Insurance Australia Limited t/as NRMA Insurance v Bognar
[2023] NSWPIC 422
•21 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Bognar [2023] NSWPIC 422 |
| Claimant: | Tamas Bognar |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | David Ford |
| DATE OF DECISION: | 21 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 41-year-old rider of a motorcycle involved in a collision with the insured motor vehicle; insurer wholly admitted liability; sustained fracture to the great right toe and soft tissue injuries to lower back; claimant was a self-employed removalist but after the accident commenced landscaping business; no entitlement to non-economic loss; claim for past and future economic loss; 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
On the 11 September 2019 Tamas Bognar (the claimant) was riding his motorcycle through the intersection at O’Sullivan Road and Old South Head Road Bondi, when the motor vehicle being driven by the insured driver, made a right hand turn across the path of the claimant’s motorcycle, whereupon a collision occurred, and the claimant was thrown from his motorcycle onto the road and was injured.
The claimant did not attend hospital but managed to return to his home and later that day he saw Dr Vlad Zeldovich, who prescribed pain medication. Dr Veldovich also arranged for
X-rays of the claimant's right foot and pelvis, which subsequently disclosed an undisplaced fracture of the proximal phalanx of the great toe. The pelvic X-rays showed no abnormality. Subsequently, he complained of residual right hip and groin pain, as well as right sided lower back pain. He continued taking pain medication and had intermittent physiotherapy for approximately six months.The insurer admitted liability on 23 July 2021. The claimant was born in 1982 and is presently 41 years of age. At the time of the accident, he was a self-employed removalist and after his accident, because of his injuries and ongoing disabilities, he ceased this business and purchased a landscaping business. He arranges for a contractor to do the physical work and he is more involved in the administration of the business and restricts physical work to light duties only. But for the accident, he anticipated his removalist business would have become more profitable,
This matter previously preceded to a General Assessment conference before Member Medland on 26 July 2023. Following the hearing and before Member Medland published her certificate and reasons the claimant accepted the final offer made by the insurer.
The insurer arranged for him to be examined on a medical legal basis by Associate Professor (Dr) Shatwell, orthopaedic surgeon, and I refer to his report 23 March 2022. He has provided a comprehensive report. He carried out a physical examination of the claimant and viewed imaging reports. He recorded the claimant has limited himself to 40 hours per week it his gardening business. He confirmed the claimant suffered the following injuries:
(a) undisplaced fracture of the proximal phalanx of the right great toe, and
(b) soft tissue injury to the lumbar spine.
Dr Shatwell recorded at the present time, he has returned to his normal pre accident lifestyle activities, but still experiences intermittent pain in the lumbar spine, which believes will improve with the passage of time. He was of the view; it would be highly unlikely the claimant will require surgical treatment in the future. He assessed the claimant as having a whole person impairment of 0%. Accordingly, the claimant is not entitled to damages for non-economic loss. The claimant is entitled to damages for past and future economic loss.
The insurer made an assessment of the claimant’s pre accident earnings and these calculations are set out in detail in their submissions. The amount calculated for past economic loss was $52,246.88 and, the total tax paid on statutory benefits was $8,838. The insurer allowed an amount by way of a buffer for future economic loss in the sum of $100,000. Since he was self-employed there has been no allowance for either past or future superannuation. The amount of statutory payments made by the insurer is $31,889.77 which includes the tax paid on statutory benefits.
The claimant advised me he wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
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).
JURISDICTION OF THE PERSONAL INJURY COMMISSION (COMMISSION)
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.
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.
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.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
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
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.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
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.
I am satisfied the claimant is willing to accept the proposed settlement.
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
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.
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 16 AUGUST 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 16 August 2023. The claimant participated in person and the insurer was represented by Marti Samiya.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss in the sum of $52,246.88. Tax paid on statutory benefits is $8,838. Damages for future economic loss, by way of a buffer, in the sum of $100,000, The net amount of settlement monies payable to the claimant is $130,110.23.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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