Allianz Australia Insurance Limited v Thwaites
[2023] NSWPIC 169
•18 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Thwaites [2023] NSWPIC 169 |
| Claimant: | Mary Thwaites |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Terence Stern OAM |
| DATE OF DECISION: | 18 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval issued under section 6.23; damages claim; claimant 94-years-old; car vs pedestrian; breach of duty conceded; multiple upper limb and lower limb fractures; degloving injuries to right arm and both lower legs; whole person impairment of 12%; Held - settlement offer of $140,000.00 approved as just, fair and reasonable, and within the range of likely outcomes. |
| determinations made: | 1. The proposed settlement is appropriate and complies with clause 7.04.2 of 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 of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.” 2. Accordingly, I approve the proposed settlement of $140,000.00. |
STATEMENT OF REASONS
BACKGROUND AND THE ACCIDENT
The Claimant was born in May 1928.
On 26 April 2021, the Claimant was a pedestrian on the footpath behind the Insured driver, who was reversing into a car spot. The Insured driver failed to stop the moving car, mounted the footpath, and collided with the Claimant.
The Claimant was taken by ambulance to St Vincent’s Hospital, where she was diagnosed with multiple fractures and degloving injuries to the right arm and both lower legs.
The Claimant was transferred from Hospital to the rehabilitation unit, and later underwent rehabilitation at Mona Vale Hospital, until her discharge home.
The Claimant was assessed by Professor Ian Cameron, rehabilitationist, on 6 February 2023 as having sustained Whole Person Impairment of twelve percent.
The Claimant lodged a Common Law Claim Form on 22 December 2022. The Insurer wholly admitted liability on 5 January 2023.
The Insurer has made an offer of $140,000.00 to settle the case, which the Claimant has accepted.
The Claimant has a pre-existing impairment to her hearing and has a cochlear implant and hearing aids.
THE INJURIES
The Claimant’s injuries comprise:
i)Right posterior tibial plateau fracture with PCL avulsion.
ii)Left Comminuted fracture of the fibular head and neck.
iii)Right Condylar fracture.
iv)Right upper limb and bilateral lower limb degloving, abrasions and hematomas.
v)Left distal humerus fractures.
LIABILITY
The Claimant reports in her Statutory Benefits Claim Form that she was on the footpath with her walker behind a disabled car spot and that is the last thing she remembers. The Police Report places the Insured Driver at fault. The report notes the vehicle mounted the curb, striking the Claimant and dragging her 10 metres.
The Insured Driver, the Claimant’s daughter, provided a statement. She confirmed the Claimant was on the footpath near the parking spot and at no time moved onto the roadway. The driver confirms traveling at low speed into the car spot, she reports believing the vehicle was stationary when it surged forward, mounting the footpath, and colliding with the Claimant. An interview with police confirms the circumstances of the accident, confirming the driver is at fault. The Insurer admitted liability for the Common Law Claim in full on 5th January 2023.
Medical
The Claimant was taken by Ambulance to St Vincent’s Hospital. She was diagnosed with multiple fractures to the left upper limb and both left and right lower limb, along with degloving and haematomas. The discharge summary notes the Claimant was independent before the accident with the assistance of a 4 wheel walker outside the home. She was treated conservatively for the fractures with the use of casts and was being managed by plastics for her degloving injuries. After time in the rehabilitation unit at St Vincent’s Hospital she was transferred to Mona Vale Hospital for rehabilitation. She then returned home.
The Claimant engaged in ongoing physiotherapy and her home underwent modifications to assist the Claimant in entering, leaving and manoeuvring safely around the home. She has family who also live in the home that assisted her, as she was reliant on a four wheel walker both inside and outside the home.
The Claimant was examined by Professor Cameron on 6th February 2023. In his report dated 11th February 2023, Professor Cameron notes the claimant experienced ongoing restrictions in daily life noting her reduced mobility. She reports not receiving assistance from family, however they were around to assist if she needed. She reported using a wheeled walking frame and bathroom equipment. Professor Cameron found restrictions in the range of movement of the left shoulder, and both knees. Professor Cameron noted significant scarring with adherence and colour contrast. He assessed the Claimant as having a Whole Person Impairment of 12%.
ASSISTANCE
The Claimant has assistance from her family for cooking, gardening, and housework.
THE INSURER’S OFFER
The Insurer made an offer of $140,000.00 based on its assessment of the appropriate amount for non-economic loss damages.
THE LEGISLATION AND LEGAL PRINCIPLES
In Reece v Reece (1994) 19 MVR 103; NSWCA 259, the Court took into account the position of a much younger woman with the same range of interests and the same injuries [15].
The Trial Judge had assessed non-economic loss damages at 33.33% of a most extreme case. The Court of Appeal held that, taking into account the age of the Plaintiff, 33.33% was a wholly disproportionate assessment of the degree of the Plaintiff’s loss, and assessed 22.5% of a most extreme case.
In Varga v Galea [2011] NSWCA 76, the Plaintiff, who was 63 years at the time of Trial, had sustained significant injuries in a fall, and had ongoing incapacitating disabilities in his low back and left knee. The Respondent conceded that he would never be able to return to the full-time workforce.
At paragraph [72], McColl JA said:
“Reece v Reece states the uncontroversial proposition that the Plaintiff’s age at the time of the assessment of damages is a relevant factor to the assessment of non-economic loss…”
At [74] McColl JA stated:
“The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent:
"Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables."
In making my decision I have considered the following legislation and Guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Regulation 2020;
(c) the MAI Act, and
(d) the Guidelines.
Section 6.23 of the MAI Act provides:
“6.23 Restrictions on settlement of claim for damages
(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 vehicle 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 of or made under this Act or the Motor Accident Guidelines.”Clause 7.37 of the Guidelines states:
“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 if the claim were the matter to be assessed by the Commission, and 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, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”I am satisfied that all these requirements have been met.
Determination
I am satisfied that the Claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied she knew she was entitled to legal representation.
The proposed settlement is appropriate and complies with clause 7.04.2 of 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 of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
Accordingly, I approve the proposed settlement of $140,000.00.
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