CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
AAI Limited trading as GIO v Robertson [2022] NSWPIC 347	
		
Claimant:	Dane Robertson	
		
insurer:	AAI Limited trading as GIO	
		
Member:	Susan McTegg	
		
DATE OF DECISION:	24 June 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; injury occurred when lower leg pinned between gutter and motor vehicle; liability admitted; ruptured calf muscle; forklift driver; three months absence from work and further three weeks working 4 hours a day; returned to full time work as forklift driver; past and future economic loss only; Held –  impairment of earning capacity; settlement approved in the sum of $123,000 including past economic loss of $23,000; buffer for future economic loss of $100,000; settlement just fair and reasonable and within the range of likely damages if claim proceeded to assessment; settlement approved.
 	
determinations made:	Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
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 MAI Act). 
3.	The proposed settlement complies with s 7.37 of the Motor Accident Guidelines. 

INTRODUCTION
1.	On 17 February 2020 Mr Dane Robertson (the claimant) was struck by a motor vehicle when he was standing on the driveway of 76 Alderson Avenue, Liverpool (the accident). As a result of the accident the claimant’s right lower leg was pinned between the gutter and the motor vehicle. Mr Robertson suffered a ruptured lateral calf muscle that required surgical repair. He also suffered an injury to his right forearm as a result of an assault by the at fault driver.
2.	The claimant has made a common law claim against AAI Limited trading as GIO (the insurer), the insurer of the at fault vehicle, for lump sum damages.
3.	The insurer has accepted liability for the claimant’s common law claim for damages in respect of the injury to the right lower leg. The insurer has accepted that the claimant had non-minor injuries. 
4.	The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $123,000. The insurer is entitled to receive a credit for weekly statutory payments made to the claimant in the sum of $7,937.37. The sum payable to the claimant after that deduction is the sum of $115,062.63.
5.	The offer is calculated as follows: 
•	Past economic loss				$23,000
•	Future economic loss				$100,000.
6.	Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act. 
7.	There is no entitlement to damages for non-economic loss because Mr Robertson has not been able to establish he has sustained a permanent impairment greater than 10%.
8.	The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 7 June 2022. Mr Robertson participated in person and the insurer was represented by Mr Ian Izzard. 
JURISDICTION
9.	The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. 
10.	I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings. 
11.	Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
DOCUMENTS REVIEWED
12.	In considering this application for approval I reviewed the following documents:
•	insurer’s submissions dated 16 May 2022;
•	Police Report Event Reference No. 73936172;
•	Application for personal injury benefits dated 10 October 2018; 
•	Application for Common Law Damages dated 3 April 2020; 
•	Liability Notice – Benefits after 26 weeks dated 7 August 2020; 
•	Liability Notice – Claim for Damages dated 17 February 2020;
•	statement provided by Dane Robertson to NSW Police dated 25 February 2022;
•	report of Dr Todd Gothelf dated 19 April 2022;
•	two photographs of scarring to leg;
•	payslips from GKR Transport dated 16 January 2020, 23 January 2020, 30 January 2020, and 6 February 2020;
•	list of statutory payments, and  
•	letter from the insurer to Dane Robertson dated 17 February 2020 conveying offer of settlement.
THE RELEVANT LAW
13.	Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
14.	Section 6.23(2) and (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines. 
15.	Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“(a)	the proposed settlement satisfies the timing requirements in s 6.23(1) of the MAI 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 a claims assessor, 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; and
(c)	the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.” 
REVIEW OF THE EVIDENCE
16.	The claimant is now 40 years of age and was 38 years of age at the date of accident. He left school at the end of year 10 and has worked as a forklift driver for about 25 years. He has no other formal training. 
17.	Following the accident, the claimant was conveyed by police to Liverpool Hospital where he underwent three surgical procedures to treat his right forearm injury. During one of these surgical procedures Mr Robertson also underwent surgical repair of the ruptured calf muscle.
Application for personal injury benefits
18.	The application for personal injury benefits included the following description:
“I had exited my front door at home and started to walk down the driveway while putting a back pack on, then I was hit and pinned by the attackers car and he then got out of the car and attacked me with a crowbar repeatedly then as I made a break for it, he then chased me down in the car”. 
19.	The injuries were described as follows:
“I have ligaments and cartilage damage in the right leg as well as a huge scab on the hole sizes of my right calf muscle and its painful still today. I have real problems with my leg, movement of my leg.”
Certificate of capacity/certificate of fitness
20.	In a certificate dated 3 April 2020 the claimant reported he returned to work for four hours a day five days a week on light duties from 11 March 2020. He was due for review on 31 April 2020. At that time, he reported he still had severe pain in his leg and found it hard sitting for 20 minutes plus.  
Dr Murray Hyde Page

21.	Dr Murray Hyde-Page, orthopaedic surgeon, examined the claimant on 25 February 2022 and diagnosed a compression injury to the right forearm and right lower leg. He diagnosed a laceration to the lateral calf muscle and skin about the Achilles tendon resulting in an obvious scar and underlying muscle defect.  
22.	Dr Hyde-Page reported Mr Robertson had ongoing pain above the Achilles tendon attachment extending up into his calf muscles. The pain is always present and causes him to limp. When he sits is his forklift all day, he gets a tight calf muscle and his limp becomes more pronounced. 
23.	Dr Hyde-Page thought the claimant had an underlying loss of muscle where the lateral calf muscle attaches to the Achilles tendon and there is an underlying defect. However, on examination he noted the foot and ankle including the Achilles tendon was normal, as was his knee. However, he noted Mr Robertson walked with a painful limp. He recommended Mr Robertson see a foot and ankle surgeon to determine what is causing the limp and to see if there is any treatment available for the calf injury. 
24.	Dr Hyde-Page noted Mr Robertson was unfit for work for two months and then on light duties for three weeks. Thereafter he concluded the claimant was fit for full time work as a forklift driver and he has been employed in that capacity since. 
25.	Dr Hyde-Page assessed a 3% whole person impairment (WPI) as a result of scarring to the right leg. 

Dr Todd Gothelf
26.	Dr Todd Gothelf, orthopaedic surgeon, examined the claimant on 14 April 2022. He provided a report dated 19 April 2022.  He reported Mr Robertson said his right leg feels tight and painful when walking. The pain is persistent and not going away. 
27.	On examination Dr Gothelf noted the claimant had an awkward gait and the right ankle was stiff with a tight heel cord and he avoided ankle dorsiflexion. On examination he had a reduced range of motion although power was 5/5 throughout all muscle groups and muscle tone was normal. He noted the claimant can no longer mow the lawn, in part because of the injury to the right calf muscle. He reported the claimant was off work for about three months. He is now working full duties and is tolerating his work duties. 
28.	He diagnosed a right lateral calf muscle tear resulting in stiffness of the right ankle with an awkward gait. He assessed a 4% WPI for the right lower extremity and a 2% WPI for the scarring resulting in a total WPI of 6%.
Teleconference on 3 June 2022
29.	Mr Robertson informed me he was aware he could obtain legal representation, but he did not think he needed it and did not intend to seek legal representation. Indeed, at the conclusion of the teleconference Mr Robertson indicted he was very happy with the way the insurer had looked after him.
30.	Mr Robertson said he is not currently having any treatment for the injury to his right lower leg, noting he is currently working six hours a day. However, he was aware of his ongoing rights in respect of treatment. 
31.	Mr Robertson said he has some bad days with his leg and accepts he will probably have tenderness and pain for the rest of his life. He said at the end of the working day when his body cools down the pain in his right lower leg becomes worse.  
32.	Mr Robertson said he continues to work with Gold Tiger Logistics. He said his employer is sympathetic and he can avoid heavier duties. He said he accepts he will have to continue to work, noting he is the breadwinner in his household. He understands the allowance of $100,000 for future economic loss is to take into account the future impairment of his earning capacity, that he may have difficulty in securing suitable employment in the event his current employment ceases, and he may even find it necessary to retire earlier than he otherwise intended.  
33.	Mr Robertson indicated he was happy with the settlement and wishes to finalise the matter.  
SHOULD I APPROVE THE SETTLEMENT
Past economic loss
34.	At the time of the accident the claimant worked as a forklift driver with DKR Transport Australia earning on average $1,099 net per week. The insurer has allowed a buffer of $23,000 for past economic loss. 
35.	Mr Robertson was absent from work for three months following the injury and then returned to work on reduced hours for three weeks before resuming his pre-injury hours. Due to COVID 19 he subsequently lost his job but after two months found alternate employment with Gold Tiger Logistics. The claimant has continued in full time employment as a forklift driver since then. 
36.	The allowance for past economic loss has been calculated as follows:
(a)	during initial period of three months when the claimant was unfit for work - 13 weeks calculated at $1099 net per week = $14,287.
(b)	During further three weeks when returned to work four hours a day – three weeks calculated at $549.50 per week = $1,648.50.
(c)	Loss of superannuation calculated at 11% of the total net loss of $15,935 in the sum of $1,752.85.
(d)	Additional buffer of $5,312.15 inclusive of past loss of superannuation benefits allowed in respect of intermittent days off work, and in respect of any tax deducted and paid out of the statutory payments. 	
Future economic loss
37.	Mr Robertson has a future working life of 27 years. He complained to Dr Hyde-Page of pain in his right lower extremity that is always present and causes him to walk with a limp. In addition, he complained that he tends to get a tight calf muscle due to sitting in a forklift all day which causes him to limp more. Dr Gothelf noted that the claimant complained that his right leg feels tight and painful when walking and that the pain is persistent. Dr Gothelf observed that the claimant experiences pain with his work driving a forklift but is able to tolerate the work.
38.	In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
39.	I am satisfied that Mr Robertson continues to suffer from a degree of disability arising from his right leg injury which may be productive of future financial loss although that loss may not be quantified with any degree of precision or certainty. This includes the chance that the claimant may require intermittent periods off work for respite or treatment as per Dunbar v Brown [2004] NSWCA 103.
40.	I am satisfied on the available evidence that an allowance of $100,000 for the impairment of his future earning capacity is an appropriate figure for future economic loss. 
Generally
41.	I am satisfied that the claimant is aware of his right to have his causally related reasonable and necessary treatment expenses paid for the remainder of his life initially by the insurer and subsequently under the Lifetime Care and Support scheme. 
42.	Mr Izzard confirmed that the insurer did not propose to notify Medicare of the settlement or deduct from the settlement sum any amount that may be refundable to Medicare where the settlement does not include any allowance for treatment expenses. However, he also agreed the insurer would be responsible for payment of any reasonable and necessary treatment expenses paid by Medicare and causally related to the accident as part of their obligation to pay statutory benefits in the unlikely event a charge is raised. 
43.	I am of the view that the sum of $123,000 is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claim. 
CONCLUSION
44.	I find the timing requirements of s 6.23(1) of the MAI Act satisfied where two years have elapsed since the date of the accident.
45.	I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant.
46.	I am satisfied the claimant is aware he can seek legal advice but does not wish to do so. 
47.	I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident. I am satisfied the claimant is willing to accept the proposed settlement. 
48.	Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of this claim for damages.