AAI Limited trading as GIO v Doughty
[2021] NSWPIC 436
•25 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | AAI Limited trading as GIO v Doughty [2021] NSWPIC 436 |
| CLAIMANT: | Helen Doughty |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 25 October 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 71 year old female passenger injured in head on collision; right wrist fracture, minimally displaced fracture of L2 vertebra, fracture of L3 vertebra, fracture of great left toe, and fracture of the sternum; admitted to hospital for 8 days; claimant and insured driver both residing in Queensland; jurisdiction of Personal Injury Commission considered; 11% whole person impairment assessment; possible degeneration of right wrist leading to osteoarthritis of the joint in 10+ years; RACQ Insurance Limited v Motor Accidents Authority of NSW and Reece v Reece considered; Held - proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | 1. This proposed settlement is approved. 2. The amount of the claim for damages is approved in the total amount of $220,000. |
Background
This is a claim for damages made by Mrs Doughty which comes before me for approval. Mrs Doughty is not represented by an Australian legal practitioner.
Mrs Doughty was involved in a high speed motor vehicle accident on 19 February 2018 in New South Wales. The driver of the insured car lost control of her car and a head on collision occurred. Mrs Doughty was a passenger in her car and was trapped for some time after the collision before she could be freed from the front passenger seat of her car.
Mrs Doughty suffered a right wrist fracture, a minimally displaced fracture of the L2 vertebra, a fracture of the L3 vertebra, a left great toe fracture and a fracture of the sternum. She was admitted to Armidale Hospital on 19 February 2018 and discharged on 27 February 2018. Mrs Doughty could not travel to her home in Queensland as a result of her injuries and had to be flown to Brisbane.
Mrs Doughty is not legally represented and in accordance with section 6.23 of the Motor Accident Injuries Act 2017 (the MAI Act), the offer of settlement made by the insurer, GIO, must be approved by me. Mrs Doughty is entitled to represent herself and to make her own decisions, without the need to instruct a lawyer concerning her claim.
I held a first teleconference with Mrs Doughty and Ms Papaspiros of GIO on 29 July 2021. At that conference I expressed concern that there was no medical evidence concerning the possible future deterioration of the disabilities of Mrs Doughty. Following on from that, the insurer obtained a supplementary report from
Dr Winstanley.Enquiries also had to be made about the residency of the insured driver and which was subsequently confirmed as being in Queensland.
Both Mrs Doughty and the insured driver reside in Queensland. I am satisfied that the Personal Injury Commission (the Commission) has power to approve this settlement application, on that basis.
The additional enquiries and obtaining of reports have contributed to a delay in final consideration of the claim but I am now satisfied that the approval process can proceed.
Mrs Doughty was not working at the time of the accident, having retired from the workforce. She has confirmed that as a result of the accident, she has suffered no loss of income.
Mrs Doughty had previously suffered a fall in 2006 with resulting fractures of her L2, L3 and L4 vertebrae. These were reported to have resolved with no ongoing incapacity. Mrs Doughty also had pre-accident problems with her lumbar spine associated with spondylosis but she had been treated with a facet joint injection in 1999 and thereafter was asymptomatic.
The claimant requests that the Commission approve the proposed settlement.
Reasons
Review of the evidence
Treating medical evidence
Mrs Doughty, immediately following the accident was taken to Armidale Hospital by ambulance after what was described as a high speed accident, in the hospital notes.
Mrs Doughty was discharged from hospital on 27 February 2018. On discharge, she was referred to the outpatient clinic of Sunshine Coast University Hospital for follow up treatment and rehabilitation.
Since the accident, Mrs Doughty has been under the care of her treating general practitioner, Dr Pieterse.
Upon returning home after the accident, Mrs Doughty was assessed on behalf of GIO by Procare Injury Management who provided a report dated 4 April 2018.
This report was relatively soon after the accident. At that time, Mrs Doughty had limited ability to freely mobilise, bend, twist, push and pull and kneel. She needed assistance with domestic duties. Thereafter, assistance was provided by GIO.
Insurer’s medico-legal evidence
The insurer relies on a report from Dr Winstanley dated 30 November 2021.
Mrs Doughty was noted as then having minimal disabilities with respect to her fractured left great toe and her fractured sternum.
She did however have difficulty with flexion and supination with regard to her right wrist. Mrs Doughty is left hand dominant. As a consequence of her difficulties with her wrist, she has difficulty lifting and gripping.
Mrs Doughty still has disability with her back, with pain and referring into her right thigh.
Dr Winstanley reported that Mrs Doughty had undergone extensive physiotherapy for her lumbar spine. Symptomatic issues related to her fractured sternum took six months to resolve. At the time of examination she also had minimal symptoms associated with her fractured left great toe.
Mrs Doughty at the time of examination had ongoing pain in her lumbar spine associated with referral into her right thigh. She experiences this discomfort daily. She takes occasional Targin and Tramadol for her pain.
It was reported that pre-accident, Mrs Doughty played golf three days a week. However, since the accident she had only recently been able to return to this sport, playing only nine holes of golf. Following this, she experienced increased pain.
On examination, Mrs Doughty demonstrated a 50% loss of rotation of her spine.
Dr Winstanley only noted a fracture of the claimant’s L2 vertebra but the hospital notes refer to fractures at the L2 and L3 levels.
Mrs Doughty was reported as still undertaking a home exercise programme, at the time of examination.
Dr Winstanley reported the current symptoms of Mrs Doughty as a restricted range of motion of her right wrist, and discomfort and also a restricted range of motion in her lumbar spine with associated referral into her right hip.
Dr Winstanley said that there was no indication that Mrs Doughty required further treatment for her condition.
Dr Winstanley assessed Mrs Doughty as having an 11% whole person impairment with respect to her disabilities.
In my preliminary conference report of 29 July 2021 I noted certain matters not dealt with by Dr Winstanley and requested GIO to obtain further information about this. I was particularly concerned that I could be satisfied that there would be no future deterioration of injury, such as arthritis, and about which Mrs Doughty had previously expressed some concern at her first preliminary conference. I requested a supplementary report from Dr Winstanley going to the future prognosis of the disabilities of Mrs Doughty. Dr Winstanley provided a further report dated 10 August 2021.
The doctor was of the opinion that with regard to the crush fracture of the claimant’s L2 vertebra, that there was unlikely to be any rapid progression of degenerative change. This was similarly the case with the impact fracture of the distal phalanx of the great toe or the anterior cortex and mid sternal fracture.
With regard to the right wrist fracture, the doctor said it was a significant intra articular fracture but at worst, he said that there may be progression of osteoarthritic change over time but not for at least 10 years. I discussed this with Mrs Doughty and she implored me that she understood and wished to have the settlement resolved.
The settlement
GIO accepted liability for Mrs Doughty’s claim for statutory benefits and has paid treatment and care benefits to, or on behalf of Mrs Doughty although the quantum of those payments has not been provided to me. Any future expenses under this head of damage will be provided for by GIO.
GIO has accepted that Mrs Doughty had non-minor injuries and so she is entitled to treatment and care relating to her accident caused injuries for the rest of her life pursuant to Division 3.4 of the MAI Act. ‘Treatment’ is widely defined and includes medical treatment (including reviews by the claimant’s GP and specialist and any surgery that may occur in the future), allied health treatment (including physiotherapy), medication (over the counter as well as prescribed) and domestic assistance or care that may be required if her condition should deteriorate.
Mrs Doughty has been assessed with a greater than 10% degree of permanent impairment and is entitled to an assessment of damages for non-economic loss.
The insurer has made an offer of settlement to the claimant of $220,000 in full and final satisfaction of Mrs Doughty’s claim for common law damages. This offer was made by way of letter from the insurer to Mrs Doughty on 2 March 2021. Mrs Doughty has accepted this offer and requests that the Commission approve the settlement.
Ms Papaspiros confirmed that GIO will not deduct any monies out of the settlement of $220,000 by way of payback of statutory benefits to date.Mrs Doughty has just turned 71 years of age.
The maximum that may be awarded for non-economic loss since 1 October 2020 is $521,000. With Mrs Doughty being entitled to non-economic loss damages, this is to be assessed in accordance with Common Law principles.
In RACQ Insurance Limited v Motor Accidents Authority of NSW (No 2) [2014] NSW SC 1126. It was stated:
“It is a relationship of the award to the injury and its consequences… which is to be proportionate…. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases… The principle to be followed… is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant….and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing… The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring … to allow for differences between the circumstances of other cases and the circumstances of the case in hand.” (Planet Fisheries Pty Ltd V La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ at paragraph 11).
I must be mindful of the decision of the Court of Appeal in Reece v Reece [1994] NSWCA 259 where it was discussed that a decision maker must consider the age of the claimant when determining the appropriate amount of non-economic loss. The claimant’s age at the time of assessment of damages is a relevant factor but only one of a number of matters which the Court should take into account and as discussed in Varga v Galea [2011] NSWCA 76 where McColl JA stated at paragraph 72:
“Reece v Reece states the uncontroversial proposition that the plaintiff’s age at the time of the assessment of damages is a factor relevant to the assessment of non- economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshal v Clarke.”
I do not have the impression that Mrs Doughty was inactive prior to the accident. She lived on a property with her husband and played golf three times a week.
In a preliminary conference on 29 July 2021 I discussed with Mrs Doughty that if
I approved the offer of settlement then that will conclude the claim once and for all and that Mrs Doughty will have no right to make any further claim arising out of the accident.I am satisfied that Mrs Doughty understands the nature and effect of the proposed settlement by the insurer and is willing to accept the proposed settlement.
Should I approve the settlement?
I am satisfied that Mrs Doughty is aware that her statutory benefits claim continues for life and that the insurer is required to pay for any reasonable and necessary accident related:
(a) medical (GP and specialist) follow up consultations and future surgery, if her injuries come to that;
(b) medication (over the counter or prescription), and
(c) domestic assistance, care and rehabilitation which may be needed.
I am satisfied that Mrs Doughty is aware that if I approve this settlement that it will be a final resolution of her claim and that she can make no further claim for damages for non-economic loss arising out of this accident.
Whilst I can refuse to approve a settlement, the fact that this is a reasonable settlement offer, taking into account the injuries and Mrs Doughty’s age as well as the fact that Mrs Doughty is fully informed about her possible future medical condition and the chances of a deterioration of significance are slim, this reassures me that the settlement is appropriate.
The amount of the settlement that I am asked to approve comprises the following:
Non-economic loss $220,000
Total $220,000
Non-economic loss
The claimant is entitled to non-economic loss which is defined in the Act to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
There is no suggestion in the medical evidence that Mrs Doughty’s life expectancy has been reduced because of her injuries. At the age of 71, the medium life expectancy tables based on data from the Australian Bureau of Statistics suggests the claimant has a further 17 years to live with the impacts of the accident.
Mrs Doughty has only relatively recently been able to return to playing golf and with that she is limited to playing nine holes, with pain being suffered afterwards.
The claimant has had to give up her favourite sport and a sport that she has been involved in for over 30 years. She says this is a great disappointment to her.
Mrs Doughty has suffered a serious injury following the accident on 19 February 2018. She was in hospital for one week following the accident and then required a long course of rehabilitation in Queensland where she lives.
Mrs Doughty has been assessed as having an 11% whole person impairment and is entitled to an award of damages for non-economic loss.
I am satisfied that the sum of $220,000 is within the range of damages likely to be awarded if this matter had progressed to hearing.
Conclusion
Having spoken with Mrs Doughty, I am satisfied that she:
(a) accepts she could negotiate with the insurer but has chosen to settle the matter on the basis of the only offer made by the insurer;
(b) is aware she can seek legal advice but that she does not wish to do so;
(c) understands the binding nature of the settlement and this approval and that she may not be able to make a further claim for damages in the future;
(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
(e) I am therefore satisfied that the proposed settlement figure of $220,000 is an appropriate one and that it complies with the requirements of clause 7.304.2 of the Motor Accident Guidelines 2017 (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 section 6.23(2)(b) of the MAI Act the proposed settlement of the claimant’s claim for damages is approved.
Legislation
The Commission was established on 1 March 2021 and the 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 MAI Act and 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.
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
·the Guidelines.
Alexander Bolton
Member (Motor Accidents Division)
Personal Injury Commission
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