NRMA v Bevan
[2022] NSWPIC 100
•8 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | NRMA v Bevan [2022] NSWPIC 100 |
| CLAIMANT: | Kristy Bevan |
| INSURER: | NRMA |
| MEMBER: | Gary Victor Patterson |
| DATE OF DECISION: | 8 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 49 years old female, non-representation, claim limited to past and future economic loss; past economic loss for closed period; future economic loss buffer; Held – proposed settlement just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | 1. The proposed settlement is approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017 (the MAI Act). 2. The proposed settlement complies with clause 7.3 of the Motor Accident Guidelines 2017 (the Guidelines). |
INTERIM DECISION
Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act2017
BACKGROUND
The motor accident the subject of this claim occurred on 18 August 2019 which is more than two years ago.
There is no claim for non-economic loss.
Kristy Bevan (the claimant) is not represented by an Australian legal practitioner.
The claim is limited to a short-closed period for past economic loss and future economic loss.
At the time of the motor accident, the claimant was employed full-time with VTEC Ability Options as an Indigenous Employment Specialist earning in excess of $700 net per week. The claimant was off work for eight days following the motor accident and was then cleared to return to work without restriction.
The claimant is now in permanent employment with R&C Civil Group where her earnings have been in excess of $1,000 net weekly.
The motor accident occurred on 18 August 2019 in Gerroa. The claimant was a pillion passenger on a motorcycle. The insured driver was riding another motorcycle when the backseat detached. As a result, the driver of the motorcycle upon which the claimant was the pillion passenger, lost control. The claimant and the driver were thrown from the motorcycle.
The claimant suffered damage to her left knee and difficulty sleeping. The claimant also complained of left arm pain which has resolved.
The claimant lodged her Application for Personal Injury Benefits on 5 November 2019 and her application for common law damages on 20 April last.
The insurer wholly admitted liability for the claim for damages by way of a section 6.20 Notice dated 15 July 2021.
The claimant underwent a MRI scan of the left knee on 5 November 2019 which indicated medial osteoarthritis and a stable cleavage of the medial meniscus.
Dr Andrew Keller, Occupational Physician, assessed the claimant on behalf of both parties. Dr Keller provided a report dated 15 December last. Upon examination, Dr Keller found that the claimant had full symmetrical range of motion of the spine. The left knee appeared normal with no scarring. There was a full range of motion in the left knee without effusion, instability or positive McMurry’s test. The range of motion was symmetrical with the right knee.
Dr Keller diagnosed a soft tissue injury to the left knee with medial meniscal tear and no surgical resection, with no treatment to date or required in the future. Dr Keller found no assessable impairment. He was of the view that the injuries would not affect the claimant’s ability to work or continue a normal life.
The claimant underwent an elective laparoscopy in February 2020 and an elective cholecystectomy in April 2020 remaining in hospital for 22 days. That is of relevance to the claim for past economic loss.
The parties attended an Informal Settlement Conference by telephone on 14 January 2021 when the matter settled for $40,000 subject to approval. The parties signed a Settlement Agreement on 20 January last whereby the claimant gave up all of her rights in consideration of the settlement sum.
Although the Settlement Agreement does not specify the various heads of damage, the insurer’s submissions (A1) at paragraph 4.2 apportioned as follows:
Head of damage
Calculation
Allowance
Past economic loss
1.6 weeks x $931.50 net
$1,500 rounded
Past loss of superannuation
$1,493 x 12%
$180
Future economic loss
Whilst the allowance is by way of buffer, the Insurer notes that allowing a loss of $30 net per week the loss to 67 years of age would be $15,938. Plus $1,912 loss of superannuation, being 12% on net losses, a buffer of which $17,850 rounded would for flare-ups or accident related time off from work, and despite Dr Keller’s views that the Claimant would not require any future treatment.
$38,000
Future loss of superannuation
No separate allowance
$0
Fox v Wood
No weekly benefits have been paid
$0
Total (rounded)
$40,000
As no weekly benefits were paid, the only possible deduction is Centrelink although the claimant has advised that she has only been in receipt of the Family Tax Benefit and the insurer notes that the claimant has been gainfully employed for the entire period.
The particulars of 22 September 2021 confirmed that the claimant worked for Ability Options at the time of the accident [A19]. The claimant transferred to NSWALC (Aboriginal Lands Council) in March 2020 on the same salary [A20]. The claimant is currently employed at R And C Civil Group [A20]. The claimant disclosed the following incomes in the particulars:
Employer
Gross per fortnight
Tax payable on current rates
Net payments
Weekly net
Ability Options
$2,752
$584
$2,168
$1,084
NSWALC
$2,752
$584
$2,168
$1,084
R And C Civil Group
$2,660
$552
$2,108
$1,054
The insurer notes that the figures alleged in respect of Ability Options and NSWALC are not supported by the evidence. The Ability Options material indicates that the claimant’s annual base salary was $59,568 plus superannuation plus a $10,000 car allowance [A20]. A payslip form NSWALC indicates the Claimant earnt $2,716.12 gross for the fortnight 24 March 2021 to 6 April 2021, which resulted in a fortnightly net pay of $1,696.11 (which converts to a net weekly rate of $848.10) [A21].
As noted above, the claimant was medically cleared to return to work without restriction after eight days absence [A11] and Dr Keller was of the view that the claimant was able to continue to work and live a normal life [A6].
The claimant has had no other accident-related absences since and has not received any weekly benefits [A22] and is not undergoing treatment [A23, A14, A15].
The claimant says that she has suffered mobility issues due to numbness and pain in her left leg and that, as a consequence, she recently reduced her hours of work. The claimant now is employed on a permanent part-time basis, 30 hours a week, which the claimant expects will continue into the foreseeable future.
Notwithstanding that reduction in her working capacity, the claimant wishes to accept the agreed settlement sum, which is tax free. I note that it represents an allowance of about $71.50 per week for the remainder of the claimant’s working life expectancy. The calculation is as follows:
$71.50 per week x 625 (5% multiplier for 18 years) x 85% = $38,000.00 (rounded up)
The insurer has made provision for loss superannuation in a way which the claimant is willing to accept.
As the claimant has been able to work on a full-time basis, without restriction, for more than 30 months since the motor accident, I am satisfied that the provision made for future economic loss is within the range that is likely to be awarded if this matter were to proceed to assessment.
For that reason, I have decided to approve the proposed settlement, as submitted in this application, notwithstanding that there has been a recent change in the claimant’s employment circumstances.
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 clause 3 of Part 2, Division D2, Schedule 1 to the Personal Injury Commission Act2020.
I am a General Member of the Motor Accidents Division of the Commission.
Because of the date of the motor accident, clause 14 D (3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accidents Injuries Act 2017 and the Guidelines continue to apply.
The relevant law
Section 6.23 (2) and (3) of the MAI Act require approval of the settlement. I am not to approve the settlement unless I am satisfied it complies with the requirements of the MAI Act and the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement satisfies the timing requirements in section 6.23 (1) of the MAI Act;
(b) the proposed settlement is just, fair, reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed in the normal way, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, also taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
CONCLUSION
I am satisfied as to all of the matters listed in the immediately preceding paragraph.
I am satisfied that Ms Bevan is aware she can seek legal advice but does not wish to do so.
I am satisfied that Ms Bevan understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the motor accident.
I am satisfied Ms Bevan is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23 2(b) of the MAI Act, I approved the settlement of Ms Bevan’s claim for damages.
Gary Victor Patterson
General Member
Motor Accidents Division
Personal Injury Commission
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