Allianz Australia Insurance Limited v Mason

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allianz Australia Insurance Limited v Mason [2024] NSWPIC 348
CLAIMANT:	Deryl Mason
INSURER:	Allianz
MEMBER:	Shana Radnan
DATE OF DECISION:	1 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23; settlement approval in the sum of $112,500; 79-year-old female; pedestrian; contributory negligence 50%; entitlement to non-economic loss only; injuries include subarachnoid haemorrhage, subdural hematoma, pelvis fractures, left humeral fracture; left clavicle fracture, and nasal fracture; Held – proposed settlement is just, fair, and reasonable; settlement approved.
DETERMINATIONS MADE:	CERTIFICATE Settlement approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is in the sum of $112,500 is approved under s 6.23(2)(b) of the *Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines.*

STATEMENT OF REASONS

INTRODUCTION

On 128 May 2021, Deryl Mason (the claimant) was a pedestrian crossing an intersection of Monash Road and Eltham Street at Gladesville when she was struck by the insured’s vehicle and sustained injury. She was taken to Royal North Shore Hospital by ambulance.
The injuries sustained in this accident were:
(a)      subarachnoid hemorrhage;
(b)     subdural hematoma;
(c)      pelvis fractures;
(d)     left humeral fracture;
(e)      left clavicle fracture, and
(f)       nasal fracture.
Police and ambulance were in attendance at the scene and the claimant was considered the party at fault.
On 1 June 2023 the claimant submitted her common law claim.
The insurer admitted liability on 13 July 2023 with an allegation of contributory negligence on the part of the claimant of 70%.
The claimant born in 1944 is aged 79 and there is no claim for past and future economic losses.
The insurer conceded that the injuries sustained in the accident entitled the claimant to non- economic loss.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) and relevant Guidelines.

JURISDICTION OF THE PERSONAL INJURY COMMISSION

The Personal Injury Commission (Commission) was established on 1 March 2021 and has the jurisdiction to determine the application.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.

THE RELEVANT LAW

Pursuant to ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“•       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;
·        the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
·     the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”

Preliminary conference on 23 April 2024

The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held the first preliminary conference on 23 April 2024. The claimant appeared by video-link. The claimant participated in person and the insurer was represented by Amie Walsh.
The settlement sum agreed between the parties at this stage was $60,000 broken down as:
· non-economic loss of $200,000 less 70% contributory negligence – $60,000.
The claimant was asked to confirm her injuries and treatment received to date. It accorded with the submissions and medical evidence before me.
Having reviewed the evidence as to the circumstances of the accident, I noted that the ambulance records referred statements of witnesses unnamed but such statements did not appear in the liability information provided.
I made directions that the insurer obtain copies of the NSW Police notebook and investigations undertaken. This information was to be uploaded to the Commission portal once received.
With any additional material received the parties were to review their position on contributory negligence if appropriate.

Preliminary conference on 31 May 2024

The insurer obtained a 36 page investigation report from the Government Information (Public Access) Act 2009 (GIPA request) issued. Upon consideration of its contents the insurer amended its offer to a reduction of contributory negligence to 60% amounting to a settlement in the sum of $80,000.
During this preliminary conference the claimant was questioned as to her understanding of the terms of settlement and the consequences of entering into a settlement and its finality.
The circumstances of the accident and the witness statements were reviewed and the parties were given additional time to review the assessment of contributory negligence in the light of those statements and the consideration of non-economic loss and the amount was reviewed with the parties.
After further lengthy discussion the parties were provided with a further seven days to advise me of the amended terms of settlement reached and a determination would follow.
At this stage the claimant also confirmed her understanding of the nature and effect of entering a settlement and its finality. With a range of amounts discussed the claimant confirmed she would contemplate her position and then advise of the agreed position and if settlement had been reached.
The claimant confirmed that she did not wish to seek legal representation and was entering into this agreement of her own free will.
Directions issued that the insurer provide the claimant with an emailed version of the NSW Police information.
The insurer to advise the claimant of any further amendment to the offer by 7 June 2024 and if a new settlement sum was agreed to such to be uploaded to the commission portal with a copy of the deed of release no later than 12 June 2024.
If agreement was not reached then the matter would be the subject of a further preliminary conference.
As requested by the parties a determination would follow.

Submissions dated 12 June 2024

The insurer advised in writing that the parties had reached agreement that non-economic loss be agreed in the sum of $225,000 less contributory negligence of 50% with the settlement in the sum of $112,500.
The insurer confirmed that there had been no statutory benefits paid to date and so the whole amount would be received by the claimant.

DOCUMENTS CONSIDERED

I had regard to the following relevant documents contained in evidence bundle which included the following:
Liability:
(a)      application for statutory benefits dated 19 March 2024;
(b)     application for common law damages dated 23 May 2023;
(c)      liability notice dated 13 July 2023 for common law damages claim;
(d)     police report dated 9 June 2021 (document A3);
(e)      factual report dated 23 July 2021 (document A6);
(f)       further particulars, and
(g)      NSW Police bundle.
Treating medical records:
(a)      NSW Ambulance report – document A5;
(b)     Royal North Shore Hospital records – document A8;
(c)      Royal North Shore Hospital rehabilitation records – document A7;
(d)     Dr Papadimitiou report – document A9;
(e)      Joanne Omerod driving assessment – document A11;
(f)       speech pathology report – document A11;
(g)      Dr Parapurum report dated 22 September 2021;
(h)     physiotherapy report – document A13;
(i)       care needs assessment – document A14;
(j)       rehabilitation report – document A15
(k)      speech pathology report – document A18
(l)       neuropsychology report – document A21
(m)    functional independence measure (FIM) score sheet – document A22;
(n)     physiotherapy discharge report – document A23;
(o)     care needs assessment report – document A24, and
(p)     Royal rehabilitation discharge report – document A25

Medico-legal reports:
(a)      Dr Cameron dated 17 January 2024.
Settlement documents:
(a)      offer of settlement dated 12 June 2024 as amended, and
(b)     settlement agreement and release.

ISSUE OF CONTRIBUTORY NEGLIGENCE

The NSW Police report dated 9 June 2021 reported the claimant was at fault in the cause of the accident as she had crossed the intersection of Monash Road and Eltham Street at Gladesville at a point which had double unbroken lines in front of oncoming traffic. Event number E81749868 recorded the crash summary as:
“Vehicle 1 bearing the registration plate CV28NT was travelling south down Monash Road approaching the intersection of Eltham Street. Pedestrian was fixed on the pedestrian footpath facing south east position. Vehicle 1 proceeded through the intersection checking the left hand side of the vehicle for oncoming cars. During this time the Pedestrian crossed the footpath onto the road in a fast pace attempting to cross onto the opposite side of the footpath, crossing a double unbroken lane. Vehicle 1 checked the front of the vehicle and immediately notice the Pedestrian in front of Vehicle 1. The driver pressed on his brakes to stop the vehicle, but made contact with the Pedestrian hitting the front of the vehicle and falling onto the road.”
The insured’s driver gave a statement to M & A Investigators who were requested by the insurer to investigate of the accident noting the claimant had no recollection of the incident. The brief of evidence included:
(a)    signed statement of claimant Deryl Mason;
(b)    statement of Aaron Wilkinson, and
(c)    interview with Constable Samer Shahpoor.
The claimant’s recollection given to the investigator on 16 June 2021 was ... “I was walking on the tree lined side of the roadway to keep out of the sun…I did not see the vehicle that hit me. I was actually told I was hit by a car when I woke up in hospital”.
Her statement at paragraph 34. Read “I do not know what caused the accident as I have no knowledge of it”.
The insured’s driver Aaron Wilkinson provided his version of events. He provided the following history:
“24.    At the time of the accident I was not using any type of hand held devise or listening to loud or distracting music.
25.     I am familiar with the roadway whether this incident occurred and have travelled on it prior to this accident. I drive on that road nearly every day as part of my job.
26.     The area where the accident occurred is mixed residential and commercial zone. The road where the incident occurred was one lane traffic each way.
27.     The road was a sealed tar road and there were no obstructions on the road.
28.      The speed limit is 50k per hour. There are no road safety cameras or CCTV that I know of.
29.     The weather was fine and dry..it was sunny and dry.
30. The other party was a pedestrian……. I would describe her as elderly, medium build Caucasian appearance. I can’t recall what she was wearing at the time. I think she may have been carrying a bag.
…
32.      The incident occurred at about 11.50am on 28^th May 2021 on Monash Road Gladesville near the intersection of College Street and Eltham street.
…
34.     I recall I was travelling along Monash Road. We go to the Petrol Station at Putney to fuel the vehicles. I drove down from Victoria Road and turned into Monash Road, I drove to the roundabout at Ryde Road, Gladesville. I negotiated a full U-turn at Ryde Road and then continued back on Monash Road toward Victoria Road and then continued driving back on Monash Road toward Victoria Road in a southwest direction.
35.     I drove about 40 to 45 km per hour under the speed limit. As I got the intersection of College and Eltham Street, I looked toward College Street on my right for traffic and then I looked left into Eltham Street for traffic and then looked forward again. As I looked forward I saw the lady, I now know ..is Deryl Mason.
36.     I saw Deryl..crossing in front of me. When I first saw her she was running and she was right in the middle of the road. She was a couple of metres in front of me and I tried to slam on the brakes. I think she came from the corner of College Street and on the side closest to Victoria Road. I think she came from near that corner. Where she crossed there wasn’t a median strip. The median strip started a short distance away up the road. Deryl did not have to jump over the median strip when crossing the road.
37.     Deryl was crossing from my right side to the left side of Monash Road. She was running like a jog pace but pretty slow because she was an elderly woman. I think she was looking straight ahead from what I can remember.
38.     I managed to brake a bit but it wasn’t enough to avoid hitting her. I can’t recall the tyres skidding. I think I hit the left side of her body with the front of the car. I think the impact with Deryl happened near the middle of the car, maybe a bit to the right in front of me as the driver. She came up onto the bonnet and then fell off onto the road. She came off the car as it came to a stop”.
Review of the information produced pursuant to Government Information (Public Access) Act 2009 (NSW) confirmed that police have followed up with enquiries of any possible witnesses of the incident, to which no further persons could be located.
With the information accumulated police came to the conclusion that the claimant, the pedestrian was at fault of the incident. Other statements were persons who came after the accident and did not see the actual collision. There were no discrepancies found to the driver’s original version of event.
Review of the police note book and an interview on 21 May 2024 of Andrea Malcolm by the constable who attended the scene. Back on 28 May 2021 she sent an email to the constable. Her recollection was of the scene after the accident had occurred but continued:
“I was told by people later that she ran across the road, but again I did not see it. I was told she did not see the car coming and the car hit her. That was the chatter later”.
The parties reviewed the statements and the records of the GIPA production and in the light of this information the insurer altered its assessment of the claimant’s contributory negligence revising it down from 70% to 50%.
Having reviewed the circumstances of the accident, I find that the agreed contribution of each party to 50% responsibility is just fair and within the range of assessment of contributory negligence on the part of the claimant had the matter been determined by a Member of the Commission.
The reduction of damages in line with the assessment of percentage of negligence, in this matter is a reduction of 50%.

REVIEW OF THE MEDICAL EVIDENCE
Oral information from the claimant

The claimant had no memory of the circumstances of the accident and could not provide details as to what happened when interviewed by police or in emergency triage.
She reported to medical practitioners and rehabilitation specialists the injuries sustained and the extent of disability the injuries caused. She sustained injury to her head, left shoulder, pelvis, lacerations and contusions.
She remained in hospital receiving conservative treatment until 16 July 2021. It was in the midst of Covid-19 and so the area she resided was considered a hot spot, so some treatment was undertaken at her home thereafter.
A neuropsychological assessment conducted on 9 April 2022 confirmed that the claimant was performing exceptionally well with a return of a greater level of cognitive functioning.
A physiotherapy report of 14 June 2023 confirmed the claimant’s ability to walk much long distances without the use of a walker. The walker was required for much longer outings.
The claimant confirmed the status of her health at the first preliminary conference held on
23 April 2024. She provided details of the initial injuries and the extent of her recovery. She reported that she continued to have mild cognitive impairment from time to time and this was ongoing and likely to remain for the rest of her life. She reported that her left shoulder was a source of ongoing discomfort and restriction in movement made a number of tasks around the home difficult. She was receiving assistance with care for heavier chores and gardening.

Medical evidence

The application contained over 460 pages of medical information.
The claimant was a participant in the New South Wales Lifetime care and support scheme for a period of 26 weeks. Her eligibility ceased in September 2023.
The reported histories contained in the clinical records of Royal North Shore Hospital and the various treating doctors, rehabilitation providers and specialists gave details of the state of initial injuries and the extent of treatment and rehabilitation assistance received to date. Her fractures have subsequently healed. Her return to functioning has been remarkable.
The claimant was assessed by Professor Cameron on 15 January 2024 and this information is the latest report to establish the claimant’s ongoing injuries and disabilities as they currently stand.
She reported reduced shoulder movement and ongoing memory impairment. It was reported that she managed personal care and finances without assistance.
When walking to the local shops about 1km from her home she was able to do so independently but preferred to use her walking frame.
She has returned to driving and the heavier domestic chores and gardening is undertaken by outside help. The need for assistance is also related to some extent to her pre-existing Parkinson’s disease.
Professor Cameron undertook a mini cognitive functioning assessment and the claimant scored 29/30. He considered this a normal score for a person of her age.
Noting the claimant pre-accident suffered from Parkinson’s disease the neurological abnormalities in the claimant’s upper and lower limbs were attributed to the pre-existing condition. Also hearing deficit and the use of hearing aids predated the accident.
An assessment of her functioning was undertaken and the report noted the following:
(a)      cervical spine was mildly and symmetrically reduced range of motion to 80% normal in all planes with no muscle spasm, guarding, dysmetria;
(b)     full range of motion right shoulder;
(c)      full range of motion at upper extremity joints;
(d)     no neurological abnormalities in upper or lower extremities with the exception of those related to Parkinson’s disease, and
(e)      lumbar spine was moderately and symmetrically reduced to 70% normal in all planes with no muscle spasm, guarding or dysmetria.
Professor Cameron considered the claimant sustained severe brain injury initially and multiple fracture and has “now made very good recovery from her traumatic brain injury but has some residual cognitive impairments. She is clearly currently competent to manage her financial matter and all aspects of daily life” (page A451 application bundle).
Her Parkinson’s condition is well controlled and was not affected by the injuries sustained in the accident.
The claimant was a participant of Lifetime care for the period of 26 weeks between 18 October 2021 to 17 April 2022.
Dr Parapuram, rehabilitation specialist, reported the presence of cognitive decline with her attention skills and planning skills noting impairment. There has been significant improvement with a residue of some short-term memory impairment since initial assessment. A private program of occupational speech and physiotherapy was conducted at the claimant’s home due to the prevailing Covid-19 restrictions at the time preventing her attendance at hospital outpatients.
When coming to a determination of 13% whole person impairment Professor Cameron opined (page A453 application bundle):
(a)      there was evidence of brain trauma in scans and the assessment of mental status impairment resulted in a clinical dementia rating of 0 which equated to 0% whole person impairment;
(b)     an assessment of emotional and behavioural functioning amounted to 6% whole person impairment;
(c)      left shoulder injury resulted in 7% whole person impairment due to abnormal motion abduction 80 degrees, adduction 20 degrees, flexion 110 degrees, extension 40 degrees and internal and external rotation impacted;
(d)     the pelvic fractures have now healed without displacement or residual signs and an assessment of 0% whole person impairment;
(e)      the nasal fracture healed with no obstruction and an assessment of 0% whole person impairment, and
(f)       the claimant was able to return to driving which improved her ability to undertake tasks such as shopping and socialising.

The parties agreed that the claimant is entitles to damages for non-economic loss based upon Professor Cameron’s assessment.

INJURIES

The claimant was transported to Royal North Shore Hospital by ambulance where she was admitted with a Glasgow Coma Score of 14. In emergency triage she was diagnosed with a subarachnoid haemorrhage, a subdural hematoma, pelvic fractures, left humeral fracture, left clavicle fracture and nasal fracture. She struck her head on the road and this cause brain injury.
She was treated conservatively and remained in hospital later transferred to rehabilitation and discharged on 16 July 2021.
She was under the care of Dr Parapuram and her home was assessed for suitability of care needs. Grab rails and hand rails were installed to ensure risk of falls were minimised.
Initially the claimant was unable to drive and was considered medically fit to drive on 25 November 2021.
Her physiotherapist reported she was able to mobilise without a stick by 25 November 2021 and was able to undertake a 2km walk with friends unaided.
A rehabilitation report dated 14 June 2023 confirmed the claimant was independent with mobility but used a mobility walker if intending to walk longer distances.
Restriction in her left shoulder continue with reduced movement on the left side.
As to cognitive functioning she reported some ongoing memory impairment. Rehabilitation assistance has provided methods of assistance such as recording notes to assist in organisation and memory.
Professor Cameron examined the claimant in her home on 15 January 2024 to determine functioning and impairment.

NON-ECONOMIC LOSS

The injuries sustained in the accident has left the claimant with whole person impairment exceeding the statutory threshold. Dr Cameron opined the claimant has sustained 13% whole person impairment. She is entitled to damages for non-economic loss.
The parties have reached an agreement that the amount of non-economic loss before reduction for contributory negligence of $225,000. The claimant turns 80 years old this month.
With the parties in agreement of 50% contributory negligence the damages agreed upon amounts to a total of $112,500.
Consideration of the amount agreed upon includes the nature of the initial injuries sustained, the pain and suffering which resulted and the long-term impact of any residual injuries and their impact on her daily life. Also taken into consideration is the claimant’s age and life expectancy.
There was no dispute that the claimant sustained significant injuries initially and has fortunately made considerable recovery.
The most prominent residual problem is the loss of movement in her left shoulder and the impact of slight memory impairment.

SHOULD I APPROVE THE SETTLEMENT

I am satisfied that the amounts allocated in the settlement for non-economic loss accord with the evidence provided by medical records and the history provided orally by the claimant. I am satisfied that the amount allowed for non-economic loss 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 of the Commission, taking into account the nature and extent of the injuries and the significant recovery made by the claimant.
The claimant is aware that there are no deductions and she is to receive $112,500.
I consider the agreed settlement in the sum of $112,500 non-economic loss with a deduction of 50% contributory negligence is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission on liability and damages.

CONCLUSION

I am satisfied the proposed settlement of $112,500 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 injuries and losses sustained by the claimant and the likely assessment of contributory negligence.
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 accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
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 amount of $112,500.

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.

[2024] NSWPIC 348

1 July 2024