NRMA v Hogg

[2021] NSWPIC 384

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

NRMA v Hogg [2021] NSWPIC 384

CLAIMANT:

Deon Hogg

INSURER:

NRMA

MEMBER:

Terrence Broomfield

DATE OF DECISION:

31 March 2021

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); damages claim; approval of settlement pursuant to section 6.23 of the MAI Act; claimant self-represented; contributory negligence of 35% assessed by Insurer; no prospects of non-economic loss; settlement of $13,974 for past loss of earnings and small amount for future loss of earnings with remote chance of future surgery causing loss of income for 2 weeks; Held - settlement approved.

DETERMINATIONS MADE:

1. This proposed settlement is approved.

2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act).

3. The proposed settlement complies with cl 7.290 to cl 7.311 and rule 95 Personal Injuries Commission Rules 2021

Background

1.   The motor accident the subject of this claim occurred on 17 February 2018, which is more than two years after the date of the motor accident.

2.   The claimant is not represented by an Australian legal practitioner.

3.   The claimant, in an email dated 1/2/21 has advised that he proposes to accept the settlement.

4.   The claimant requests that the Personal Injury Commission approve the proposed settlement.

Documents Considered

5.   I have considered the documents provided in the application and any further information provided by the parties.

Reasons

6.   I conducted a teleconference on 31 March 2021 in which the Claimant and the Insurers solicitor participated.

7.   Prior to the teleconference I had read the material lodged by the Insurer’s solicitor in support of the application for an approval of the settlement. This material included various statements taken by a loss assessor from the passengers in the vehicle in which the claimant was injured together with a statement from the investigating police officer.

8.   The claimant was seated in the rear passenger seat behind the driver in a single vehicle collision in which the driver was fatally injured when the vehicle driven by him collided with a tree. The front seat passenger and the other rear seat passenger provided statements to the insurer’s loss assessor. The claimant has not provided a statement. A blood sample from the deceased driver returned a blood alcohol reading of .209 as well as certain drugs been detected in his blood.

9.   The claimant had been drinking with the deceased driver from approximately 10 pm on the evening of the accident which occurred some four and a half hours later. There is reference to the Claimant having been mildly affected by alcohol whereas it is clear from the blood alcohol reading of the deceased that he was well affected. Accordingly there must be a deduction for contributory negligence in any assessment of the claimant’s damages. In the circumstances of this case the Insurer in its offer has reduced the Claimant’s damages by 35% contributory negligence. In all the circumstances this percentage is within the range that is likely to be assessed should this matter have proceeded to a hearing.

10.   The claimant suffered a fracture of the right clavicle and was hospitalised for three days subsequent to the accident. The claimant was re-hospitalised about eight weeks subsequent to the accident at which time a plate was inserted in the right clavicle with his shoulder thereafter been immobilised for six weeks before he was able to return to light duties.

11.   The claimant to was off work a total of approximately 18 weeks as a result of the accident. Statutory benefits were not paid to the claimant as he had not lodged his claim form until just prior to returning to work on 16 May 2018. The only deduction from the settlement would appear to be that of Centrelink that the Claimant during the course of a telephone conference disclosed would be in the order of $1600.

12.   The suggested settlement sum for which approval is sought is $13,974.00

13.   The treating surgeon Dr Diebold assessed the claimant in November 2020 and indicated that he had made a full and complete recovery. Dr Diebold indicated there was only a small chance that the plate in the future may need to be removed from the Claimants clavicle and only if the skin rubbing over the plate caused ongoing discomfort. Should this occur the claimant would be required to be off work for two weeks with a further four weeks on light duties. The offer made in this case includes an amount future economic loss for that six week period assuming there was no return to work during that period.

14.   During the course of the teleconference the Claimant conceded from his perspective Dr Diebold’s assessment was correct.

15.   During the course of the teleconference the Claimant confirmed that he had a long-term friendship with the deceased driver. He also advised that he had sought the assistance of a counsellor after the accident and attended upon that Councillor some four or five times within the first 10 months subsequent to the accident. The Claimant confirmed that strategies had been put in place that have reduced his level of anxiety when travelling in the back seat of motor vehicles as well as his overall psychological response to the loss of his good friend.

16.   I am satisfied on the medical evidence that there would not be any prospects of the claimant securing an assessment of greater than 10% whole person impairment and thus would not have an entitlement to non economic loss for the physical injuries sustained in the accident. I am also satisfied having spoken to the Claimant that there is no likelihood of the threshold for non economic loss been satisfied psychiatrically or psychologically. Accordingly I am satisfied that the claimant would not have any entitlement to non economic loss.

17.   I am also satisfied that the assessment of economic loss both past and future together with loss superannuation contributions is appropriate in the circumstances as indeed as I have earlier indicated so to is the amount of deduction for contributory negligence.

18.   Finally I am satisfied that the proposed settlement is just fair and reasonable and is within the range of likely potential damages assessments for the claim should the matter be required to be assessed by a Member of the Personal Injuries Commission. I am also satisfied that the Claimant understands the nature and effect of the proposed settlement in accordance with chapter 7.304 of the Motor Accident Guidelines.

19.   Accordingly I propose to approve the settlement.

Legislation

20.   In making my decision I have considered the following legislation and guidelines:

·Motor Accident Injuries Act 2017 (NSW) (“the Act”)

·Motor Accident Guidelines 2017

·Personal Injury Commission Rules 2021

Terrence Broomfield

Member (Motor Accidents Division)

Personal Injury Commission