Yin v AAI Limited t/as GIO

[2024] NSWPIC 339

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Yin v AAI Limited t/as GIO [2024] NSWPIC 339

CLAIMANT:

Hang Yin

INSURER:

GIO

MEMBER:

Hugh Macken

DATE OF DECISION:

24 June 2024

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents Compensation Act 1999 (MAC Act); settlement approval; section 6.23 of the MAI Act; assessment under chapter 5 of the MAC Act; determination of damages to include domestic assistance and treatment; Chang v McTye applied; past economic loss; future economic loss; Held – settlement not approved.

DETERMINATIONS MADE:

CERTIFICATE

SETTLEMENT APPROVAL

Issued under s 6.23 of the Motor Accident Injuries Act 2017

The amount of the claim for damages is Not approved in the total amount of $180,000.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant is a 30-year-old student who was injured when the bus on which he was travelling braked suddenly and he was thrown forward. He suffered a significant injury to his left arm and was taken to Prince of Wales Hospital where scans showed a fracture of his left distal humerus. He underwent surgery to his arm to insert a plate and continues to have problems with his left arm as well as psychological sequalae consequent on his injuries.

2. The proposed settlement figure of $180,000 would, in the ordinary course of events, be worthy of consideration as it deals comprehensively with the claimant’s entitlement to compensation for past and future economic loss. It makes no allowance for compensation for non-economic loss as the insurer has obtained a medical report from Dr Larry Hyde Page, orthopaedic surgeon, dated 27 February 2024 which identifies only a 1% whole person impairment consequent on scarring.

3. I have considered all the documents provided in the application and reply and, most importantly, considered the decision in Chang v McTye (2024) NSWDC 218 (14 June 2024).

Reasons

1. The decision in Chang concerns the identification of the correct statutory regime which applies to the assessment of damages when a person is injured by a public transport bus.

2. Put simply the decision in this case states that plaintiff damages are to be assessed under chapter 5 of the Motor Accident Compensation Act 1999 (MAC Act) and not under part 4 of the Motor Accident Injuries Act 2017 (MAI Act).

3. Accordingly, any determination of damages, which would require consideration as to whether or not a settlement ought to be approved, must necessarily include at the very least some discussion of whether or not an allowance ought to be made for compensation for treatment expenses or domestic assistance which would be payable by applying the MAC Act. This agreement seeks approval for an assessment of damages with the limitations imposed by the MAI Act.

4. Noting the application of this decision, which was only handed down on 14 June 2024 (after the parties had agreed on a settlement figure), I do not approve the proposed settlement as it does not address the entitlements under the correct legislative framework which can now be said to apply to this claimant.

Legislation

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

   ·MAI Act, s 6.23 (3);

   ·MAC Act, and

   ·Chang v McTye (2024) NSWDC 218 (14 June 2024).