Allianz Australia Insurance Ltd v Hobson

[2023] NSWPIC 560

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Allianz Australia Insurance Ltd v Hobson [2023] NSWPIC 560

CLAIMANT:

Michael Hobson

INSURER:

Allianz Australia Insurance Ltd

MEMBER:

Elyse White

DATE OF DECISION:

 24 October 2023  

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claimant is 32 years old; sustained soft injuries to his left shoulder and contusion injuries; entitled to past and future economic loss; claimant made a full recovery; claimant aware of his rights for reasonable future treatment for accident related injuries for the rest of his life; Held – proposed settlement of $26,655.72 less paid wages within the range of likely potential damages should the claim proceed to assessment; settlement just, fair and reasonable; settlement approved.

DETERMINATIONS MADE:

CERTIFICATE

Issued under s6.23 of the Motor Accident Injuries Act 2017

The proposed settlement is approved under s6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $26,655.72

STATEMENT OF REASONS

INTRODUCTION

1. The claimant, Mr Michael Hobson, was involved in a motor vehicle accident on 17 March 2022.  He was driving along the M2 when vehicles ahead, began to slow.  A vehicle travelling in the same direction directly behind Mr Hobson, failed to observe the slowing traffic and collided with the rear of Mr Hobson’s vehicle.  The force of the collision, caused a chain reaction forcing Mr Hobson’s vehicle into the one in front, and so on.    In total, five cars were involved in the one collision.

2. Mr Hobson has made a claim against Allianz Australia Insurance Limited, the insurer.

3. The insurer has wholly admitted liability for the claim for common law damages.

4. Pursuant to the Motor Accident Injuries Act 2017 (MAI Act), the insurer has accepted that Mr Hobson is entitled to the payment of reasonable treatment and care for the rest of his life for his accident caused injuries.

5. Mr Hobson and the insurer have reached agreement as to settlement of the claim for damages.

6. Because Mr Hobson is not legally represented, his settlement must be approved in accordance with the MAI Act.

7. The insurer lodged the application for approval of the settlement.  This application was referred to me for consideration.

8. The insurer has conceded Mr Hobson is entitled to damages for past and future economic loss.

THE RELEVANT LAW

1. Section 6.23(2) and (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 the requirements of the MAI Act or the Guidelines.

10.Clause 7.37 of the Guidelines states I must be satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages that would be assessed by a member taking into account the nature and extent of the claim having regard to the claimant’s injuries. Disabilities, impairments and losses sustained taking into consideration any deductions in the proposed settlement.  Also, the claimant must understand the nature and effect of the settlement.

DOCUMENTS CONSIDERED

11.I have considered the totality of the material contained in the insurer’s application and attachments.  These include but are not limited to, medical reports, rehabilitation assessments, hospital clinical notes, physiotherapy report, medical centre notes, fitness and capacity reports as well as financial records.

REVIEW OF THE EVIDENCE

12.Mr Hobson is 32 years old.  At the time of the accident, he was working as a security systems co-ordinator at the University of New South Wales.

13.The police and ambulance attended the scene of the accident.  He was conveyed by ambulance to Ryde District Hospital.  He was diagnosed with an isolated left shoulder pain and was treated with a sling. 

14.The insurer referred Mr Hobson to Pinnacle Rehab.  He was treated for a contusion injury to the left supraspinatus and infraspinatus labral tear and left humerus fracture. He presented with low psychological barriers with no recommendations for treatment.

15.His general practitioner, Dr Quentin Cameron, certified him fit for duties, with restrictions, from 2 May 2022 to 13 May 2022.  By 10 June 2022, Mr Hobson was fit to return to full pre accident employment duties.

NON-ECONOMIC LOSS

16.Damages for non-economic loss are assessed via common law principles.  The MAI Act adsorbs those principles where it defines non-economic loss in section 1.4.  In order for a claimant to be entitled to damages for this head of damage, whole person impairment must be agreed or assessed as a percentage greater than 10%.

17.Having reviewed the claimant’s injuries, treatment, rehabilitation and medical opinion, I am satisfied Mr Hobson is not entitled to damages for non-economic loss. 

ECONOMIC LOSS

18.On his claim form, Mr Hobson records his net fortnightly wages at the date of the accident was $2817.54.  After reviewing his taxation returns and payslips, the insurer nominated Mr Hobson’s net pay pre-accident was $2866.69.  The insurer paid statutory benefits totalling $17,859.96.  The Fox v Wood is $4215.00.

THE PROPOSED SETTLEMENT

19.The submissions and offer letter to the claimant are confusing.  The letter dated 20 September 2023 offers $9000 past economic loss plus $4125 Fox v Wood which amounts to $13,125 yet the total offer is $13,215.    The total offer is $26,655.72.  From this total sum statutory past paid wages is to be deducted. 

20.The important amount for me to consider is the sum of $13, 215 which is the amount clear signed by the claimant and proposed to me as the final settlement sum to be paid to Mr Hobson plus paid wages.

21.Mr Hobson confirmed in the telephone conference he understood, if approved, that this proposed settlement sum is final and he cannot in the future, make a further application for past or future economic loss. 

22.He understands he is entitled to future reasonable treatment expenses for accident-related injuries for the rest of his life.

23.I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely damages assessment 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 Mr Hobson.

24.I am satisfied Mr Hobson is aware he is entitled to legal representation but does not wish to do so.

25.I am satisfied Mr Hobson understands the binding nature of the settlement and that he will be precluded from making any future claim for damages arising out of the accident.  I am satisfied Mr Hobson is willing to accept the proposed settlement.

26.Accordingly, pursuant to s6.23(2)(b) of the MAI Act, I approve the settlement of Mr Hobson’s claim for damages in the sum of $26,655.72 of which Mr Hobson will receive an additional sum over and above the wages paid of $13,215.