Insurance Australia Limited t/as NRMA Insurance v Dobner
[2022] NSWPIC 502
•6 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Dobner [2022] NSWPIC 502 |
| Claimant: | Ella Dobner |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Terence Stern |
| DATE OF DECISION: | 6 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of proposed settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant a passenger in vehicle; insured driver just above the mid-range PCA (0.087); driver lost control when claimant moved over to cuddle the driver; claimant had undone her seatbelt; global settlement offer reduced by 50% for contributory negligence; claimant sustained left midshaft minimally displaced clavicle fracture; right scapular fracture; bilateral T1 transverse process and right C7 transverse process fractures; multiple right sided thoracic transverse process fractures; admitted to hospital; Held – Insurer concedes entitlement to damages for non-economic loss; settlement offer of $528,000 arrived at after reduction of estimated total damages by 50% for contributory negligence; settlement approved. |
| determinations made: | The proposed settlement is approved under s 6.23 (2) (b) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
background
Ella Dobner (Claimant) was born in September 1995 and was working as a farm hand on a property near Obley NSW when she was injured in a motor vehicle accident on 28 October 2018.
At the time the Claimant was a front seat passenger in a vehicle being driven at about 80-100 km/h along Gundong Rd, Gullengamble on the way home from a wedding.
The driver was later tested to have a prescribed concentration of alcohol (PCA) of 0.087. The low range is 0.05-0.08. This reading therefore was not materially above 0.08.
The evidence shows that shortly prior to the accident the Claimant had attempted to cuddle the driver, and this almost immediately preceded the driver’s loss of control of the vehicle and the accident.
The Claimant was taken by ambulance to Dubbo Base Hospital where she was admitted and found to have multiple injuries.
Statement of the Claimant
The Claimant states at [6]:
‘I was a passenger travelling on Gundong Rd toward Tamingley NSW. The car left the road and apparently rolled about 5 times. I’m sure I had my seatbelt on. I was taken to Dubbo Base Hospital by ambulance. I don’t remember a lot of details at this time as I believe I was knocked unconscious and had been drinking.’
Statement of the driver Pru Rae Swansborough
The driver gave a statement to an Investigator retained by NRMA Insurance on 19 December 2018. It was relevantly to the following effect:
[34]My friend Ella was very upset late in the night as she’d had an argument with her boyfriend…(he) had walked back to Kalulah…a walk of about an hour.
[35]Because Ella was so upset, I decided to drive her to Kalulah.
[37]We left around 1:30am I was driving, and Ella was the only passenger.
[38]I felt alright to drive. I knew I had been drinking but I felt in control.
[39] I know that Ella and I had our seatbelts on.
[40] I drove out of Gullengamble Road…a distance of about 5km…at around 80 to 100km/hr…I was having a conversation with Ella and trying to calm her down.
[45]…about one or two kilometres along Gundong Road…Ella took her seatbelt off and slid over to cuddle me.
[46]Whilst Ella was cuddling me, I lost my attention on the roadway. I would estimate I was travelling between 80 to 100km/hr.
[47]I looked up and remember that I was swerving to the left side of the roadway. I tried to correct by steering to my right but I lost control of the ute and we veered off the left hand side of the road and rolled down the embankment.
[48]I think we rolled over at least on two occasions. I had my eyes closed and was clutching the steering wheel.
[49]The vehicle came to a rest on its passenger side and Ella was not in the car.
[50]I got out of the vehicle through the front windscreen which had smashed.
[51]I started looking for Ella, I was screaming out. It was very dark.
[52]It felt like it took 15 minutes to find Ella but it was probably less.
[54]Ella was responsive. I was able to have a conversation with her, telling her to stay still and don’t move, she was screeching in pain.
[55]I remember going and trying to turn the ignition off in the ute but it was jammed...I would estimate that Ella was about 10 metres away from the ute.
[72] Just before I gave my speech which was around 8pm I did feel a little bit tipsy but not drunk.
In a Second Statement of 11 March 2019, Pru Swansborough stated:
[20] I know that Ella was drinking but I took no notice on how much. I saw her drinking a beer on one occasion…
The Police Report Event Ref Number: E68833327
Provides the following details (obviously a summary of information provided or recorded and not evidence in itself):
“Approximately 35km along Gundong Road the driver of the vehicle has lost control of her vehicle which resulted in her pulling off the road into a number of trees…the passenger…was ejected from the vehicle.”
The ambulance report
10.While the COPS summary states that the passenger was ‘ejected’ from the vehicle, the ambulance report provides the following description on arrival at the scene of the accident:
“C/T MVA high speed single vehicle, rollover, pt wearing seat belt, nil airbag deployment, 23 yo female, pt passenger, self extricated, C/O thoracic spinal pain worse on deep breathing, also right arm tenderness, full sensation all limbs, grazes and bruising to right arm and leg, lacs to left cubital fossa, hypothermic - space blanket applied, other vitals BTF, Cspine collar and pelvic splint attended, GCS 14 , pt had attended wedding…”
THE MEDICAL EVIDENCE
Opinion of Thomas Gibson, Biomedical and Mechanical Engineering Report 1 August 2019
11.Mr Gibson has provided an opinion and set out his conclusions on injury causation.
[74]In the crash, an unrestrained Ella Dobner sustained serious injury due to be thrown around in the vehicle interior during the rollover of the Toyota Landcruiser and then being ejected. She was treated at the Dubbo Base Hospital [7] for: …“left midshaft min displaced clavicle fracture, right scapula body fracture, bilateral T1 transverse process and right C7 transverse process fractures, multiple right sided thoracic transverse process fractures, rib fractures, small haemopneumothorax and lung contusion”.
[75]In the crash, the correctly restrained driver, Ms Swansborough, sustained [3] minor injury: “…whiplash from the seatbelt, and cuts and abrasions to my legs.”
12.Further Mr Gibson has concluded as per [80], [81], [83] and [86].
Report of Dr Graeme Doig, 22 March 2022
13.Dr Doig took a history that the Claimant could not recollect whether she had unbuckled her seat-belt prior to impact…She appears to have been thrown through the windscreen and there was a loss of consciousness.
14.Dr Doig duplicates the list of injuries as recorded in the clinical records.
15.Dr Doig notes that at the time of the accident, the Claimant was working as a jillaroo in Queensland, that she tried to return to her pre-injury duties in July 2019 but developed worsening back pain. She has been working as a wool-classer full time for the preceding 2 ½ years.
16.Dr Doig set out his opinion as to the Claimants restrictions:
[7a]Ms Dobner will have a 10 – 15 kgs lifting, pushing and pulling restriction with limited bending and twisting through the spine. She will require breaks from prolonged sitting and driving. With respect to her shoulders, she should avoid heavy lifting, particularly with the arms overhead. All employment duties exceeding these restrictions Ms Dobner will have problems performing and will simply symptomatically exacerbate her musculo-skeletal conditions. She had to give up work as a jillaroo as she was unable to sit for long periods of time on a horse or quadbike.
17.While the Claimant would have experienced problems with activities of daily living for 4-6 months, she was now carrying out all of her usual activities and had a full-pre-accident capacity. He qualified this by saying that should her musculo-skeletal conditions deteriorate in the future she may require assistance.
18.He assessed the Claimant’s impairments using AMA4 at a combined 12% WPI.
Claimant’s Reply
19.In her Reply the Claimant has requested that I approve the settlement offer.
INSURER’S SUBMISSIONS
The Insurer’s Submissions of 5 July 2022
20.I briefly summarise the Submissions.
21.The Submission sets out accurately a summary of the relevant law, the Claimant’s background [6]-[7] and then continues [8] that on 21 August 2019 the Insurer issued a liability notice accepting that the Claimant was not at fault or mostly at fault and she had sustained more than a minor injury. It asserted that the Claimant had contributed to the accident and her injuries were caused by her contributory negligence assessed at 50% on the following basis;
·She was not wearing a seatbelt.
·She knew or ought to have know the driver was drinking and was intoxicated.
·She slid over to the Insured driver and attempted to cuddle her while the vehicle was in operation and knew or ought to have known that this would have affected the driving ability of the driver.
22.The Submission continues:
[11]On 6 May 2022 the Insurer conceded that the Claimant was entitled to damages for non-economic loss.
[13] On 23 June 2022 NRMA made an offer of settlement of $528,000.
[14]The Claimant and the Insurer have agreed to settle the claim for $528,000.
23.The Submission then summarises the medical evidence:
[16]The Claimant was thrown from the windscreen and suffered a period of loss of consciousness.
[17]Airbags did not deploy and the Claimant self-extricated.
[18]Police attended. The Claimant complained of thoracic spinal pain. There was full sensation in all limbs. The GCS was 14. The Claimant was noted to be under the influence of alcohol.
[19]The Claimant was taken by ambulance to Dubbo Base Hospital where she was admitted on 28 October 2018. The injuries were noted as:
· Left midshaft minimally displaced clavicle fracture
· Fracture of the body of the right scapular
· Bilateral T1 transverse process and right C7 transverse process fractures
· Multiple right sided thoracic transverse process fractures
· Rib fractures
[20]The injuries did not require surgeries. The Claimant was discharged on 2 November 2018.
[21]The Claimant’s GP Dr McKeon certified her unfit from 28 October 2018 to 20 December 2018.
[22]Dr McKeon diagnosed a displaced fracture of the left clavicle, fracture of the right scapular, bilateral T1 and right C7 transverse process fracture, fracture of the ribs and right hemopneumothorax.
[23]The Claimant was required to wear a neck brace and shoulder support for six weeks and referred to physiotherapy.
[24]The Submission refers to the report of Dr Doig – see above.
24.The Submission then argues why the proposed settlement should be approved. It refers to the relevant legislation, to the cap, notes that damages to non-economic loss are to be assessed in accordance with common law principles and refers to RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) (2014) NSWSC 1126.
25.At [32]-[33] the Submission refers to the key principles enunciated in James Hardie & Co v Newton (1977) 42 NSWLR 729 and [33] that the amount awarded is not assessed on the basis of a percentage of the maximum - Hodgson v Crane [2002] NSW CA 276.
26.The Submission concludes:
[34] The timing requirements have been satisfied.
[35] The Claimant has made a good recovery.
[36]The proposed settlement is just, fair, and reasonable and within the range.
[37]The Claimant is aware she can have legal advice if she wishes.
[39]$528,000 is within the range of reasonable results and should be approved.
The Insurer’s Submissions of 31 August 2022
27.As in the Preliminary Conference I pointed out the Insurer’s solicitor Mrs Rapaport, that she had not addressed the reasons why a 50% apportionment was reasonable, nor had she addressed the case law. I requested that she do so and she has now provided me with a detailed submission.
28.After setting out the background and the legislation, Mrs Rapaport submitted:
[20]The Claimant knew or ought to have known that the driver was under the influence of alcohol. She was a voluntary front seat passenger and contributed to the accident at a proportion of 80% (presumably read 50% given the rest of the Submission). Further, that by sliding over to the driver and cuddling her and possibly touching the steering wheel distracted the driver.
[21]While the Insured felt okay to drive that is not the relevant test and does not relieve the Claimant of her responsibility as a reasonable sober driver (read passenger) would not have entered the vehicle when the Insured driver was under the influence of alcohol.
[22]- repeats/duplicates 20.
[23]Refers to Joslyn v Berryman [2003] HCA 34. Joslyn v Berryman is authority for the proposition that [16]:
“At common law a Plaintiff is guilty of contributory negligence when (she) exposes herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risks to which the Plaintiff was exposed…
Any fact or circumstance is relevant in determining contributory negligence if it proves or assists in proving a reasonably foreseeable risk of injury to the Plaintiff in engaging in the conduct that gave rise to the injury suffered…
Any fact or circumstance which a reasonable person who know or ought to know and which tends to suggest a foreseeable risk of injury in accepting a lift from an intoxicated driver is relevant to determining whether the passenger is guilty of contributory negligence in accepting the lift.”
McHugh J continued at [32]:
“The test of contributory negligence is an objective one.”
He continued [37]:
“The issue…is not whether the passenger ought reasonably to have known of the driver’s intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise.”
His Honour continued:
“The test applied by all members of the Court in O’Neill v Chisholm was whether the passenger ought to have realised that alcohol had impaired the driver’s capacity to drive.”
He continues [38]:
“the issue is not whether a reasonable person in the intoxicated passenger's condition …would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication.”
[24] Refers to section 3.38(2)(b) of the Act that a finding of contributory negligence must be made where the Claimant not being a minor was a voluntary passenger and the driver’s ability to drive as a consequence of the consumption of alcohol or other any other drug, in circumstances where the injured person was or ought to have been aware of the impairment unless in the circumstances of the case the injured person could not reasonably be expected to decline to becomes a passenger in the motor vehicle.
[25]Refers to the question by which what percentage is it just and equitable to reduce the damages for contributory negligence. The submission refers to Astley v Austrust Ltd [1999] HCA 6.
It was held [30]:
“A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to…her own loss by failing to take reasonable care… What is reasonable care depends on the circumstances… Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant…is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person…”.
[32]Refers to the Nominal Defendant v Lane [2004] NSWCA 405 and it was held that the Plaintiff knew or ought to have known that the driver’s capacity to drive was impaired by consumption of alcohol. The contributory negligence was apportioned to the passenger at 40%.
[33]Refers to Mackenzie v The Nominal Defendant [2005] NSWCA 180 where a passenger was held contributorily negligent by riding on a motorbike when the passenger knew or ought to have been aware that the rider was intoxicated. The reduction was by 80%.
[34]Refers to Dennis v NRMA [1997] NSWSC 570 where contributory negligence was assessed at 50% where the plaintiff knew or ought to have known the driver was intoxicated. The Plaintiff was not wearing a seatbelt.
[35]In Williams v Government Insurance Office(NSW ) 1995 21 MVR 148 the passenger and the driver had been drinking together for several hours. The passenger knew the driver was affected by alcohol and lay down in the back of the vehicle. Contributory negligence was assessed at 80%.
CONSIDERATION
29.There were a number of contributing factors to the accident.
(a)The driver should have reacted more quickly to the circumstances which presented including for example telling the Claimant not to undo her seatbelt and not to interfere with her by attempting to cuddle her. As a result of having taken alcohol during the course of the wedding party her judgment was probably impaired even if it were not obvious that she was unable to drive.
(b)The Claimant knew or should have known that the driver had been drinking even if moderately and might therefore be affected to some extent.
(c)As a result of having taken some alcohol the driver was unable or had reduced ability to control or regain control of the vehicle.
(d)The Claimant probably as a result of having taken alcohol during the party and probably being moderately intoxicated did not appreciate that it was imprudent and even dangerous to undo her seatbelt. There is no doubt that the Claimant did undo her seatbelt and I refer to the direct evidence of the driver set out above.
(e)Notwithstanding that the Ambulance Report described the Claimant as wearing a seatbelt, that was obviously not the case immediately before the accident. The Ambulance report cannot be relied upon in that respect.
(f)The most significant cause of the Claimant’s injuries is that as a result of having unbuckled her seatbelt, an act which the Claimant would probably not have done had she not been at least moderately affected by alcohol, she was thrown about inside the ute and then thrown through the windscreen landing about 10 metres from the car. In this respect I accept the evidence of the driver and the Opinion of Mr Gibson.
(g)The driver escaped serious injury because she was wearing a seatbelt. The expert opinion of Thomas Gibson allows me to conclude that on the balance of probabilities had the Plaintiff been wearing a seatbelt she probably would not have suffered the serious injuries which she did.
30.The combination of matters referred to above allows me to comfortably conclude that the level of contributory negligence on the part of the Claimant was at least 50%.
31.Is the amount allowed before reduction for contributory negligence reasonable and within the range that would be determined in the circumstances by a court exercising its discretion? It probably is and at least from one viewpoint even generous.
32.In arriving at this view I have taken into account the relevant legislation and case law.
The legislation and legal principles
33.In making my decision I have considered the following legislation and Guidelines:
(a)the Personal Injury Commission Act 2020;
(b)the Personal Injury Commission Regulation 2020;
(c)the MAI Act, and
(d)the Guidelines.
34.Section 6.23 of the MAI Act provides:
“6.23 Restrictions on settlement of claim for damages
(1)A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle is greater than 10%.
(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.”
35.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;
(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, and 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.”
36.I am satisfied that all these requirements have been met.
Should the settlement be approved
Legislation
37.Non-economic loss is defined in the Act by s 1.4 of the Act to mean:
(a)pain and suffering, and
(b)loss of amenities of life; and
(c)loss of expectation of life;
38.The maximum that may be awarded under this head of damages has since the 1st October 2021 been $595,000.00 [s 4.12].
39.The amount of non-economic loss damages to be awarded should be proportionate to the claimant’s injuries and disabilities:
“11…..it is a relationship of the award to the injury and its consequences…..which is to be proportionate. …..It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts award in a number of other specific cases. …..The principle to be followed…..It is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant…..and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may nbe granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing….. The awareness must be a product of general experience and not formed ad hoc a process of considering particular cases and endeavouring….. to allow for differences between the circumstances of other cases and the circumstances of the case in hand.” [Planet Fisheries Pty Ltd v La Rosa (1968) 119CLR 118 per Barwick CJ, Kitto and Menzies JJ] [at para 11]”
40.A key principle is that the amount assessed for non-economic loss should be comparable to awards of non-economic by other Assessors and Courts [James Hardie & Co v Newton (1977) 42 NSWLR 729 as per Handley JA at 732].
41.The amount award is not assessed on the basis of a percentage of the maximum but on the basis of what the appropriate dollar amount is. The non-economic loss figure awarded is not required to be proportionate to the maximum. This was rejected in Hodgson v Crane [2002] NSW CA 276.
42.The claimant’s age at the time of assessment of damages is a relevant factor but one of only a number of matters which the court should take into account [Reece v Reece [1994] NSWCA 259 and as discussed in Varga v Galea [2011] NSWCA 76 where McColl JA said at para. 72:
“Reece v Reece states the uncontroversial proposition that the plaintiff’s age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke…..; see also Christalli v Kassar [1994] NSWCA 48.”
43.The degree of Whole Person Impairment is not a reliable indicator of the severity or otherwise of the claimant’s injuries. Whole Person Impairment is a statutory method of assessing entitlement. It does not directly measure incapacity, pain and suffering.
Economic Loss
44.With respect to economic loss I take into account that the Claimant has made an excellent recovery and got back to work on a full time basis working as a Wool-Classer. It is possible that there will be economic loss in the future and I am of the view that the allowance being made for that possibility is reasonable.
Determination
45.I am satisfied that the Claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied she knows she was entitled to legal representation.
46.The proposed settlement is appropriate and complies with clause 7.04.2 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 of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”
47.I am satisfied that the Claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs.
48.Accordingly, I approve the proposed settlement of $528,000.00 arrived at after reduction of estimated total damages by 50% for contributory negligence pursuant to s.3.40 of the Act.
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