Insurance Australia Limited t/as NRMA Insurance v Hill

[2023] NSWPIC 59

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Insurance Australia Limited t/as NRMA Insurance v Hill [2023] NSWPIC 59

Claimant:

Stephen Hill

insurer:

Insurance Australia Limited t/as NRMA Insurance

Member:

Hugh Macken

DATE OF DECISION:

15 February 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; non-economic loss; financial records; economic loss; claimant is a 62-year-old butcher who was injured in an accident which was caused by the negligence of the insured; underwent a microdiscectomy and spinal fusion; assessed having a whole person impairment of 14%; Held – the amount of the claim for damages is approved in the total amount of $270,000.

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 $270,000.

STATEMENT OF REASONS

Background

1. The claimant was injured in a motor vehicle accident which occurred on 6 October 2020.
2. The claimant is not represented by an Australian Legal Practitioner.
3. The matter had a preliminary conference on 1 February 2023 which proposed a settlement figure of $200,000. The matter was not approved at that time and the parties sought further time to continue discussions. The matter has now come back for approval in the sum of $270,000. This is an increase on the original proposal of $20,000 for non-economic loss as well as, most importantly allowing a buffer for future economic loss in the sum of $50,000. I note that the calculation of past economic loss of $20,000, which I consider appropriate, was not altered.

Documents Considered

4. I have considered all the documents together with the revised offer of settlement, amended settlement agreement and business and tax records.

Reasons

5. The claimant is a 62-year-old butcher who was injured in an accident which was caused by the negligence of the insured. In April 2021 he underwent a microdiscectomy and spinal fusion. He was assessed having a whole person impairment of 14%. Noting the injuries and disabilities this gives rise to I consider the proposal of $200,000 for non-economic loss, particularly noting his age, to be appropriate in all the circumstances.
6. Whist there is medical material to show that the claimant suffered some pre-existing financial problems the insurer also was reliant upon accounting material and documentation which essentially shows that the business in which the claimant was operating was not earning any money and was not providing him with a significant income nor was it likely to.
7. Notwithstanding that, I form the view, and still hold the view that the claimant’s injuries will impair his capacity to work as a butcher, even a supervising butcher, noting he is requiring additional times away from the workplace which he manages.
8. The report of PKF Accountants dated 13 April 2022 does not, in my view, make a reasonable allowance for impaired earning capacity for the claimant noting the numerous factors associated with the downturn in business suffered by the claimant following the accident particularly those associated with the covid lockdown. In my view the claimant’s business may return to some profitability but it is likely to be slightly less so as a result of the claimant’s injury.
9. In these circumstances I consider that a relatively small buffer for future economic loss, noting his age, is appropriate in the circumstances. The allowance of $50,000 as a buffer for the loss of earning capacity suffered by the claimant is, in my view, as appropriate figure noting the totality of the medical evidence (including pre-existing medical problems) as well as the fairly modest income which the claimant’s tax returns show him as earning and also noting his ongoing capacity to work as a supervisor in his business.
10. Noting all the factors, and in the increase of $70,000 on the original agreement made between the parties, I have no hesitation in approving this settlement.

Legislation

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

Motor Accident Injuries Act2017 (NSW) (“the Act”)