Insurance Australia Limited t/as NRMA Insurance v Erkelens
[2024] NSWPIC 669
•4 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Erkelens [2024] NSWPIC 669 |
| CLAIMANT: | Dirk Erkelens (deceased) |
| INSURER: | Insurance Australia Limited t/as NRMA Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 4 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant 61-years old when a truck collided with his bike at high speed; liability wholly admitted; claimant injured his left leg and right arm and wrist and developed psychological symptoms; self-employed farmer and governance consultant; claimant died from unrelated injuries; wife represented his estate and reached agreement to settle the claim for damages; Held – settlement approved in the sum of $330,000 for non-economic loss and past economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $330,000. |
STATEMENT OF REASONS
INTRODUCTION
On 12 November 2020, Mr Dirk Erkelens (the claimant) was seriously injured in a high-speed motor bike crash when hit by the insured truck.
Mr Erkelens made a claim against Insurance Australia Limited t/as NRMA Insurance (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Mr Erkelens was entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
The insurer was notified that Mr Erkelens had died on 26 July 2022 due to unrelated causes. His wife Mrs Monica Erkelens as administrator of Mr Erkelens estate, is the representative in his claim against the insurer seeking damages for injuries he sustained in the crash.
Mrs Erkelens and the insurer have reached agreement as to settlement of the claim for damages.
Because Mrs Erkelens is not represented by a lawyer, the settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mrs Erkelens have agreed the estate is entitled to damages for past economic loss, past superannuation, and taxation on paid benefits. The insurer has adopted a very pragmatic approach and in the proposed offer of settlement, has offered damages for non-economic loss in circumstances where they had no opportunity to obtain medical assessment of the claimant’s injuries.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 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 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 late Mr Erkelens, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mrs Erkelens understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, settlement communications, clinical notes from Gosford Hospital, Dr Marchalleck, the physiotherapist Ms Wagner, Dr Gahan, the hand clinic, ATO records and taxation returns.
REVIEW OF THE EVIDENCE
Mr Erkelens was 62 years old at the time of the crash.
Following the crash, Mr Erkelens was conveyed by ambulance to Gosford Hospital where he was admitted. According to the clinical notes from the hospital, he presented with a closed right distal radius fracture and left morelle lovallee lesion left knee, with no other significant acute traumatic injury identified. He underwent a number of surgical procedures.
The clinical notes from the general medical practice he consulted reported Mr Erkelens had flashbacks and developed stress and anxiety. He found passing the crash site very confronting. He was diagnosed with post-traumatic stress disorder by
Dr David Gahan his general practitioner.Mr Erkelens struggled to recover from his injuries. He reported being grumpy and irritable, and found it difficult to garden.
Mr Erkelens was a self-employed farmer and worked in security. He was a governance and compliance specialist.
After the crash, he reported difficulty communicating with his clients. He could not talk with them because of his poor tolerance of their incompetencies. He referred the majority of his work to colleagues.
By June 2021, Mr Erkelens reported to his general practitioner difficulties dealing with his claim. He had been unable to come to terms with the insured truck driver’s action after the crash in circumstances where his bike was on fire and the driver ignored his pleas to help him move away from his burning bike. He was assisted by other bike riders who arrived at the scene.
His knee continued to trouble him with significant pain. His loss of enjoyment of life had been clearly impacted by his injuries and the post-traumatic stress disorder.
PRELIMINARY CONFERENCE AND PROPOSED OFFER
On receipt of the application of the proposed settlement agreement, I reviewed the documentation. As confirmed by Mrs Erkelens, the only available medical evidence was in the form of clinical notes which the insurer’s legal representative Mr Vid Dragomirovic advised he attempted to provide with the application, the relevant material he had been able to access.
Due to difficulties obtaining evidence which categorised Mr Erkelens’ injuries prior to his death, the parties were unfortunately unable to access whether his injuries exceeded the threshold for damages for non-economic loss.
His general practitioner’s evidence provided sufficient information about his ongoing symptoms and in particular scarring, the insurer conceded entitlement to damages for non-economic loss. The insurer is commended for making this concession.
The amount proposed by the insurer for this head of damage is $150,000.
The insurer proposed that the past assessment of economic loss be calculated as a weekly loss of $1,460 net per week for 94 weeks which amounts to $137,333 plus superannuation which amounting to $15,106.53. The taxation paid on weekly benefits amounts to $26,982. From this amount, the insurer is to receive a credit of $122,416.30 paid to Mr Erkelens since the accident.
The total amount proposed by the insurer for approval is $330,000 inclusive of paid statutory benefits.
SHOULD I APPROVE THE SETTLEMENT
Mrs Erkelens told me she was happy with the proposed settlement. She advised me since the death of Mr Erkelens, she had sold their property and she had started a new life which has left her financially exposed.
She understood on behalf of the estate, she was entitled to legal representation but did not wish to engage a lawyer.
She further confirmed she understood the entitlement to an assessment of non-economic loss and agreed the amount of $150,000 is a reasonable sum. She also confirmed she understood the estate was only entitled to past economic loss, superannuation, and paid taxation of statutory benefits due to the passing of Mr Erkelens.
I am satisfied Mrs Erkelens is aware the settlement finalises the estate entitlements to further common law damages under the Act.
I am satisfied Mrs Erkelens is happy with the amount of $207,583.70 clear to the estate.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Erkelens.
I am satisfied Mrs Erkelens understands the binding nature of the settlement and that the estate will be precluded from making a further claim for damages arising from the accident. I am satisfied Mrs Erkelens is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Mrs Erkelens’ claim for damages in the sum of $330,000.
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