McAllister v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 425
•29 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | McAllister v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 425 |
| CLAIMANT: | Levi McAllister |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 29 July 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Application for settlement approval; claimant not legally represented; claimant injured on 24 October 2019; claimant injured when insured driver reversed vehicle over his foot; breach of duty of care admitted by the insurer; claimant suffered a fractured right medial malleolar requiring open reduction and internal fixation; claimant ambulated with crutches for 3 months and off work for 6 months then had a graduated return to work and commenced working full time in late 2020; claimant working with a partner in a stock feed delivery business; insurer offered to settle for $215,000 all-inclusive consisting of past statutory benefits of $65,000 including Fox v Wood allowance and $150,000 for future economic loss; Held — settlement approved. |
DETERMINATIONS MADE: | 1. Pursuant to section 6.23(2)(b) of the Motor Accident Injuries Act 2017 the proposed settlement of the claimant’s claim for damages of $215,000 is approved. |
STATEMENT OF REASONS
INTRODUCTION
Background
This is a claim for damages made by Mr McAllister which comes before me for approval.
Mr McAllister is not represented by an Australian legal practitioner. Mr McAllister has however discussed his claim and the settlement offer with a solicitor who is a friend of the family, but it was a general discussion only and that solicitor was not instructed for the purposes of advising him.
Mr McAllister was involved in an accident on 24 October 2019 when he was standing beside a utility vehicle being driven by his father. Mr McAllister’s father did not realise where his son was positioned and reversed the utility, colliding with Mr McAllister, and crushing his ankle resulting in a fracture.
This incident was subsequently reported to the police.
The insurer admitted liability for damages on 9 September 2021. There is no claim for contributory negligence.
Mr McAllister is 27 years of age. His occupation is that of a delivery driver in his own business with a partner, delivering feed for stock.
The insurer has not conceded that the injury suffered by Mr McAllister exceeds the 10% threshold for an assessment of non-economic loss.
Mr McAllister was reviewed by Dr Keller on behalf of the insurer on 1 November 2021. The examination took place by audio visual platform.
On 29 March 2022 the claimant’s solicitors made an offer of settlement to the claimant of $215,000 all inclusive. This offer was made by email and set out particulars of the offer as follows:
Non-economic loss $nil
past economic loss $65,000
future economic loss $150,000
total$215,000
I do not understand that there is any charge due to Medicare.
This offer was accepted by Mr McAllister by email on 5 May 2022.
The proposed offer of settlement requires the approval of the Personal Injury Commission (the Commission).
In May 2022 the insurer lodged an application for damages settlement approval with the Motor Accidents Division of the Commission. Mr McAllister now seeks approval of the proposed settlement.
This matter first came before me for approval by teleconference on 14 July 2022.
Mr McAllister was in attendance but there was no appearance for the insurer. At
9:16 am I informed Mr McAllister that the settlement approval would have to go over for seven days in the hope that the insurer would appear on the next occasion.
Mr McAllister understood and was in agreement with this.A subsequent conference took place on 21 July 2022 and both Mr McAllister and
Mr Jones for the insurer, appeared.On 21 July 2022 at the second teleconference in this matter, I presided over a teleconference arranged by the Commission. Mr Jones appeared on behalf of the insurer and Mr McAllister represented himself. I had the opportunity to question
Mr McAllister at length about his injuries, the proposed settlement, and his understanding of the settlement.I indicated to the parties that I was satisfied that the offer of settlement made by the insurer was reasonable and that I would approve the settlement offer.
I informed the parties that I would provide my written reasons very shortly thereafter.
Documents considered
The insurer has provided a bundle of documents forming the settlement approval application and comprising documents A1 to A15.
CONSIDERATION AND REASONS
The legislation and legal principles
In making my decision I have considered the following legislation and guidelines:
(a) Motor Accident Injuries Act 2017 (the MAI Act);
(b) Motor Accident Guidelines 2017 (the Guidelines), and
(c) Personal Injury Commission Rules 2021 (the Rules).
Section 6.23 of the MAI Act states:
“6.23 Restrictions on settlement of claim for damages
(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(2) A claim for damages cannot be settled unless –
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Rule 95 of the Rules states:
“95 Application for approval of damages settlement
(1) If the claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
(2) An application may be lodged only if –
(a) it is more than 2 years after the date of the motor accident, or
(b) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the 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 the Commission, taking into 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
At the preliminary conference on 21 July 2022 I discussed with Mr McAllister that if I approved the offer of settlement then that will conclude the claim once and for all and that Mr McAllister will have no right to make any further claim arising out of the accident.
I am satisfied that Mr McAllister understands the nature and effect of the proposed settlement by the insurer and is willing to accept the proposed settlement.
I am satisfied that Mr McAllister has made his own enquiries about the nature of his claim and the procedure of this settlement approval and that he is aware of the outcome once I conclude my enquiries.
As the accident occurred on 24 October 2019, more than two years have passed, satisfying s 6.23(1) of the MAI Act.
The medical evidence
The claimant was examined at the request of the insurer by Dr Keller, occupational physician. He provided a report of 3 November 2021 following an examination on
1 November 2021.In his report, Dr Keller referred to several reports of Dr Ross Cairns, sports physician. These were referred to as treating medical reports. I had not seen these reports and Mr Jones said that he would forward them to me. These are reports of a treating doctor, which, having been seen now by me, do not add or detract anything from the claim but assist in the general understanding of the claimant’s recovery.
Dr Keller made reference to the claimant suffering from haemophilia. Because of this, the claimant required additional attention to his treatment and recovery, but this has been unremarkable.
Four days post-accident the claimant had an open reduction and internal fixation of a medial malleolus fracture of his right ankle. He was unfit for work for 5-6 months and ambulated on crutches for three months. There has been no further surgery. Rehabilitation has been by way of physiotherapy.
Mr McAllister reported to Dr Keller that his fracture had healed but he had mild constant pain in the right ankle. His main problem was said to be pain in both plantar fascia. This occurs daily and can last several hours with the pain rated up to 7/10.
Dr Keller diagnosed a crush injury to the right foot with a fractured medial malleolus, treated with surgical fixation and healing of the fracture. He said that the claimant had a secondary diagnosis of bilateral painter fasciitis, attributable to immobilisation and weight gain following his injury. Dr Keller confirmed that this was directly treatable to the accident.
Dr Keller said that it was reasonable that Mr McAllister continue to receive treatment from his specialist, including physiotherapy and injections on improvements in function or reductions in symptoms are documented.
Dr Keller said that Mr McAllister had achieved the capacity for full time pre-injury work duties from late 2020. He said that he would have the capacity to work full-time in any role without restriction in the future. Mr McAllister is now working full time.
As to an assessment of whole person impairment, Dr Keller said that there was no assessable impairment with regard to restriction of motion of weakness of the right and. The bilateral plantar fasciitis was said to be improving and likely to resolve. At the time of examination however, this was not at a point of maximum medical improvement.
The settlement offer
The insurer’s offer amounts to $215,000 all-inclusive.
No allowance is made for non-economic loss. Having read the report of Dr Keller, I am satisfied that this is appropriate.
As at 31 March 2022 the claimant received benefits of $57,406.09 by way of statutory wage benefits. The insurer says that the damages allowed for past economic loss comprise the amount previously paid by way of statutory benefits together with a notional allowance for Fox v Wood of $7,500.
The amount to be deducted from the settlement figure is $57,406.09. No further payments have been made since 31 March 2022.
The claimant returned to his pre-injury work duties on a part-time basis in
March/April 2020 and then in late 2020 recommenced full-time duties. Based on the report of Dr Keller, there is no impediment to Mr McAllister working full time and which he is doing now.Mr McAllister has not ever been in receipt of Centrelink benefits as a result of this accident. It would appear that there are no deductions likely to be repayable to Centrelink by way of a charge. The insurer has indicated that it will nevertheless make an enquiry of Centrelink for confirmation.
The insurer has allowed an amount for future economic loss of a buffer of $150,000.
I am satisfied that this is a reasonable allowance in the circumstances. The claimant has recovered well from his injuries and has returned to a reasonably rigorous form of work. While he may need to take occasional time off work, I am satisfied that the allowance made by the insurer is appropriate to take this into account.Of the settlement offer of $215,000, with be a deduction only of $57,406.09 for statutory wage benefits paid, this will leave a balance payable to Mr McAllister of $157,593.91.
Conclusion
Having spoken with Mr McAllister, I am satisfied that he:
i.accepts he could negotiate with the insurer but has chosen to settle the matter on the basis of the only offer made by the insurer;
ii.is aware he can seek legal advice but that he does not wish to do so;
iii.understands the binding nature of the settlement and this approval and that he may not be able to make a further claim for damages in the future, and
iv.I am therefore satisfied that the proposed settlement figure of $215,000 all-inclusive is an appropriate one and that it complies with the requirements of cl 7.304.2 of the Guidelines, in that it is,
“... just, fair, and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], taking into 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”.
Pursuant to section 6.23(2)(b) of the MAI Act the proposed settlement of the claimant’s claim for damages of $215,000 is approved.
In making my decision I have considered the following legislation and guidelines:
I.the MAI Act;
II.Motor Accident Injuries Regulation 2017, and
III.the Guidelines.
0
0
0