Mepani v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Mepani v AAI Limited t/as AAMI [2022] NSWPIC 459
Claimant:	Jeetendra Mepani
insurer:	AAI Limited t/as AAMI
Member:	Belinda Cassidy
DATE OF DECISION:	5 August 2022
CATCHWORDS:	MOTOR ACCIDENTS - Damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; claimant is a self-employed project manager; involved in rear-end collision; alleged soft tissue injuries and development of psychological injuries which were having a significant impact on his ability to work and on his activities of daily living; insurer obtained medical evidence to suggest claimant was feigning or malingering biomechanical evidence to suggest claimant was exaggerating the severity of the accident; impact and surveillance evidence to suggest the claimant’s injuries, disabilities and impairments were not as great as suggested; claim settled for $400,000; Held — settlement approved on basis settlement figure was a compromise by both parties taking into account the likely success or otherwise of their respective cases.
determinations made:	Having considered the claim in accordance with s 6.23 of the Motor Accident Injuries Act 2017 and noting that the claimant and the insurer have proposed to settle the claim for the sum of $400,000, the Commission determines: 1. The proposed settlement is approved. 2. There are deductions to be made by the insurer from the settlement sum totalling $262,752.78.

STATEMENT OF REASONS

INTRODUCTION

Mr Jeetendra Mepani was injured in a motor accident on 16 June 2018. He was stationary in Castle Hill Road, before the pedestrian crossing in the feeder lane heading onto Pennant Hills Road when he was struck from behind.
Mr Mepani is currently 42 years of age.
Mr Mepani made two claims against AAMI, the third-party insurer of the motor vehicle after that accident:
(a) a claim for statutory (income support and treatment) benefits[1] - AAMI has accepted liability and has been paying Mr Mepani his statutory benefits, and
(b) a claim for lump sum compensation or damages and liability has been accepted for that claim[2].
[1] The application for personal injury benefits is dated 20 June 2018 and at page 25 of the insurer’s bundle.
[2] The claim form is dated 16 July 2020 and is found at page 32 of the insurer’s bundle and the liability notice dated 21 October 2020 is found at page 38.
I have been advised that Mr Mepani and AAMI have now agreed on a lump sum to settle the damages claim.
While Mr Mepani had a lawyer acting for him at one stage (Shine Lawyers), he does not currently have a lawyer acting for him therefore any settlement of his claim must be approved by the Personal Injury Commission (the Commission). AAMI has referred this settlement to the Commission for approval.
I have decided to approve the settlement.

LEGISLATIVE FRAMEWORK

Approval of settlement

Because of the date of his accident, Mr Mepani’s claim and his entitlement to damages is governed by the Motor Accident Injuries Act 2017 (the MAI Act). Section 6.23 of that Act provides that if an injured person is not represented by a lawyer, any settlement of damages must be approved by a Member of the Commission. In my view, the approval process in the legislation is an important safety net to ensure an injured person not represented by a lawyer obtains a fair and appropriate amount of damages.
In deciding whether or not to approve the settlement I must consider cl 7.37 of the Motor Accident Guidelines which says:
“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 (d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”

Damages provisions

The MAI Act provides, at s 4.3 that, in a claim for damages an injured person is entitled to seek:
(a) damages for non-economic loss in accordance with s 4.11, and
(b) damages for his economic or pecuniary losses under s 4.5(1) of the legislation including lost wages, the additional cost of accommodation and housing, funds management and any income tax paid by AAMI on any weekly statutory benefits paid.

Review of the evidence

Claim form and particulars

The insurer has lodged an application with 1800 pages of submissions and evidence from both the claimant and the insurer. I do not propose to recount every piece of evidence.
The claim form says that Mr Mepani was stationary in his car waiting to turn left into Pennant Hills Road when he was hit from behind. He said, “My head hit the steering wheel and my sunglasses broke”. He said he felt immediate neck and shoulder pain with headache and that back pain came on later.
Mr Mepani said he had two days off and worked as a program manager and that he was earning $1,350 per day.
Dr Aung completed the medical certificate attached to the claim form diagnosing a soft tissue injury, whiplash injury grade II (neck, shoulder and back pain with headaches). He certified the claimant unfit for work on 18 and 19 June, fit for light duties on 20 June and fit to return to normal duties on 25 June 2018.
In a document entitled “particulars of claim for damages”[3] served on the insurer by the claimant’s former solicitors, the claimant alleges injuries to his left and right shoulders, neck and back as well as post-traumatic stress disorder, depression and somatic symptoms disorder.
[3] Page 46 of the insurer’s bundle.
This document also:
(a)    advises no claim for non-economic loss is made;
(b)    seeks damages for past loss of earnings in excess of $500,000, and
(c)    claimant a buffer for future loss of earning capacity in the sum of $500,000.

Claimant’s evidence

The claimant’s general practitioner (GP) appears to be Dr Simon Aung. He had certified the claimant unfit for work for more than two days per week and on 19 March 2019 he wrote a letter[4] saying it was against his “medical professional advice” that Mr Mepani take up a full-time job which he was planning to do due to financial restraints. He noted Mr Mepani was receiving treatment for post-traumatic stress disorder and whiplash disorder.
[4] At page 585 of the bundle.
Dr Aung wrote to the insurer on 2 April 2019[5] when his diagnoses were questioned by AAMI. Dr Aung accepted the claimant’s history that “his face was smashed” on the steering wheel and that his glasses were broken. He also agreed with the psychologist about the diagnosis of post-traumatic stress disorder noting that individuals respond to stressors differently.
[5] Page 845 of the bundle.
Multiple certificates of capacity have been provided by Dr Aung certifying periods of reduced capacity and total incapacity.
The claimant received pain management treatment from Dr James Yu of the Sydney Spine and Pain Centre in May 2019 and physiotherapy treatment from Bend and Mend (Christopher Legg). Records and reports have been provided confirming this.
Ms Natalie Wong psychologist provided a handwritten report dated 9 April 2019[6] diagnosing a major depressive disorder and post-traumatic stress disorder. She noted the claimant was moderately depressed but severely stressed and anxious. She made her diagnosis on the basis the claimant was “directly exposed to threatened serious injury” and because she accepted his history that his head hit the steering wheel and his sunglasses broke as a result of the accident.
[6] At page 587 of the bundle.
Dr Ghana Chapagain psychiatrist proved a report to the claimant’s GP dated 9 March 2020, he noted the claimant was experiencing flashbacks and nightmares and a change in personality with strained relationships and mood swings. Dr Chapagain was of the opinion Mr Mepani was symptomatic for a post-traumatic stress disorder and had “marked cognitive impairment”. Dr Chapagain wrote another letter on 22 May 2020 saying that the claimant was feeling more stable and positive. He was concerned about the claimant’s history of visual hallucinations[7]. In a third letter dated 28 September 2020 the claimant was brighter and was keen to get back to work.
[7] Dr Chapagain’s letters are at page 590, 592 and 626 of the bundle.
Dr Jungfer provided a report to the claimant’s lawyers dated 24 March 2020[8]. She takes a history from the claimant of him being pushed into the middle lane in the path of oncoming traffic. Dr Jungfer also has a history of the “accident being so severe that he struck the steering column with his face and broke his sunglasses”. Dr Jungfer documents the claimant’s psychiatric symptoms including nightmares, irritability and altered driving behaviours. She says he had impaired concentration and was anxious and became depressed due to pain and an inability to work.
[8] At page 593 of the insurer’s bundle.
Dr Jungfer records the anxiety symptoms – palpitations, sweating, shortness of breath and that the consumption of alcohol reduced his anxiety. Mr Mepani reported he was fearful and anxious on the roads and in shopping centres. He commenced experiencing flashbacks with images of cars colliding and nightmares about being absent from his children and that he would not recover. Mr Mepani reported eating more, consuming alcohol and increasing his weight.
Other symptoms include being distracted, forgetful and less confident.
Mr Mepani reported depression, which Dr Jungfer reports was becoming more severe. He had limited ability to experience pleasure, lacks motivation and had episodes of tearfulness. Energy levels were said to be down, and sleep was impaired. Mr Mepani expressed the view that he thought it would be better if he were dead.
The claimant told Dr Jungfer he used to socialise but now avoids it and that he enjoyed gardening, travel and spending time with his family none of which he has done since the accident.
Dr Jungfer diagnosed post-traumatic stress disorder, major depressive disorder and alcohol use disorder.
Dr Jungfer considered the claimant’s prognosis was poor and that his ability to work at a high level of executive function was impaired. She recommended inpatient therapy and assessed Mr Mepani’s whole person impairment (WPI) at 20%.
The claimant provided a short statement dated 20 July 2019 saying that before his car accident, “I was not suffering from chronic pain that stemmed from head to legs” and that he used to have a happy family life, spending time with his family, going to the gym three times a week, driving on long weekend breaks and working. He said that before the accident he had four to five overseas holidays a year.
In the accident he said he sustained injuries to his head, neck, shoulder and back and “due to the integrated nerve system, the pain stems to head, eyes and legs”.
He says since the accident he is disconnected from his family and children and spends most of his weekends indoors. He says he cannot go to the gym or swim and his weight has increased. He said he is not interested in driving or trips and has, on average two vacations only a year. He says his work has been significantly affected.[9]
[9] Page 906 in the bundle.
He says he has seen his general practitioner 37 times since the accident, a pain specialist five times, a psychologist 17 times and a physiotherapist 33 times.
He analyses a published document called the “Clinical Framework for the Delivery of Health Services Motor Vehicle Guidance Principles” and applies it to his claim and his experience and is critical of the insurer’s behaviour towards him.
He refers to the insurer’s refusal to pay for the use of topical agents and recognises there is a lack of clinical evidence to support it, but says he needs these gels, creams and heat patches to relieve his pain.
Financial and tax returns have been provided. The claimant operated his own consultancy business 5C Novo Pty Limited. The claimant argued that his pre-accident contract with the Department of Health was terminated prematurely and that a subsequent contract with the Commonwealth Bank he had to leave early because of his injuries and the effect of them on his ability to work.
The claimant owned up to 20 investment properties in New South Wales and Queensland which he appears to have negatively geared and managed.

Insurer’s evidence

Investigations

The insurer commissioned a report from MA Investigations dated 9 April 2019[10]. The investigator photographed the scene and spoke with AAMI’s insured. The insured said at the time he hit the claimant’s vehicle he was travelling at about 10km an hour, he braked harshly but could not avoid the impact. He said he spoke with the claimant who did not appear to be injured and Mr Mepani walked and moved freely. No major damage was done to either vehicle. He exchanged details and then left. In his sketch diagram he has the point of impact on the pedestrian crossing in the feeder lane onto Pennant Hills Road with the claimant’s vehicle just over into the first lane.
[10] Page 74 of the insurer’s bundle.
In a second statement dated 30 April 2019[11] the insured said that both vehicles stopped on Pennant Hills Road 10 m further along from the accident. He says the claimant was upset about his car being damaged, he again says the clamant did not complain of pain and he did not recall seeing him wearing glasses.
[11] Contained in a report dated 15 June 2019 from the insurer’s investigators at page 94 of the insurer’s bundle.
A third attempt was made to contact the insured who denied the claimant’s vehicle had been forced into the path of oncoming traffic. No statement was obtained on this occasion[12] and the insured indicated he did not want any further involvement in the matter.
[12] The report concerning this is dated 16 November 2020 and is found at page 243 of the insurer’s bundle.
The insurer’s investigator undertook a desktop review of social media and public records noting the claimant owns 20 properties in Australia with his spouse or under the name of two company entities he controls and extracts from Facebook showed the claimant on holidays and out and about with family and friends.
The insurer placed the claimant under surveillance. On 12 March 2020 a short amount of film was obtained of the claimant attending an appointment wearing a backpack[13]. A second surveillance report dated 7 December 2020 includes 20 minutes of video which does not appear to be remarkable[14]. A third report dated 12 February 2021[15] suggests the claimant spent about an hour at “Treetops Sydney Adventure Park” participating in “several course activities which includes Flying Foxes, walking elevated tight ropes, suspension bridges and climbing twisted ladders”. A fourth and final report dated
[13] The report of the surveillance is dated 19 March 2020 and is at page 103.
[14] The report is at page 246 of the insurer’s bundle.
[15] Page 254 of the insurer’s bundle.
[16] The report is at page 262 of the insurer’s bundle.
22 April 2021 referred to film apparently showing the claimant participating in shopping and dining experiences with his family[16].
The insurer has provided property damage records[17] which include the insured’s report of injury and contain a history of the claimant’s vehicle stopping suddenly and the insured hitting him in the rear and their being front bumper damage to the insured vehicle and rear bumper damage to the claimant’s vehicle. The damage to the insured vehicle appears to have cost about $1,700 of which about $1,200 was for the cost of parts. The cost of repairs to the claimant’s vehicle was about $2,250.
[17] Page 278 of the insurer’s bundle.
There are photographs of the claimant’s damaged sunglasses at page 296 and an invoice for a pair of new sunglasses in the sum of $359 from Specsavers. There are also other photographs (from page 302 onwards) showing the damage to the claimant’s almost new BMW (a cracked bumper on the passenger side above the exhaust). The photographs of the insured vehicle show damage to the registration plate and cover as well as the grille of his Audi.

Dr McIntosh reports

The insurer relies on a “Collision and Biomechanics Report” of Dr Andrew McIntosh[18]. Due to the nature of the current proceedings, it is not necessary, in my view, to provide more than a summary of the main points from the report being:
(a)    the claimant’s vehicle was stationary, and the insured was driving at 10 or 15 km/h (no airbags deployed in his vehicle therefore the insured must have been driving at less than 30 km/h);
(b)    the likely force of the impact was low;
(c)    the claimant’s vehicle may have been shunted or moved forward by about a metre but the force of impact is not consistent with the claimant’s vehicle being pushed into the middle lane of Pennant Hills Road;
(d)    it is “highly improbable” that the claimant could have struck the steering wheel with his face and broken his sunglasses and any head impact or strike is “very unlikely”;
(e)    the claimant’s symptoms of persisting neck, low back and shoulder pain is not consistent with the likely biomechanical forces of impact, and
(f)    if the speed of the insured vehicle was 15 km/h it is possible the claimant suffered a whiplash injury but not if the speed was 10 km/h.
[18] The report dated 29 May 2020 is found at page 403 of the insurer’s bundle. The supplementary report is dated 3 November 2020 and  at page 482.
In his supplementary report, Dr McIntosh expressed the view that if the claimant did hit his head on the steering column, it is likely he was not wearing a properly adjusted seatbelt.

Insurer’s medico-legal reports

The insurer relied on a report from Dr Graham George psychiatrist dated
31 October 2019 who declined to express an opinion without psychological testing. This was done by Dr John McMahon whose primary findings were that Mr Mepani had “feigning spectrum behaviour” which constitutes a marked inconsistency in presentation. Dr George then provided a supplementary report dated 6 January 2020 adopting those findings and saying, “I do not believe that any symptoms, with which
Mr Mepani has presented, could be regarded as valid”.
There is a further report of Dr George providing commentary on the medical assessment of Assessor Bartlett and her diagnosis of somatic symptom disorder. He says he has “little doubt” that Mr Mepani is malingering. He said he thought the psychometric evaluation was of greater value than a single clinical consultation drawn from presentation and history. Dr MacMahon in a supplementary report considered the feigning spectrum behaviour he diagnosed mitigated the somatic symptom disorder. A final report from Dr MacMahon after viewing the surveillance film was said to reinforce his impression that the claimant had a feigning spectrum disorder. A similar view was expressed by Dr George in his final report which was undated.
The insurer also relies on a report from Dr Andrew Keller occupational physician dated 19 February 2021[19]. He considered it possible that the claimant had suffered soft tissue injuries in the accident which could have included mild bruising to the face and mild strains to the neck and back. He said:
“His physical presentation today appeared to suggest someone with a normal musculoskeletal system without any lasting injuries attributable to the subject accident of 2018. His current reports of high levels of intermittent pain and disability are not consistent with the evidence available to me.”
[19] Page 571 of the insurer’s bundle.

In a supplementary report dated 11 May 2021 issued after viewing the surveillance material, Dr Keller said the claimant demonstrated full range of motion in the neck and shoulders and had no physical restrictions or disability. He was of the view the video demonstrated full recovery from any physical injuries.

Medical and other assessments

The claimant has had other disputes before the Commission and its predecessor the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA). One of the first was a dispute about the claimant’s pre-accident weekly earnings which was determined by a single merit reviewer in his favour. The insurer sought a review of that decision which a panel of three merit reviewers dismissed[20].
[20] The Panel’s decision dated 9 June 2021 is at page 60 of the bundle.
There have been four treatment disputes:
(a)    a dispute about treatment for Mr Mepani’s neck injury[21] was found by Assessor Home on 20 May 2019 to be not reasonable and necessary. Assessor Home remarked:
“I am satisfied the claimant was involved in a motor vehicle accident with the early onset of neck pain immediately after the accident.
The mechanism of the accident is consistent with causing whiplash associated disorder of the neck.
I am not satisfied that the forces involved were minor”.
While Assessor Home acknowledged the existence of pre-existing cervical spine degenerative changes, he noted the claimant was asymptomatic before the accident and found that it was reasonable for the accident to have aggravated this. The Assessor rejected the treatment on the basis that with a whiplash grade I or II and where no radiculopathy was present, the injections proposed would be of no benefit to Mr Mepani;
(b)    a further treatment dispute about past and ongoing medication was determined by Assessor Home on 13 September 2019[22]. Some medication was allowed (pain medication for six months) but ongoing medication in particular was not allowed. One of the claims was for heat patches which Assessor Home reported, “without the use of heat patches and ointments, he would be bed bound and remain stagnant”. There was a suggestion by Assessor Home this amounted to Mr Mepani catastrophising;
(c)    a third treatment dispute about eight physiotherapy treatments was determined by Assessor David Young on 8 January 2020 as not reasonable and necessary[23], and
(d)    a fourth treatment dispute about eight sessions of psychological treatment and psychiatric treatment was determined by Assessor Enrico Parmegiani on 12 March 2020 as not reasonable and necessary. Dr Parmegiani mentions the reports of Dr George and Dr McMahon and notes the inconsistencies in the claimant’s social medical presence. The treatment was refused on the basis that past treatment had not helped, and ongoing treatment was unlikely to assist further.
[21] Left and right C5/6 transforaminal blocks and left and right facet blocks at C5/6. The decision is found at page 486 of the bundle.
[22] The decision of Assessor Home is found at page 497 of the bundle.
[23] The decision is found at page 540 of the bundle.
The insurer had terminated Mr Mepani’s statutory benefits under ss 3.11(1) and 3.28(1) on the basis that his only injuries were minor injuries. He lodged a dispute with DRS about whether his injuries were minor and Medical Assessor Barrett determined that dispute on 6 July 2020 finding that Mr Mepani sustained an adjustment disorder which was a minor injury within the statutory definition but that he also suffered from a somatic symptom disorder which was not a minor injury. Dr Barrett took a history of the development of the claimant’s physical symptoms and then noted his psychiatric symptoms including:
(a)    nightmares including visions of funerals with associated sleep disturbance;
(b)    anger and tension with loud noises;
(c)    poor concentration;
(d)    cessation of driving which he had since recommenced;
(e)    frustration;
(f)    varied appetite;
(g)    suicidal thoughts, and
(h)    needing support from his psychologist.
The claimant felt he was improving and was on three different psychiatric medications.
The assessment was spread over two days because after the first hour of the first appointment the claimant could not go on with his “head banging” his “heart racing” and an inability to focus.
Assessor Barrett said Mr Mepani became angry when challenged about any inconsistencies in his history and spoke of being treated unfairly by the insurer.
Assessor Barrett was not of the view the claimant sustained a post-traumatic stress disorder because the accident was not sufficiently frightening, and Mr Mepani drove himself home and continued to drive for a week afterwards until his car went in for repairs. She noted the report of Dr MacMahon which raised with her concerns about the validity of Mr Mepani’s history.
Assessor Barrett found that the claimant suffered from a somatoform disorder due to the presence of physical injuries diagnosed by doctors and Medical Assessors and ongoing pain and restrictions at home and at work.
As a result of that certification, it would appear Mr Mepani’s treatment continued to be funded by the insurer, as were his weekly benefits.

CONSIDERATION of the settlement

The insurer’s submissions

The insurer has filed lengthy submissions in support of the approval application. The main features of these submissions include the following arguments:
(a)    liability - the claimant’s reported injuries were not consistent with the biomechanical forces involved but that if the claimant’s head did hit the steering wheel as alleged it was because he was not wearing a seatbelt;
(b)    damage – the photographs suggest the impact was minor;
(c)    injuries – the claimant’s original incapacity was attributed to his physical injuries but now it is said to be due to his psychological injury;
(d)    Dr George and Dr MacMahon conclude the claimant presents with a feigning spectrum disorder and therefore any history provided by him is not valid and his symptoms are distorted or maximised and Dr MacMahon considers that the claimant was over-reporting his symptoms for opportunistic reasons;
(e)    Dr Keller’s opinion was that the claimant had recovered and I note there is no medico-legal report from the claimant dealing with the claimant’s physical injuries;
(f)    the surveillance and desktop investigation suggest the claimant is more active that he suggests and is capable of working and the social media involvement supports the conclusions of Drs George and MacMahon;
(g)    in terms of the claimant’s earnings a forensic accounting report suggests the claimant continued to work for the Department of Health after the claimant said he had been terminated and then he moved promptly on to the Commonwealth Bank where he worked full time for three months;
(h)    the claimant’s business activity statements were analysed and showed the claimant earned $60,000 in three quarters ending March 2021 contrary to his evidence that he had not worked since June 2019;
(i)    the claimant received COVID-19 subsidies in the years ending
30 June 2020 and 2021 which would have involved the claimant representing to the federal government that his business was affected by the pandemic and not his alleged accident-related impairments, and
(j)    the claimant’s abilities to manage his rental properties suggest a greater degree of capacity.
The insurer raises a significant issue as to the claimant credibility as a witness and the reliability of his evidence noting in particular what the insurer says is exaggeration in the severity of the accident and force of the impact, the surveillance film and the findings of Drs George and MacMahon. The insurer says this issue ought be taken into account in my consideration of whether the settlement is just, fair and reasonable.
The claimant has not filed any submissions of his own but has, throughout the claim and in the assessment proceedings, taken issue with the insurer’s behaviour and its actions towards him.

Procedural matters

The claimant and AAMI had previously agreed on a settlement figure however that settlement was not approved in previous proceedings before the Commission. I was advised at a teleconference this was primarily because of a reduction for contributory negligence applied by the insurer to the offer. The presiding Member in the previous approval proceedings did not think a deduction for contributory negligence should have been made.
Mr Mepani then commenced proceedings in the Commission for the assessment of his claim. Those proceedings were allocated to me and listed for hearing on
4 August 2022.
Due to my involvement in the assessment proceedings, the settlement approval proceedings were allocated to me. While I had not commenced my preparation of the matter before the proceedings, I am familiar with the issues in the assessment and had reviewed most of the evidence.
At the teleconference in the approval proceedings also listed on 4 August 2022 the parties agreed that the assessment proceedings should be dismissed in the light of my approval of the settlement.

The elements of the offer

The insurer advises that the amount of the offer that the claimant has accepted is the sum of $400,000 inclusive of costs made up of:
(a)    Non-economic loss  Nil
(b)    Past loss of earnings incl s 4.5(1)(d) damages     $247,049.78
(c)    Future loss of earning capacity  $114,750
(d)    Travel and accommodations s 4.5(1)(b                Nil
(e)    Regulated costs  $33,500
The above adds up to $395,299.78 which the insurer rounds up to the sum of $400,000.
On a commercial basis the insurer does not press for any reduction of these damages for any contributory negligence on the part of the claimant.
From the agreed sum, the following deductions are to be made:
(a)    Centrelink and Medicare  Nil
(b)    Statutory benefits and tax  $212,752.78
(c)    Costs as per a lien  $50,000
It is my view that when considering whether to approve a settlement or not, I should consider the individual components of the offer as well as the overall total which I will do below.

Non-economic loss

Entitlement to non-economic loss is not in dispute. While the claimant relies on an assessment by Dr Jungfer of WPI at 20% for his psychiatric injuries, the claimant does not press a claim for non-economic loss.
The insurer notes that the claimant (or his lawyer) did not seek an internal review of the insurer’s decision to refuse the claim for non-economic loss and that the issue of WPI has not been referred for assessment. The insurer notes that the diagnosis of a somatoform disorder by Assessor Barrett in the course of the minor injury dispute does not attract an impairment[24].
[24] See clause 6.215 of the Motor Accident Guidelines.
At the teleconference on 4 August 2022, I confirmed with Mr Mepani that he did not make a claim for non-economic loss.
Bearing in mind the contents of the insurer’s submissions and the totality of the medical evidence it would appear the claimant may not be entitled to non-economic loss.

Past loss of earnings

The insurer submits that the claimant was a self-employed project and program manager for his own company 5C Novo Pty Limited. At the time of the accident 5C Novo had a contract with E-Health NSW Health and went on to obtain a contract with the Commonwealth Bank.
The insurer sets out in its submissions detailed issues with regards to past loss of earnings and considers that the claimant was likely overpaid in statutory benefits. On a “commercial basis” the insurer has allowed the sum of $212,752.78 in benefits paid to date and $34,297 in taxation paid by the insurer on those statutory benefits pursuant to s 4.5(d).
The total of these sums is $247,049.78 and the insurer has not allowed superannuation in addition to this on the basis the claimant was and is self-employed.
On the basis of the insurer’s submissions and my consideration of all of the evidence, it is possible the claimant was overpaid weekly loss of earnings and that this figure is an appropriate figure.

Future loss of earning capacity

The insurer notes the claim for a buffer in the sum of $500,000. The insurer relies on its evidence from Dr George and Dr MacMahon to assert the claimant is fit for his former employment as a contract project and program manager and the insurer notes
Dr Jungfer did not express a view as to the claimant’s earning capacity.
The insurer has, on a commercial basis allowed the claimant one year of future loss of earning capacity on the basis of a 50% reduction in capacity and giving him time to find alternative employment or a new contract which, when reduced for vicissitudes produces the amount of $114,750. On the basis the claimant was self-employed at the time of the accident, no superannuation was added to this figure.
Noting the insurer’s submissions, the medical evidence from the insurer and the absence of medical evidence from the claimant as to his future earning capacity, this would appear to be a reasonable figure.

Travel and accommodation

No claim was made by the claimant’s lawyers on his behalf for the additional costs of travel and accommodation under s 4.5(1)(b). Noting the insurer’s submissions and the medical evidence and the fact that the claimant has travelled since the accident, it is not likely that any assessment of the claimant’s damages would include such an amount.

Costs

The insurer has allowed the sum of $33,500 in costs noting the number of disputes filed with DRS and the Commission, the amount of the settlement and the report of
Dr Jungfer.
Having considered the insurer’s submissions and noting the claimant’s solicitors have now ceased to act, the insurer has included the maximum costs for stage three which suggests to me the amount of costs is reasonable.

Contributory negligence

The claimant alleged that he hit his head on the steering wheel due to the severity of the rear end collision. The insurer relies on the report of Dr McIntosh who expressed the view this is highly unlikely noting the calculated force of the collision. He also expressed the view that if the claimant was not wearing a seatbelt, he could have hit his head on the steering wheel but even that is not likely.
The insurer has, for commercial purposes, not included a reduction for contributory negligence.
The issue of the seat belt and the head strike is a matter which, in my view goes to the issue of the claimant’s credibility and the reliability of his evidence generally. A finding that the claimant was wearing his seatbelt would have been likely, putting into doubt the allegation the claimant hit his head. Therefore, not reducing the claimant’s damages for contributory negligence is reasonable.

Deductions

The insurer confirms there is no Centrelink or Medicare payback figure to be deducted and that it has paid the sum of $212,752.78 in weekly benefits which must be deducted in accordance with s 3.40.
I have confirmed with the claimant that he agrees the sum of $50,000 must be deducted and paid to Shine Lawyers, his former legal representatives.
The claimant will receive the sum of $137,247.22 after these deductions are made.

Should I approve Mr Mepani’s settlement?

I have decided to approve the settlement reached between the parties for the sum of $400,000 because:
(a) it is now three years since the accident and the timing requirements in s 6.23(1) have been met, and
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages that could be assessed in the Commission based on the evidence before me.
The “range of likely potential damages” that could be assessed is, in the particular circumstances of this claim, quite wide. If the claimant was, at the assessment, to succeed in satisfying the Commission that he had sustained physical and psychiatric injuries leaving him with significant impairments, disabilities and losses as claimed, then he would likely recover damages greater than those offered by the insurer. However, if the insurer was, at an assessment, to succeed in satisfying the Commission that the claimant was feigning or malingering then the claimant would likely recover significantly less in damages than the offer that has been made. In my view, the settlement sum agreed by Mr Mepani with AAMI reflects a just, fair and reasonable compromise by both parties taking into account the possible success or otherwise of their respective cases.
I have explained to Mr Mepani, and he understands that he is entitled to have another lawyer advise him in respect of the offer but that he does not wish to do so and that by accepting the insurer’s offer, his claim for damages is at an end.
Accordingly, pursuant to s 6.23 of the MAI Act,the proposed settlement of Mr Mepani’s claim for damages is approved.

[2022] NSWPIC 459

5 August 2022