AAI Limited t/as GIO v Chan
[2024] NSWPIC 573
•14 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Chan [2024] NSWPIC 573 |
| CLAIMANT: | Yiu Chung Chan |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 14 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $300,000; 77-year-old male; non-economic loss only; injuries; cervical fusion C2-C5; other medical conditions impacting on life expectancy including breast cancer and recent diagnosis of Parkinson’s Disease; Held – proposed settlement is just, fair and reasonable; settlement approved under section 6.23. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $300,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
Yiu Chung Chan (the claimant) was injured on 10 September 2023 when the vehicle driven by his wife collided with a stationary vehicle.
He was taken by ambulance to Royal North Shore Hospital where having sustained a C2/3/4 post column fracture and subsequently underwent a C2-C5 posterior cervical fusion on
15 September 2023 which was performed by Dr Hartin.
He was subsequently transferred to Mount Wilga Private Hospital (Mount Wilga) for rehabilitation on 27 September 2023 and was discharged on 11 October 2023.
The claimant is currently aged 77 and suffers from a number of medical conditions which pre-date the accident and these include;
(a) left breast carcinoma in 2022 treated with mastectomy, radiotherapy and chemotherapy;
(b) a history of normal pressure hydrocephalus causing weakness in his lower limbs resulting in a shuffle type gait under the regular care of Professor Owler;
(c) ventriculomegaly out of proportion to the degree of sulcal dilation;
(d) glaucoma and macular degeneration;
(e) minor short-term memory loss, and
(f) hypertension.
The claimant brought a common law claim for damages on 20 November 2023.
The insurer accepted liability on 21 November 2023.
The claimant was retired cook at the time of the accident and there is no claim for past and future economic loss.
The insurer conceded the claimant is entitled to non-economic loss as his injuries exceed the statutory threshold of 10% whole person impairment. It initially made an offer in the sum of $280,000 which was subsequently increased to $300,000 on 31 July 2024.
An adjournment of the application was made to enable the parties to investigate a potential travel claim and upon the receipt of the reports of Drs Howard, Owler, Hartin and Griffiths the final preliminary conference was held on 10 October 2024 to seek the claimant’s understanding of the nature and effect of accepting the settlement and his willingness to enter into the settlement.
The application before me is for the approval of the settlement.
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 Personal Injury Commission Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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
(b) 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.
Preliminary conference on 8 January 2024
The conference was conducted via video-link with the assistance of a Cantonese language interpreter. Due to the proximity of the accident in September of the previous year, it was my opinion that the condition of the claimant was not stable to examine the appropriateness of the settlement and that a rehabilitation report should be obtained.
The matter was adjourned to 8 May 2024.
Preliminary conference on 8 May 2024
The claimant advised that he was to attend Professor Owler and Dr Griffiths to undertake further investigations of fluid on the brain and further rehabilitation.
The insurer was reviewing its position as to whether a report was necessary to ascertain psychological injuries and whether this impacted upon the agreed damages.
The claimant confirmed that he wanted additional time to undertake further investigations before the matter be determined.
Preliminary conference on 8 July 2024
The insurer having received the reports of Dr Griffiths and Professor Owler increased the settlement sum to $300,000.
The claimant was assisted by his wife Lucy to interpret during the videolink preliminary conference and during this conference advised that the claimant had difficulty driving due to his neck injury and the impact of his inability to turn his neck prevented him from driving.
The claimant was requested to provide the medical evidence to support any claim for travel allowing further time for the insurer to investigate this component of the claim and seek medical opinions in reply if necessary.
Preliminary conference on 10 October 2024
The parties appeared during a video-link conference with the claimant being assisted by his wife Lucy to interpret the Cantonese language where necessary. Mr Chan was able to respond at times in English, not requiring his wife to interpret what was said.
During this preliminary conference, a review of all the subsequent medical information was undertaken as well as the information provided by Lucy in a written statement dated
6 October 2024 responding to the opinion of Dr Truskett.The claimant confirmed during this preliminary conference that he did not wish to obtain legal assistance or advice and asked if I considered the offer which had been agreed to a good offer or should they receive more. I explained to the claimant that my role in determining whether the settlement should be approved looked into whether the sum agreed was just, fair and within the range of damages likely to be assessed by a Member of the Personal Injury Commission (Commission) had the matter been heard before a Member and that this was a safeguard for unrepresented injured persons. Whilst the nature of the question was to ascertain whether he should ask for a higher sum, I explained that I could not advocate on his behalf and that I could advise that the sum agreed to was within a range of damages for non-economic loss.
The claimant was then asked if he wished additional time to consider further negotiation or to seek legal assistance and he declined this further opportunity. His wife Lucy queried whether they needed to use this sum of care needs and it was discussed that care needs and medical costs of further treatment were separate to this head of damage.
The insurer confirmed that the claimant could for the period to 9 September 2028 seek medical and care costs related to the injuries sustained in the accident from the insurer and thereafter related costs would be covered by Icare.
The claimant confirmed his willingness to accept the settlement in the sum of $300,000 and that he would not have any deductions from this sum.
The parties were then advised that I would determine the application on the information available to me including the supplementary reports received.
The claimant and the insurer requested the settlement be approved and confirmed there was no additional material required.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 321 pages in addition to the supplementary reports:
Liability:
(a) application for statutory benefits dated 21 September 2023;
(b) application for common law damages dated 19 November 2023;
(c) liability notice dated 21 November 2023;
(d) correspondence conceding 10% threshold for whole person impairment dated 23 November 2023;
(e) submissions of the insurer dated 1 December 2023, and
(f) executed agreement of release dated 6 October 2024.
Medical records:
(a) ambulance report dated 10 September 2023;
(b) discharge Summary Royal North Shore Hospital dated 27 September 2023;
(c) discharge summary Mount Wilga dated 11 October 2023;
(d) reports of Dr Hartin dated 15 September 2023, 4 October 2023,
15 November 2023, 20 December 2023, 27 January 2024 and
21 August 2024;(e) X-rays dated 4 October 2023, 29 November 2023 and 29 January 2024;
(f) clinical records of Cherrybrook Village Family Practice;
(g) clinical records of Royal North Shore Hospital;
(h) clinical records of North Shore Private Hospital dated 22 December 2023;
(i) clinical records of Professor Owler dated 28 February 2024;
(j) AHRR1 -EP records dated 4 April 2024;
(k) clinical records of Sharp Neurology dated 6 May 2024;
(l) report of Dr Howard dated 11 July 2024;
(m) reports of Professor Owler dated 11 May 2021 and 12 January 2023;
(n) report of Dr Blome dated 21 August 2024, and
(o) report of Dr Truskett dated 6 September 2024.
Settlement documents:
(a) deed of release dated 6 October 2024.
Claim
The claimant’s application for common law damages related to injuries sustained in the subject accident comprising the following:
(a) injury to neck;
(b) injury to chest, and
(c) injury to shoulder.
The claimant suffers from a number of unrelated health issues which is taken into consideration when ascertaining the appropriateness of the quantum of damages having regard to his age and life expectancy.
The claimant has a number of chronic conditions, including breast cancer, ventriculomegaly out of proportion to the degree of sulcal dilation, a history of gait imbalance from time to time and falls.
His physical mobility has been impacted by his restriction of neck movement according to
Dr Howard his family practitioner. He is able to dress and wash independently but required assistance with checking his surroundings.
The claimant’s wife currently assists the claimant with activities of daily living. She drives him around as he feels he is now restricted in driving as he has trouble looking around.
Whilst the claimant considers the inability to drive is related to his spinal fusion, the earlier reports of Professor Owler in particular 11 May 2021 provide a history of a fall with loss of balance and this is likely to also impact on his driving ability. Prior to the accident he was using a walking stick due to an unsteady gait.
Review of the medical information
The report of X-ray of cervical spine dated 22 August 2024 revealed the spinal fusion and pedicle fixation at C2-C5 “with no instability detected”. The spine is showing “normal alignment”.
Changes shown of spondylosis are noted at C6/7 disc including posterior osteophyte is not considered accident related.
The most recent report of Dr Harbin treating spinal surgeon dated 21 August 2024 confirms the fusion has healed. He reported that “no precautions are now required for the cervical spine”.
He further commented “I have encouraged Mr Chan to remain fit and active within his limitations. I have reassured him that his cervical spine is now stable and there is no need to restrict any activities from a spinal perspective.”
Associate Professor Truskett qualified by the insurer assessed the claimant on
5 September 2024. The history provided by the claimant and the review of the ambulance records revealed that upon impact the claimant complained of central neck pain and upper thoracic pain, left shoulder pain, central chest pain and left leg pain. He reported that the cervical spine CT scan taken immediately after the accident demonstrated a mildly displaced fracture of the laminar and spinous process of C2, comminuted fracture of the posterior elements of C3 extending to the inferior articular process on the right, hyperdensity posterior to C3 and C3/4-disc space with small osseous density posteriorly causing moderate canal stenosis, mildly displaced fracture of the spinous process of C4.
He was admitted under the care of Dr Nathan Hartin, neurosurgeon. He subsequently underwent a posterior spinal fusion performed by Dr Hartin from C2 to C5 with a left iliac crest bone graft for discoligamentous instability. He was transferred to North Shore Private Hospital from North Shore Public on 15 September 2023 and was discharged to Mount Wilga on 27 September 2023 for further rehabilitation.
Whilst in Mount Wilga, he developed deep venous thrombosis of the left common femoral vein measuring approximately 1.5cm and 6mm above the bifurcation point. The left femoral vein and popliteal veins were patent. There was also occlusive thrombus along the left soleal vein 10cm below the knee. This spanned for 8cm. This was an ultrasound report on
4 October 2023 reported by Dr Vincent Lai. He was treated with anticoagulants. He was discharged home from Mount Wilga on 11 October 2023.Thereafter, he attended his local medical officer, Dr Gordon Howard of Pennant Hills.
An assessment by Dr Griffiths neurologist was undertaken on 14 February 2024 reported worsening mobility, falls and cognitive change over several preceding months which she concluded “his decline could include the possibility of normal-pressure hydrocephalus or Parkinson’s disease”. These conditions are unrelated to the subject accident but have an impact on the claimant’s ability to undertake activities of daily living.
The claimant no longer reports any need for pain medications, he reported to Dr Truskett “there is no pain in his neck and there has been no pain for two years”. This is probably a memory error as his accident is just over one year ago. He further reported “stiffness in his neck which worries him in relation to driving” and this was consistent to what he reported to me during the preliminary conferences held.
The claimant’s reported difficulties of performing activities of daily living as follows to
Dr Truskett in the most recent medical assessment:“He has been using a walker for the past three months because of unsteadiness and poor balance. He said that prior to this he was using a walking stick, but this was in use before the motor vehicle accident. He can only walk approximately 10 metres without his walker as he fears that he may fall over.
He lives in a two-storey house, and he is able to negotiate stairs with difficulty. He no longer drives a car because he is concerned about his mobility and neck movement. His wife has stopped him cooking as she is concerned about his balance. He can wash dishes and do light housework. He can go shopping with his wife. He is no longer able to play lawn bowl because of his balance and leg issues. He can perform all acts of daily living.”
Physical examination revealed:
“On examining his neck, there was a 9 cm scar at the back of his neck which was tethered.
There was some muscle guarding. There was, however, a reasonable range of neck
movement. Neck flexion was normal, extension two-thirds normal. Lateral flexion left and right was half-normal. Rotation left and right was two-thirds normal. This was performed slowly.”
Dr Truskett opined the impact of cervical fusion had healed and relied upon the assessment of treating Dr Hartin to note “full recovery from his spinal fusion”.
As to the ongoing impact of described disabilities Dr Truskett commented:
“I have described his disabilities above. They appear to be entirely due to progressive deterioration due to his neurological condition of normal-pressure hydrocephalus or Parkinson’s disease.”
As to the impact of accident related injuries to an inability to drive, Dr Truskett opined;
“His inability to drive is entirely due to his progressive deteriorating neurological condition which is unrelated to his motor vehicle accident. He has limited restriction of neck movement and should be capable of driving if this was his only disability. His decision making and his limitation of mobility is the main limiting factor in his ability to drive. It is anticipated that this is likely to continue to deteriorate and it would be my view that he would be unlikely to ever return to driving.”
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 $300,000 be approved.
The claimant also confirmed his desire that the settlement be approved by me.
Review of the evidence
I am satisfied the claimant sustained significant injuries in the motor vehicle accident and has made considerable recovery.
The medical information provided in this matter accord with the history of the injury to his cervical spine, the necessary spinal fusion and the satisfactory healing of the fusion site in alignment.
When making an assessment of whether the amount of damages agreed to in relation to the claim for non-economic loss, I have regard to the pain and suffering the claimant endured as a rest of his injuries, the operations he undertook and the impact of his injuries upon him for the remainder of the claimant’s life. He is currently aged 77 years with his birthday in December.
The claimant has pre-existing conditions which include breast cancer and neurological condition of normal-pressure hydrocephalus or Parkinson’s disease which on recent clinical review appears to be deteriorating and impacting considerably on the claimant ability to undertake activities of daily living. The deterioration is unrelated to the injuries sustained in the subject accident.
The information before me is sufficient for me to determine the application before me.
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 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) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for non-economic loss agreed to in the settlement is $300,000;
(ii)sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The insurer has not made any payments. The claimant will receive net proceeds of $300,000;
(iii)sub-clause 7.389.3 requires the amount of any advanced payments made be specified. There had not been any advanced payments, and
(iv)sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the evidence relied upon the included medical records as contained in the application and the supplementary reports of Dr Howard, Professor Owler, Dr Griffiths and Dr Truskett. The information produced by the insurer has given me a good indication of the pain and suffering and loss of amenity suffered and likely to be suffed by the claimant. I note considerable recovery and a successful spinal fusion C2-C5.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: appropriateness – 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 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 evidence produced in this matter, I am satisfied that the amount allowed for non-economic loss agreed upon in the sum of $300,00 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission having regard to the injuries suatined, the level of recovery and the age of the claimant, and
(ii)sub-clause 7.399.3: understanding – the claimant understands the nature and effect of the proposed settlement is the finality of his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the video preliminary conferences that in the event he took the settlement, he could not seek any further damages.
I am satisfied that the claimant was aware of his 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 $300,000 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 and losses sustained by the claimant.
I am satisfied the claimant was aware he could seek legal advice and chose not to retain legal representation.
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 subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that $0 will be deducted from the proceeds of settlement and that he will receive $300,000.
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 $300,000.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
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;
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021, and
· Compensation to Relatives Act 1897.
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