Insurance Australia Limited t/as NRMA Insurance v Anthony
[2023] NSWPIC 466
•13 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Anthony [2023] NSWPIC 466 |
| CLAIMANT: | Rodney Anthony |
| INSURER: | NRMA |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 13 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages for non-economic loss; section 6.23; claimant now 77 years of age; motorcycle rider struck by insured vehicle; multiple abrasions to hands, knees, elbows, right ankle and right foot, resolved; bruising to right leg and left ribs, resolved; mild concussion with dizziness, resolved; right shoulder injury requiring total shoulder replacement surgery; improvement to shoulder function and pain profile following surgery; claimant has resumed domestic activities and some activities on hobby farm; claimant’s quality of life continues to improve; Held – proposed settlement of $220,000 approved. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Settlement Approval 1. The proposed settlement sum of $220,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act2017. |
STATEMENT OF REASONS
INTRODUCTION
On 26 June 2023, the claimant, Rodney Anthony, made a claim for common law damages for the injuries he sustained in a motor accident on 3 July 2022.
On 28 July 2023, the insurer, NRMA, accepted liability for the claim.
The insurer and the claimant have now agreed to settle the claimant’s claim for the sum of $220,000 (the proposed settlement).
The claimant is not legally represented.
Section 6.23(2) of the Motor Accident Injuries Act 2017 (MAI Act) provides that a claim for damages by 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 (Commission).
On 22 August 2023, the insurer lodged an application with the Commission to have the proposed settlement approved.
The matter has been referred to me to consider approval of the proposed settlement.
DOCUMENTS CONSIDERED
In making my decision, I considered the insurer’s bundle of documents submitted with the application marked A-1 to A-16 (201 pages).
LEGISLATION
In making my decision, I considered the following legislation, rules and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (Regulation);
· Personal Injury Commission Rules 2021 (PIC Rules), and
· the Motor Accident Guidelines, Version 9.1 (Guideline).
COMPLIANCE WITH THE PIC RULES
Rule 95 (1) of the PIC Rules requires the insurer to lodge the application for approval with the Commission within seven days of reaching an agreement with the claimant about the proposed settlement.
The material before me showed that the proposed settlement was made to the claimant on 14 August 2023. The claimant accepted the proposed settlement on the same day. The insurer’s application was lodged with the Commission within 7 days thereafter on
22 August 2023 in compliance with r 95(1) of the PIC Rules.
THE MOTOR ACCIDENT
On 3 July 2022, the claimant was riding his motorcycle along Pine Creek Way, Bonville when the insured motor vehicle made a right-hand turn into his path of travel, causing a collision and the claimant to sustain injuries. The claimant was wearing a helmet.
The claimant was conveyed by ambulance to Coffs Harbour Hospital where he was admitted for treatment.
The claimant’s description of his injuries
In his personal injury claim form dated 15 July 2022, the claimant described his injuries as follows:
(a) skin abrasions to hands, knees, and right foot;
(b) right shoulder immobilised and cannot raise (right arm);
(c) bruising to the inner right leg;
(d) swollen right ankle and knees;
(e) left ribs bruised;
(f) mild concussion and continued dizziness/vertigo, and
(g) mental anguish and sleep deprivation.
MEDICAL TREATMENT
The medical evidence may be conveniently summarised as follows.
Coffs Harbour Hospital
On admission, the claimant complained of acute right shoulder pain and frontal headache.
On examination, the claimant was found to have sustained multiple abrasions to his elbows, hands, knees which were dressed. He had tenderness at the left anterior rib. There were painful abductions in the right shoulder. There were no palpable haematomas. He was assessed with a Glasgow Coma Score (GCS) of 15.
The claimant underwent CT scans of the pelvis, spine, brain, and abdomen. No abnormalities or bone injuries were detected. An X-ray of the chest was also performed, which was within normal limits.
The claimant complained of mild dizziness when sitting in bed.
The claimant was discharged later the same day for follow up with his general practitioner for wound assessments and dressings.
Dr Cram
The claimant subsequently attended upon his general practitioner, Dr Ian Robert Cram at the Coffs Central Medical Centre for further treatment. On visits of 5, 8, 12 and 15 July 2022, the claimant’s multiple abrasions were cleaned and dressed.
On 8 July 2022 and 2 August 2022, the claimant complained of recurrent dizziness, especially when rolling in bed. The claimant was referred to neurological physiotherapist,
Ms Amanda Sleeman, for further treatment.On 15 July and 2 August 2022, the claimant complained to Dr Cram about persistent right shoulder symptoms including restricted range of movement.
On 28 July 2022, the claimant underwent an ultrasound of the right shoulder which showed supraspinatus and infraspinatus complete tears and subscapularis atrophic tendinopathy.
On 7 October 2022, the claimant was referred to orthopaedic surgeon, Dr Alex Jovanovic for further management of his right shoulder.
Dr Jovanovic
On 14 December 2022, Dr Jovanovic reported that on examination, the claimant had classic pseudo paralysis with inability to raise the right arm. He had complete weakness in the supraspinatus and infraspinatus with some crepitations in the shoulder on movement.
An MRI scan commissioned by Dr Jovanovic showed unrepairable rotator cuff tears.
Dr Jovanovic’s opinion was that a total right shoulder replacement would improve the pain profile as well as function. On 1 March 2023, Dr Jovanovic carried out the surgery.
On 20 April 2023, the claimant was seen by Dr Jovanovic for a post-operative follow-up.
Dr Jovanovic reported that new X-rays showed good position of the prosthetic implants without any adverse radiological features. The claimant reported that he had no pain and that he had gained a reasonable range of movement.The claimant was advised by Dr Jovanovic to continue with his physiotherapy to improve his range of movement in the right shoulder. Dr Jovanovic reported that he asked the claimant to visit him in three months to check on his progress.
The claimant’s understanding of the proposed settlement
In conformity with s 6.23(3) of the MAI Act, before I approve the settlement, I must be satisfied that that it complies with the applicable requirements of the MAI Act and the Guideline.
Sub-clauses 7.37 (c) and (d) of the Guideline provide that before I approve the proposed settlement under sub-s 6.23(3) of the MAI Act, I must be satisfied that the claimant understands that he 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.
On 8 September 2023, I conducted a preliminary conference to question the claimant about those issues. The claimant appeared for himself and Ms Vicki Zogopoulos appeared for the insurer.
Ms Zogopoulos confirmed that the proposed settlement was for damages for non-economic loss. The claimant confirmed that he retired some years ago and that he is not making a claim for economic loss.
Ms Zogopoulos confirmed that the claimant has not received any weekly payments of statutory benefits.
In answer to my question about legal representation, the claimant said he was aware that he could be legally represented but he did not want to have a solicitor involved. He said that the insurer has “been good to him” in providing his treatment and care expenses. He said it was “not about the money”. He just wanted to get better.
In answer to my questions about his ongoing problems, the claimant stated the following:
(a) he lives on his hobby farm. He lives in his own house on the property. His wife and son also live on the property in their own house. He retired from employment some years ago and he is in receipt of an old age pension from Centrelink;
(b) after the accident, he had dizziness as a result of concussion. This lasted for a few weeks but has since resolved;
(c) the multiple abrasions and bruising to his knees, hands, elbows, right leg and right foot have all resolved. He is now left with some mild scarring, but he is not concerned about it at his age;
(d) his right ankle and left rib injuries also resolved soon after the accident;
(e) he has not returned to see Dr Jovanovic since April 2023 because his right shoulder symptoms have improved. He suffers from occasional pain in the shoulder, but he was advised by Dr Jovanovic that this will eventually settle down. He plans to see Dr Jovanovic next year for a check-up;
(f) his right arm movements have also improved. He can do his own domestic chores and cook his meals. He can now use his lawnmower. He cannot ride his tractor. He plans to buy another one that will suit his capability;
(g) he will continue to do physiotherapy as the need arises, and
(h) he has not ridden his motorcycle since the accident. He does not intend to return to motorcycling. He thought that at his age, it was time to “hang up his helmet.”
I explained to the claimant that proceeding with the proposed settlement will not affect his entitlement to receive ongoing benefits for reasonable and necessary treatment and care for the rest of his life. I indicated to the claimant that those benefits cover a wide range of matters, including the costs of future surgery, medical treatment, medication, home and transport modifications, home assistance such as lawnmowing and commercial cleaning.
I explained to the claimant that the insurer will not be making any deductions from the proposed settlement. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses, the insurer will pay the charge in addition to the proposed settlement.
Following information given by Ms Zogopoulos, I was satisfied that the claimant understood there will be no repayment to Centrelink arising from the proposed settlement and that the settlement would not impact on his ongoing old age pension entitlements. However, he may need to consider whether the additional funds from the settlement would have an impact on the assets test for his pension.
I am satisfied that the claimant understands that he is entitled to be represented in respect of the claim by an Australian legal practitioner, but he has chosen not to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that he will be precluded from making any further claim for damages arising from the motor accident.
I am satisfied that the claimant understands that following the settlement of his claim for damages, he has ongoing rights to claim future treatment and care.
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.
Damages for non-economic loss
The proposed settlement of $220,000 represents damages for non-economic loss.
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.
The claimant is now 77 years of age. The evidence shows that the accident has inflicted a significant degree of pain and suffering upon the claimant in the past 15 months. He has undergone right shoulder surgery which has improved his pain and function to the extent that he has now resumed his domestic activities and some of the activities on his hobby farm. The evidence suggests that there is room for further improvement 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 $220,000 is approved under s 6.23(2)(b) of the MAI Act.
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