GIO v Dowd
[2022] NSWPIC 61
•4 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | GIO v Dowd [2022] NSWPIC 61 |
| CLAIMANT: | Grant Dowd |
| INSURER: | GIO |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 4 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; non-economic loss; pre-accident weekly earnings; provision of buffers; non-representation; Held - the amount of the claim for damages is approved in the total amount of $368,913.19. |
| DETERMINATIONS MADE: | The amount of the claim for damages is approved in the total amount of $368,913.19. |
Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
Background
The motor accident the subject of this claim occurred on 19 November 2018, which is more than two years after the date of the motor accident.
The claimant is not represented by an Australian legal practitioner.
The claimant has confirmed in correspondence dated 23 December 2021 that he would accept $365,058.62.
After some discussions at a telephone conference with the insurer and the claimant and noting that the matter is now the subject of a revised offer which increases past economic loss allowance from a buffer of $75,000 to a figure which correlates precisely with the payments made by the insurer of $78,913.19, the proposed settlement figure is now, having been previously agreed in the sum of $365,000 is now $368,913.19.
This modest increase of some $3,913.19 means that the allowance for past economic loss mirrors precisely the payments made for past wage loss by the insurer which had been a concern and impediment to my approving the settlement the reasons for which I outlined at the preliminary conference. These primarily relate to the allowance of past economic loss which was less than that paid by the insurer for past economic loss thereby requiring the claimant to make up the difference from compensation for non-economic or future economic loss.
Documents Considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Reasons
The claimant is a 37-year-old man who was injured in a motorcycle accident on 19 November 2018. The insurer has admitted breach of duty of care on the part of its insured.
The insurer conceded the claimant’s injuries give rise to a whole person impairment which exceeds the statutory threshold. The figure agreed between the parties for non-economic loss is $240,000.
The remaining heads of damage include the past economic loss of $78,913.19 together with a buffer for future economic loss in the sum of $50,000.
10.Dealing with the matter of non-economic loss I have no hesitation in considering this as an appropriate figure for non-economic loss. The claimant suffered an injury to his cervical spine and his right knee. He suffered some dental injury and may require some further surgical procedures.
11.In regard to his injuries, he is stoic. He stated that the fracture of the C7 spinous process causes him some discomfort, but he has learned to live with it. The commuted fracture to the right patella still troubles him somewhat but he is aware of the need for ongoing support, and it may require some further surgical treatment. His dental injuries have settled.
12.The claimant has said at the telephone conference that his accepting of his injuries and they provide him with some ongoing discomfort but was resolute in his determination to resolve the matter and, as he states succinctly, “he wants to move forward with his life.”
13.In respect to the future economic loss the claimant has been employed in the NSW Public Sector and remains so. He has resumed his pre-injury duties and whilst he may require intermittent periods off work, particularly should he require any further surgical treatment, there is no material to suggest that his most likely future circumstances, but for his injuries, have changed consequent on them.
14.Noting the more than adequate allowance for non-economic loss, the provision of past economic loss which will be deducted by the insurer and the appropriate buffer for future economic loss I have no hesitation in approving this settlement.
Legislation
15.In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act2017 (NSW) (“the Act”)
Hugh Macken
Member (Motor Accidents Division)
Personal Injury Commission
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