Insurance Australia Limited t/as NRMA Insurance v Cooper
[2023] NSWPIC 654
•1 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Cooper [2023] NSWPIC 654 |
| CLAIMANT: | Arline Cooper |
| INSURER: | IAG Limited trading as NRMA Insurance |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 1 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; claimant injured on 1 September 2022; liability admitted by the insurer; claimant was an 86-year-old passenger in a car involved in a severe impact collision; claimant was taken to hospital by ambulance suffering multiple injuries and was admitted on 1 September 2022 and was discharged on 7 October 2022; claimant’s main injury was to her cervical spine, foot and ankle and her left wrist; claimant has had ongoing rehabilitation; medical evidence is to the effect that she has now achieved maximum recovery; claimant accepted offer of settlement of $220,000 inclusive of deductions but no deductions to be made; Held – the settlement is approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement Approval 1. The proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Guidelines 2017. |
INTRODUCTION
The motor accident the subject of this claim occurred on 1 September 2022. The insurer has admitted liability on 1 September 2023. There is no claim of contributory negligence.
Arline Cooper (the claimant) is not represented by an Australian legal practitioner.
NRMA, the insurer, made an offer of settlement to the claimant on 8 September 2023. At the time of the first preliminary conference on 11 October 2023, I expressed concern that I had limited medical evidence about the potential progression of the claimant’s injuries. Further medical evidence was obtained to assist me about this.
Subsequently also, a further offer of settlement was made of $220,000 which the claimant said that she proposed to accept and confirmed this during the course of a teleconference on 22 November 2023.
The claimant requests that the Personal Injury Commission (Commission) approve the proposed settlement.
Legislative framework
The 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.
As a member of the Motor Accidents Division of the Commission, cl 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, cl 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines (the Guidelines) continue to apply.
In making my decision I have considered the following legislation and guidelines:
(a) the Personal Injury Commission Act 2020;
(b) the Personal Injury Commission Rules 2021;
(c) the Personal Injury Commission Regulation 2020;
(d) the MAI Act, and
(e) the Guidelines.
Section 6.23 of the MAI Act states:
“6.23 Restrictions on settlement of claim for damages
· (1) (Repealed).
· (2) A claim for damages cannot be settled unless –
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
· (3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Regulation 95 of the Personal Injury Commission Rules states:
“95 Application for approval of Damages settlement
· (1) If a claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act, on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
· (2) (Repealed).”
Clause 7.37 of the Guidelines states:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act [since repealed];
(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 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Clause 10 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a) a deed of release;
(b) the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
(c) the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
(d) the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
(e) the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
I am satisfied that the Application complied with cl 10 of the Commission’s Procedural Direction MA3.
Clause 7.294 of the Guidelines requires NRMA to include in its Application details of:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage, and
(b) the insurer has provided me with a copy of a letter sent to the claimant on 8 September 2023 which provides a breakdown of the offer and confirmation the offer represents an amount for non-economic loss only.
Clause 7.294.2 of the Guidelines requires the amount of any deductions in the proposed settlement:
(a)NRMA has confirmed that no amount will be from the offer made;
(b)there is no money repayable to Centrelink, and
(c)NRMA has confirmed that there is no payback to Medicare.
Claimant’s injuries and medical evidence
Immediately after the accident the claimant was admitted to Gosford Hospital where her injuries were noted as;
(a) multi trauma; postoperative delirium;
(b) closed fracture of foot;
(c) closed tarsal fractures, multiple;
(d) hangman's fracture;
(e) closed fracture of lower end of radius;
(f) acute pain;
(g) haematoma of right breast;
(h) multiple fractures of ribs;
(i) sternal fracture;
(j) paroxysmal AF (atrial fibrillation) with RVR (rapid ventricular response);
(k) traumatic haematoma;
(l) acute blood loss anaemia;
(m) traumatic acute pancreatitis, and
(n) AKI – acute kidney injury.
The claimant was an inpatient in hospital from 1 September 2022 until 7 October 2022.
The claimant came under the care of Dr Martin for her foot and ankle injuries, The claimant had external and internal fixation of her fractures, which were subsequently surgically removed.
The claimant’s function subsequently improved but was limited to some extent by pain.
The claimant also came under the care of Dr Heard, neurologist. He provided a report of 22 March 2023 and reported;
“She suffered multitrauma including a fracture to the C2 vertebra, the left wrist and the right foot. She was managed acutely at Gosford Hospital and has subsequently seen several specialists regarding her injuries and has had some rehabilitation. Her left wrist was in a cast for 6 weeks and when this was removed there was weakness, wasting, pain and sensory loss in the left hand. The weakness has improved and her pain has fully resolved but she still has sensory loss which affects all 5 digits but mainly the four medial fingers largely sparing the thumb.”
The claimant also came under the care of Dr Bradshaw, orthopaedic surgeon. He provided a report of 27 October 2023. This report was obtained after Mrs Cooper explained to me at the first teleconference that her neck gave her few symptoms but she was troubled by pain in her wrist. Dr Bradshaw said:
“We discussed her situation, including that she has had a significant wrist injury that will inevitably result in some degree of long term discomfort and stiffness in the wrist. There is not much that can be done for this, with the exception of removing the hardware to remove any source of flexor tendon irritation that may be contributing to her pain; this procedure would be likely to help to some degree but of course would not be able to address the more diffuse pain affecting the wrist. We also discussed her secondary carpal tunnel syndrome, including the option of carpal tunnel decompression surgery, again with an aim to at least improve symptoms to some degree, even if it would be unlikely to fully resolve her carpal tunnel symptoms in view of her age and the chronicity of her symptoms.”
Dr Martin, paediatric orthopaedic surgeon provided a report of 13 February 2023. He was satisfied that the injury to Mrs Coopers foot and ankle was recovering well although it would need continuing rehabilitation for 12 to 24 months, from that time.
I am satisfied that the claimant’s condition has stabilised and is not likely to further improve.
Should I approve the settlement?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether or not to approve or not approve Mrs Coopers settlement, I need to consider:
(a) appropriateness- whether the amount of the settlement is just, fair and reasonable, and
(b) understanding – whether Mrs Cooper understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
Appropriateness
The amount of the settlement I am asked to approve comprises the following:
Non- economic loss $220,000
There are no other heads of damage to which Mrs Cooper is entitled. She is currently 86 years of age.
I am satisfied that the offer of settlement is fair and reasonable, taking into account the injuries suffered by Mrs Cooper and her age.
There are no deductions to be taken into account.
Understanding
Having spoken to Mrs Cooper, I am satisfied that she:
(a) accepts the insurer’s offer and wishes to finalise his claim now;
(b) is aware that she can seek legal advice but does not wish to do so, and
(c) understands the binding nature of the settlement and this approval and that she may not be able to make a further claim for damages in the future.
Legislation
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
· the Guidelines.
Conclusion
I am satisfied that the proposed settlement figure of $220,000 is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines in that it is:
“…just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], 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.”
Pursuant to s 6.23 of the MAI Act, I approve the proposed settlement of the Mrs Coopers claim for damages for $220,000.
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