Insurance Australia Limited t/as NRMA Insurance v Tamus
[2023] NSWPIC 345
•13 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Tamus [2023] NSWPIC 345 |
| Claimant: | Joseph Tamus |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | David Ford |
| DATE OF DECISION: | 13 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor accidents settlement approval; 93-year-old male pedestrian; attempting to cross the road in front of oncoming vehicle but did so unexpectedly and failed to cross the road at a marked pedestrian crossing controlled by traffic lights a short distance away; sustained serious injuries to cervical spine and hip; insurer alleged contributory negligence at 40%; determined damages should be reduced by the percentage of contributory negligence alleged by the insurer; insurer conceded claimant entitled to damages for non-economic loss; 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 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 26 May 2021, the claimant was a pedestrian and was attempting to cross Marsden Rd, near the intersection with Victoria Rd at West ride. The intersection at Marsden Rd and Victoria Rd is controlled by traffic lights, however the claimant chose not to cross at the intersection, but rather unexpectedly, ran from the eastern curb of Marston Rd whereupon he was struck by the insured vehicle. Police and ambulance attended the scene of the accident.
The claimant sustained serious injuries and was taken by ambulance to Royal North Shore Hospital where he underwent a C3 -T3 posterior decompression and fusion with graft from iliac crest on 27 May 2021. He was subsequently discharged from the hospital on
9 June 2021 to Hirondelle Hospital for rehabilitation. He was discharged from there on
23 July 2021 and returned to his home.
As a result of the accident, he sustained the following injuries:
(a)C6-C7 anterior dislocation.
(b)superior / inferior pubic Rami fractures, and
(c)sacral alar fracture.
I have viewed CCTV footage of the accident, and I agree with the facts as stated in the police report dated 16 June 2021, that the claimant, did unexpectedly run from the eastern curb of Marsden Rd into the path of the oncoming insured vehicle. The driver of the insured vehicle did apply his brakes but was unable to avoid colliding with the claimant.
The insured issued a notice admitting liability for common law damages but alleged contributory negligence on the basis the claimant failed to take appropriate care for his own safety while crossing a roadway near the marked pedestrian crossing at the said intersection of Marsden Rd and Victoria Rd. The insurer alleged contributory negligence of 40%.
During the second preliminary conference on 21 June 2023, I discussed the issue of contributory negligence with the claimant and his authorised representative, Anna Maria Tamus, daughter of the claimant. After such discussions, the claimant agreed the percentage of contributory negligence alleged by the insurer at 40% was appropriate in all the circumstances. After having viewed the CCTV footage and having read the report from M and A investigations, commissioned by the insurer, (document R11) I find the allegation of contributory negligence at 40% is both reasonable and appropriate in the circumstances of this accident.
The claimant was born in 1929 and is presently 93 years of age. He is retired.
The insurer conceded the claimant is entitled to damages; he has a claim for non-economic loss only. The insurer has proposed a settlement offer of $126,000.
The claimant advised me he wishes to accept the proposed settlement.
10. I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed 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 cl 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 he 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 he 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 he 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.
Preliminary conference on 24 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 24 May 2023. The claimant participated in person and the insurer was represented by Annie Arnott.
25. Further documentation was lodged on the portal by the solicitor for the insurer as requested by me and I confirm I held a further preliminary conference on 21 June 2023.
SHOULD I APPROVE THE SETTLEMENT
26. I am satisfied it is appropriate in this matter to assess damages in the sum of $126,000.
27. Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
0
0
0