Allianz Australia Insurance Limited v Weston-Webb
[2022] NSWPIC 646
•21 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allianz Australia Insurance Limited v Weston-Webb [2022] NSWPIC 646 |
| Claimant: | Hillary Weston-Webb |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 21 November 2021 |
CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claim for damages for non-economic loss; claimant now 83 years of age; significant injuries; fracture of the left femur, fracture of the left elbow; left proximal humerus fracture with non-union after removal of hardware; non-displaced fracture of the cervical spine; pre-accident, the claimant was living independently and able to drive; post-accident capacity to carry out activities of daily living severely restricted; inability to drive; requirement to use walker for mobility; claimant’s quality of life severely compromised with no likelihood of improvement; Held – proposed settlement of $350,000 approved. |
| determinations made: | Settlement Approval The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
The insurer and the claimant, Hillary Weston-Webb, have agreed to settle the claimant’s common law damages claim in the sum of $350,000 (the proposed settlement).
The claimant is not legally represented.
Section 6.23(2) of the Motor Accident Injuries Act2017 (MAI Act) provides that a claim for damages for a claimant who is not represented in respect of the claim by an Australian legal practitioner, cannot be settled unless the proposed settlement is approved by Personal Injury Commission (the Commission).
This application has been lodged by the insurer with the Commission for the purpose of having the proposed settlement approved.
The matter has been referred to me to consider approval of the proposed settlement.
BACKGROUND TO THE CLAIM
The claimant is an 83-year-old woman who suffered significant injuries a motor accident on 2 November 2018.
On that day, the claimant was walking in the car park outside Bellingen Golf Club in the company of another person, when the insured vehicle reversed into both of them.
On 30 April 2021, the claimant made a claim for common law damages which was received by the insurer on 7 May 2021. On 3 August 2021, the insurer wholly admitted liability for the claim.
On 22 April 2022, the insurer conceded that the claimant’s injuries resulted in a degree of permanent impairment that is greater than 10%. On that basis, the claimant is entitled to recover damages for non-economic loss.
DOCUMENTS CONSIDERED
In making my decision, I considered the following documents:
(a) operation report of Dr Matthew Broadhead, orthopaedic surgeon, dated 4 November 2018;
(b) discharge summary of Coffs Harbour Hospital;
(c) operation record of Coffs Harbour Hospital, dated 22 February 2019;
(d) application for personal injury benefits, dated 28 June 2019;
(e) certificate of fitness, dated 28 June 2019;
(f) report of Dr Matthew Broadhead, dated 10 July 2019;
(g) the insurer’s Liability Notice – benefits after 26 weeks, dated 15 October 2019;
(h) report of Richard Clark, occupational therapist dated 9 December 2019;
(i) application for damages under common law, dated 30 April 2021;
(j) insurer’s liability notice – claim to damages, dated 3 August 2021;
(k) the insurer’s submission, dated 1 November 2021;
(l) report of Luisa Eckhardt, occupational therapist, dated 7 December 2021;
(m) statement of Rachel Weston-Webb, undated, but made about March 2022;
(n) report of Dr Chris Harrington, orthopaedic surgeon, dated 13 April 2022;
(o) letter from the insurer to the claimant conceding the permanent impairment threshold, dated 22 April 2022;
(p) letter from the insurer to the claimant making an offer of settlement, dated 2 June 2022;
(q) proposed Agreement for Release and Indemnity, dated 2 June 2022;
(r) insurer’s submissions dated 15 September 2022;
(s) revised proposed Agreement for Release and Indemnity, dated 15 September 2022;
(t) further revised Agreement for Release and Indemnity signed by the claimant on 3 November 2022, and
(u) insurer’s submissions dated 4 November 2022;
LEGISLATION
In making my decision, I considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation), and
· the Motor Accident Guidelines, Version 8.2 (the Guidelines).
CONSIDERATION
The application
Sub-section 6.23(3) of the MAI Act provides I am not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under the Act or the Guidelines.
Time requirements to make the application
Sub-section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the motor accident unless the degree of permanent impairment of the injury caused by the motor accident is greater than 10%.
The insurer did not concede the permanent impairment threshold until 22 April 2022 which was more than two years after the motor accident. In any event, the claimant did not accept the proposed settlement until 3 November 2022. Therefore, the requirements of sub-s 6.23(1) are satisfied.
The claimant’s understanding of the proposed settlement
Sub-clauses 7.37 (c) and (d) of the Guidelines provide that before I approve the proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner and understands the nature and effect of the proposed settlement and is willing to accept it.
I conducted two teleconferences with the parties to question the claimant about those issues. The claimant appeared in person and was assisted by her daughter, Rachel Weston-Webb. Ms Amie Walsh of Allianz appeared for the insurer.
The claimant stated that she is aware that she was entitled to be represented by a lawyer with respect to her claim, but she has chosen not to do so. This was confirmed by Ms Rachel Weston-Webb.
At the teleconference which took place on 21 October 2022, Ms Weston-Webb informed me that she had conducted negotiations with the insurer to arrive at a settlement in the sum of $250,000 and that the claimant was willing to accept it. The claimant confirmed her wish to accept this settlement sum.
Following discussions, I advised the parties that considering the evidence before me, I was not satisfied that a settlement for this sum was just, fair and reasonable in the circumstances.
Ms Walsh sought an adjournment of the matter to a further teleconference to obtain further instructions from the insurer.
The matter was set down for a further teleconference on 4 November 2022. On that occasion, I was advised by Ms Walsh that the insurer had revised the settlement sum to $350,000 and that the claimant has accepted it. The proposed settlement is therefore submitted for approval.
I established from Ms Walsh that the claimant is currently receiving statutory benefits for treatment and care and that a determination that the claimant had sustained a non-minor injury had been made.
I explained to the claimant that the proposed settlement represents lump sum damages for her non-economic loss only and that proceeding with the proposed settlement will not affect her ongoing rights to benefits for reasonable and necessary treatment and care, for the rest of her life.
I explained to the claimant that those benefits cover a wide range of benefits, including the costs of medication, home assistance and future surgery.
I established from Ms Walsh and explained to the claimant that the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the proposed settlement. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses, Ms Walsh confirmed that the insurer will pay the charge in addition to the proposed settlement.
Following information given by Ms Walsh, I am satisfied the claimant understood there will be no repayment to Centrelink arising from the proposed settlement and that the settlement would not impact on her ongoing entitlements, although she may need to consider whether the additional funds have an impact on the assets test for her pension.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner, but she does not wish to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making any further claim for damages arising from the motor accident.
I am satisfied that the claimant is willing to accept the proposed settlement.
Is the proposed settlement just, fair and reasonable?
Clause 7.37 (b) provides that before I approve a proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that it 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 proposed settlement is in the sum of $350,000 for damages for non-economic loss and there are no deductions from that sum for any other matters.
Section 1.4 of the MAI Act defines “non-economic loss” as meaning:
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
Following the accident, the claimant was taken by ambulance initially to Bellingen Hospital. She was transferred to Coffs Harbour Hospital where she remained for treatment for six days. This was followed by three months of rehabilitation.
The discharge summary from Coffs Harbour Hospital shows that the claimant sustained multiple injuries, including a fracture of left femur, a left proximal humerus fracture, and a fracture of the left olecranon.
The claimant underwent the following surgical procedures prior to her discharge:
· An open reduction and internal fixation of the left femur.
· An open reduction and internal fixation of the left elbow.
· An open reduction and internal fixation of the proximal humerus.
The claimant was reviewed by her treating orthopaedic surgeon, Dr Matthew Broadhead. In his report dated 10 July 2019, Dr Broadhead noted that after the removal of hardware, the claimant was left with a non-union of the left humerus.
Dr Broadhead noted that the claimant had been through a course of physiotherapy to improve functionality. In view of her ongoing left shoulder pain, Dr Broadhead believed that the claimant was a candidate for a reverse total shoulder replacement. Dr Broadhead reported that the claimant was not keen on the procedure and given the significant surgical risk, he thought that this was reasonable.
On 11 April 2022, the claimant was examined by orthopaedic surgeon, Dr Chris Harrington at the request of the insurer.
In his report dated 13 April 2022, the claimant reported to Dr Harrington she lived in her own home at Bellingen with her partner. She needs assistance with dressing and showering. She is troubled by left shoulder pain. Her neck is stiff, and it creaks and grates. She has left-sided headaches. She can barely use her left arm. She cannot even hold her cutlery. She requires a walker to get around. She tends to hang on to furniture when mobilising around the house. Some home modifications have been carried out. She is receiving home care assistance with cleaning three days a week and she uses the “Meals on Wheels” service. Her daughter Rachel, provides her assistance with transport, attending medical appointments and finances.
Dr Harrington was of the opinion that the claimant had suffered significant injuries to her left hip, left shoulder and left elbow.
Dr Harrington recorded that when the claimant sustained a fall at home in September 2021 and sought treatment for neck pain, an old non-displaced fracture of the cervical spine was discovered. Dr Harrington believed that on balance of probabilities, that fracture was caused by the motor accident.
Dr Harrington was of the opinion that the claimant has lost her independence. Given her presentation, he believed that the claimant would require an ongoing home care package indefinitely for assistance with grocery shopping, cleaning and meals.
Dr Harrington believed that the claimant’s acute injuries have also aggravated her chronic pre-exiting conditions such as osteoporosis, arthritis in both knees and hemiarthroplasty of the right hip. He noted that despite those pre-conditions, the claimant maintained that she was living independently prior to the accident. He was of the opinion that the claimant’s injuries have had a substantial impact on her pre-accident activities.
Dr Harrington assessed the claimant’s whole person impairment arising from her orthopaedic injuries sustained in the accident, at 23%.
At the teleconference on 21 October 2022, the claimant stated that since the accident, she has been severely restricted in her social activities. She can no longer drive or go shopping.
In an undated statement made to the insurer in about March 2022, the claimant’s daughter Rachel Weston-Webb reported that the claimant continues to have difficulties with aspects of self-care. The claimant was unable to dry herself properly with a towel, wash herself under the right armpit, to carry out her manicure or style her own hair. The claimant is unable to carry out daily activities of living for which she is not receiving home assistance, such as hanging her laundry on the clothes line, hanging up her clothes in the wardrobe, cutting up her own food or preparing a meal.
The evidence suggests that the accident has inflicted a significant degree of pain and suffering upon the claimant which has so far lasted more than three years.
The evidence suggests that the accident has severely compromised the claimant’s quality of life. Given the claimant’s age, this is likely to deteriorate further in the future.
Conclusion
The current maximum amount that may be awarded for non-economic loss damages is $605,000.
Having regard to all of the above matters, 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, the disabilities and the impairments sustained by the claimant.
The proposed settlement of the claimant’s claim for damages in the sum of $350,000 is approved under s 6.23(2)(b) of the MAI Act.
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