 and a future economic loss of $58,194.22.
The insurer has paid $994.11 for wages paid to date.
The deed rounds these figures off to a settlement figure of $30,994.11 with the insurer to have credit for $994.11 leaving $30,000 to the claimant.
In round numbers the deed gives the past payments made, a buffer of close on $60,000 and a reduction of 50% for contributory negligence.
I note both parties have requested I approve the figure. In all the circumstances, and in particular noting the significant allowance for future economic loss, I approve the Deed of Release in this matter.
Reasons
There are two components to this settlement. In respect to the issue of contributory negligence this was considered at length as a miscellaneous claim by Assessor Helen K Wall who, after the insurer had originally denied liability, found that the motor accident was not caused wholly or mostly by the fault of the claimant. These findings included the claimant crossed against the red pedestrian light, and that the insured was driving at a low speed which should have allowed him sufficient time to see the pedestrian and take evasive action and accordingly, found that the claimant was not mostly at fault. That is, her contributory negligence is not greater than 61%.
Having considered all the material, and whilst I consider that a finding of contributory negligence of 50% at the “higher end of the scale”, I do accept that such a finding could be made in the circumstances of the accident where the claimant was crossing contrary to a traffic control signal, was inattentive about the possibility of vehicle’s turning right and accordingly, it is a finding of contributory negligence would be made against her. Whether it would be as high as 50% could be debatable but it is certainly within the range.
It is the quantum of the claim which leads me have little hesitation in approving the settlement.
The claimant was on her way to work and, as the material bears out, was off work for about a week before returning to work. She was paid for this week off work. About four months after the accident she changed her employers and is currently employed with the Agricultural Bank of China in the Treasury Department and on a salary package of in the order of $120,000 per year. This compares favourably with her post-accident earnings in the year following the accident of $52,000. Thereafter her salary has increased steadily each year.
The claimant suffered a blow to the head and was treated at St Vincent’s Hospital. She continues to suffer headaches. She had seen a psychologist on about 10 occasions in respect to a diagnosis of post-traumatic stress disorder following the accident.
At the conference the claimant confirmed that she has not received any treatment for a few years although she still suffers from intermittent headaches.
As a result of these headaches the claimant underwent an MRI on 24 July 2022. The findings of this MRI included “no MRI evidence of significant traumatic brain injury nor diffuse exonal injury”.
The claimant has confirmed that she is managing well at work and not losing any time off work. She has not received any treatment in respect to the post-traumatic stress disorder since attending her psychologist Dr Chan in 2019.
In my view an allowance of close on $60,000 for the possibility of ongoing intermittent time off work can reasonably be described as at the higher end of the scale. There is very limited support for any contention that the claimant’s headaches will adversely affect her employability nor that she will require regular times off work for the remainder of her time in the work force.
It is for this reason that the allowance for the quantification of the claim, is in my view, very much at the higher end of the scale which, in my view, negates any concerns that I would have otherwise had in respect to a finding of contributory negligence of 50%.
Noting the medical material, in particular the report of Dr O’Sullivan dated 1 March 2023, as well as the emphatic desire from both parties that this settlement is approved, I agree that the resolution of this matter, in taking all the circumstances into account is appropriate in accordance with the deed signed by the parties.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act, s 6.23 (3), and
· Motor Accident Injuries Regulation 2017, s 7.37.
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