Insurance Australia Limited t/as NRMA Insurance v BFT

[2023] NSWPIC 251

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Insurance Australia Limited t/as NRMA Insurance v BFT [2023] NSWPIC 251

Claimant:

BFT

insurer:

Insurance Australia Limited t/as NRMA Insurance

Member:

Hugh Macken

DATE OF DECISION:

23 May 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $149,841; claimant the daughter of the deceased involved in fatal motor accident; compensation to relatives action; domestic assistance; economic loss; contributory negligence; voluntary assumption of risk; section 6.23; Held – the proposed settlement is just, fair and reasonable; settlement approved.

determinations made:

SETTLEMENT APPROVAL

Issued under section 6.23 of the Motor Accident Injuries Act 2017

The amount of the claim for damages is approved in the total amount of $149,841.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant is the daughter of the late BDY and brings this claim as a compensation to relatives action on her behalf and on behalf of her younger sister, BGQ and BHO, all of whom are over the age of 18. BFT is self-represented in these proceedings.

2. The settlement figure is based on a loss of financial support for the past of about $76,700, for the future of about $40,222 as well as some loss of domestic services for the past and future. The total assessment, with which I agree, is $214,058.

3. This figure is reduced by 30% for contributory negligence giving rise to a total settlement amount of $149,841.

Reasons

1. I agree with the calculation of the figures in respect to this matter. The deceased was on Centrelink benefits at the time of her death and had been for over 10 years prior to this for a heart condition. She provided some financial support and domestic assistance to the children which is fairly reflected in these figures. I note that BFT obtained assistance from a financial advisor in respect to the calculation of the loss of financial support. I note the calculations in respect to the future domestic services provide for ongoing domestic assistance at 6 hours per week at $45 per hour until BHO, the youngest of the children on whose behalf the claim is brought, turns 25. This is absolutely appropriate and is reflective of a calculation which could be reasonably considered to be at the “higher end of the scale”.

2. The matter relating to contributory negligence is somewhat uncertain. The material, including forensic and expert material, certainly supports the contention that the driver of the vehicle in which the deceased was travelling was affected by substances at the time of the accident to the extent that there would have been an impairment of his driving ability. I note there is material to support that the deceased knew that the driver was affected by drugs and that accordingly she knew, or ought to have known, that his ability to drive was affected. The insurer originally submitted that a finding of contributory negligence ought to be 50%. They revised this figure down to 30%. I agree that a finding of contributory negligence of 30% is appropriate in respect to this matter. Whilst the consequences of the accident were both catastrophic and tragic this does not alter the need to dispassionately assess the role of the deceased in putting herself in a position of danger when she knew or ought to have known, that it was unsafe to be a passenger in a vehicle driven by the insured driver.

3. Noting all the material, and the emphatic expression of intent from BFT that this settlement be approved and the deceased’s children be able to move on with their lives, I have no hesitation in approving the proposed settlement of this matter.

Legislation

1. In making my decision I have considered the following legislation and guidelines:

   ·        Motor Accident Injuries Act2017, Section 6.23 (3)

   ·        Motor Accident Injuries Regulation 2017, Section 7.37