Allianz Australia Insurance Limited v Brain (Eotl)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Allianz Australia Insurance Limited v Brain (EOTL) [2023] NSWPIC 38
Claimant:	The Estate of the Late Raymond Brain
insurer:	Allianz Australia Insurance Limited
SENIOR Member:	Brett Williams
DATE OF DECISION:	2 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of proposed damages settlement in the sum of $80,000 under section 6.23; claimant 88 years old when accident occurred; suffered fractured right humeral head and soft tissues in the accident; liability for damages claim admitted; entitlement to damages for non-economic loss conceded; retired at time of accident; no allowance for economic loss; claimant died two years after accident due to complaints unrelated to the accident; Held – proposed settlement approved.
determinations made:	CERTIFICATE OF DETERMINATION 1. The proposed settlement in the sum of $80,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

Background

On the morning of 2 October 2018 the late Raymond Brain (Mr Brain) suffered injury as a result of being struck by a vehicle while he was riding his bicycle along Leisure Drive, Banora Point (accident). The vehicle was insured, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), by Allianz Australia Insurance Limited (insurer).
Mr Brain made a claim for damages on the insurer, and liability for the claim was admitted on 6 October 2020.
Mr Brain died on 1 November 2020. The executrix of Mr Brain’s estate (Estate), Anita Thomas, has reached agreement with the insurer, on behalf of the Estate, to settle Mr Brain’s claim for damages. When the accident occurred, Mr Brain was 88 years old, and had retired from work. The only damages to which he was entitled under the MAI Act were for non-economic loss.
The proposed settlement is in the amount of $80,000. As the estate is not legally represented, the settlement must be approved by the Commission: s 6.23 MAI Act.
These proceedings, by which the parties seek to have the proposed settlement approved, were commenced by the insurer on 15 December 2022.

statutory provisions

Restrictions on the settlement of a claim for damages are found in s 6.23 of the MAI Act, which is in the following terms:
“6.23 Restrictions on settlement of claim for damages
(1)      (Repealed)
(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 of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Motor Accident Guidelines states as follows:
“7.37 Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the 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 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
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Procedural Direction MA3 concerns the requirement for the Commission to approve the settlement of a claim for damages in circumstances where the claimant is not represented by an Australian legal practitioner, and the process for obtaining the Commission’s approval of the settlement of the claim.

PRELIMINARY CONFERENCE

I conducted a preliminary conference with Ms Thomas and Ms Walsh, for the insurer, on 31 January 2023. Ms Thomas confirmed that she was Mr Brain’s daughter and the executrix of the Estate. She confirmed that the Estate did not wish to rely on any material in addition to the documents provided by the insurer in the application for approval of the settlement.
I confirmed with the parties that the proposed settlement was in the sum of $80,000 (proposed settlement). Ms Walsh confirmed that the insurer agreed that Mr Brain’s permanent impairment as a result of the injuries caused by the accident was greater than 10%, and that he was entitled to damages for non-economic loss.
Ms Walsh confirmed that no deductions were to be made to the proposed settlement. In this regard, the deed of agreement (deed) is to be amended to remove clause 3. The deed is also to be amended to remove clause 4 c. iii.
I explained to Ms Thomas that the Estate was entitled to be legally represented with respect to Mr Brain’s damages claim. She confirmed that the Estate did not wish to be legally represented.
I confirmed that the settlement of Mr Brain’s damages claim was on a once and for all basis, and would be paid as a lump sum. I also confirmed that, if approved, the settlement would be binding on the Estate. Ms Thomas understood this, and confirmed that the Estate wished to settle the damages claim in accordance with the proposed settlement.
I explained to Ms Thomas that I had to be satisfied that 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 her father. As recorded earlier, it was confirmed that there are no deductions to be made to the proposed settlement.
Ms Thomas, who is employed as a personal care worker in aged care, told me that her father had lived with her since 2005. She saw him every day. She told me that prior to the accident her father was an active and independent man. From her perspective, the main injury he suffered was the fracture of his right shoulder. The cuts he suffered healed over time. Ms Thomas told me that she noticed a deterioration in her father’s mental state after the accident. He required, and she provided, support and assistance after the accident. She explained that while he got better over time, he never returned to his pre-accident state.
Ms Thomas also told me that, in her view, the proposed left hip replacement was not related to the accident. This is consistent with the response to the insurer’s request for particulars of the claim, provided by Ms Thomas on behalf of her father, that state that Mr Brain was “having a hip replaced in October 2020. This is due to normal wear and tear. This was not caused by the accident”.
We discussed her father’s cause of death, as recorded in the death certificate. Ms Thomas told me that she did not consider that his death was related to the accident. In this regard, the death certificate records that Mr Brain’s cause of death was cardiac failure (days), sepsis from cellulitis (days), congestive cardiac failure (years), hypertension and dementia (years).
At the conclusion of the preliminary conference I explained to Ms Thomas that I would consider the material before me, together with what she had told me, and provide my reasons in writing for either approving or not approving the proposed settlement.

Evidence

The documents lodged by the insurer include a range of pre-and post-accident treatment records. The documents confirm that Mr Brain suffered a number of conditions pre and post-accident that were unrelated to the injuries he sustained in the accident.
An X-ray of Mr Brain’s left knee performed on 2 October 2018 is said to have demonstrated no acute fracture. Moderate osteoarthritic changes are noted. A small knee joint effusion in the suprapatellar pouch was identified.
There is a report dated 2 October 2018 that relates to X-rays of the chest, right shoulder and right elbow. In the chest there was borderline cardiomegaly. Severe degenerative changes were noted in the glenohumeral and AC joints. No definite acute fracture was seen. In the right elbow, degenerative changes were seen. There was no acute fracture or joint effusion.
On 2 October 2018 a CT of the claimant’s brain, cervical spine and right shoulder was performed. The report of the CT scan records that no acute intracranial haemorrhage was identified. Chronic changes in the cervical spine were noted. There was no acute fracture demonstrated. In the right shoulder, an intra-articular multi-part fracture of the right surgical neck of the humerus was reported. Osteoarthritis was identified. There was no evidence of a high grade rotator cuff tear.
A chest X-ray report dated 3 October 2018 records that there was mild congestive lung change. There was an impacted fracture of the right surgical neck of the humerus.
In a report dated 3 October 2018 it is recorded that a CT scan of the brain demonstrated no acute intracranial pathology.
A report on the right shoulder X-ray dated 9 October 2018 records that there was a minimally displaced four part fracture of the humeral head. Moderate degenerative changes were reported in the glenohumeral and AC joints.
A report from Recovre dated 3 December 2018 contains a history that Mr Brain was attended by ambulance at the scene of the accident and was taken to Tweed Heads Hospital. X-rays confirmed a fractured right humerus. His arm was placed in a cast and he was discharged home. He returned to the Hospital after becoming disoriented, and was discharged the following morning. He then fell whilst showering and was transferred to the hospital where he remained for a week. He was transferred to Murwillumbah Hospital where he underwent rehabilitation for nine days. He was then transferred to an aged care facility at Tweed Heads for five weeks. The report records that prior to the accident Mr Brain was independent with all personal care and was able to complete light meal preparation. He rode his bicycle every day for two hours, and mobilised without the use of any aids. The report records that Mr Brain had a reduced range of movement in forward flexion and abduction of the right arm. Right arm strength was reduced. Pain was reported when moving or loading the right arm. The report includes a summary of Mr Brain’s pre-and post-accident functional capacity and his activities of daily living status.
Mr Brain’s general practitioner (GP) was Dr Comben, of The Pines Family Practice (Pines). The documents lodged with the Commission include clinical notes from the practice dating back to 9 July 2014, when it appears Mr Brain first attended the practice. On 8 October 2014 it was recorded that Mr Brain had recently been an inpatient with infective exacerbation of COAD, which I take to be a reference to chronic obstructive airways disease. The notes record that he was injured after falling off his bicycle on 11 January 2016. A note on 5 February 2018 records that he was under the care of a podiatrist. He was managed at Melbourne Hospital for chest pain in May 2017. The notes record that he attended the practice on 7 November 2018 with a history of being involved in a motor vehicle accident five weeks earlier. Complaints of ongoing swelling and pain in his right elbow are recorded. His right arm was still in a sling as a result of a fractured humerus. On 14 November 2018 it was recorded by Dr Comben that Mr Brain had made “excellent progress” with respect to the fractured humerus. On 28 November 2019 it was recorded that Mr Brain was “doing well”. His arm was out of the sling for increasing periods. He was receiving physiotherapy at Tweed Hospital. Complaints of pain and stiffness in the right elbow are recorded. It is also recorded that he was “down and tearful at times”.
The Pines notes record that on 12 December 2018 he was making “good progress”. There was residual discomfort in the right shoulder and elbow, limited abduction in the right shoulder, and “almost full flexion” at the elbow. On 9 January 2019 it is recorded that the sling was off and that Mr Brain’s right arm was gradually returning to full function. On 6 February 2019 it was recorded that Mr Brain had made “excellent progress” in relation to his right humeral fracture. He had returned to riding his bike, having ridden around the block that week. A note on 6 March 2019 records that Mr Brain had made “excellent progress”. On 24 April 2019 it is recorded that Mr Brain had frozen right shoulder “in evolution”. There was limited abduction and internal rotation. On 22 May 2019 it was recorded that Mr Brain was “coping well with # distal radius”. On 19 June 2019 it was recorded that he was making “reasonable progress” and that his “right shoulder remains limited, with flexion/abduction to 70 deg approx, and internal rotation to belt line only”. On 11 September 2019 a registered nurse at Pines recorded that Mr Brain had fractured his wrist in April 2019. On 18 December 2019 Dr Comben recorded that Mr Brain had recently been an inpatient after a transient ischaemic attack that had “all resolved”.
On 30 June 2020 Dr Comben certified that Mr Brain suffered a complicated right proximal humeral fracture, concussion and multiple soft tissue injuries as a result of the accident. While the injuries were stable, it is stated that Mr Brain had never recovered full use of his right shoulder, with respect to which he had ongoing limitation of range and constant pain.
On 14 July 2020 Dr Agolley, orthopaedic surgeon, reported to Dr Comben. The report records that Mr Brain suffered from gout, hypercholesterolaemia, heart failure and severe left groin pain. His fractured right humerus was also noted. The report records that Mr Brain had experienced a severe increase in left groin pain to the extent that he was almost wheelchair bound. He had end stage arthritis in his left hip, that was making him miserable. In the doctor’s opinion, the only “reliable” treatment option was a hip replacement to alleviate the pain.
The Pines notes include correspondence from the Tweed Hospital that confirms that, after being admitted on 25 October 2020 with delirium and decreased mobility, Mr Brain had passed away on 1 November 2020. A background of dementia was noted. It was recorded that Mr Brain was awaiting hip surgery. Reference is made to treatment for “sepsis of unknown origin”.
The clinical notes from The Tweed Hospital relate to admissions pre and post-accident. The post-accident admissions related to, among other things, suspected cellulitis in his right leg and right elbow, treatment related to his accident caused right shoulder fracture, and a left arm fracture following a fall at home.
The hospital notes from the day of the accident record that Mr Brain suffered a fracture of his right surgical humerus neck after being clipped by a car when he was riding his bike. He underwent radiological investigations that confirmed the fracture. A CT scan of the brain, facial bones and cervical spine identified no intracranial haemorrhage. There were chronic changes in the cervical spine with no fractures. A left knee X-ray was undertaken due to complaints of left knee pain and reduced mobility. Left knee swelling with peri-patellar fluid was noted. No fracture was identified. There was a small joint effusion. Skin tears were dressed and Mr Brain was discharged. The notes record that Mr Brain re-presented to the hospital that day after an episode of delirium. The notes record that the presentation related to a “self-resolving brief episode of delirium in [the] context of a bicicycle [sic] accident earlier that day”.
Included in the pre-accident hospital records are notes that make reference to attendances related to injuries sustained as a result of multiple falls while on foot and while riding his bicycle.

submissions in support of the approval

The insurer has provided submissions in support of the settlement approval. The submissions include details of Mr Brain’s injuries resulting from the accident, and confirm that liability for Mr Brain’s damages claim was admitted on 6 October 2020. The submissions record that the insurer conceded that Mr Brain was entitled to damages for non-economic loss. The proposed settlement sum reflected an allowance for this head of damages.

determination

I am satisfied that as a result of the accident, Mr Brain suffered a fracture of his right humeral head. He also suffered soft tissue injuries, including to his left knee.
When the accident occurred Mr Brain was 88 years old. I am satisfied that after the accident, and until his death on 1 November 2020, he never recovered full use of his right shoulder. I also consider it probable that his mental health deteriorated as a result of the accident and his injuries. Prior to the accident, Mr Brain was, in relative terms, an active and independent man.
The proposed settlement reflects an allowance for non-economic loss. In considering the reasonableness of the proposed settlement, I have taken into consideration his pain and suffering and loss of amenities of life arising from his accident caused injuries.
I am satisfied that 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 Mr Brain. There are no reductions or deductions to the proposed settlement.
I am satisfied that Ms Thomas, on behalf of the Estate, understands that the Estate is entitled to be represented in respect of the claim by an Australian legal practitioner, and that it does not want to be. I am also satisfied that Ms Thomas understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Having considered the material provided by the insurer, and what Ms Thomas told me at the preliminary conference, the proposed settlement is approved.

[2023] NSWPIC 38

2 February 2023