Insurance Australia Limited t/as NRMA Insurance v Willson
[2022] NSWPIC 491
•1 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Willson [2022] NSWPIC 491 |
| Claimant: | Jarrod Willson |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | David R. Ford |
| DATE OF DECISION: | 1 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - settlement approval; 51 year old male; rider of a motorcycle involved in a collision with an unidentified motor vehicle; sustained fracture of the scapular blade inferior to the glenohumeral joint of the left shoulder; fracture of the eighth rib; multiple abrasions; no allegation of contributory negligence; insurer conceded claimant entitled to damages for past and future economic loss but no entitlement to damages for non-economic loss; Held – The proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017. |
| determinations made: | 1. The proposed settlement is approved under section 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
On 28 December 2019 the claimant was riding his Suzuki motorcycle in a north-westly direction on Bungalow Road, Ballymena. As the claimant has ridden his motorcycle towards a concrete roundabout at the intersection of Angels Beach Drive, the road forks into two lanes and the claimant continued to travel northwest in the second lane closest to the centre of the roadway.
As the claimant was commencing to travel through the roundabout on Bangalow Road, the driver of an unknown motor vehicle, being a grey hatchback, merged from the left lane without warning or indicating and collided with the front wheel of the claimant’s motorcycle causing him to fall to the roadway, sustaining injuries. The driver of the unknown motor vehicle did not stop and continued to travel northwest in Bangalow Road.
The claimant although injured, managed to ride his motorcycle home and initially took bed rest. The following morning the claimant was in severe pain and an ambulance was called and conveyed him to Lismore Base Hospital where he was admitted for a week. The accident was subsequently reported to the Ballina police on
11 January 2020.The claimant sustained the following injuries:
(a) fracture of the scapular blade inferior to the glenohumeral joint of the left shoulder;
(b) displaced fracture of the eighth rib, and
(c) multiple abrasions.
The insurer conceded the claimant is entitled to damages however, the claimant does not have a claim for non-economic loss as the injuries sustained by him in the subject accident do not surpass the threshold to entitle him to such damages.
The claimant was born in October 1970 and is currently 51 years of age. The claimant has only sought damages for past and future economic loss.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act) I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
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.
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.
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.
RELEVANT LAW
Section 6.23 (1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
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.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement certifies the timing requirements in section 6.23 (1) of the MAI Act;
(b) 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 claims assessor, 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
(c) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
TELECONFERENCE 25 AUGUST 2022
The insurer lodged an application for approval of the settlement and was referred to me for consideration. I held a teleconference on 25 August 2022. The claimant participated in person and the insurer was represented by Andrea Boyd-Boland.
I advised Ms Boyd-Boland the proposed Deed of Release was not included in the documents lodged in the portal. I then arranged for Ms Boyd-Boland to lodge the proposed agreement of release in the portal and forward the Deed of Release by email to the claimant. The claimant subsequently confirmed by email he had read, approved and signed the Deed of Release.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess for damages for past economic loss in the sum of $10,000 and future economic loss in the sum of $15,000.
I advised the claimant it will be necessary for him to incur a payback to Centrelink in respect of the amount paid for past economic loss as he was in receipt of Jobseeker payments post-accident for a period of approximately three months.
I questioned the claimant at length regarding his ability to carry out the day-to-day tasks required of him by his employer. The claimant is a forklift driver and also undertakes some metal fabrication. The claimant confirmed to me that he is capable of carrying out his day-to-day duties however, he does require some variation of his duties as approved by this present employer. The claimant was not concerned about his ability to perform all necessary duties required of him by this employer or any future prospective employers.
I also note the medico-legal report of Dr Gregory Nutting, consultant orthopaedic surgeon dated 20 May 2022. On page 11 of his report Dr Nutting states as follows:
“Question - Is the claimant’s future earning capacity likely to be affected by the injuries and disabilities arising from the MVA? If so, how will the claimant’s earning capacity be affected and for approximately how many months/years?
Answer - I do not think the claimant’s future incapacity has been more than minimally altered by virtue of the aggravation of his cervical pathology. I do not think there is any likelihood of persistence from the point of view of the soft tissue injuries, the scapula fracture or the rib fracture.
Question - In relation to the claim for future economic loss, do you agree the claimant’s earning capacity will be compromised for the period of time alleged and to the extent claimed? If not, why not?
Answer - I do not think a specific period of time can be applied to any of the above injuries since I think he has passed this time and he is simply faced with the aggravation of a pre-existing condition.
Question - Are there any other factors (i.e. not related to the subject accident) which are affecting the claimant’s capacity for work?
Answer – No”
The claimant is still in receipt of physiotherapy treatment. 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.
Ms Boyd-Boland 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 charge is raised, the insurer will pay the charge as a treatment expense in addition to the settlement sum.
CONCLUSION
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is now two years since the date of the accident. 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.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
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.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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