Cic Allianz Insurance Ltd v Fulton

[2023] NSWPIC 407

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

CIC Allianz Insurance Ltd v Fulton [2023] NSWPIC 407

CLAIMANT:

Kylie Fulton

INSURER:

CIC Allianz Insurance Ltd

MEMBER:

David Ford 

DATE OF DECISION:

14 August 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 51-year-old passenger injured in a motor vehicle accident; insurer wholly admitted liability; sustained avulsion fractures of the right foot; claimant is an office worker; no entitlement to non-economic loss; claim for past and future economic loss; no allegation of contributory negligence; 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 16 October 2018, Kylie Fulton (the claimant) was the supervising driver for her daughter and when the vehicle in which they were travelling approached a roundabout at the intersection of Tower St and Ashmead Ave, Panania, the claimant's daughter failed to negotiate the roundabout and collided with a Telegraph pole. 

2.       The claimant was taken by ambulance to Liverpool Hospital add underwent imaging test of her right foot and ankle, however, no fractures were detected. She was advised to seek further treatment from her general practitioner. Subsequently, she had a CT scan on 19 November 2018, which revealed minimally displaced cortical avulsion fractures of the posteromedial margin of the talus of the right foot. It was recommended she wear a brace and conservative treatment was advised. 

3.       The insurer admitted liability on 8 December 2021. The claimant undertook physiotherapy and a report from her physiotherapist, Daniel Wainwright dated 5 April 2019 stated she was managing her duties well and the pain and swelling had improved, although she did have difficulty in climbing stairs. She subsequently commenced exercise physiology and on 23 July 2019 this treatment ceased. At that time, she complained of decreased pain levels, increase in strength, and ability to work pre- injury duties without issues. A review of Dr Kaplan on 21 August 2020 noted improvement post an injection to assist with pain. However, there was still tenderness of the hind foot on examination. Dr Kaplan noted, at that time the level of pain and function was acceptable to the claimant, but if it were to worsen, recommended an arthroscopy may be required. 

4.       The claimant was born in 1972 and is presently 51 years of age. At the time of the accident, she was working as a systems support officer for the Benevolent Society. At the teleconference on 2 August 2023, she confirmed she had a sedentary job, and her injury does not affect her ability to work. Her foot does become painful after driving a motor vehicle for more than one hour and becomes quite sore. When her foot becomes swollen, she takes codeine and voltaren. She has no difficulty in walking. 

5.       The parties agree the claimant is not entitled to damages for non-economic loss. She is entitled to damages for past and future economic loss. She advised me she wishes to accept the proposed settlement. The total amount of the settlement is $70,613 less statutory deductions. 

6.       I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application. 

7.       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). I have decided to approve the proposed settlement as submitted in this application.   

JURISDICTION OF THE PERSONAL INJURY COMMISSION (Commission) 

8. 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. 

9. 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.

10.     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. 

11.     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.  

12.     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 

13.     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. 

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

15.     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.  

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

17. 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 

18.     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. 

19.     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 2 August 2023 

20.     The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 2 August 2023. The claimant participated in person and the insurer was represented by Aimee Walsh. 

SHOULD I APPROVE THE SETTLEMENT 

21.     I am satisfied it is appropriate in this matter to assess damages for past economic loss including superannuation in the sum of $33,791 less statutory benefits of $24,373.10 and damages for future economic loss, by way of a buffer, in the sum of $36,822. The net amount payable to the claimant is $46,239.90. 

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