Allianz Australia Insurance Ltd v Huang

[2023] NSWPIC 456

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Allianz Australia Insurance Ltd v Huang [2023] NSWPIC 456

CLAIMANT:

Hong Huang 

INSURER:

Allianz Australia Insurance Ltd

MEMBER:

David Ford 

DATE OF DECISION:

23 August 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 61-year-old female passenger injured in a motor vehicle accident; insurer wholly admitted liability; sustained injuries to lumbar spine, being a fracture of the L1 vertebra, fractured sternum and bruising to the upper body; claimant is a senior tax accountant; 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 

1.       On the 31 December 2019 Hong Huang (the claimant) was a passenger in a motor vehicle being driven by the insured driver on Allambie Road at Allambie Heights. As the vehicle approached a roundabout, the insured driver lost control of the vehicle and collided with a concrete wall. 

2.       The claimant sustained injuries in the accident and was taken by ambulance to the Northern Beaches Hospital. She suffered a fracture to the L1 vertebra, a fractured sternum and bruising to the upper body. Her injuries were treated conservatively; however, it was necessary for her to continue to receive psychological treatment, which continues up until the present time. 

3.       The insurer admitted liability on the 11 January 2022. The claimant was born in 1962 and is presently 61 years of age At the time of the accident, she had been working as a senior tax accountant in a firm at Crows Nest, and had been working there for more than 19 years. Shortly before the accident, she had resigned from her employment as she planned to travel overseas and return to Australia in November 2019. The overseas trip was cancelled for family reasons, and in late November 2019, she was seeking employment as a senior accountant, specialising in tax and in particular, self-managed superannuation funds. She had engaged specialists in recruitment to assist her in finding new employment. She was advised the months of December and January traditionally are vacation periods and offers of employment are less in frequency. Based on the advice of the recruitment agencies, she decided to delay her job seeking until the start of the new year in January 2020. Prior to the accident, she was she was earning $873 net per week. Since the accident, she has not been able to engage in either full time or part time employment. 

4.       The insurer arranged for her to be examined on a medico-legal basis by Dr Alan Home, who assessed the claimant’s lumbar compression fracture at 10% whole person impairment (WPI). The insurer also arranged for her to be examined by Dr Graham George, psychiatrist, and I refer to his report dated the 15 February 2023. He has provided a comprehensive report and noted her present complaints commencing on page 3of his report. On page 4 of this report, he states the following. 

“She is under the care of her GP, Dr Mark Ferrier and she said she initially believed she would get better over time. As time wore on, she found she was much more prone to tears and that the pain limitation of movement and giving up all the activities, affected her adversely. She found she was in tears, hours at times, because of pain and because of the fact she felt so troubled by the accident. Eventually her GP referred her to a psychologist Dr Leo Martin and she has been seeing him regularly since November 2022 She is not on antidepressant medication...” 

5.       Dr George diagnosed her suffering from chronic post-traumatic stress disorder in combination with a persistent depressive disorder. He expressed the following opinion on page 6 of his report. 

“However, she has had chronic pain, limited mobility and her activities have been curtailed greatly. This has impacted on her mental state over time in addition to the impact on her mood state over time. She has had typical symptoms of chronic post-traumatic stress disorder. She has become under the care of her general practitioner end a treating psychologist. Initially she thought she would get better, but she has not improved over time due to both pain and the intrusive nature of the PTSD symptoms. This meant she saw a psychologist in the course of her symptoms”. 

Dr George assessed the WPI at 17%. The insurer conceded the claimant is entitled to damages for non-economic loss. 

6.       The insurer in their submissions, have allowed a sum of $275,000 for damages for non-economic loss taking into consideration, both physical and psychological injuries as well as ongoing disabilities. The insurer also assessed her pre accident earnings, and these calculations are set out in detail in their submissions. The amount calculated for past economic loss is $249,000 plus an allowance for superannuation. The total tax paid on statutory benefits was $22,271.80 The amount of statutory benefits paid by the insurer $89,077.75 which includes the tax paid on statutory benefits... 

7.       The insurer allowed an amount of $210,000 for future economic loss and this sum has been calculated in accordance with actuarial tables as set out in detail at paragraph 7.4 of the insurer submissions. The calculations allow for a gradual return to part time work after 12 months. Thereafter a loss of 25 hours per week after four years. Then a loss of 12 hours per week for the remaining two years until the anticipated retirement age of 67 years. 

8.       The claimant advised me she 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. 

9.       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 (Commission) 

10. The 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. 

11. 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.

12.     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. 

13.     The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.  

14.     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 

15.     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. 

16.     I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.  

17.     I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.  

18.     I am satisfied the claimant is willing to accept the proposed settlement.  

19. 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 

20.     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. 

21.     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 17 August 2023 

22.     The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 17 August 2023. The claimant participated in person and the insurer was represented by Aimee Walsh. 

SHOULD I APPROVE THE SETTLEMENT 

23.     I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $275,000. Damages for past economic loss in the sum of $249,000. Tax paid on statutory benefits is $22,271.80. Damages for future economic loss in the sum of $210,000 The net amount of settlement monies payable to the claimant is $644,922.25. 

24. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.