AAI Limited t/as AAMI v Ross (Eotl)
[2022] NSWPIC 670
•6 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AAI Limited t/as AAMI v Ross (EOTL) [2022] NSWPIC 670 |
| Claimant: | Estate of the Late Joyce Ross |
| insurer: | AAI Limited trading as AAMI |
| Member: | Alexander Bolton |
| DATE OF DECISION: | 6 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Application for settlement approval; accident occurring on 26 September 2018; deceased claimant diagnosed as suffering from mild Alzheimer’s dementia in 2016; deceased claimant was a front seat passenger in a car involved in a T-bone collision at intersection; deceased spent 75 days in hospital in recovery with serious injuries; deceased condition rapidly deteriorated and deterioration in cognitive condition causally related to the accident; deceased requiring 24 hour care post-accident but not in receipt of specific care pre-accident; deceased was 81 years of age at the time of the accident and 83 years of age at the time of her death; insurer conceded whole person impairment threshold exceeded; claim made by the executor of the will of the deceased; Held – offer of $100,000 inclusive course with no deductions by the insurer accepted by the executor. |
| determinations made: | Pursuant to s 6.23(2)(b) of the MAI Act, the proposed settlement of the claimant’s claim for damages in the amount of $100,000 is approved. |
STATEMENT OF REASONS
introduction
This is an application for approval of a settlement between the estate of the late Joyce Ross (the claimant) and GIO.
The claimant requests that the Personal Injury Commission (the Commission) approve the proposed settlement. The accident the subject of this claim occurred on 26 September 2018.The injured person, Mrs Joyce Ross, died on 19 August 2021. The executor of the will of Mrs Joyce, Mr Martin Ross, brings this claim and is not legally represented.
The parties have entered into negotiations and have concluded a settlement. The claim comes before me for approval
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 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 and cl 14B(1) of the Personal Injury Commission Regulation 2020 designates GIO’s application ‘pending proceedings’ and cl 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, cl 14B(4)(c) provides that the Motor Accident Injuries Act (MAI Act) and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
Section 6.23 of the MAI Act says:
“(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 accident 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 or of or made under this Act or the Motor Accident Guidelines”
Clause 7.38 of the Guidelines says that in considering the settlement I must consider whether:
(a) the proposed settlement satisfies the timing requirements in section 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 (member of the Commission), 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.
Clause 11 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
(b) the amount of any reductions in the proposed settlement;
(c) the amount of any advance payments made, and
(d) the evidence, documents and materials relevant to the assessment of the proposed settlement figure.
The accident
Mrs Joyce was a front seat passenger in a car being driven by her husband, on 26 September 2018. The accident occurred at the T intersection of Springs Road and George Downes Drive, Kulnura. Mrs Joyce’s husband failed to give way to a horse float/truck on his right and a collision occurred.
The insurer has admitted liability.
The medical evidence
At the time of the accident the treating geriatrician of Mrs Joyce was Dr Walsh. He first saw Mrs Joyce in 2016 when he diagnosed emerging mild Alzheimer’s dementia.
Dr Walsh said that it was reasonable to state that at the time of the accident the claimant was able to function at home without any major care or supervision by her husband.
Mrs Joyce was examined for medico-legal purposes on behalf of the insurer by Dr Berry. She confirmed that post-accident there was a marked decline in the cognitive function of Mrs Ross. She said that Mrs Ross met the criteria for severe cognitive impairment.
Dr Berry said that after the accident, Mrs Ross displayed a significant decline in her cognitive capacity. A history provided by Ms Bridges, the claimant’s other daughter, described that although she was able to recognise her children, Mrs Ross was amnesic to the events of the accident, was not orientated to time or place and was unable to follow more than simple commands. Dr Berry said that it was likely that Mrs Ross had a delirium due to her was full injuries.
Dr Berry went on to say that together with the stress of the injuries and subsequent inflammatory response, they are all likely to have adversely affected her cognition and to have accelerated her cognitive decline. Dr Berry said that it is well established following acute illness or injury and hospitalisations, the initial decline in cognition may not return to baseline and the subsequent progression of cognitive decline is accelerated from the pre-injury trajectory.
Dr Berry said that it was her view that although Mrs Ross had documented diagnosis of dementia prior to the accident, the rapid decline and acceleration of the current cognitive decline, this could in a large part be attributed to the injuries/hospitalisation resulting from the accident.
Dr Berry said that it would not be consistent with the pre-injury pattern of decline of Mrs Ross or the usual observed trajectory for Alzheimer’s dementia for Mrs Ross to deteriorate, from a mild to moderate cognitive impairment with preserved capacity to perform self-care and initiate simple domestic activities to severe cognitive impairment requiring 24-hour supervision and support within 12 months without having been a contributing event.
She said that in the case of Mrs Ross, it was very likely that the injuries and resulting hospitalisation she sustained from the accident were a triggering event to her rapid cognitive decline.
The insurer also arranged for the claimant to be examined Dr Tam. He referred to the Hunter Valley Private Hospital notes which, on discharge, showed that Mrs Ross demonstrated a full recovery of her cognitive and functional abilities back to her pre-accident status. Dr Tam was not of the opinion that the accident had caused a deterioration in the condition of Mrs Ross.
I accept the opinion and reasons of Dr Berry. The facts are the claimant suffered a horrific accident which left her in hospital for 75 days. The accident occurred on the anniversary she and her husband and it resulted in his immediate passing. Is not unreasonable to expect a, to rise from this and, for it to affect the cognitive condition of an already fragile person and as discussed by Dr Berry.
Reasons
The conference to approve the settlement included Mr Martin Ross and Ms Helen Tucker, son and daughter respectively of Mrs Joyce Ross, the deceased.
Mr Ross is the surviving executor of the will of his mother. In the documentation provided to me I have been provided with a copy of the death certificate of Mrs Ross, a copy of her last Will and a copy of the Grant of Probate. I am satisfied that Mr Ross is able to pursue this claim as executor of the estate of the late Joyce Ross.
Prior to the motor accident, Mrs Ross was diagnosed and treated for a number of medical conditions including atrial fibrillation requiring anticoagulation, osteoporosis, a right eye corneal defect due to childhood illness resulting in blindness, epilepsy, osteoarthritis, left hip replacement secondary to degenerative joint disease, hypercholesterolaemia, left shoulder degenerative change and Alzheimer’s dementia.
As a result of the accident, Mrs Ross suffered;
a) Fracture right distal radius.
b) Pelvic fracture
c) Sternum fracture
d) Fracture right clavicle
e) Bilateral rib fractures – four left ribs and eight right ribs
f) Haemo-pneumothorax
g) Right internal iliac artery haemorrhage
h) Extensive bruising
Mrs Ross suffered very serious injuries. As I said, I accept the opinion of Dr Berry that the claimant’s cognitive condition dramatically reduced after the accident. Also, whilst her husband did care for her in some way prior to the accident, upon Mrs Joyce returning home after discharge from hospital, she required 24 hour a day care and supervision. This is clearly evidence of a considerably reduced condition and function.
Conclusion
Having spoken with Mr Ross and Ms Tucker, I am satisfied that Mr Ross, as surviving executor of the estate of his late mother, is aware of the nature and effect of the settlement offer and its approval by me and:
(a) is happy with the manner of negotiations that have taken place with the insurer and is happy to settle the matter on the basis of the last and only offer made by the insurer;
(b) is aware he can seek legal advice but that he do not wish to do so;
(c) understands the binding nature of the settlement and this approval and that he may not be able to make a further claim for damages in the future, and
(d) the insurer has confirmed that the claimant will not be out of pocket for any amount that has to be repaid to Medicare and that there will be no deductions from the amount of settlement offered.
(e) that the terms of the will of his late mother pass the estate onto her surviving children.
I explained to Mr Ross and Ms Tucker that the amount of $100,000 only represented an allowance for non-economic loss from the date of the accident to the date of death of their mother. Had Mrs Ross lived longer, she would have been entitled to an amount for non-economic loss for the remainder of her life. Damages were therefore, in the circumstances, limited.
I am satisfied that the proposed settlement figure of $100,000 is an appropriate one and that it complies with the requirements of cl 7.304.2 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], 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”.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, the proposed settlement of the claimant’s claim for damages in the amount of $100,000 is approved.
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
· the Guidelines.
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