Insurance Australia Limited t/as NRMA Insurance v Farhat
[2024] NSWPIC 504
•11 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Farhat [2024] NSWPIC 504 |
| CLAIMANT: | Tony Michael Farhat |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 11 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement; claimant riding a motor bike; liability wholly admitted; claimant seriously injured including spinal cord injury requiring fusion, head injury, pelvic injuries, right leg amputation; claimant had been retired; Held – settlement is just, fair and reasonable; within the likely potential damages assessment taking into account the nature and extent of the claim, the injuries and age of the claimant; accepted as a participant with the Lifetime Care and Support Authority of New South Wales. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $620,000. |
STATEMENT OF REASONS
INTRODUCTION
On 29 January 2024, Mr Tony Farhat (the claimant) was riding his motor bike in a northerly direction along Coronation Parade in Strathfield. At the same time, the insured driver entered the intersection at Dean Street and failed to give way before turning into the path of the motor bike.
Mr Farhat has made a claim against Insurance Australia Limited t/as NRMA Insurance (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Mr Farhat is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries. Mr Farhat has been accepted as a participant with the Lifetime Care and Support Authority of New South Wales.
Mr Farhat and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Farhat is not represented by a lawyer, his settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mr Farhat have agreed he is entitled to damages for non- economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 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 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 Mr Farhat, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr Farhat understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, police and ambulance reports, operation reports and clinical notes, medical certificates, investigation report, Power of Attorney and Appointment of Enduring Guardianship, comprehensive material from Royal North Shore Hospital and communications between the parties.
REVIEW OF THE EVIDENCE
Mr Farhat has recently turned 70 years old.
The ambulance attended the scene of the accident and after assessing his significant injuries, conveyed him to Royal North Shore Hospital where he underwent multiple emergency surgeries.
His injuries in summary included a thoracic spinal cord injury at T5/6; thoracic fusion for unstable T6-T8 fractures; right leg amputation; pelvic injuries; and closed head injuries.
Mr Farhat remains in the hospital and rehabilitation system and will require care and treatment for the rest of his life. He is confined to a wheelchair.
PROPOSED SETTLEMENT AND TELECONFERENCE
On receipt of the application of the proposed settlement agreement, I reviewed the documentation. Apart from treating medical evidence and the police and ambulance reports, there is very little other medical material.
A Power of Attorney and Enduring Guardianship are included in the material. I was informed the attorney would be participating in the preliminary conference.
There was no evidence to support the proposition the claimant lacked capacity.
After discussing my concerns with the insurer’s representative, the claimant and his attorney joined the conference. There were a few minor technical difficulties, however after Mr Farhat was moved to an outdoor area, the preliminary conference was able to be conducted.
I asked Mr Farhat if he understood the finality of the proposed settlement if approved and he confirmed he did. He also confirmed he understood he was entitled to legal representation but did not wish to engage a solicitor.
He said he was very happy with the offer of settlement and just wanted to move forward.
He confirmed he was being well cared for and that he was entitled to treatment and care for reasonable accident-related injuries for life.
Mr Farhat confirmed at the time of the accident he had been retired for many years. He told me he had cared for his parents and aunt for many years. He confirmed he understood he was not entitled to damages for economic loss.
I discussed with him the meaning of non-economic loss and that the proposed offer of $620,000 was compensation for this head of damage.
He told me he was very sad at what had happened to him and felt that the settlement would help him somewhat.
He further confirmed he had full trust and faith in the appointment of Dianah Farhat, his Power of Attorney and sister-in-law and that she had his best interest at heart. He told me the whole family have been a great support.
The settlement agreement had been signed by Dianah Farhat and the insurer. I was concerned that Mr Farhat had not signed this agreement. I asked him if he was prepared to sign the agreement which he confirmed he would.
I received the proposed settlement agreement signed by Mr Farhat and dated 28 August 2024.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that I should approve the proposed settlement offer.
Mr Farhat confirmed he wanted his claim to be resolved. I explained to him the meaning of non-economic loss including pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. When considering his age, questions of fact and degree, and matters of opinion, impression, speculation, and estimations and after the exercise of common sense and judgment as discussed in Dell v Dalton (1991) 23 NSWLR 528, I am satisfied the amount proposed of $620,000 is within the range.
I am satisfied Mr Farhat is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied that Mr Farhat is aware of his rights to have his reasonable treatment and care expenses paid for the remainder of his life.
I am satisfied Mr Farhat is happy with the amount he will receive in his hand being the full sum of $620,000.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessment if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Farhat.
I am satisfied Mr Farhat understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising from the accident. I am satisfied Mr Farhat is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Mr Farhat’s claim for damages in the sum of $620,000.
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