GIO v Doherty
[2021] NSWPIC 395
•23 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | GIO v Doherty [2021] NSWPIC 395 |
| CLAIMANT: | James Doherty |
| INSURER: | GIO |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 23 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant under legal incapacity as result of injury; wife appointed as appointed representative under rule 97(1) of the Personal Injury Commission Rules; claimant now 95 years of age; injured as pedestrian; at date of accident 92 years of age and fully independent; background history of significant medical comorbidities; accident caused traumatic brain injury; hospitalised for four months; now requires care and resides in aged care accommodation; requires walker for mobility; evidence of confusion; poor memory, episodes of inappropriate behaviour; lack of insight; verbal aggression, and resistance to help with care; underlying dementing process accelerated by significant head injury; Held – settlement approved; claimant sustained serious traumatic brain injury; loss of capacity to live independently with wife; claimant now requires full time care; cognitive impairment has impacted activities of daily living, relationships and ability for social interaction. |
| DETERMINATIONS MADE: | 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the 2017 Act). 3. The proposed settlement complies with 7.38 of the Motor Accident Guidelines. |
Introduction
On 24 May 2018 Mr James Doherty (the Claimant) sustained serious injury in a motor vehicle accident (the accident).
The Claimant has made a common law claim against AAI Limited trading as GIO the CTP insurer of the at fault vehicle, for lump sum damages.
The Insurer accepted liability for the Claimant’s claim for statutory benefits and has paid treatment benefits to, or on behalf of the Claimant.
The Insurer has accepted that the Claimant had non-minor injuries. On 24 August 2020 the Claimant was accepted as a participant in the Lifetime Care and Support Scheme, and he is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
The Claimant’s wife Margaret Heather Doherty holds a Power of Attorney for the Claimant and has been the authorised representative for the Claimant in relation to the claim.
Pursuant to rule 97(1) of the Personal Injury Commission Rules I appoint Mrs Margaret Heather Doherty as the appointed representative entitled to represent the Claimant who is under legal incapacity as result of the injury he sustained in the accident.
The Claimant and the Insurer have agreed to settle the claim for lump sum damages for the sum of $250,000. Because the Claimant is not represented by a lawyer, his settlement must be approved in accordance with the 2017 Act.
The Insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 23 July 2021. Mrs Margaret Doherty and the Claimant’s daughter Ms Rhonda Benson participated on behalf of the Claimant. The Insurer was represented by Mr Ian Izzard.
Jurisdiction
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the 2017 Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
Documents Reviewed
In considering this application for approval I reviewed the following documents:
· Insurer’s submissions dated 12 July 2021
· Police Report Event Ref. No. E70480283
· Certificate of Fitness dated 18 June 2018
· Report of Dr Dudley O’Sullivan dated 12 November 2018
· Report of Dr Sarah Baldwin dated 2 April 2019
· Letter of Acceptance from Lifetime Care and Support dated 24 August 2020
· Letter from Dr P. S. Singh dated 7 May 29021
· Clinical records of St George Hospital
· Clinical notes of Campsie Healthcare Medical Practice
· Letter of offer from the Insurer to Mrs Doherty dated 1 July 2021.
The relevant law
Section 6.23(1) of the 2017 Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23(2) and (3) of the 2017 Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the 2017 Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement satisfies the timing requirements in s 6.23(1) of the 2017 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 a claims assessor, 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; and
(c) the Claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Review of the evidence
The Claimant is now 95 years of age.
At the date of accident, the Claimant was 92 years of age. He lived at home and was fully independent. He was able to walk without aids and was still driving. He was able to manage his financial affairs and enjoyed working in his shed designing and manufacturing small items using metal and wood.
The Claimant has a background history of significant medical comorbidities. He has a history of chronic obstructive pulmonary disease, ischaemic heart disease, and congestive cardiac failure and has a cardiac pacemaker. He had undergone a radical prostatectomy for prostate cancer, and he has had total hip replacement surgery for both hips. He had undergone a cholecystectomy and an appendicectomy. He also has Paget’s disease, glaucoma, and age-related macular degeneration.
On 24 May 2018 at about 11.50 am the insured vehicle was reversing into a parallel parking spot on Shaw Street, Bexley North when it collided with the Claimant, a pedestrian. The Claimant fell to the ground sustaining serious head injuries.
The Claimant was conveyed by ambulance to St George Hospital where he was diagnosed with a traumatic brain injury, namely an acute subarachnoid haemorrhage within the left frontal lobe and an acute haemorrhage within the right ambient cistern. He had a scalp laceration which healed well. He also sustained various skin tears in his right forearm and thenar eminence which were treated with dressings.
During his admission to St George Hospital the Claimant developed delirium, it was thought he may have had a seizure and he also developed aspiration pneumonia and urinary retention all of which resolved before discharge.
On 26 June 2018 the Claimant was transferred to the Waratah Private Hospital for rehabilitation. He was discharged on 26 September 2018. He underwent an aged care assessment and now resides permanently in an aged care residence. He requires a walker for mobility.
The Claimant’s memory is now poor and whilst he is fully orientated there is still evidence of confusion. He can no longer manage his finances and Mrs Doherty does not believe he would now be able to use his tools.
The Claimant can shower and dress with the assistance of staff. He is able to walk around his room unassisted but requires the walker to leave his room.
Dr O’Sullivan, Consultant Neurologist diagnosed an acute subarachnoid haemorrhage, left frontal lobe and acute extra-axial haemorrhage within the right ambient cistern.
He reported the Claimant performed well on a mini-mental state examination, but he believed the Claimant would have significant cognitive impairment if a detailed neuropsychological test was performed. The Claimant also has episodes of inappropriate behaviour and lack of insight as a result of the left frontal lobe damage.
Dr Baldwin, Staff Specialist in Aged Care Medicine reviewed the Claimant in his aged care residence on 27 March 2019. The Claimant was reluctant to get out of bed or even open his eyes to speak to Dr Baldwin, even though it was about 10.00 in the morning. However, he was happy to answer her questions and informed Dr Baldwin that he was happy when friends visited but was not keen to leave his room and join in activities at the facility. He stated he was independent with mobility and only required a low level of personal care.
Dr Baldwin stated it was apparent from the case notes that this was a common pattern of behaviour. The claimant was frequently sleepy and reluctant to get out of bed. He was often uncooperative with therapy becoming rude and angry with the staff, resentful of them telling him what to do. Rudeness, verbal aggression,aproval and resistance to help with personal care were described as ongoing issues.
Dr Baldwin stated Mrs Doherty was aware of those issues, but she has also noticed on other occasions he is happy to get up and use the walker without any assistance.
Mrs Doherty also reported a deterioration in short term memory.Dr Baldwin reported the Claimant’s condition had deteriorated. She concluded his “reduced memory, overall apathy and disinhibited behaviour may all represent an underlying dementing process which was undoubtedly accelerated by the significant head injury he suffered…”.
The Claimant’s treating general practitioner Dr Ng provided a report dated 7 May 2021. He stated he had attended the Claimant during his residence at Macquarie Lodge Arncliffe. He reported the Claimant’s medical and mental condition had deteriorated and his mobility had also slowed down. He stated the Claimant will require continued care.
Should I approve the settlement
Section 1.4 of the 2017 Act defines non-economic loss as:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life; and
(d) disfigurement.
The current maximum payable for non-economic loss is $590,000.
I am satisfied that the Claimant is aware of his right to have his reasonable treatment expenses paid for the remainder of his life as a member of the Lifetime Care and Support scheme.
I am satisfied the Claimant understood that the settlement was only in respect of his entitlement to damages for non-economic loss.
I am satisfied the Claimant understood there will be no repayment to Centrelink or any impact on any ongoing entitlements.
Mr Izzard confirmed that the Insurer will be responsible for payment of any treatment expenses paid by Medicare and causally related to the accident as part of their obligation to pay statutory benefits.
I confirm that there will be no deductions to be made from the settlement sum of $250,000 and the full amount will be payable to the Claimant.
In approving the settlement, I take into account the serious traumatic brain injury sustained by the Claimant and the acceleration of the dementing process described by Dr Baldwin.
As a result of the accident the Claimant has lost the capacity to live independently with his wife and required full time residential care. His impaired cognitive impairment has significantly impacted his activities of daily living, his relationships and ability for social interaction.
I am of the view that the sum of $250,000 is an appropriate award of damages for non-economic loss.
Conclusion
I find the timing requirements of section 6.23(1) of the 2017 Act satisfied where it is agreed the Claimant has sustained a permanent impairment greater than 10%.
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the Claimant.
I am satisfied the Claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the Claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident. I am satisfied the Claimant is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the 2017 Act I approve the settlement of this claim for damages.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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