AAI Limited t/as AAMI v Wade
[2025] NSWPIC 25
•23 January 2025 amended 4 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Wade [2025] NSWPIC 25 |
| CLAIMANT: | Judith Ann Wade |
| INSURER: | AAMI |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 23 January 2025 amended 4 February 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $310,000 non-economic loss only; 62-year-old retired teacher; approved under section 6.23(2)(b); insurer conceded entitlement to non-economic loss; injuries include compression fractures at T7,T8 and T12 with 30% loss of height, ongoing chronic back pain; psychological injuries; PTSD including travel anxiety, hypervigilance, low mood with improvement, recent treatment; Held – settlement complied with clause 7.37 of the Motor Accident Injuries Guidelines version 9.3. |
| DETERMINATIONS MADE: | AMENDED CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $310,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Injuries Guidelines version 9.3. |
STATEMENT OF REASONS
INTRODUCTION
Judith Wade (the claimant) was travelling in her car on 22 July 2023 on the Pacific Highway between Cowan and Brooklyn, when the insured’s driver travelling in the opposite direction travelled across her path resulting in that driver’s death.
The claimant was transported from the scene to Hornsby Hospital by ambulance. The hospital diagnosed compression fractures in her spinal column at T7, T8 and T12 with 30% loss of height. She remained in hospital until 23 July 2023 under the care of treating general practitioner.
An Application for Personal Injury Benefits was lodged on 25 July 2023.
The claimant brought a claim for common law damages on 2 October 2024 alleging she sustained the following injuries:
(a) spinal fractures as T7, T8 and T12;
(b) chronic low back pain, and
(c) psychological injuries including depression, anxiety, stress, low mood, hypervigilance when travelling in cars, anger, frustration and social withdrawal.
Her treatment to date included 24 physiotherapy session and she remains restricted in her capacity to sit and stand for periods longer than one hour.
The insurer admitted liability for the claim on 16 October 2024.
The insurer conceded that the claimant was entitled to damages for non-economic loss on 16 October 2024.
An offer was made on 23 October 2024 and the parties agreed signing a deed of release dated 27 October 2024. This document contained errors and an amended deed was executed on 14 January 2025.
The parties have reached an agreement to settle the claim in the sum of $310,000 for non-economic loss. As the claimant was retired at the time of the motor vehicle accident, there is no claim for economic loss past or future.
The claimant is currently aged 62 years of age.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Motor Accident Guidelines version 9.3 commencing 4 December 2024. (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) repealed;
(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 the Commission, 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.
Preliminary conference on 19 November 2024
The nature of the application was discussed with the claimant and the claimant responded to my questions relating to the current status of her injuries and disabilities. There is no claim for economic losses as the claimant confirmed that she was “semi-retired” at the date of the accident and had made a decision to not return to employment as a lifestyle choice.
When discussing current and ongoing treatment the claimant was also informed that she could also seek legal advice in relation to her claim before the matter was finalised. The claimant confirmed she would like an opportunity to investigate this, as she had been under some pressure to seek legal advice.
The matter was then adjourned to enable the claimant to seek legal advice and retain legal representation if she wished. In the event she was subsequently legally represented then the current application before me could be discontinued.
Preliminary conference on 13 January 2025
The claimant confirmed she had received six further sessions from her psychologist in the interval and following on from the state she found herself in on the last occasion, had significant psychological improvement.
She confirmed whilst she thought she would seek legal advice on the settlement on the last occasion, she was “in a better place” and did not require further assistance with the matter.
She reported that she was not intending to make a claim for economic loss as she was in semi-retirement at the date of the motor vehicle accident and really was not contemplating any casual or part-time work as her partner had a significant residuary income which they enjoyed and so no real need to return to work.
The claimant confirmed her understanding of the nature of the agreement and its finality.
The claimant requested the matter proceed to determination.
The insurer confirmed that there were deductions relating to statutory payments made and the whole amount would be paid to the claimant.
The parties confirmed their desire for the settlement to be approved and advised there was no other information to be relied upon.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 202 pages:
Liability:
(a) ambulance report dated 22 July 2023;
(b) Application for Common Law Damages dated 2 October 2024;
(c) liability notice dated 16 October 2024;
(d) Deed of Release – dated 27 October 2024 and amended deed dated 14 January 2025, and
(e) submissions of the insurer dated 31 October 2024.
Medical records:
(f) medical certificates;
(g) Hornsby Hospital records;
(h) Berowra Family Medical practice clinical records;
(i) Allied Health Recovery Request (AHRR) psychology reports – 17 November 2023 and 27 March 2024;
(j) AHRR physiotherapy notes – 19 September 2023, 23 October 2023 and 9 July 2024;
(k) Peoplesense reports – 17 November 2023 and 2 September 2024, and
(l) Certificates of Capacity 25 July 2023 and 16 August 2023.
Claimant’s information:
(a) responses to my questions of the claimant during the two preliminary conference conducted by audio-visual link.
Settlement documents:
(a) settlement offer dated 23 October 2024, and
(b) Deed of Release dated 27 October 2024 and 14 January 2025.
Injuries
From review of the medical evidence provided in this matter the claimant sustained the following injuries:
(a) Ambulance report recorded:
“C/T 1A motorcycle vs car. O/A Car125 on scene, motorcyclist Code 4. Pt driver of car, travelling approx.80/hr, frontal impact with motorcycle. Minimal damage to front of vehicle, airbags deployed, seatbelt worn,self-extricated from vehicle. Pt denies headstrike, LOC or neck pain on palpation. Pt C/O lower lumbar back pain, radiating bilaterally down both legs. Hx of chronic back pain, pt states worse post accident. Nil other pain or injuries. O/E pt was normotensive, afebrile and normoglycaemic. Pt initially hyperventilating and tachycardic at HR147, both settled after reassurance and pain relief PEARL. Breath sounds = clear and equal. Head-to-toe-Head-NAD, Chest – mild seatbelt abrasion to (R) chest/neck. Abdo - soft. Pelvis - NAD. Limbs - NAD, normal motor and sensory function. Pt given 3mL of methoxyflurane INH. Unable to gain IV access. Nil issues enroute. Pt tx to Hornsby ED for further investigations.”
(b) Hornsby Hospital Discharge of Dr Salma in summary noted:
“MVA T12 fracture. Increased thoracic kyphosis. Mild chronic T7 and T8 wedge compression fractures. Moderate T12 acute wedge fracture. Diffuse thoracic and lumbar spondylosis. In the lumbar spine, most severe at L4-5”. “No intra-abdominal organ injury appreciated.”
(c)Report of Dr Soliman of 22 July 2023 reported thoracic back pain, chronic and recent headaches.
(d)The claimant has reported psychological injuries as a consequence of the injuries sustained in the accident which included shock, feeling worried about leaving hospital, trauma related symptoms, fluctuating mood, motivation and independence.
(e)Rehabilitation reports of Jennie Whitaker dated 14 September 2023 indicated the claimant was upon attending regular physiotherapy sessions improved her sitting and standing tolerances. She was also encouraged to participate in short drives to reduce anxiety. Upon discharge from rehabilitation the claimant was able to lift up to 10kg and drive for 30 minutes. (Page 83 of bundle.)
(f)By 30 August 2024, Jacqueline Walford physiotherapist confirmed date of discharge for treatment needs. Home tasks were able to be performed in all aspects of self-care and low intensity domestic duties. Transport activities were performed by hypervigilance continued. Cognitive behaviour therapy for this was recommended.
(g)Edward Gallagher reported the need in May 2024 for trauma focussed cognitive behaviour therapy and commitment therapy to assist in managing depression and trauma symptoms. The treatment goals were to improve mood and motivation, resume participation at local art studio weekly and reduce hypervigilance while driving.
(h)The final support progress report of 2 September 2024 confirmed the claimant’s ongoing low mood and amotivation against a background of interpersonal stress including conflict across multiple relationships and extended family and friends. (Document bundle page102.) Positive engagement with the sessions was noted against a background of inconsistent therapeutic outcomes.
(i)Current barriers were “significant somatic pain....affecting her physical capabilities and overall quality of life”.
(j)There were unrelated other stressors such as loss of family member and the decline in health of her parents also impacting on her psychological wellbeing. The claimant has received assistance for this separately.
(k)Recent ongoing psychological sessions between November 2024 and January 2025 have been reported by the claimant at the last preliminary conference as producing improvement to her mental health and well-being. She reported at the last conference “I am in a much better place now”.
Non-economic loss
The claimant is entitled to damages for non-economic loss as the insurer conceded that whole person impairment would exceed 10%.
The claimant continues to suffer significant back pain and ongoing psychological sequelae. As reported in the two preliminary conferences held with the claimant, she continues to undergo weekly treatment in the form of exercise programmes, taking medication regularly for pain management and recently she participated in six further psychology sessions to address the ongoing hypervigilance when travelling in a car or driving short distances.
She reported that the recent treatment did prove positive as she felt she was now “in a better place mentally” able to make better life decisions. There are ongoing restrictions with her travel arrangements as her fear whilst being in a car prevents her from being more social.
Prior to sustaining her injuries she was more active and a lot more social, attending art classes weekly. This has been a goal in therapy to continue with her hobbies.
On the available medical evidence which included the full clinical records of treating general practitioner, the material supports the position that the claimant suffers ongoing pain in her thoracic spine as well as ongoing psychological symptoms.
These injuries have impacted on the claimant causing pain and suffering. It is likely that some symptoms will remain for the rest of her life. Albeit some reducing with ongoing treatment. The claimant had previously suffered anxiety and panic disorder as reported in clinical notes in 1997 and disc prolapse and ongoing cervical spine issues in 2012, 2014 and other injuries in 2020 for her left metacarpal and metatarsal with a supracondylar fracture of left humerus. I am satisfied that these other conditions were not impacting on the claimant at the date of the motor vehicle accident on 22 July 2023.
The ongoing physical injuries impacting related to back pain. Psychological injuries are low mood, depression and hypervigilance against a background of other stressors which are considered unrelated to the injuries sustained in the accident such as relationship and family issues.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it is:
“…just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, the insurer recommended the proposed settlement figure of $310,000 be approved.
The claimant also confirmed her desire that the settlement be approved by me.
Impact of injuries upon the claimant
The claimant’s comments made during the two preliminary conferences support her willingness to continue with ongoing sessions of psychological counselling when necessary and intermittent physiotherapy, hydrotherapy and conservative treatment to assist in pain management.
The injuries sustained have impacted on her recreational activities and her ability to drive for lengthy periods.
She is well managed and paces herself to undertake all tasks around the home and her partner assists where necessary for heavier tasks.
REVIEW OF THE EVIDENCE
Clinical records of Hornsby Hospital provided treatment details and initial assessment post-accident.
Clinical records of her treating practitioner Dr Soliman and Berowra Family Medical practice confirm the conservative nature of ongoing treatment to date and the improvement over time of the claimant’s level of functioning.
The rehabilitation reports evidence some improvement to her symptoms by September 2024.
The claimant was a retired teacher at the time of the accident and confirmed during the preliminary conference that there was no economic loss sustained either past or future.
From the material provided in the insurer’s application and the additional information provided by the claimant in person, I am satisfied that I have sufficient information to make a determination on the application.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) the settlement must be approved by a Member of the Personal Injury Commission (Commission) and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) the insurer to include in its application details of the following:
(i)the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for non economic loss is $310,000; there is no economic loss.
(ii)the amount of any deductions in the proposed settlement.
Therer are no statutory payments to be deducted. The claimant will receive net proceeds of $310,000.
(iii)the amount of any advanced payments made be specified. There had not been any advanced payments made.
(iv)the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively convering the period of injury and the relevant period to date. I note the medical records accord with the claimant’s reported symptoms, improvement and ongoing incapacity. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.37 of the Guidelines, requires me to consider the following:
(i)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 the Commission, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satisfied that the claimant has made significant progress and there will be further improvement with ongoing counselling where necessary and conservative pain management. The amount of damages for non-economic loss agreed to between the parties is within the range of of likely range of damages had the matter been assessed by a member of the Commission. An assessment of damages would include factors such as the claimant’s age and pre-existing conditions and prognosis.
I find the sum agreed upon in the sum of $310,000 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.
(ii)the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconferences that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses. She was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer based upon medical need.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately, if appropriate.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $310,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant, the age of the claimant and her pre-existing medical conditions and other psychosocial factors.
I am satisfied the claimant was aware she could seek legal advice and but chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that there are no deductions from the proceeds of settlement and that she will receive $310,000 in final settlement of her claim.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the sum of $310,000.
The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines version 9.3.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines version 9.3 / Personal Injury Commission Rules 2021.
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