AAI Limited t/as GIO v Sutherland
[2023] NSWPIC 539
•16 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Sutherland [2023] NSWPIC 539 |
| CLAIMANT: | Margaret Anne Sutherland |
| INSURER: | GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 16 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $300,000; 73-year-old female; non-economic loss only; fractures to right ankle, femur, patella, tibial plateau, fibular head, calcaneus and talus; rib fracture now healed; abdominal injuries healed; scarring; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
Margaret Anne Sutherland (the claimant) was involved in a head on collision on 22 September 2020 at Shoalhaven Heads. Her mother was killed instantly. Her friend Glenys Jones was also injured.
She was transported to St George Hospital via helicopter. Glenys to Liverpool Hospital, both in induced comas.
Whilst at hospital the claimant was ventilated for more than one week and was then transferred to Waratah Rehabilitation Hospital where she was an inpatient for one month.
The claimant brought a common law claim for damages dated 15 June 2022.
The insurer accepted liability for the damages claim on 11 October 2022.
The parties reached an agreement to settle the claim initially for the sum of $225,000 and upon a request from myself to provide additional material, the insurer revisited its offer and increase the sum to $300,000.
The claimant accepted the increased offer of settlement on 4 October 2023.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a Member of the Motor Accidents Division of the Commission.
THE RELEVANT LAW
Sections 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.
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 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 28 June 2023
The parties had initially agreed on the settlement sum of $225,000 for non-economic loss. There was no claim for economic loss. At this preliminary conference with the parties, I discussed the nature of the application and confirmed that I would like to receive a statement from the claimant and updated medical information to reflect the claimant’s day-to-day functioning and impact of the injuries sustained.
I requested updated treater’s reports to ascertain the present functioning of the claimant as it would relate to my assessment of the appropriateness of the amount agreed upon for non-economic losses.
I could not consider the appropriateness of the agreed settlement without this additional information.
Preliminary conference on 24 August 2023
The insurer provided the clinical records of Dr Keeley and patient history Summary of Botany Medical Centre P/L, and records of Dr Gu.
The claimant also provided her impact statement.
The claimant was asked further questions in relation to the following issues:
(a) Gastric Oesophageal Reflux Disease diagnosed post accident;
(b) hip issues records in clinical records;
(c) psychological injuries noting the claimant mother passed away in the subject accident;
(d) details of ongoing abdominal issues, sensation of tightening;
(e) pain management and ongoing treatment;
(f) onset of osteopenia noted in clinical records;
(g) bowel trauma, and
(h) shortening of right limb and orthotics.
Having reviewed the material and summarising the findings a further discussion took place with the parties. I advised the insurer that I considered the claimant had sustained significant injuries and the likelihood of further deterioration was obvious from the clinical records.
Whilst I was not in a position to advocate for the claimant, I advised the parties of my preliminary view that the offer and sum agreed to for non-economic loss was in my opinion, not within the range of damages likely to be awarded had the matter been determined by a Member of the Commission having regard to the injuries sustained, the pain and suffering suffered by the claimant, the numerous surgeries undertaken and the status of injuries to date and the likely ongoing pain and suffering for the remainder of the claimant’s life.
The insurer was asked if it wished to review its offer in the light of the additional material recently received including the claimant’s statement and noting my comments that I considered the current offer would not be approved as the injuries were extensive and the ongoing problems for the remainder of the claimant’s life were also significant. The insurer agreed to review their offer, seek further instructions and to confirm on the next occasion the status in relation to any further offers and proposed terms of settlement.
The claimant was also questioned as to her understanding of the nature and effect of settlement, she advised of her concerns in relation to ongoing treatment expenses for her accident-related injuries, which the insurer confirmed it was responsible for.
The claimant also welcomed the insurer reviewing its position in the light of the additional material then available.
Teleconference on 4 October 2023
The insurer confirmed that it had made a further assessment of the claim and increased the allowance for non-economic loss to the sum of $300,000. The amended offer had been agreed to by the claimant and agreed to providing updated submissions to the application, a revised deed of release and confirmation that the claimant had agreed to the settlement in writing.
I asked the claimant questions of her understanding of the finality of the claim as well as her confirming she was entering into the agreement of her own free will.
The claimant confirmed her desire to accept the offer and confirmed she was happy with the result, had the opportunity to seek additional advice and wanted to conclude her claim.
I was requested to approve the amended terms of settlement by the claimant and the insurer.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle of 411 pages:
· Liability:
Police report(document A11);
application for statutory benefits dated 23 September 2020;
application for common law damages dated 15 June 2022;
liability notice dated 11 October 2022;
Concession to whole person impairment dated 24 May 2023;
Deed of release dated 4 October 2023, and
submissions amended by insurer dated 4 October 2023.
· Treating medical records:
updated report Dr Keeley dated 20 June 2023 (documents A5 and A7);
various other reports of Dr Keeley (documents A6);
clinical records of Dr Keeley under cover of letter dated 17 August 2023 and 21 August 2023;
bundle medical records dated 23 July 2023;
reports of Sam Adie (document A4);
OT driving assessment (document A6);
rehabilitation records Guardian (documents A8), and
APM Closure report dated 1 November 2022.
Statements:
Margaret Sutherland dated 28 September 2023
· Settlement documents:
Amended settlement agreement dated 4 October 2023
Injuries
Ms Sutherland sustained significant injuries which included:
· fractured ribs;
· abdominal injuries;
· multiple injuries to the right lower extremity with significant scarring, and
· psychological injuries.
Medico-legal opinion
Ms Sutherland was assessed by Professor Ian Cameron, rehabilitation specialist for medico-legal purposes. In his report dated 9 May 2023 Professor Cameron confirmed the following injuries had been sustained:
· right ankle fracture;
· right femur – lesser trochanteric avulsion fracture and comminuted open distal femoral fracture with 3cm shortening of the right lower extremity;;
· right patella fracture;
· right tibial plateau fracture;
· right fibular head fracture;
· right calcaneus and talus fractures;
· rib fractures;
· traumatic small bowel injury, and
· multiple body region scarring.
Professor Cameron opined whole person impairment at 27%.
Based on the opinion of Professor Cameron, the insurer has accepted that Ms Sutherland is entitled to damages for non-economic loss. This was conveyed via correspondence dated 24 May 2023
Ms Sutherland will turn 73 years of age next week and has a life expectancy of 16.2 years. Professor Cameron opined Ms Sutherland has significant residual impairment and disability. She has also engaged well with treatment and has reached maximal recovery. She continues to receive ongoing treatment and pain management.
Professor Cameron recorded that Ms Sutherland walked with a limp and a forearm crutch.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of Clause 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 her desire that the settlement be approved by me.
Impact of injuries upon the claimant
The claimant’s statement made on 16 August 2023 highlighted the impact of the injuries sustained upon her. She reported the following:
“Prior to the accident on the 22 September 2021 I led a very active sporting life... I spent a lot of time on the Shoalhaven River fishing, I played golf with Glenys at Shoalhaven Heads each time we came down, spent a lot of time in my garden planting weeding pruning. We would bring my mum down with us each time she absolutely loved coming down.
I played in a lot of golf tournaments all over the East Coast, when not traveling away to events, I played golf 2 to 3 days a week at my golf club The Coast at Little Bay. Glenys and I walked every day when not playing golf. We travelled to the UK every couple of years to visit family and friends, with stop overs in Singapore each way exploring all the sights.
We travelled to Lord Howe Island every few years, to catch up with friends on the island. We snorkeled quite often and swam each day and went for long walks and fished.
On the 22nd September 2020 we left the Heads at 10am, 6 minutes later we were involved in a head on crash. The other driver fell asleep at the wheel. My mother was killed instantly. Glenys and I suffered shocking injuries (we found out later the paramedics and police didn’t think we would survive). We were flown by helicopters back to Sydney. Glenys to Liverpool hospital (where she spent 4 days in an induced coma) and me to St George hospital where I was in an induced coma for 12 days. We both had internal injuries and had our stomachs cut open ( Laparotomy) to repair damage to our bowels etc.
My right leg was shattered, bones sticking out, my foot dangling, femur badly damaged, ribs broken, posterior ligament damaged. I had a plate and screws inserted into my ankle, a plate from my hip to knee with numerous screws through the knee. Glenys left arm was badly damaged and had to have plates inserted from shoulder to wrist. All her ribs were broken. Glenys spent 4 weeks in Liverpool Hospital then was discharged to Waratah Private Hospital for a further 4 weeks for Rehab. I was in the Trauma ward for 2 weeks after leaving ICU, then transferred to a Rehab Ward. I was in a wheel chair with my right leg elevated I had plaster on my lower leg and full leg brace to keep my knee from bending whilst the posterior ligament healed. I also was left with ascetes in my abdomen which is still there, my abdomen always feels like I have a tight corset around my middle.
My mum’s funeral had been postponed for 5 weeks to allow me to attend in a wheel chair with my leg elevated. Which I did, via a wheel chair taxi there and back. I was discharged from St George Hospital after 2 months to Waratah Private Hospital for rehab. Brace still on and plaster off with a knee high boot. It was after they lowered me into the rehab pool for the first time I discovered my right leg was shorter then my left leg. The physio gave me a height insert for my shoe. I was allowed to go home on the 23rd December 2020. With a walking frame, crutches a wheel chair and the brace. Glenys house was checked for aids I would need, a bath board was supplied, along with a toilet chair and bathroom chair. I needed a commode as too hard to use walking frame through the night. Nurse would come each day to shower me for a few weeks. I attended outpatients rehab for 2 months via a taxi there and back, this stopped when the physio treatment was not allowing my knee to bend any further. The brace was removed 5th February 2021. Had operation on my ankle 14th April to insert a tightrope this overnight stay St George Private Hospital. Attended St George private for a further knee bending operation on 4th May 2021. The operation did not go well as the patella tendon pulled a plug out of my Tibia, the result was another plate and screws in the Tibia. I spent 14 days in St George Private with another brace on, I had to have blood transfusion whilst there then I was transferred to Waratah Private for a further 4 weeks for rehab again no weight bearing and a walking frame again. Discharged on the 18.6.21.
I had a further operation by Dr Keeley on the 10.9.21 at Waratah Private Hospital to remove the plate down the side of my femur. What they call a nail was inserted into the middle of my femur coming from my hip and screwed into my knee. A bone graft was also performed on my femur at the same time. I was discharged from Waratah on the 21 September 2021 with walking frame again and no weight bearing.
I commenced physio on the 9 November 2021 at Movement 101 Botany as was able to use two crutches by then to get around. Glenys had to drop me off and pick me up from these appointments twice a week. Our car was converted to have a left foot accelerator as well as right and I had to have driving lessons at Rehab Driving Ryde commencing 6 July 2022 after an assessment on 25 May 2022. Glenys had to drive me to the lessons and wait in the car to bring me home. My Physio was stopped on 3 August 2022 as my knee was not bending any further than before all the operations. By this time, I was on one crutch. I passed my driving test on 5 October 2022. I don’t drive very often as my right knee aches as it is just hanging in the air because of no bend. On the 7 November 2022 with x-rays and CT scan I attended Dr Keeley’s surgery where he advised nothing more could be done to bend my knee. In March 2023, I went to a podiatrist for a proper insert in my shoe, before this I just had heel inserts from the chemist.”
The claimant in her final statement confirmed her condition at the time of determination as follows:
“I am still on one crutch to get around. I started pain management in April this year as I could no longer stand the constant pain. I can only walk about 50 metres and have to rest for a few minutes and carry on. I do try and walk to the park at the end of our street each day which is about 1100 steps there and back. I still have to use the bath board to sit on when I get in the shower. The toilet chair has gone now as railings were put on the wall for me, as in the shower to pull myself up. 5 small hand rails have been put in for the front and back porch so I can get up and down the steps easier. I cannot walk on my crutch without shoes on I have to put on 1 sandal to get to the Loo through the night. In the shower at Shoalhaven Heads I have to wear a rubber sandal so I can stand whilst having a shower. I have to hire a mobility scooter for a couple of hours if I want to go browsing at Westfield Eastgardens. I cannot hang clothes on the line I cannot go food shopping I cannot help unload the car as bags too heavy. I cannot weed or prune my garden anymore. I cannot walk around the inlet and beach at The Heads as I used to. I cannot play golf, sometimes I go with Glenys and just sit in the cart and catch up with the girls. I spend my time watching a lot of golf on the tele and reading on the back porch. I can do small things around the house like washing up etc and using a stick vacuum whilst leaning on my crutch. I do some cooking by leaning on the benches when I move around the kitchen. My short term memory is shot unfortunately I have flashbacks through the night and day of the accident right through until I was placed in the Helicopter. I could not cope by myself and Glenys is like my full time carer.”
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant’s statement describes the profound consequences of the injuries she sustained as a consequence of the accident, the operations she was required to undertake and the ongoing impact of her injuries on her daily life.
INJURIES
Upon review of the medical information, I am satisfied that the claimant suffered significant injuries which included fractures of her right ankle, right distal femur and right patella.
She was required to undergo numerous surgeries which have resulted in additional and ongoing pain and suffering.
The psychological impact of losing her mother in the accident is ongoing, she continues to suffer mild anxiety when driving from time to time and avoids driving past the location of the accident.
The claimant suffers from daily pain and restrictions in her ability to undertake activities of daily living and social and sporting activities she enjoyed per accident. She now has osteopaenic bones and moderate joint degeneration to her right ankle as reported by Dr Lim, and right femur as reported by Dr Hiew noted in the clinical records produced by Dr Keeley.
The clinical records of treating orthopaedic surgeon Dr Keeley confirm that the claimant has marked restriction of movement in her right knee and right ankle.
The claimant’s condition is unlikely to change for the remainder of her life, it may be the case that she will continue to suffer further degeneration to her right ankle and knee.
The claimant reported that abdominal injuries had healed.
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 MA Guideline.
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 is $300,000;
(ii)sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There are no deductions. The amount in hand to the claimant is $300,000. This was confirmed in the teleconference;
(iii)sub-clause 7.389.3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement, and
(iv)sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant period to date.I note the medico-legal opinions and those of the claimant’s general practitioner and orthopaedic specialist. I have also received a written statement of the claimant as well as oral information directly from the claimant. There has been no psychological treatment to date.
(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 medical evidence produced in this matter, I am satified that the nature of the ongoing injuries have been identified and that the sum agreed upon is is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(ii)sub-clause 7.399.3: Understanding – 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 teleconference 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, if required and approved by the insurer.
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 $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, the injuries, disabilities, impairments and losses sustained by the claimant and the age of the claimant.
I am satisfied the claimant was aware she could seek legal advice but chose not to avail herself of 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 to be taken from the proceeds of settlement.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
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 2017/Personal Injury Commission Rules 2021.
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