CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
BGF v AAI Limited t/as GIO [2022] NSWPIC 702	
		
Claimant:	BGF	
		
insurer:	AAI Limited trading as GIO	
		
Member:	Terence Stern	
		
DATE OF DECISION:	7 December 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS - Damages claim; approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; pedestrian; no issue as to liability; tear of hamstring tendons from the ischial tuberosity; overnight in hospital; partial recovery; continuing pain and instability with risk of falls; incapacity to work for more than about 18 hours per week; Claimant aged 71 years, working 18 hours per week; Held – settlement of $610,000.00 approved as just, fair and reasonable and within the range of likely outcomes.	
determinations made:	CERTIFICATE OF DETERMINATION AND REASONS
Application for Approval of Settlement of Damages Claim
The proposed settlement is appropriate and complies with clause 7.04.2 of the Guidelines
Accordingly, I approve the proposed settlement of $610,000.00 subject to deduction of $9,560.10.

BACKGROUND AND THE ACCIDENT
1.	The Claimant was born in [redacted] 1951 and was injured in a motor vehicle accident in [redacted] 2019 (‘The Accident’).
2.	At the time of the Accident, the Claimant was a pedestrian and was struck heavily in the left buttock area, as a result of which, she sustained a tear of her hamstring tendons from the ischial tuberosity. She underwent surgery, by way of reattachment, in January 2020. By March, there was a retear at the operation site and she had to undergo a second operation.
3.	During her rehabilitation, the reattachment failed, and she was left with significant pain and hamstring weakness, but it was decided that it was best that she accept the situation and that it was not advisable that a further attempt be made to reattach the tendon.
4.	The Claimant has progressed with her rehabilitation. She is able to walk quite well but has a feeling of weakness in her left leg and shooting pains from time to time.
5.	Because of knee weakness, secondary to hamstring malfunction, she has developed an instability while mobilising, increasing the risk of falls.
6.	As a result of the Accident, she has also developed pain in her right shoulder which has been treated by cortisone injections.
7.	The Claimant finds sitting a problem.
8.	The Insurer has offered to pay the Claimant the amount of $610,000.00, from which will be deducted $9,560.10.
9.	The Claimant wishes to accept this amount and has signed a Deed of Release, subject to approval of the settlement by the PIC.
Telephone conference
10.	I held a telephone conference with the Claimant and the Solicitor from Moray and Agnew earlier today. The Claimant made it quite clear that she wanted the settlement to be approved and understood the matters referred to in paragraph 24.
The medical evidence
11.	I have already referred to some of the consequences of the injury in Background.
12.	In addition to what I have set out above, the Claimant, according to Dr James Vote, a well-credentialed orthopaedic surgeon, has developed chronic scarring and fibrosis around the operation site which has led to a degree of sciatic dysaesthesia. She has consequential weakness of her hamstrings which has resulted in reduced knee stability.
13.	Dr Vote assessed Whole Person Impairment (‘WPI’) at 15% on a combined basis and the Insurer accepted the Claimant’s entitlement to damages for Non-economic Loss.
The accepted offer
14.	The breakdown of the offer is as follows:

a.	Non-economic loss			$180,000
b.	Past economic loss  			$280,000
c.	Future Loss of Earning Capacity  	$150,000
Total 					$610,000 
less deduction for loss of income paid of $9,560.10
The net sum to the claimant from the settlement is therefore $600,439.90.
Past and future Economic Loss
15.	The Claimant has made available to the Insurer a spreadsheet, setting out a full value claim and the revised claim. The spreadsheet does not appear to take into account net figures after tax but, in any event, on the basis of gross figures, excluding 12 weeks leave per year, the Claimant’s total past loss is $540,988.00 before tax.
16.	The Claimant told me that she had taken a redundancy from her job as Director [redacted] prior to the Accident. One of the conditions of the Redundancy package was that she was excluded from working for a year. More recently, the Claimant has taken on work as a contractor at $130.00 per hour and, according to her, she is readily able to work from home at 18 hours per week. The work flexibility is such that she is able to cope with the difficulties which resulted from the Accident.
17.	The Claimant has stated that she has a current contract with [redacted] until 30 December 2022 at 18 hours a week and she believes that the contract has a high likelihood of being extended as the Australian Government has made [redacted] a high priority. Her supervisor has already indicated to her that the contract would be extended until at least June 2023.
18.	The Claimant has further disclosed that the work she does for the [redacted] is through [redacted], a company owned and managed by herself and her husband. 
19.	The Claimant has disclosed that she is 71 and intends to continue working part-time until at least age 75.
The Legislation and legal principles
20.	In making my decision I have considered the following legislation and Guidelines: 
(a) the Personal Injury Commission Act 2020; 
(b) the Personal Injury Commission Regulation 2020; 
(c) the MAI Act, and 
(d) the Guidelines. 
21.	Section 6.23 of the MAI Act provides: 
	“6.23 Restrictions on settlement of claim for damages
(1)	A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle is greater than 10%. 
(2)	A claim for damages cannot be settled unless – 
(a)	the claimant is represented in respect of the claim by an Australian legal practitioner, or 
(b)	the proposed settlement is approved by the Commission. 
(3)	The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.” 
22.	Clause 7.37 of the Guidelines states: 
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that: 
(a)	the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act; 
(b)	the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim were the matter to be assessed by the Commission, and 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.” 
23.	I am satisfied that all these requirements have been met.
Determination
24.	I am satisfied that the Claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied she knew she was entitled to legal representation. 
25.	The proposed settlement is appropriate and complies with clause 7.04.2 of the Guidelines in that it is:
	“just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a member of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
26.	Accordingly, I approve the proposed settlement of $610,000.00 subject to deduction of $9,560.10.