Insurance Australia Limited t/as NRMA Insurance v Burgun
[2024] NSWPIC 59
•14 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Burgun [2024] NSWPIC 59 |
| CLAIMANT: | Noah Burgun |
| INSURER: | NRMA |
| MEMBER: | David Ford |
| DATE OF DECISION: | 14 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 51 year old motorcyclist injured in a collision with insured motor vehicle at an intersection; sustained soft tissue injuries to right elbow, left shoulder and cervical spine, as well as psychological injury being post-traumatic stress disorder; claimant is a pensioner; sustained a non-threshold injury and assessed as having a whole person impairment of 12% in relation to psychological injuries; liability admitted; entitlement to damages for non-economic loss; no claim for past and future economic loss insurer proposed damages for non-economic loss in the sum of $240,000; 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
Noah Burgun (the claimant) on 5 December 2019 at 9.30pm was riding his motorcycle towards the intersection of Sydney Street and Simpson Street at Tumut. The insured driver was driving her motor vehicle along Simpson Street towards the said intersection and failed to stop at the give way sign and attempted to drive through the intersection and failed to give way to the claimant, who was approaching from her right along Sydney Street. In order to avoid colliding with the insured vehicle, the claimant laid his motorcycle down on the road and, at the same time, landed on the road sustaining injuries.
There was also present upon the roadway an abundance of loose gravel, which had been left there, after recent road works by Snowy Valleys Council.
After the accident, he initially went home, and then subsequently, attended Tumut Hospital. He sustained the following injuries:
(a) right elbow injury with scarring.
(b) cervical spine, soft tissue injury.
(c) left shoulder soft tissue injury, and
(d) post-traumatic stress disorder.
At the commencement of the second teleconference on 2 February 2024, I raised concerns regarding the allegation made by the insurer the claimant was responsible for contributory negligence proposed at 25%. Further discussions then took place between the parties and consequently, the insurer withdrew the allegation of contributory negligence and wholly admitted liability for the Common Law claim. The insurer has conceded he sustained a non-threshold injury.
The claimant was born in June 1972 and is presently 51 years of age. At the time of the accident and at the present time, he is a pensioner receiving disability support pension benefits from Centrelink.
He was assessed by Medical Assessor Nagesh and his Certificate of assessment of degree of permanent impairment is dated 28 November 2023. He has been assessed as having suffered post-traumatic stress disorder because of the accident and has been assessed as having a whole person impairment of 12%. The insurer has conceded the claimant is entitled to damages for non-economic loss. The insurer lodged on the portal the clinical records of Wagga Hospital and Mivo Park Health. There are also records from his psychologist Peter Powles.
He was assessed by Medical Assessor McGrath and his Certificate is dated 18 July 2023[BG1] . He assessed the claimant had a whole person impairment of 2% in respect of the following physical injuries:
(a) right elbow injury with scarring.
(b) cervical spine soft tissue injury, and
(c) left shoulder soft tissue injury.
I refer to page 5 of the Certificates and Reasons of Medical Assessor Nagesh under the heading “Current Functioning”:
“In terms of current functioning, Mr Burgun states that he currently lives in a unit in Tumbarumba. He spends the majority of his time inside the unit. He states that crowds make him anxious. With regards to his activities of daily living, he states that he can cook, he can do some light cleaning and his father helps him with the shopping. He showers once a week. He states he does not attend any social events, which include family functions, inviting friends to barbecue parties or going out to birthday parties, weddings, anniversaries. He used to go to bike rallies in the past, which he has stopped going to.
He states that he has lost his motorcycle licence. With regards to his ability to travel, he states that he can only travel to familiar places and locally on his own which is to the local shop. He states he cannot travel too far away and unfamiliar places without a support person. Mr Burgun states that he has separated from his ex-partner because of his irritability. There is currently an AVO in place. Mr Burgun states that his attention, concentration and memory is poor. He states he cannot read books or watch television shows or movies.”
Medical Assessor Nagesh also states the following under the heading “Diagnosis and Reasons” on page 10 of his Certificate:
“Mr Burgun reports having met with the motor vehicle accident on 5 December 2019. Since the subject accident, he reports having developed the following symptoms, which include nightmares, flashbacks, irritability, insomnia and diminished ability to concentrate. He has avoided riding motorcycles; riding motorcycles makes him anxious.
He has lost his motorcycle licence. His mood has become depressed, riding motorcycles was his passion, and he has lost that hobby. His entire social life revolved around riding motorcycles, and he has become anxious. He worries a lot about his future and worries that anything can go wrong at any time.”
The insurer initially proposed to resolve the matter for $180,000 less an advanced payment of $30,000 recently made to the claimant. At the second teleconference, there were further discussions between the parties, and after the withdrawal of the allegation of contributory negligence, the insurer proposed a settlement offer of $240,000 less deduction of the advanced payment of $30,000. This results in a net sum to the claimant of $210,000.
The calculation of the proposed settlement is as follows:
· non-economic loss $240,000
Total $240,000 less reduction of an advanced payment of $30,000, results in a net sum to the claimant of $210,000.
The claimant advised me he wishes to accept the proposed settlement. 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 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 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 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 2 FEBRUARY 2024 AND 8 FEBRUARY 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 2 February and 8 February 2024. The claimant participated in person and the insurer was represented by Jessica Haddad.
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 $240,000, after deduction of the advanced payment made by the insurer, in the sum of $30,000, the net amount of settlement monies payable to the claimant is $210,000.
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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