Insurance Australia Limited t/as NRMA Insurance v Beram
[2024] NSWPIC 595
•23 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Beram [2024] NSWPIC 595 |
| CLAIMANT: | John Beram |
| INSURER: | NRMA |
| MEMBER: | David Ford |
| DATE OF DECISION: | 23 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 78-year-old passenger in a motor vehicle involved in a collision with the insured motor vehicle at an intersection; claimant sustained severe injuries including multiple fractured ribs, fractured sternum, compound fracture of the left ankle, injury to the right ankle and damage to the left ulnar nerve; insurer wholly admitted liability, conceded non threshold injury and also conceded entitlement to damages for non-economic loss; claimant is retired; the amount proposed for non-economic loss is $300,000; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 28 July 2019, Joan Beram (the claimant) was a front seat passenger in a motor vehicle being driven by her husband, towards the intersection of Mona Vale Rd and Woodlands Ave at Pymble. It then transpired the insured vehicle collided with the driver side of the claimant’s vehicle at the said intersection. Consequently, the claimant was severely injured.
She sustained multiple fractured ribs, fractured sternum, compound fracture of the left ankle, injury to the right ankle, and damage to the left ulnar nerve. The ulnar nerve symptoms commenced when she was in the recovery phase. An ambulance attended the scene of the accident, and she was transported to Royal North Shore Hospital, where imaging tests were performed. She remained as an inpatient for a period of one month. She underwent open reduction and internal fixation of the fracture of her left ankle. She was subsequently transferred to Hirondelle Rehabilitation Hospital where she remained as an inpatient for approximately six weeks.
The surgical procedure was performed by Dr Papadimitriou and the insurer obtained a report from him dated 12 May 2020. He states the following on page 1 of his report:
“Joan now presents for review. She reports that her left ankle has progressed well, and she is not greatly troubled by it. Her right ankle however experiences ongoing pain mainly on the medial aspect. She also reports residual ankle swelling and some bilateral plantar foot numbness. Joan has been undergoing physiotherapy as well as massaging and she has found this to be helpful”.
In an earlier report dated 24 July 2019, Dr Papadimitriou sets out in detail the surgical procedures performed by him.
In submissions dated 15 July 2024, the insurer sets out in detail the various reports from treatment providers regarding her rehabilitation post-accident, together with details of all imaging reports.
The insurer arranged for the claimant to be seen on a medico legal basis by Dr John Bentivoglio, and I refer to his report dated 21 October 2022. He has provided a comprehensive report. He carried out a physical examination of the claimant and reviewed all imaging tests. I note the following under the heading “Diagnosis and Opinion” on page 6 of his report:
“This lady sustained significant injuries to her person in the motor vehicle accident. She described with chest wall injuries with the fractured ribs and the sternal fractures are not within my field of expertise, but generally, they settle with conservative treatment.
With her left ankle she sustained a compound fracture of her left ankle that required open reduction and internal fixation. The fracture has united uneventfully. She does stand a very small chance of developing degenerative osteoarthrosis, present in her ankle joint proper, in the future. No treatment is indicated for her left ankle at this stage.
She also sustained a minor fracture of her right ankle in the motor vehicle accident as well as aggravating pre-existing degenerative changes present in the mid tarsal joint. No further treatment is indicated for her right ankle.
With her left elbow, when changing position in the bed, she developed an ulnar nerve neuropathy that worsened with time, and she eventually required surgical treatment for this. She has been improved by the surgery but in recent time her symptoms are probably worsening. No further treatment is indicated for her at this stage.
If indeed her symptoms do worse and more, she may require nerve conduction studies repeated”.
Dr Bentivoglio assessed her as having a 16% whole person impairment because of the injuries sustained in the subject accident. He opined she had reached maximum medical improvement.
Subsequently, she came under the care of Dr David Dickison, and I refer to his report dated 27 May 2024. As a consequence of his examination of the claimant, he recorded an MRI scan of the right knee demonstrated accelerated wear pattern in lateral compartment and associated myxoid ACL that seems to have developed. He recommended a right total knee replacement.
She underwent a total knee replacement on 15 July 2024 and thereafter underwent rehabilitation. The insurer has advised the claimant it does not consider this operation to have been a reasonable and necessary treatment because of the injuries sustained by her in the subject accident. I held several preliminary conferences with the parties since the initial preliminary conference on 13 August 2024. In my preliminary conference dated
18 October 2024, I recorded the following:“The Claimant confirmed she had obtained legal advice as regards future rights regarding the application to the Medical Service to determine her entitlement to a refund of the surgery cost and any further reasonable and necessary treatment. She was satisfied regarding the legal advice she had received.”
The insurer wholly admitted liability by letter dated 8 March 2022. The insurer has conceded non threshold injury and has also conceded she is entitled to damages for non-economic loss. She was born in 1946 and will shortly be 78 years of age. She is retired.
The insurer has proposed to resolve the claim for non-economic loss in the sum of $300,000. There are no deductions to be made from the agreed settlement monies. This results in a net sum to the claimant of $300,000.
The calculation of the proposed settlement is as follows:
· non-economic loss $300,000
Total $ 300,000
The claimant advised me she wishes to accept the proposed settlement. After also reading the rehabilitation reports of the claimant, I am satisfied the sum proposed for non-economic loss is both reasonable and adequate. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
The claimant is not represented by a lawyer and accordingly the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, considering the nature and extent of the claim.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she 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 s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (3) of the MAI 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 MAI Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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, taking into the account the nature and extent of the claim, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 18 OCTOBER 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held several preliminary conferences, the last being on 18 October 2024. The claimant participated in person and the insurer was represented by Vitalina Pleskach.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $300,000. The net amount of settlement monies payable to the claimant is $300,000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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