CIC Allianz Insurance Limited v Slyney
[2024] NSWPIC 293
•3 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | CIC Allianz Insurance Limited v Slyney [2024] NSWPIC 293 |
| CLAIMANT: | Catherine Slyney |
| INSURER: | CIC Allianz Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 3 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant T-boned at an intersection; conflicting statements whether the claimant or insured driver faced a green light; insurer took a sensible approach and without admitting liability proposed an offer of settlement; entitlement only to past and future economic loss and superannuation; claimant 68 years old; was working full time at the date of accident; work capacity limited to one day a week to age 70 years when claimant says she intended to retire; Held – settlement approved in the sum of $172,000; insurer entitled to credit for statutory benefits paid; issued pursuant to section 6.23. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Issued pursuant to 6.23 of the Motor Accident Injuries Act 2017 settlement is approved in the sum of $172,000. 2. The insurer is to receive a credit for $11,322.06. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Catherine Slyney, was injured in a motor vehicle crash on 29 April 2019. The accident occurred at the intersection of Moverly Road and Anzac Parade at Maroubra, a suburb in Sydney when the insured driver t-boned her vehicle. The impact was to the driver’s door deploying the airbags.
The police and ambulance attended the scene and Ms Slyney was conveyed to Prince of Wales Hospital (POW) where she was discharged the same day into the care of her general practitioner, Dr Jeff Ling at Coogee Medical Centre.
Ms Slyney has made a claim against CIC Allianz Australia Insurance Limited (insurer) the insurer. As there were conflicting versions of which driver faced a green light, the insurer issued a deemed denial letter of the claim.
After a lengthy investigation, the insurer in good faith entered into negotiations with the claimant and on the basis that no contributory negligence was alleged.
The insurer proceeded and has accepted that Ms Slyney is entitled to damages pursuant to the Motor Accident Injuries Act 2017 (the Act) for economic loss and that she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Ms Slyney and the insurer have reached agreement as to the settlement of the claim for damages.
Because Ms Slyney is not represented by a lawyer, her settlement must be approved in accordance with the Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
Ms Slyney was 63 years old at the date of the crash. She is currently 68 years old with her 68th birthday in November this year. The insurer arranged for a medico-legal opinion which was arranged with Dr Alan Home. The doctor assessed whole person impairment at 3%. She was also assessed by psychiatrist Dr Graham George and in his opinion, her whole person impairment was 5%. It is agreed, Ms Slyney is not entitled to damages for non-economic loss. It is agreed she is entitled to damages for economic loss.
THE RELEVANT LAW
Section 6.23(2) and (3) of the Act requires that the proposed settlement must be approved and, I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and/or the Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied the proposed settlement is just, fair and reasonable. The proposed settlement must be within the likely potential damages assessment for the claim were the matter to be assessed by a Member of the Personal Injury Commission (Commission). The matters to be taken into account include the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by
Ms Slyney. I also must take into account any proposed reductions or deductions in the proposed settlement.
Ms Slyney also must understand the nature and effect of the proposed settlement and is willing to accept the amount.
DOCUMENTS CONSIDERED
I have considered the documents provided by the insurer including but not limited to submissions, claim form, police report and factual investigation report, ambulance report, correspondence between the claimant and insurer, reports by Dr Alan Home and Dr Graham George and clinical notes, imaging, and hospital records. Included in the documents are wage payments, payslips, and certificates of fitness. In addition, the insurer has provided an amended deed of release and submissions.
REVIEW OF THE EVIDENCE
Ms Slyney was driving her car on her way to work when the crash occurred.
After being conveyed by ambulance to POW, she was diagnosed with a fracture to her left ankle and later, an un-displaced fracture to the neck of her fifth metatarsal on the right side. She also experienced severe bruising to the breast chest wall area, stomach, right leg and developed a sore neck.
According to Dr George, she developed chronic post-traumatic stress disorder complicated by a comorbid mayor depressive disorder with anxiety.
After 10 months, Dr Ling was satisfied the fractures were stable. The doctor recommended orthotics.
Ms Slyney told me the crash occurred during the 2019-2020 bush fires. When it was recommended, she attempted to access counselling. She found it difficult to locate a suitable psychologist as these professionals were fully booked working with victims from the fires.
I discussed at length with her the importance of accessing any recommended treatment for both her physical and emotional injuries sustained in the accident. She clearly was unaware of her entitlement and confirmed with me, she would discuss any reasonable treatment recommended by her doctor.
At the time of the accident, Ms Slyney was working full time as a ward clerk at POW Coronary Private Unit. She was totally incapacitated for work until 10 June 2019 when she returned with restricted duties for three days a week.
She lives in a retirement village which is central to all her personal needs. She told me since the accident, a granddaughter has been born. Although she has to catch public transport to where she lives, she babysits once a week which she enjoys.
The insurer has calculated a past and future economic loss based on Ms Slyney working three days a week. However, during the preliminary conference, she told me and the insurer’s agent, she had reduced her working to one day a week due to stress and anxiety caused by the accident. She felt she can only cope with one day a week. She told me she intends to retire at age 70 years. She said she may have worked past this age depending on her health but for the accident.
Armed with this updated evidence, the insurer amended the proposed settlement offer which was signed off by Ms Slyney which increased the amount for past and future economic loss.
The proposed offer has considered an amount of $112,000 for past wage loss. The amount is made up of a weekly net loss of $888.92 for an initial period from the date of the crash to 10 June 2019 after which she returned three days a week. In this first period of six weeks, the calculation amounts to $5,333.52.
The second period is calculated as a loss for two days and week amounting to $84,625.66.
The final period is from 3 January 2024 to the date of the proposal. The loss is calculated based on four days a week in the sum of $10,133.65 when Ms Slyney reduced her hours to one day a week.
Together with superannuation the proposed settlement for past loss amounts to $112,000 rounded up.
In the future the most likely future circumstance but for the accident is according to Ms Slyney, she would have worked to age 70 years with some prospect of working longer. However, no evidence has been submitted to support any suggestion she could have or would have worked after age 70 years, in particular, her evidence was she was thrilled to have a granddaughter she can care for.
The proposed offer of settlement has calculated a loss to age 70 years 6 months. With a reduction of 15% for vicissitudes, the amount is rounded up to $60,000.
SHOULD I APPROVE THE PROPOSED SETTLEMENT
The proposed settlement offered by the insurer for economic loss is $172,000. From this sum, the insurer is entitled to a credit of $11,322.06 for paid statutory benefits.
I am satisfied the amended proposed settlement offer should be approved.
I am satisfied Ms Slyney will be aware of her rights, once the insurer advises her in writing as to her entitlement to have reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay treatment expenses for five years, thereafter the claim is transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses and care.
The insurer 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.
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 Slyney.
I am satisfied the amount of $172,000 is fair and just amount and reflects the loss of past and future economic loss. I am satisfied the statutory benefits to be credited to the insurer is reasonable.
I am satisfied Ms Slyney is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Slyney 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 Slyney is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the Act I approve the settlement of Ms Slyney’s claim for damages in the sum of $172,000.
0
0
0