Insurance Australia Limited t/as NRMA Insurance v Hills

[2023] NSWPIC 131

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Insurance Australia Limited t/as NRMA Insurance v Hills [2023] NSWPIC 131

Claimant:

Ian Hills

insurer:

Insurance Australia Limited t/as NRMA Insurance

Member:

David Ford

DATE OF DECISION:

24 March 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 75-year-old male; injured whilst riding a motorcycle suffered multiple abrasions and severe injury to right shoulder resulting in a right reverse shoulder arthroplasty with glenoid bone graft; still suffers from continual discomfort and restriction of movement of the shoulder; entitled to damages for non-economic loss and past economic loss; Held – the proposed settlement is just, fair and reasonable; the proposed settlement is approved under section 6.23(2)(b).

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.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant was riding his motorcycle along Lauderdale Ave at Fairlight towards Manly on the 9th of December 2020. As he approached the intersection with Rosedale Ave, the motor vehicle being driven by the insured driver came directly at the claimant and in an effort to avoid a collision, under heavy breaking, he collided with the pedestrian reservation in the centre of the road sustaining serious injuries. The insured driver initially stopped and observed the claimant injured and sitting in the middle of the road. but then decided to leave the scene of the accident. The claimant was taken by ambulance to Northern Beaches Hospital.

2. At the hospital, the claimant was observed to have suffered multiple skin abrasions to both hands, both knees, both elbows, bruising to the left thigh and bruising to both shoulders.

3. He subsequently came under the care of Dr Marcus Chia, orthopaedic surgeon, who. performed surgery on the claimant on the 2nd of August 2021, when he underwent a right reverse shoulder arthroplasty with glenoid bone graft. At the teleconference, he stated that he did not have a full recovery with the use of his right arm after the surgery and still suffers from continual discomfort in the right arm and shoulder. He can only raise his right arm to 45 degrees.

4. The claimant was born in 1947 and is presently 75 years of age. At the time of the accident, he was working on a casual basis as a Courier driver delivering meals for his employer. He was working on a casual basis; this employment ended in July 2022 and he is now retired from all forms of employment The claimant advised me he wishes to accept the proposed settlement.

5. The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss and past economic loss.

6. I consider the settlement is appropriate in all the circumstances of this case.

7. 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

1. The Personal Injury 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.

2. 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.

3. 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.

4. 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.

5. I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.

6. 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

1. 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, the injuries, disabilities and impairments sustained by the claimant.

2. I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.

3. I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.

4. I am satisfied the claimant is willing to accept the proposed settlement.

5. 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

1. 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.

2. 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 the injuries, disabilities, impairments and losses sustained by the claimant, 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 22^nd March 2023

1. The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 22^nd March 2023. The claimant participated in person and the insurer was represented by Vicki Zogopoulos.

2. The proposed deed of release was lodged on the portal together with the application for approval of the settlement.

SHOULD I APPROVE THE SETTLEMENT

1. I am satisfied it is appropriate in this matter to assess damages for non-economic in the sum of $210,000. Damages for past economic loss in the sum of $5000. The total amount proposed is $215,000 less deduction of statutory benefits paid in the sum of $1,985.94, results in a nett payment to the claimant in the sum of $213,014.06.

2. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.