Habib v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Habib v AAI Limited t/as GIO [2021] NSWPIC 311
CLAIMANT:	Mamdouh Habib
INSURER:	AAI Limited t/as GIO
MEMBER:	Belinda Cassidy
DATE OF DECISION:	27 August 2021
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages claim; approval of settlement under section 6.23; claimant self-represented; settlement of $20,000 a compromise for possible past and future economic losses; claimant at time in receipt of Centrelink benefits due to previous physical and psychiatric conditions and not earning income in Australia; claimant had business interests overseas; medical evidence supported claimant sustaining injuries in car accident that may have impacted his ability to manage his businesses; no matters of principle; Held - proposed settlement approved in accordance with section 6.23.
DETERMINATIONS MADE:	1. The Claimant and the insurer have agreed to settle Mr Habib’s claim for the sum of $20,000. 2. The proposed settlement is approved in accordance with section 6.23 of the Motor Accident Injuries Act2017. 3. The reasons for the determination are included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 30 May 2019, Mr Mamdouh Habib (the claimant) was the driver of a motor vehicle that collided with another motor vehicle at or near an intersection in Auburn.
Mr Habib has made two claims against GIO (the insurer), the third-party insurer of the other vehicle:
(a) a claim for statutory (treatment) benefits[1], and
(b) a claim for lump sum compensation or damages[2].
[1] The application for statutory benefits is dated 7 June 2019 and is document A2 (pages 5-10 of the bundle).
[2] The application for common law damages is dated 5 February 2021 and is document A3 (pages 11-12 of the bundle).
GIO accepts it is the relevant insurer for the purposes of the statutory benefits claim and has been paying benefits to or on behalf of Mr Habib[3]. GIO has also accepted liability for the common law claim in a letter dated 26 May 2021[4].
[3] The liability notice relating to benefits after 26 weeks is dated 10 September 2019 and can be found at page 36 of the bundle of documents.
[4] The liability notice is document A4 (pages 13-14 of the bundle).
Mr Habib and GIO have agreed on the sum of $20,000 to settle the damages claim. Because Mr Habib does not have a lawyer representing him, the settlement must be approved in accordance with the relevant provisions of the Motor Accident Injuries Act2017 (the MAI Act).
On 19 August 2021, GIO referred the settlement to the Personal Injury Commission (the Commission) and the matter was referred to me. I have been provided with a bundle of documents comprising 424 pages which I have read.
I held a teleconference on 27 August 2021. Mr Habib answered a number of questions from me about the claim and his settlement. Mr Ian Izzard represented the insurer at that teleconference.
I have decided to approve the settlement.

LEGISLATIVE FRAMEWORK

Section 6.23 of the MAI Act says:
“(1)    A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(2)     A claim for damages cannot be settled unless—
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3)     The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Clause 7.38 of the relevant version of the Motor Accident Guidelines (the Guidelines) says that in considering the settlement I must consider whether:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the MAI Act;
(b) 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 (member of the Commission), taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

REVIEW OF THE EVIDENCE

The accident

Police did not attend the accident scene however a report from NSW Police has been put before me[5] following a report made on 3 June 2019. It records:
(a)    the accident occurred on 30 May 2019 at about 9.15pm;
(b)    the claimant was injured;
(c)    the airbags did not deploy in his vehicle, both vehicles sustained some damage but they were not towed, and
(d)    Mr Habib was driving a Toyota Kluger. The other vehicle was a Volkswagen Golf.
[5] The date of the report is 5 September 2019 under cover of a latter dated 6 September 2019 and is identified as document A9 in the bundle.
An invoice from a motor vehicle repairer suggests the total cost of the repairs to the claimant’s Kluger was $205.61[6]. Photographs were included with the invoice suggesting the damage to the Kluger was not significant.
[6] The document is identified as A10.
Ambulance personnel did not attend the accident. Mr Habib drove home and did not attend hospital. He first attended on his GP, Dr Ibrahim on 3 June 2019 due to increasing pain in his elbow and hip as well as an exacerbation of his lower back pain[7].
[7] A good history was obtained by Medical Assessor Alan Home in his determination dated 27 March 2020 [A12].
The claimant departed Australia and was in Egypt attending to business matters between July 2019 and December 2019 and had some treatment while he was there.

Previous accidents and pre-accident history

The insurer has provided in the bundle of documents, clinical notes from the claimant’s general practitioners[8] and a copy of a file from Zurich Insurance. These records and the histories provided by Mr Habib in this matter document the following:
[8] Greenoaks Medical Centre is identified as A20 and Masnad Health Clinic is A21.
(a)    a workers compensation claim in 1986 for groin and lower back injury;
(b)    a motor vehicle accident in 1986 resulting in neck and back injuries;
(c)    chronic PTSD following incarceration overseas between 2001 and 2005;
(d)    A motor vehicle accident in 2009 resulting in injuries to the right shoulder, right ankle and lower back;
(e)    a motor vehicle accident in December 2010 causing right heel and left knee problems;
(f)    an injury on an airport bus in 2011 causing lower back and knee pain;
(g)
a motor vehicle accident in 2012 causing neck, bilateral arm, wrist and lower back injuries. This was the subject of the claim against Zurich.

Mr Habib was represented in that claim, I note his wife was with him and had to be cut out of the vehicle, she and the claimant were taken to hospital and his Toyota Kruger was written[9];
(h)    a motorbike accident in Thailand in 2014 resulting in a right shoulder injury, and
(i)    chronic Achilles tendinopathy since 2016.
[9] This history is contained in many of the documents including the report of Dr Lew Periedes dated 26 February 2014.

Particulars of injury and losses

Particulars of Injury

In section 3 of his claim form, Mr Habib identified injuries to his right elbow, right hip, right shoulder, right ankle and that he suffered from anxiety.
In a letter to GIO providing particulars of his claim[10] Mr Habib restated these injuries adding right knee, lower back pain, Post Traumatic Stress Disorder, itchy skin and depression.
[10] Document A5 pages 15-21 of the bundle.
Mr Habib confirmed at the teleconference that he had some previous problems from ‘so many accidents, none were my fault’. He said he was well and had no ongoing pain in his body before the accident. He said he was able to jog and train for up to six hours at a time (which he did to make him sleep at night and control his anxiety).
Mr Habib said at the teleconference that he has psychological problems, that he was sick and that he had ‘different issues all over my body’. He said he could not afford a doctor. He said when he had the car accident ‘my legs and my arms can’t do anything’ and that this caused him ‘more stressing’.

Particulars of loss of earnings and earning capacity

Mr Habib completed an application for statutory benefits on 7 June 2019[11]. At section 7 he indicated he had not been away from work, he was unemployed and that he was in receipt of a Centrelink Disability Support Pension. I understand this is financial assistance from the Commonwealth Government paid to someone who has a permanent illness or condition that stops them from working. Mr Habib has provided a copy of his pension card[12], his heavy vehicle driver license[13] and his certificate of citizenship[14].
[11] See document A2, page 9 of the bundle.
[12] Page 84 of the bundle issued on 9 March 2018 and expires on 30 June 2020.
[13] Page 85 of the bundle. The license has no start date but is due to expire on 15 February 2026.
[14] Dated 18 April 1984 and found at pages 86-87 of the bundle.
Mr Habib has told various doctors he has been in receipt of the Disability Support Pension since at least 2016 for his pre-accident conditions. I note an entry in his GP records on 6 February 2019 suggests forms relating to this may have been completed at that time[15].
[15] A note from Dr Ebrahim refers to ‘centreling [sic] forms reviewed and completed’.
Mr Habib told me at the assessment conference that he received money from the government, from Centrelink and that he had an important case in the Egyptian Courts related to his period of imprisonment. He said this case had been going on for some time. He said he would spend time in Australia, receiving benefits and then travel to Egypt. While overseas he said the Australian Government did not pay him benefits. In order to survive he started a business in Egypt and took money out of the business to live and to pay for his court-related expenses. He made it clear to me that he did not physically work in the business but that he ‘directed’ people to work.
Mr Habib said he had taxation returns from Egypt proving what he earned and what he paid in tax before the accident. He said he had been unable to work at all in Egypt after the car accident because his ‘legs and arms did not work’ and because of his ‘psychological problems’.
In his particulars, Mr Habib claims a loss, while overseas, between July and December 2019 in the sum of $67,000.
In his particulars, Mr Habib also appears to claim travel expenses totalling $21,503.47. I have been provided with details of business class air tickets and travel insurance[16].

I note the tickets were purchased before the accident, on 25 May 2019 and the insurance was purchased afterwards, on 17 June 2019. It is unclear to me, and

Mr Habib did not explain, how this related to the accident.
[16] Pages 86-87 of the bundle.
In an email to GIO dated 12 July 2021[17] Mr Habib said while he was in Egypt after the accident he was admitted to a private hospital with ‘severe anxiety plus my arm’ and that his business is not running due to the accident.
[17] Pages 88-89 of the bundle.
I have also been provided with the claimant’s 2013 taxation return and the claimant’s response to an email from the insurer suggests he has not lodged a taxation return in Australia since then.
The claimant told me at the teleconference that he was paid a multi-million dollar sum to settle the case related to his incarceration and that he invested this in his business. In his particulars he says he has two businesses – the Chinese massage business in Egypt and involvement in a hospital sale and purchase business in Turkey.
In terms of the Chinese massage business Mr Habib has provided certificates from the Livewell Clinic and the Praying Mantis Academy dated September 2013 which suggests he has qualifications in these areas[18].
[18] Pages 75 and 76 of the bundle.
In relation to the Turkish business, I have been provided with a number of documents in Arabic which have been interpreted. In his particulars, Mr Habib says this business was established in 2014 but the agreement was not registered until the end of 2019 and that he would have earned $7,000 US per month plus travelling expenses.

Medical evidence

Dr Nazareena Ebrahim completed the certificate of capacity dated 19 June 2019[19]. The doctor diagnoses medial epicondylitis following an examination on 3 June 2019. Doctor Ebrahim also says that Mr Habib ‘developed R hip pain and elbow pain after MVA’ and that he had ‘other unrelated medical issues affecting capacity for work’.
[19] Pages 26-27 of the bundle.
Dr Ebrahim has provided a short report dated 29 January 2020[20] which advises that

Mr Habib told her he developed right knee pain after a few weeks and right shoulder pain which have been ongoing issues for him.
[20] Page 42 of the bundle.
A further certificate from Dr Ebrahim dated 24 February 2021 mentions the right elbow and right hip (does not mention the right knee or shoulder) and suggests the development of anxiety /insomnia and flashbacks and a recurrence of a skin condition ‘usually associated with trauma’.
There is also a translation of a report from Dr Abel Hamid Ahmed Abdel Fatah dated

23 November 2019[21] which says:
“When conduc[t]ing the medical examination … it was found that he suffer[s] from anxiety phobia that results in status of the horror, during which he needs sedative drugs, until end of the status of the horror that may extend to days, during which he suffers from the urge incontinence, vomit and shortness of breath.”
[21] The original is at page 41, the translation is at page 40.
Mr Hanan Dover a clinical and forensic Psychologist provided a report to Dr Ebrahim dated 15 June 2020. He notes Mr Habib has ‘sustained additional physical and psychological injuries to the pre-existing injuries as a result of the MVA’. Mr Dover has also provided handwritten answers to a number of questions[22] which acknowledge the claimant’s pre-existing trauma and depressive symptoms before the accident but states these have been elevated and increased since the accident.
[22] The report and the handwritten documents are A16 and A17 at pages 184-186 of the bundle.
The insurer had the claimant examined by three experts:
(a)    Dr Baron-Levi on 2 November 2010[23]. Dr Baron-Levi records that according to the claimant anxiety was the major issue for him after the accident and that he had panic attacks at night and could not sleep. Dr Baron-Levi takes a detailed history of the claimant’s imprisonment and his treatment following his return to Australia. He formed the view that the Claimant could return to work two days a week to begin with and that his current psychological symptoms were not very different from those reported before the accident;
(b)    Dr Keller on 31 May 2021[24]. Dr Keller expressed the view that Mr Habib did not have any injuries that had caused a permanent whole person impairment. Dr Keller did support a diagnosis of minor musculoskeletal strains and aggravations of pre-existing arthritic and degenerative changes. He supported the treatment that had been provided but thought the claimant had no physical restrictions with regards to work, and
(c)    Dr George Graham on 17 June 2021[25]. Dr Graham acknowledged the claimant’s lengthy period of incarceration and the impact this has had on him noting that according to the claimant he has not slept well since his imprisonment. Dr Graham supports Dr Baron-Levi’s conclusion that the claimant has a complex posttraumatic stress disorder linked to his experiences in Guantanamo Bay but that he does not have any additional psychological injury caused by the accident. Dr Graham considered that, from a mental health perspective, the claimant could work if he was motivated to do so.
[23] A15 at pages 169-183 of the bundle.
[24] A13 at pages 147-155 in the bundle.
[25] A14 at pages 158 -168 in the bundle.
A dispute about ‘minor injury’ arose during the course of Mr Habib’s statutory benefits claim and Medical Assessor Alan Home determined that matter in the claimant’s favour[26]. While Medical Assessor Home certified the claimant sustained an aggravation of a pre-existing lower back condition, a temporary aggravation of a chronic Achilles complaint and temporary aggravation of a condition in his right knee and that these were minor injuries, Dr Home found that Mr Habib sustained a tear within a degenerative flexor tendon structure which was not a minor injury.
[26] Medical Assessor Home’s certificate is dated 27 March 2020 following an examination on 23 March 2020. It is document A12 at page 43 of the bundle.
Medical Assessor Home noted in the history which he took from the claimant:
(a)    lower back pain for many years treated with analgesia and exercise;
(b)    right shoulder pain since 2014 following a fall from a motorbike in Thailand treated with physiotherapy;
(c)    chronic history of Achilles tendinopathy since 2016 which responded well to corticosteroid injection, and
(d)    the claimant had received the Disability Support Pension and was unable to work since 2016 due to his medical complaints.
Mr Habib complained of:
(a)    right elbow pain with difficulty gripping and lifting;
(b)    numbness and swelling in his right hand over the last few months;
(c)    progression of right shoulder pain over the last three to four months;
(d)    intermittent, mainly right sided lower back pain with radiation into the thighs;
(e)    intermittent numbness in his right toes;
(f)    intermittent sharp pain in the right knee with limited walking tolerance;
(g)    pain in his right ankle in the region of the Achilles tendon and difficulty crouching and stair climbing, and
(h)    sleep disturbance.
Medical Assessor Home reviewed the radiology and medical reports and determined that Mr Habib did sustain injuries to his lower back (soft tissue aggravation), right elbow (tendinopathy superimposed upon degenerative changes), right knee (aggravation of underlying degenerative changes which were already symptomatic) and right ankle (aggravation of the pre-existing Achilles tendon problem).
At the assessment conference, Mr Habib complained about the insurer’s doctors. Amongst other things he had wanted his examinations to be recorded and wanted proof of any recordings. He said these reports contained lies and inaccuracies.
Mr Habib did however accept the findings of Medical Assessor Home saying he was a ‘respectable person’ and an ‘honourable doctor’. Mr Habib had no issue with the way he was treated by Medical Assessor Home.

SHOULD I APPROVE THE SETTLEMENT?

Mr Habib’s accident occurred more than two years ago. There is no medical evidence to suggest his accident-related injuries have not resolved or stabilised. Mr Habib concedes he has no entitlement to non-economic loss.
The insurer has provided submissions[27] which note the sum of the settlement is $20,000. That is a sum which the insurer says, ‘reflects a reasonable compromise for any economic loss in the past or future in circumstances where a financial loss cannot be quantified with any degree of precision or certainty’.
[27] Document A1 pages 1-4 of the bundle.
Mr Izzard confirmed at the teleconference that there are no deductions from the agreed sum as Mr Habib has not been paid any weekly benefits for loss of income. Treatment and care benefits are not deducted because under section 4.5 of the MAI Act no damages can be awarded for past and future treatment expenses.
I explained to Mr Habib that his statutory benefits claim continues and that GIO is responsible for paying for any reasonable and necessary treatment and care so long as it is related to the injuries sustained in the accident. I also explained to Mr Habib that once his damages claim is settled and approved, he cannot claim any further lump sum. I explained that if he did not want to settle the claim the next step was to have the claim assessed.

Mr Habib told me during the course of the teleconference that he had tried to negotiate a higher sum with the insurer but that GIO would not agree to this. Mr Habib said many times that he had ‘no choice’ but to accept the settlement offer, that he was ‘desperate to leave’ Australia and that he ‘can’t afford to stay’ and must go to Egypt to pursue his litigation and deal with his business. Mr Habib said that he was under threat of arrest in Egypt if he did not return, that he needed to pursue his case in court and that he was leaving to travel to Egypt soon. He said he needed the settlement monies to help him return to Egypt.
Mr Habib told me that while he had a solicitor acting for him in relation to the claim he made against Zurich, he could not afford to have a solicitor acting for him in this claim.
The evidence from the claimant’s treating doctors demonstrates that the claimant had many physical problems before the accident including problems affecting many of the parts of his body the claimant says were injured in May 2019.
The evidence from the claimant’s treating medical practitioners suggests Mr Habib had a significant psychological condition (chronic PTSD) before the accident. He has also had significant stress with a court case in Egypt that dates back to before the accident. His GP notes include many entries suggesting Mr Habib had other stressors, trouble sleeping and has that he had a stress related skin condition.
However, the treating medical evidence and Medical Assessor Home’s determination supports a case that Mr Habib sustained some injury in the 30 May 2019 accident.
The claimant stated in the application for statutory benefits that, at the time of the accident, he was in receipt of the Disability Support Pension and was unemployed. There is certainly no evidence presented to me to suggest the claimant was undertaking physical or supervisory director type work and earning income in Australia before this accident. On that basis, it may have been difficult for Mr Habib to sustain any claim for past or future loss of earnings or earning capacity.
Mr Habib has presented many documents and given evidence which is general and lacking specifics. He has been unable to present any coherent submission or documentation as to his actual monetary losses in Egypt or Turkey and that they relate to the accident (as opposed to his pre-accident conditions).
However, noting the findings of Medical Assessor Home and accepting Mr Habib’s evidence at the teleconference that he had business interests outside Australia, it is arguable that these business interests may have been impacted by the injuries he sustained in the accident.
Noting the difficulties Mr Habib would have had proving causation of his losses, the offer by the insurer for a ‘buffer’ of $20,000 is an offer within the range of damages the claimant would likely be awarded were his matter to proceed to an assessment of damages before the Commission.

CONCLUSION

As it is now more than two years since Mr Habib’s accident, I am satisfied that the timing requirements of s 6.23(1) of the MAI Act and clause 7.38(a) of the Guidelines are met.
I am also satisfied that Mr Habib understands the nature and effect of the settlement in accordance with clause 7.38(c) of the Guidelines. In particular, I am satisfied that

Mr Habib understands that this settlement will bring his damages claim to an end.
Finally, I am satisfied that the proposed settlement figure of $20,000 is an appropriate one and that it complies with the requirements of clause 7.38(b) of the Guidelines, in that it is:
“… just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant…”
Accordingly, pursuant to s 6.23 of the MAI Actthe proposed settlement of Mr Habib’s claim for damages is approved.

Belinda Cassidy

Member (Motor Accidents Division)
Personal Injury Commission

[2021] NSWPIC 311

27 August 2021