CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
AAI Limited trading as GIO v Boorer [2022] NSWPIC 345 	
		
Claimant:	Michael Boorer 	
		
insurer:	AAI Limited trading as GIO 	
		
Member:	Susan McTegg 	
		
DATE OF DECISION:	3 June 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant now 28 years of age; 24 years of age at date of accident; serious accident; cut out of vehicle; airlifted to hospital; sternum fracture; fractures of cervical (C) spine C3 spinous process, C6 facet joint; right pulmonary contusion; articular humerus fracture; fractured pelvis; acute kidney injury; deep vein thrombosis in right femoral vein; tachycardia; scarring; future hip replacement surgery; returned to work as engineer in mining industry; no current loss of income; able to live independently; no current treatment; claimant not wish to seek legal advice notwithstanding serious injury; Held – settlement approved in the sum of $586,784.19 including non-economic loss of $320,000; past economic loss of $66,784.19; buffer for future economic loss of $200,000.
	
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 section 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the MAI Act).
3.	The proposed settlement complies with section 7.37 of the Motor Accident Guidelines

INTRODUCTION

1.	On 8 December 2018 Mr Michael Boorer (the claimant) sustained serious injuries in a head on collision at speed (the accident).
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 accepted liability for the claimant’s claim for statutory benefits and has paid treatment benefits to, or on behalf of the claimant.
4.	The insurer has accepted that the claimant had non-minor injuries.

5.	The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $586,784.19. The insurer will be entitled to credit for the sum of $35,784.19 in respect of statutory benefits already paid to the claimant leaving the claimant with a balance of $551,000.
6.	The offer is calculated as follows:

•	Past economic loss	$66,784.19

•	Future economic loss	$200,000

•	Non-economic loss	$320,000.

7.	Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
8.	The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 27 May 2022. The claimant participated in person and the insurer was represented by Ms Rachael Miles.
9.	At that teleconference I indicated I was not satisfied with the offer for non-economic loss where the claimant was only 28 years of age with a life expectancy of 55 years.
10.	Ms Miles agreed it was appropriate to stand the matter over for seven days to enable the insurer to review the offer of settlement. I also asked Mr Boorer to provide photographs of his scarring.
11.	The matter was listed for a further teleconference on 3 June 2022 when I was advised of the revised offer which is the subject of this approval. Mr Boorer and Ms Miles participated in this teleconference.

JURISDICTION

12.	The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. 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.
13.	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

14.	In considering this application for approval I reviewed the following documents:

•	insurer’s submissions dated 7 April 2022;

•	Police Report Event Reference No. 267271196;

•	Application for Personal Injury Benefits dated 10 December 2018;

•	Application for Common Law Damages dated 4 June 2021;

•	liability Notice dated 24 August 2021;

•	Ambulance Report dated 8 December 2018;

•	discharge summary John Hunter Hospital dated 24 January 2019;

•	discharge summary Newcastle Private Hospital dated 21 February 2019;

•	report of Mr Finlayson dated 19 June 2019;

•	report of Mr Finlayson dated 25 February 2020;

•	questionnaire of Dr Pudney dated 30 August 2021;

•	rehabilitation report of Recovre dated 12 February 2019;

•	report of Recovre dated14 March 2019;

•	functional capacity evaluation of Ms O’Brien dated 17 July 2019;

•	report of Recovre dated 20 January 2020;

•	report of Recovre (Closure) dated 22 April 2020;

•	report of Dr Ryan (employer’s report) dated 2 September 2019;

•	report of Dr Hyde-Page dated 6 December 2021;

•	certificates of fitness - various dates;

•	payslips – Ulan Coal Mines Limited from1 November to 31 December 2018;

•	particulars from Ulan Coal Mines Limited dated 16 September 2021;

•	Notices of Assessment 2015 to 2021;

•	Taxation Returns 2016 to 2021;

•	income Statements 2018 to 2022;

•	payslips – Cobar Management Pty Limited September 2021 to February 2022;
•	letter providing particulars from the claimant dated 31 January 2022;

•	email from insurer conveying settlement offer and email from claimant accepting offer both dated 28 March 2022;
•	email correspondence with claimant regarding Centrelink dated 4 April 2022;
•	signed settlement agreement dated 28 May 2022; and

•	photographs of scarring.

THE RELEVANT LAW

15.	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%.
16.	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.
17.	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;
(c)	the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner; and
(d)	the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
REVIEW OF THE EVIDENCE

18.	The claimant is now 28 years of age, and he was 24 years of age at the time of the accident.
19.	The claimant was involved in an earlier motorbike accident on 5 November 2017 (the 2017 accident) when he sustained fractures to the left fibula and humerus. He did not require surgery and says he made a full recovery.
20.	At the time of the accident the claimant had just taken up residence in a share- household in Mudgee, having started a new job at Glencore’s Ulan underground mine as a graduate engineer six weeks earlier.
21.	On 8 December 2018 the claimant was involved in the high-speed head-on collision when the insured vehicle crossed onto the wrong side of the Golden Highway at Gungal. He had to be cut out of his vehicle and was conveyed by helicopter to John Hunter Hospital.
22.	The claimant was hospitalised at John Hunter Hospital from 9 December 2018 until 24 January 2019.
23.	The claimant sustained the following injuries;

•	undisplaced sternum fracture, treated non-operatively;

•	abdominal injury with bleeding, and extensive blood loss into the chest and resulting in multiple blood transfusions. In his abdomen he had a bowel resection on 9 December 2018;

•	cervical spine injury with fractures to the C3 spinous process fracture and C6 facet joint requiring treatment in a collar for six weeks;
•	right pulmonary contusion with right pneumothorax with non-operative management;
•	left articular humerus fracture, treated by open reduction and internal fixation with two plates and screws on 20 December 2018 which united uneventfully;
•	fractured pelvis with open reduction and internal fixation of right iliac wing and right acetabulum and anterior column fractures, as a first stage operation on 12 December 2018. Second stage open reduction with internal fixation on 17 December 2018. Fracture united satisfactorily, although minimally weight bearing on the right hip and leg for a few months;
•	acute kidney injury now resolved;

•	DVT in the right femoral vein, successfully treated with a temporary filter; and

•	tachycardia now resolved.

24.	The claimant underwent rehabilitation as an inpatient at Newcastle Private Hospital from 24 January 2019 until 21 February 2019 when he was discharged to his parent’s home in Berrico.
25.	He underwent an assessment with the Recovre Group on 12 February 2019. At that time, he was mobilising using a forearm support frame and two axilla crutches with partial weight bearing on his right leg. He was independent in personal care. He was able to stand and walk for 15 minutes with crutches and sit for several hours.
Mr Boorer reported he had no ongoing neck or chest pain, his left upper arm range of motion remained slightly limited and whilst the right side of his pelvis was stiff the pain was only intermittent.
26.	In a report dated 14 March 2019 Margaret Baird of Recovre reported Mr Boorer was attending a day program at Newcastle Private Hospital twice weekly for hydrotherapy, physiotherapy and occupational therapy. He was also swimming twice weekly at Gloucester Pool, with transport provided by his grandmother.

27.	The claimant commenced physiotherapy with Stride Health on 15 May 2019. In a report dated 19 June 2019 Hamish Finlayson, physiotherapist reported the claimant had been very disciplined with his rehabilitation and was not experiencing any substantial pain or limitations. Whilst Mr Boorer had been working light duties for six weeks, he had increased discomfort in his right hip after prolonged walking and towards the end of the day. He was still mobilising with slight gait antalgia, lacking full hip extension in terminal stance.
28.	Physiotherapist Liz O’Brien of Stride Health undertook a Functional Capacity Evaluation on 17 July 2019. She provided the following musculoskeletal assessment:
•	significant scarring left arm, abdomen and right hip/pelvis region;

•	antalgic gait;

•	reduced passive right hip flexion range of motion to 709 degrees;

•	right side cervical spine rotation was noted to be slightly decreased compared to the left side although no pain was reported;
•	right single leg balance poor; and

•	reduced ability to get up off the ground following right kneeling.

29.	Ms O’Brien concluded Mr Boorer had the functional capacity to perform the proposed position of engineer with no restrictions.
30.	On 25 February 2020 Mr Finlayson reported by email that Mr Boorer experienced stiffness and fatigue in the hip at the end of the day’s work and had some difficulty surrounding the occasional need for sustained crouching underneath equipment or low workspace heights.
31.	On 22 April 2020 Margaret Baird of Recovre provided a closure report. She reported Mr Boorer was continuing to attend fortnightly treatment with Stride Health as well as the use of an exercise bike at home at least three times per week.
32.	She noted Mr Borer regained capacity for unrestricted duties and hours from late February 2020 including underground shifts. At that stage he had not regained capacity for leisure activities such as dirt-biking and water-skiing.

Dr Simone Ryan

33.	Mr Boorer was assessed by Dr Simone Ryan, occupational physician on 29 August 2019 at the request of his employer, Glencore.
34.	Dr Ryan reported Mr Boorer had returned to work on restricted duties working full-time hours undertaking mostly office-based duties and subject to a lifting restriction. She noted his substantive employment involved undertaking underground work off-siding with trades people.
35.	Dr Ryan noted Mr Boorer had undergone a functional evaluation and whilst he passed with flying colours there was a slight increase in his heart rate on the heavy lifting tasks.
36.	Dr Ryan reported Mr Boorer underwent an open reduction and internal fixation of the left humerus, two pelvic surgeries and one bowel resection. Whilst he had sustained an acute kidney injury due to impact by the time of discharge his kidney function had returned to normal. She noted cardiac follow up was required as he developed a type of tachycardia probably part of the impact trauma noting he had a serious sternal fracture. The cardiologist referred him back to the care of his general practitioner with no further specialist involvement. Dr Ryan noted a DVT formed as a result of prolonged immobility, a DVT filter was placed and subsequently removed with no further specialist follow up.
37.	In terms of his status Mr Boorer reported he had good and bad days. He experienced right hip discomfort from prolonged driving, and he had a slight permanent reduction of his elbow extension with no particular pain. Mr Boorer stated his kidney function had remained normal and his resting heart rate was then in the 50s.
38.	Dr Ryan noted Mr Boorer had substantial scarring over his right hip, flank and pelvis region and a substantial long and lengthy scar at the posterior aspect of the left arm consistent with the humerus reconstruction. He also had scarring in the midline of the abdomen consistent with bowel resection.

39.	Mr Boorer could walk on his heels and on his toes, he could perform repeated full and deep squats, and stand erect without complaint or difficulty. He demonstrated full and active range of motion of the cervical spine and of all joints of the upper and lower limbs. He presented in a fit, well and healthy state. His heart rate was measured at 55 beats per minute. Dr Ryan concluded the increased heart rate during heavy lifting was because Mr Boorer was very deconditioned as a result of his recovery from what she described as a devastating accident.
40.	Dr Ryan recommended a graduated return to work program conducted over a 12-week period to enable Mr Boorer to recondition himself for work.
Dr Murray Hyde Page

41.	Dr Hyde Page, orthopaedic specialist assessed Mr Boorer at the request of the insurer on 22 November 2021. He provided a report dated 6 December 2021.
42.	He reported Mr Boorer returned to work after about six months undertaking office- based tasks. Once he was able to return underground, he was limited in the physical tasks he could do to help tradesmen, such as carrying equipment and cleaning the mine down.
43.	In August 2021 Mr Boorer took up employment in Cobar as a Project Engineer with the CSA Copper Mine. This job is more office-based but he does do site inspections.
44.	He reported the claimant had not required further treatment and did not take medication.
45.	Dr Hyde Page reported no symptoms in the cervical spine and no symptoms in the left upper arm although Mr Boorer was aware of the long posterior scar and has lost the last 10º to 15º of elbow extension. He otherwise had good movement. Mr Boorer described intermittent shooting pain and numbness in the left little finger but otherwise no symptoms in his left wrist and hand. He reported the fractured sternum had settled down well and there was no back pain or discomfort. Mr Boorer described some discomfort around the right hip and groin and has developed numbness on the lateral side of his right thigh. Mr Boorer also reported he was aware of his extensive surgical scars which caused irritation with clothing.
46.	On examination Dr Hyde Page reported Mr Boorer was a healthy-looking man who moved comfortably and freely with no obvious pain or discomfort.

47.	He noted he had lost 20º of full extension, but had full flexion, pronation and supination of the left elbow. The circumference of the left upper arm was 1 to 2 cm greater than the right due to the underlying bone thickening and plating. He also noted the 25cm longitudinal surgical scar on the back of the left upper arm.
48.	Dr Hyde Page also noted Mr Boorer had an altered sensation along the lateral border of his right thigh indicating meralgia paraesthetica which he believed was related to the surgery to the right side of the pelvis.
49.	Dr Hyde Page observed the extensive curved lateral right hip scar, over 30 cm long, a right iliac crest scar extending to his pubic area that was 30cm to 40 cm long and a mid-line anterior abdominal scar extending to his pubis that was 30cm to 40cm.
50.	In the right hip Dr Hyde Page reported Mr Boorer only had flexion to 95º and external rotation of 10º. There was fixed flexion deformity of 10º, but otherwise normal range of movement. He also observed two to three centimetres wasting of the right thigh compared to the left.
51.	Dr Hyde Page concluded it was likely Mr Boorer will develop an osteoarthritic right hip joint and will require a total hip replacement in the next 10 to 20 years. He otherwise felt no further treatment was required. He reported Mr Boorer was able to live independently on his own and was fit for his pre-injury employment.
52.	Dr Hyde Page undertook an assessment of whole person impairment an assessed a 19% WPI.
Ulan Coal Mines - Glencore

53.	A letter from Hayley Caldwell, HR Officer of Ulan Coal Mines Ltd dated 16 September 2021 sets out the terms of the claimant’s employment.
54.	Mr Boorer was employed between 5 November 2018 and 30 August 2021. His annualised remuneration (TFR) as set out in the following table was inclusive of statutory superannuation. The Base Role Allowance was applied for periods where regular shift work or patterns were worked.

Year	2018	2019	2020	2021	
TFR	$92,002.50	$102,383	$104,573	$108,405	
Base Role Allowance		$9,350.05	$14,325.07	$14,850	
55.	In addition to the base annual salary the Operational Engineering development program provided a completion bonus of up to 10% of the base salary each year payable in February.
56.	Ms Hayley confirmed Mr Boorer worked at Ulan Underground across different departments to gain exposure to various business units with the emphasis on field experience. Required hours of work were 40 to 50 hours per week.
57.	Ms Hayley stated Mr Boorer had a positive attendance and a positive working relationship with supervisors, the workforce and his peers. He was unsuccessful in his application for career pathway positions such as Shift Trade Supervisor and Development Mechanical Coordinator.
58.	Ms Hayley confirmed Mr Boorer was absent from work due to the accident between 8 December 2018 and 13 May 2019 followed by a staged return to work. However, no personal leave was utilised, and he was paid as if at work. In other words, Mr Boorer sustained no loss of earnings during that absence from work.
Payslips from Cobar Management Pty Ltd

59.	Payslips from Cobar Management Pty Ltd, another Glencore subsidiary seem to suggest Mr Boorer is now receiving an average of $1,395 net per week or $125,000 gross per annum in his current employment with CSA Mines.
Information provided by Mr Boorer

60.	Mr Boorer provided photographs which showed significant scarring.

61.	Mr Boorer has made an excellent recovery from a very serious accident. He has returned to full time work as a Project Engineer. This is largely an office-based role but does involve site inspections. However, he advised me he experiences stiffness in his left arm on average once a fortnight after strenuous activity. Once a fortnight he finds his right hip is a bit stiff and after sitting in a car for a prolonged period. He advised me he has not had any psychological sequalae from the accident.

62.	On 27 May 2022 I recommended Mr Boorer obtain legal advice having regard to the serious injury he sustained in the accident and his relative youth. He informed me on 3 June 2022 that he had not sought legal advice and did not intend to do so.
63.	Mr Boorer informed me that he understood that settlement of his claim for damages meant that he could not revisit the claim for non-economic loss or economic loss at a future date if his condition deteriorates or impacts his future earning capacity more than he currently anticipates will occur.
SHOULD I APPROVE THE SETTLEMENT

Non-economic loss

64.	Section 1.4 of the MAI Act defines non-economic loss as:

(a)	pain and suffering;

(b)	loss of amenities of life;

(c)	loss of expectation of life; and

(d)	disfigurement.

65.	The current maximum payable for non-economic loss is $595,000.

66.	Mr Boorer is currently 28 years of age with a life expectancy of 55 years.

67.	The insurer has allowed the sum of $320,000 for non-economic loss. I consider that allowance to be appropriate having regard to the serious injury sustained by Mr Boorer, his painful and lengthy rehabilitation, his ongoing pain and suffering, the need for future hip replacement surgery and probably revisionary surgery, and the likely impact of his injuries on his activities of daily living over many years.
Past economic loss

68.	I am satisfied the allowance for past economic loss is appropriate where Mr Boorer confirmed he has not sustained any quantifiable loss although he did receive payment of statutory benefits in the sum of $35,784.19.
69.	I note in allowing the sum of $66,784.19 for past economic loss the insurer has acknowledged that the accident likely delayed Mr Boorer’s prospects for earlier career progression or promotion associated with higher remuneration.

Future economic loss

70.	Mr Boorer has a future working life of 43 years.

71.	It is noted that his most likely future circumstances but for the accident was continued employment as an engineer in the mining field until retirement including progression to management and supervisory roles, escalating in seniority, which by their nature would be less likely to require Mr Boorer to perform “manual work” as observed by Dr Ryan.
72.	Mr Boorer told Dr Hyde-Page in December 2021 that he was “confident he will be able to continue working [in his role at Cobar] without any restrictions”. That said, he has confirmed that his employment with Cobar does still involve “physical activity”, albeit “very little”.
73.	However, in addition to the ongoing issues with the right hip and its potential to develop arthritis, Mr Boorer also continues to experience ongoing symptoms in the left elbow, left pinkie finger, lateral femoral cutaneous nerve, and at the scarring sites, which will impact his future earning capacity.
74.	I also note that it is likely, having regard to his future working life of 43 years Mr Boorer may require not only hip replacement surgery but also revisionary surgery.
75.	The insurer has allowed a global buffer of $200,000, being an allowance of $250 net per week less vicissitudes, to represent a loss of earning capacity for heavy manual work, and also for any time off work that may be required if the claimant comes to a total right hip replacement surgery in 10 to 20 years, which is likely.
76.	I am satisfied on the available evidence that an allowance of $200,000 for the impairment of his future earning capacity is an appropriate figure for future economic loss.
Generally

77.	I am satisfied that the claimant is aware of his right to have his reasonable treatment expenses paid for the remainder of his life as a member of the Lifetime Care and Support scheme.

78.	Ms Miles confirmed that the insurer did not propose to notify Medicare of the settlement where it did not include any allowance for treatment expenses. However, she 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.
79.	I am of the view that the sum of $586,784.19 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.
80.	I confirm the sum of $35,784.19 will be deducted from the settlement sum in respect of statutory benefits previously paid to the claimant.
81.	Mr Boorer was aware that he would receive the sum of $551,000 out of this settlement.

Conclusion

82.	I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is agreed the claimant has sustained a permanent impairment greater than 10%.
83.	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.
84.	I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
85.	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.

86.	Accordingly, pursuant to section 6.23(2(b) of the MAI Act I approve the settlement of this claim for damages.