Allianz Australia Insurance Limited v Yang
[2023] NSWPIC 414
•18 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Allianz Australia Insurance Limited v Yang [2023] NSWPIC 414 |
| CLAIMANT: | Zhiqiao Yang |
| INSURER: | Allianz Australia Insurance Ltd |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 18 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was driving her car attempting to merge when she was rear-ended by another car; she sustained a fractured little finger on her left hand; offer of settlement in the sum of $5,000; claimant received statutory benefits in the sum of $398.64 paid by the insurer; insurer to receive credit for the sum of $398.64 out of the settlement sum; claimant understood binding nature of the settlement and was precluded from making a further claim for damages for the accident; Held – that the offer of settlement was satisfactory and was approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 Proposed settlement is approved ss 6.23(2)(b) of the Motor Accident Injuries Act 2017 |
INTRODUCTION
On 18 December 2017 Ms Zhiqiao Yang (the claimant) sustained injury in a motor vehicle accident at Hume Highway and Woodville Road Villawood (the accident). The claimant was driving her car attempting to merge when she was rear-ended by another car. She sustained a fractured little finger on her left hand.
Ms Yang has made a claim against Allianz Insurance (the insurer) the insurer of the at fault vehicle for lump sum damages.
On 21 September 2022 the insurer wholly accepted liability for the claim for common law damages.
Ms Yang and the insurer have reached agreement as to settlement of the claim for damages.
Because Ms Yang is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer has not conceded Ms Yang has sustained a whole person impairment (WPI) greater than 10% and accordingly there is no entitlement to recover damages for non-economic loss. The claim for damages is limited to past and future economic loss.
THE RELEVANT LAW
Sub-sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement. I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act and the Motor Accident Guidelines version 9.1, effective from 1 April 2023 (Guidelines).
Clause 7.37 of the Guidelines states in part that I must be satisfied as to the following:
“(b) 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 claims assessor, taking into 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,
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement,
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
DOCUMENTS CONSIDERED
I have considered the documents produced by the insurer including: submissions dated 28 July 2023, draft offer of settlement, draft deed of release, police report, medical reports, hospital notes and all of the other documents produced by the insurer marked A1-A10.
REVIEW OF THE EVIDENCE
Ms Yang currently works for Sydney University and is aged in her early 30s.
Immediately following the accident Ms Yang did not attend hospital. She presented to Sydney Hospital on 12 January 2018.
The discharge referral notes from Sydney Hospital reported Ms Yang sustained a fracture of the little or fifth finger. The hospital notes show that Ms Yang was fitted with a finger splint shortly before travelling overseas.
On 11 January 2018 an X-ray was performed on Ms Yang's left hand. It showed a comminuted fracture through the mid shaft of the left metacarpal with mild volar angulation.
A certificate of capacity/certificate of fitness by Dr Pierzad dated 14 March 2018 noted the claimant was fit for preinjury work.
Economic loss evidence
The claimant provided a payslip showing her fortnightly gross pay for the period ending 25 April 2018 was $2,852.14. The claimant’s other payslips showed that she was paid varying amounts including amounts over $3,600 per fortnight.
The insurer offered $1,000 for the claimant’s past economic loss for one days’ personal leave and any other days she may have required to have medical leave.
The insurer submitted that it would allow tax withheld for the Fox v Wood component of $8.
The insurer seeks an amount of $398.64 to be deducted representing the amount of past weekly statutory benefits paid.
THE PROPOSED SETTLEMENT
The insurer calculated the offer of settlement in the sum of $5,000. The claimant has received statutory benefits in the sum of $398.64 paid by the insurer. The insurer will be entitled to receive credit for the sum of $398.64 out of the settlement sum.
Past economic loss
The claimant’s past economic loss was agreed between the parties at $1,000.
The insurer made an allowance of $8 for the Fox v Wood component representing taxation payments deducted from statutory weekly payments.
Future economic loss
In calculating future economic loss, the insurer has offered a buffer of $4,000.
Teleconference on 14 August 2023
A teleconference on 14 August 2023. Ms Yang appeared in person and the insurer was represented by Ms Walsh and Ms Bursac as the insurer’s settlement officers.
I first raised the issue of the agreement for release and indemnity dated 4 July 2023. I noted that the current agreement contained two clauses (8 and 9) that the claimant has been represented by a legal practitioner and has received independent legal advice about the terms of the agreement. I confirmed with both parties that the claimant had not received legal advice on the agreement or terms of settlement and asked that these two clauses be removed and the agreement re-signed.
At the teleconference I asked Ms Yang a number of detailed questions including: about how long she was off work; what her past and current work is; whether she still suffers from any pain or disability that affects her current work or daily living activities. I also explained that if the settlement is approved she is entitled to five years of ongoing medical care and expenses in the current scheme which then transfers to the lifetime care scheme. I also asked why she had not engaged lawyers. Ms Yang stated that her daily living activities are not affected by her injuries. Ms Yang replied that she plays the violin but that is unaffected by her injured finger.
I asked Ms Walsh for the insurer read out and explain the amounts offered by the insurer and what each component or head of damage was. Ms Walsh also agreed that if Medicare or Centrelink or any other agency required any further repayments insurer would not deduct any of this from the amount to be paid out to the claimant.
I asked Ms Yang what she understood the settlement included. She explained that there was no allowance for non-economic loss. She also explained that she understood the amount of past economic loss was agreed and that the figure of $4,000 had been agreed as a buffer for her future economic loss. Ms Yang also said she knew an amount would be deducted for repayment of past weekly benefits paid by the insurer.
Towards the end of the teleconference I asked both parties if they had any further submissions comments or questions. Neither party raised any other issue.
Ms Yang asked for the settlement to be approved.
SHOULD I APPROVE THE SETTLEMENT
I note that on 16 August 2023 I received an amended agreement for release and indemnity dated 14 August 2023 signed by the claimant. This amended agreement has removed the two clauses about the claimant receiving independent legal advice.
I am satisfied Ms Yang is aware and understands the settlement finalises her entitlement to weekly benefits and to common law damages under the MAI Act.
I am satisfied that Ms Yang is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
The insurer assured me at the teleconference that it will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge 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 assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Ms Yang.
I am satisfied Ms Yang is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Yang understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Ms Yang is willing to accept the proposed settlement.
Accordingly, pursuant to ss 6.23(2)(b) of the MAI Act, I approve the settlement of Ms Yang’s claim for damages in the total sum of $5,000 with an amount of $398.64 to be deducted for repayment to the insurer for past weekly benefits.
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