AAP v NRMA Insurance Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AAP v NRMA Insurance Ltd [2021] NSWPIC 101
APPLICANT:	AAP
RESPONDENT:	NRMA Insurance Ltd
Member:	Ms Susan McTegg
DATE OF DECISION:	29 April 2021
CATCHWORDS:	MOTOR ACCIDENTS- Claims assessment; claim for damages; injury loss and damage; pedestrian; 75 years of age; serious injuries; consequential injuries; damages limited to non-economic loss; was fit and mobile; unsteady on her feet and fell; elbow injury; fell heavily; fracture of right hip; loss of mobility and agility; Held- insurer owed a duty of care and breached that duty of care and as a result claimant sustained injury loss and damage; damages awarded.
Determinations made:	1. On the issue of liability for the claim, the NRMA’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017 (the Act), I specify the amount of damages for this claim as $250,000. 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is 28,285.29 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accident Injuries Act2017

Introduction

AAP (the claimant) sustained injury as a pedestrian in a motor vehicle accident on 13 November 2018 (the accident).
The claimant is now 75 years of age. She sustained the following serious injuries in the accident:

(a)    Laceration of the left supra-orbital region.
(b)    Minor concussive head injury.
(c)    Comminuted fracture proximal tibial condyles left leg.
(d)    Fracture lateral tibial plateau right leg.
(e)    Persistent saphenous nerve damage to the left leg with numbness down the shin into the medial side of the ankle.
The insurer has admitted liability.
The claimant suffered two further falls. On 3 August 2019 the claimant sustained a fracture of the left olecranon and on 9 October 2019 she sustained a periprosthetic fracture of the right hip. In dispute is whether these falls were consequential injuries.
The claim for damages is limited to non-economic loss. The claimant submits an appropriate award for damages for non-economic loss is $350,000. The insurer submits an appropriate award is $200,000.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties including photographs of the claimant’s scarring.

Review of the evidence

The claimant is married and has four adult children and six grandchildren. She was a happy, fit, energetic and active person. When questioned at the assessment conference the claimant stated before the accident she was often described as 10 years younger than her actual age. The claimant enjoyed skiing, tennis, surfing, snorkelling and white-water rafting. She participated regularly in Pilates and kept herself fit and mobile.
In particular, the claimant enjoyed an active relationship with her grandchildren, playing backyard cricket, swimming, playing ball or playing on the beach with them.
The claimant and her husband enjoyed active and adventurous holidays, including lots of snorkelling and hiking in rugged terrain. She described travelling to places such as the Kimberley’s, the Raja Ampat and Spice Islands and up the Sepik River in New Guinea. In recent years she described camping with Aboriginal rangers in the Northern Territory and on the Canning Stock Route in north east Western Australia. Active exploration included a walking tour on the Cinque Terre in Italy, a safari in Africa, a guided tour retracing a family member’s WWI experience in the Somme in France, sailing in and around China, Turkey, Canada, New Zealand, South America, Galapagos, the Greek Islands and the USA.
Prior to the accident the claimant planned to depart from Patagonia on an expedition to Antarctica and the Falkland Islands in January 2019 which would have required her to transfer to rubber duckies in rough seas and walk on ice.
The claimant underwent a right total hip replacement in March 2006. The claimant described an excellent recovery and said she was fully mobile within six weeks of that surgery.
The claimant developed arthritis in her right shoulder in 2011. Indeed, the claimant underwent right shoulder replacement surgery under the care of Dr Benjamin Cass on 16 March 2021. The claimant stated the right shoulder pain did not restrict the things she did, she was able to put up with the pain and her only restriction was an inability to do up her bra. She described a good recovery from that surgery.
Following the accident, the claimant was an inpatient at Royal North Shore Hospital under the care of Dr Isaacs until 14 December 2018. During her hospital stay the claimant lay on her back for most of the time as she was unable to stand. At the time of her discharge the claimant was still not weight bearing. She was unable to return home because her husband was unable to care for her and a room was set up in her daughter’s house. Carers were arranged to assist with showering and other personal care. After seven weeks the claimant was cleared by Dr Isaacs to be weight bearing and on or about 30 January 2019, she was admitted to Wolper Hospital as an impatient for rehabilitation. The claimant was discharged after 17 days but continued to attend Wolper Hospital as an outpatient several days a week for a month.
At the time of her discharge from the Wolper Hospital on 15 February 2019 the claimant was able to use a walking stick but required a wheelchair for distances over 25 metres outside her home.
The claimant commenced physiotherapy with Mosman Physiotherapy which is continuing. She also underwent lymphatic drainage and acupuncture treatment as well as maintaining her own exercise programme.
In the accident the claimant suffered a laceration on her left medial eyebrow region which was sutured. On 27 March 2019 Dr Nicholas Lotz Plastic Surgeon described the scar as unsatisfactory and on 30 April 2019 the claimant underwent revisionary surgery under local anaesthetic with good results.
On 30 May 2019 the claimant underwent an x-ray and ultrasound of her left foot and ankle which was painful, discoloured and swollen. The claimant underwent further imaging of the both hips, pelvis, both femurs, both ankles, and both feet on 17 July 2019. She also had an ultrasound of the left ankle.
In a report dated 11 June 2019 Dr Isaacs reported the claimant was close to regaining full function and her range of movement was coming along. He also noted “the odd bit of aching and swelling in the left ankle”.
On 3 August 2019 the claimant was with a crowd of people waiting to cross Market Street in the city. When the lights changed, she said she was careful stepping off the kerb, but was relatively unsteady on her feet and fell. When questioned during the assessment conference the claimant said she stepped down to cross the road and her foot misjudged the height, although she also said she was not sure how it happened, but it was her left leg.
The next morning the claimant presented to the Emergency Department of Royal North Shore Hospital. She was diagnosed with a fracture of the left olecranon. She came under the care of Dr Papadimitriou who performed an open reduction and internal fixation of the fracture. She made a good recovery and on 14 February 2020 she underwent removal of the left olecranon tension band wiring. At the Assessment Conference the claimant conceded she had made a full recovery from the elbow injury.
The claimant was reviewed by Dr Isaacs on 24 September 2019. In a letter to Steve Davey, physiotherapist he reported the right knee, whilst far from normal was now of little consequence to the claimant. He described the left knee as more symptomatic, with some restricted range of motion, pain around her proximal tibia and intermittent swelling around the left leg. Dr Issacs noted the claimant had significant hardware irritation from the bicondylar plate and screw construct and recommended the removal of the plate and screws. Removal of the plate and screws took place on 11 June 2020. Interestingly, the claimant said she found Dr Isaacs to be an overly positive person who did not take well to being told there was a problem.
On 9 October 2019 the claimant went to the park with her daughter and grandchildren. She was looking after her five-year-old grandson who was riding a scooter. As a car approached the claimant stopped her grandson from moving by placing her hand on the handlebars of his scooter. Once it was safe again and they started to move the platform of the scooter crossed over the claimant’s left foot and she fell heavily onto her right side. The claimant believes if she had not sustained the earlier injury in the accident, she would have been able to regain her balance and avoid falling.
The claimant was taken by ambulance to Royal North Shore Hospital where she was diagnosed with a periprosthetic fracture of the right hip. She was hospitalised for approximately five days under the care of Dr Papadimitriou. He performed an open reduction and revision of the hip prosthesis.
On 3 February 2020 Dr Papadimitriou reported the claimant was recovering well, with no hip pain and was ambulating without the use of aides.
The claimant underwent physiotherapy and on 11 June 2020 underwent removal of the metalware in her hip.

The medico legal evidence

The claimant was reviewed by Dr David Millons on 15 July 2020 at the request of her lawyer.
He reported the claimant was anxious about being out and about because of the risk of falls and was mindful when walking. He described discomfort at the left leg, numbness down the shin and over the medial side of the left ankle. The right knee was misshapen. Both knees were stiff. Dr Millons reported the claimant finds climbing stairs uncomfortable, has difficulty putting on her pants and requires the assistance of a podiatrist. He described a loss of mobility and agility and difficulty egressing and accessing vehicles unless the door is wide open.
Dr Millons noted the claimant walked with a limp favouring her left leg, she was unsteady standing on her left foot, had a valgus deformity of the right knee and the right foot tends to turn out. He also observed numbness extending down the left shin, stiffness, and restriction of movement of both knees and extensive scarring.
Dr Millons referred to the two subsequent injuries as consequential injuries. He stated “AAP sems to have a high pain threshold and puts up with a lot without taking medication but, certainly, her legs are not anatomically the same since the accident nor will they be”. He concluded there will be persisting loss of mobility and agility. He noted developing osteoarthritic changes in the knees which he considered will accelerate as time passes leading to further decreasing mobility and agility. Dr Millons concluded the claimant may require knee replacements, because of increasing pain and stiffness, although he felt that was unlikely to happen in the next five years.
The claimant was assessed by Associate Professor Michael Shatwell on 20 August 2020 at the request of the insurer. He provided a report dated 2 September 2020. He reported the claimant was mobile with a stick, walked slowly and was helped a great deal by her husband with household chores. He recorded she can walk 1.6 km at a slow rate to get to and from the local coffee shop. He noted the claimant can drive but has difficulty getting in and out of the car, can stand for up to an hour in the kitchen and can shop for about 30 minutes with help.
The claimant reported she has felt more tired, less energetic, and agile since the accident. She also described feeling anxious, being wary about going out for social events and missed patchworking with friends and going on family holidays. The claimant is less confident when looking after her grandchildren and has had to give up the voluntary work she did with parent associations before the accident. Indeed, at the assessment conference the claimant sadly suggested her children are no longer confident about leaving grandchildren in her care because of the fear she may have a further fall.
Associate Professor Shatwell stated the prognosis was guarded and agreed the claimant will eventually require joint knee replacement. He concluded:

“AAP is a stoic. She puts up with her limitation with minor complaints. She has had severe injuries to her upper tibial shafts. The limitation of movement in the left knee is a handicap and is likely to be permanent. She might improve a little more with the passage of time, but the 60 of flexion does interfere with many of the activities of daily living and the disability associated with this loss of range of movement is probably permanent.
Fortunately, AAP can manage to drive an automatic vehicle which does not require powerful use of or a large range of flexion in the left knee. Her limitation of movement on the right is less disabling, however, this too will limit her ability to manage some social activities that involve kneeling and bending. Gardening, playing with children and getting in and out of cars will continue to be a problem for AAP.”

Associate Professor Shatwell stated that it was difficult to say whether the subsequent injuries were caused by unsteadiness in gait related to the accident. He noted that falls occur because of multifactorial causes but concluded:

“The loss of range of movement Ms AAP has acquired as a result of her tibial fractures is a contributory factor to the subsequent falls. In my opinion, this would not amount to more than a 30% contribution to the injuries; 70% of the causation would be due to other circumstances including general loss of robustness, balance and spatial awareness, which occurs in all individuals with the passage of time.”

Non-economic loss

Section 1.4 of the Motor Accident Injuries Act, 2017 defines non-economic loss as

(a)     pain and suffering, and
(b)     loss of amenities of life, and
(c)     loss of expectation of life, and
(d)     disfigurement.

The current maximum payable for non-economic loss is $590,000.
At the assessment conference the claimant said other than a restricted range of motion she has no difficulty with her right knee.
However, she stated her left knee continues to be swollen, irritable and bothersome. She continues to have discomfort and restricted range of motion of the left knee and ankle and experiences shooting/stabbing pains twice a day in the left lower limb. The claimant stated because of the saphenous nerve damage she experiences tingling, and her leg feels like it is on fire, like there is a heater next to it. She continues to use a walking stick outside because she feels unsteady. She requires the walking stick to climb up and down stairs. The claimant stated she no longer believed she could walk two kilometres because of her left leg disability.
I had the opportunity to view photographs of the claimant’s extensive surgical scarring. The Claimant said she hates the scarring and no longer wears clothes which show the scars. She also said sometimes her clothes rub and irritate the scarring.
It is not clear cut whether the sequential injures were, in fact, consequential injuries. Certainly, there is no dispute the claimant now experiences instability and impaired mobility because of the accident. The claimant herself was uncertain as to the exact mechanism of each fall but felt uninjured her agility would have enabled her to catch herself before falling.
The opinion of Associate Professor Shatwell that the loss of range of movement as a result of the tibial fractures would not amount to more than a 30% contribution to each subsequent injury is predicated on accepting the claimant’s evidence as to the mechanism of each fall. Whilst I accept the claimant’s instability was, on the balance of probabilities, a material contribution to the August 2019 fall, I am less convinced the claimant would have regained her balance in the October 2019 fall where her grandson’s scooter crossed over her left foot.
However, as Associate Professor Shatwell notes other than pain caused by the protruding prosthesis the claimant has regained stability and has a satisfactory range of movement in her hip without pain on weightbearing. In these circumstances my assessment of non-economic loss is not significantly impacted by my view as to causation of the October 2019 injury.
Prior to the accident the claimant was not only healthy and active but even athletic, notwithstanding her age. I have set out in detail above the nature of the activities the claimant engaged in before the accident.
The medical evidence suggests there is only likely to be an inexorable increase in the claimant’s pain and disability. The claimant is undoubtedly undemonstrative and stoic and her recovery from these serious injuries is testimony to her determination.
In exercising my discretion, I am mindful of the claimant’s initial period of convalescence where she required full time care largely until her discharge from the Wolper Hospital on 15 February 2019, a period more than three months. I am cognisant of the various surgeries the claimant has undergone including the surgery to her left elbow and of the likely need to undergo future knee replacement surgery.
Regardless of the impact of COVID-19 the claimant’s impaired mobility means she is no longer fit to undertake the travel she and her husband enjoyed pre-injury. She is now unfit to engage in the recreational activities she enjoyed and has become more dependent upon her husband to perform domestic tasks. More importantly from the claimant’s point of view, she can no longer engage in active activities with her grandchildren.
I consider an appropriate aware of damages for non-economic loss to be $250,000. I assess damages accordingly.

Assessment of damages summary

Under sub-section 7.36 (1) (b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:

Non-Economic Loss $250,000
Total Damages Assessed $250,000

Costs and disbursements

The insurer did not dispute the claim for costs and disbursements made by the claimant.
I assess the claimant’s legal costs and disbursements in accordance with Part 8 of the Act and the Motor Accident Injuries Regulation 2017, in accordance with the attached sheet.

Susan McTegg

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 101

29 April 2021