Insurance Australia Limited t/as NRMA Insurance v Hanna
[2023] NSWPIC 343
•11 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Hanna [2023] NSWPIC 343 |
| Claimant: | Ramzia Hanna |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | David Ford |
| DATE OF DECISION: | 11 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor accidents settlement approval; claim for damages pursuant to Compensation to Relatives Act 1897 following the death of the claimant’s husband who was fatally injured in a motor vehicle accident; at the date of the accident the claimant and the deceased husband were married and residing together; no allegation of contributory negligence; settlement comprised funeral expenses, past and future loss of financial services; Held – the proposed settlement is just, fair and reasonable; this proposed settlement is approved under section 6.23 (2)(b) of the Motor Accident Injuries Act 2017. |
determinations made: | CERTIFICATE OF DETERMINATION DETERMINATIONS MADE 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
The claimant has made a claim for damages pursuant to the provisions of the Compensation to Relatives Act 1897 following the death of her husband, the late Kamil Mikha, who was fatally injured in a motor vehicle accident on the 27th of January 2022
Mr Mikha was driving his motor vehicle along Prairie Vale Road towards Restwell Road at Wetherill Park when the motor vehicle being driven by the insured driver, crossed over to the incorrect side of the roadway and collided head-on with the vehicle being driven by Mr Mika. Mr Mika sustained fatal injuries in the accident.
The claimant’s son, Feras Mikha is the authorised representative in the claim. Mr Mika was 79 years of age as at the date of the accident and was retired.
On the 29th of March 2022, the claimant lodged an Application for Compensation to Relatives. The insurer wholly admitted liability and there was no allegation of contributory negligence made.
The claim is for out-of-pocket expenses, Being funeral expenses and past and future loss of financial services. It is proposed the insurer will pay to the claimant the sum of $105,000 less payments made to date being funeral expenses, memorial and wake services totalling $23,331.,..
The total amount of this settlement is $105,000 which comprises the following heads of damage.
a funeral expense $23,321
b past loss of financial services $11,904
c future loss of financial services $67,385
Subtotal $102,620.
Rounded up to $105,000.
The insurer confirmed it will not deduct any amount for Centrelink or Medicare Australia from the agreed settlement monies.
The balance of the settlement is $81.669, and it is agreed this amount will be paid to the claimant.
She instructed her son, Ferris Mika to represent her at the teleconference and he advised me the claimant wishes to accept the proposed settlement.
10. I have decided to approve the proposed settlement as submitted in this application.
11. 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). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
12. The Personal Injury Commission (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.
13. 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 clause 14 (D) empowers me to determine those proceedings.
14. 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.
15. The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
16. 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
17. 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, taking into account the nature and extent of the claim.
18. I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
19. 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.
20. I am satisfied the claimant is willing to accept the proposed settlement.
21. 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
22. 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.
23. 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.
TELECONFERENCE 23 May 2023
24. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 23rd May 2023. The claimant participated in person and the insurer was represented by Laura D’Alessandri.
25. The amended proposed deed of release was subsequently lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
26. I am satisfied it is appropriate in this matter to assess damages in the sum of $105,000 less payments made to date totalling $23,331.
27. 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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