Insurance Australia Limited t/as NRMA Insurance v Gardner
[2023] NSWPIC 142
•3 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Gardner [2023] NSWPIC 142 |
| Claimant: | Carol Gardner |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 3 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; section 6.23; claim for damages for non-economic loss; claimant now 77-years-of-age; left hip fracture requiring fixation initially; revised total left hip replacement with bone graft; lacerations to left elbow and right hand requiring debridement and closure; pre-accident, the claimant was living independently; claimant’s quality of life compromised by injuries and unlikely to improve in the future, given her age; Held – proposed settlement of $250,000 approved. |
| determinations made: | Settlement Approval Determination 1. The proposed settlement sum of $250,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act2017. 2. The Commission notes that there are no deductions to be made by the insurer from the settlement sum for any other matters. |
STATEMENT OF REASONS
INTRODUCTION
The insurer and the claimant, Carol Gardner, have agreed to settle the claimant’s claim for common law damages in the sum of $250,000 (the proposed settlement).
The claimant is not legally represented.
Section 6.23(2) of the Motor Accident Injuries Act2017 (the MAI Act) provides that a claim for damages for a claimant who is not represented in respect of the claim by an Australian legal practitioner, cannot be settled unless the proposed settlement is approved by the Personal Injury Commission (Commission).
An application has been lodged by the insurer with the Commission on
9 February 2023 for the purpose of having the proposed settlement approved.The matter has been referred to me to consider approval of the proposed settlement.
BACKGROUND TO THE CLAIM
The claimant is a 77-year-old woman who suffered significant injuries in a motor accident on 30 April 2021. On that day, the claimant was crossing the roadway at the intersection of Railway Parade and Oaklands Road Hazelbrook when she was struck by the insured’s motor vehicle.
On 7 September 2022, the claimant made a claim for common law damages.
On 17 January 2023, the insurer conceded that the claimant’s injuries resulted in a degree of permanent impairment that is greater than 10%. On that basis, the claimant is entitled to recover damages for non-economic loss.
On 25 January 2023, the insurer accepted liability for the claim.
DOCUMENTS CONSIDERED
In making my decision, I considered the following documents:
a) the electronic medical record of NSW Ambulance, dated 30 April 2021;
b) the Operation Report of Nepean Hospital dated 2 May 2021;
c) the certificate of fitness of Dr Natasha Hardikar, dated 21 May 2021;
d) the NSW Police Report, dated 25 May 2021;
e) the reports of orthopaedic surgeon, Dr Yasser Khatib, dated 15 June 2021, 27 July 2021, 15 November 2021, 30 November 2021 and
25 January 2022;f) the reports of Benchmark Rehabilitation, dated 22 July 2021,
24 September 2021, 28 October 2021, 30 November 2021 and
13 January 2022;g) the pelvis X-ray report of Dr Chandra Annabattula of Nepean Diagnostics, dated 15 November 2021;
h) the reports of physiotherapist Ms Danielle Ryan, dated 13 January 2022 and 10 June 2022;
i) the letter from the insurer to the claimant dated 17 January 2023, conceding the permanent impairment threshold;
j) the letter from the insurer to the claimant dated 3 February 2023, making an offer of settlement;
k) the insurer’s submissions, dated 9 February 2023;
l) the letter from the insurer to the claimant dated 17 March 2023, making an revised offer of settlement, and
m) the proposed settlement agreement.
LEGISLATION
In making my decision, I considered the following legislation, rules and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation);
· Personal Injury Commission Rules 2021 (the PIC Rules), and
· the Motor Accident Guidelines, Version 9.1 (the Guidelines).
CONSIDERATION
Section 6.23(3) of the MAI Act provides I am not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of, or made under, the Act or the Guidelines.
The application
In conformity with r 95(1) of the PIC Rules, the insurer has lodged the application with the Commission on 9 February 2023, which is within seven days of reaching a settlement with the claimant on 3 February 2023.
The claimant’s understanding of the proposed settlement
Clauses 7.37 (c) and (d) of the Guidelines provide that before I approve the proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner and understands the nature and effect of the proposed settlement and is willing to accept it.
I conducted two teleconferences with the parties to question the claimant about those issues. The claimant appeared in person and Ms Zogopoulos appeared for the insurer.
The claimant stated that she is aware that she was entitled to be represented by a lawyer with respect to her claim, but she has chosen not to do so.
At the teleconference held on 10 March 2023, the claimant informed me that on
3 February 2023, the insurer made an offer by telephone to settle her claim in the sum of $170,000. She advised the insurer that she would accept it. The claimant subsequently received a letter from the insurer dated 3 February 2023, to that effect. At the teleconference, the claimant re-confirmed her wish to accept this settlement sum.Following discussions, I advised the parties that considering the evidence before me, I was not satisfied that a settlement for this sum was just, fair and reasonable in the circumstances.
Ms Zogopoulos sought some time to obtain further instructions on behalf of the insurer. On that basis, I adjourned the matter to a further teleconference on 22 March 2023. On that occasion, I was advised by Ms Zogopoulos that the insurer had revised the settlement sum to $250,000 and that the claimant has accepted it. The proposed settlement is therefore submitted for approval.
I established from Ms Zogopoulos that the claimant is currently receiving statutory benefits for treatment and care and that a determination has been made by the insurer to the effect that the claimant had sustained more than a “threshold injury”.[1]
[1] Prior to 1 April 2023, a “threshold injury” was defined in s 1.6(1) of the MAI Act as a “minor injury”.
I explained to the claimant that the proposed settlement represents lump sum damages for her non-economic loss only and that proceeding with the proposed settlement will not affect her ongoing rights to benefits for reasonable and necessary treatment and care, for the rest of her life.
I explained to the claimant that those benefits cover a wide range of benefits, including the costs of medical treatment, medication, home and transport modifications, home assistance such as lawnmowing and future surgery.
I established from Ms Zogopoulos, and explained to the claimant that the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act 1995 (Cth) from the proposed settlement. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses,
Ms Zogopoulos confirmed that the insurer will pay the charge in addition to the proposed settlement.Noting the information given by Ms Zogopoulos, I am satisfied the claimant understood there will be no repayment to Centrelink arising from the proposed settlement and that the settlement would not impact on her ongoing entitlements, although she may need to consider whether the additional funds have an impact on the assets test for her pension.
Ms Zogopoulos confirmed that no weekly payments of statutory benefits have been made to the claimant. On that basis, there will be no deductions made from the settlement sum by the insurer under s 3.40(1) of the MAI Act.
I therefore explained to the claimant that there will be no deductions from the settlement sum for any matters.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner, but she does not wish to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making any further claim for damages arising from the motor accident.
I am satisfied that the claimant understands that following the settlement of her claim for damages, she has ongoing rights to claim future treatment and care.
I am satisfied that the claimant is willing to accept the proposed settlement.
Is the proposed settlement just, fair and reasonable?
Clause 7.37(b) provides that before I approve a proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that it 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.
The proposed settlement is in the sum of $250,000 for damages for non-economic loss. There are no deductions from that sum for any other matters.
Section 1.4 of the MAI Act defines “non-economic loss” as meaning:
“(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.”
Following the accident, the claimant was taken by ambulance to Nepean Hospital.
The Operation Report from Nepean Hospital reveals that the claimant sustained multiple injuries, including a left intertrochanteric femoral fracture, left elbow laceration and right thenar laceration.
The claimant underwent the following surgical procedures:
· a fixation of her left hip fracture with gamma nail;
· a left elbow wound debridement and closure, and
· a right thenar eminence wound debridement and closure.
The claimant was subsequently transferred to Blue Mountains Hospital where she remained for rehabilitation treatment for two weeks.
The claimant was later reviewed by her treating orthopaedic surgeon, Dr Yasser Khatib on 15 June 2021. In his report of the same date, Dr Khatib noted that the claimant still walked with a limp. He found that the gamma nail used to fix the fracture was going through the femoral head, which meant that the claimant would require a total hip replacement surgery once the intertrochanteric fracture had healed.
The claimant underwent left hip total replacement surgery with a bone graft at Nepean Private Hospital on 15 November 2021.
At the post operative examination of the claimant on 30 November 2021, Dr Khatib noted that the surgical scar was well healed and that the claimant, with the help of two crutches, was able to ambulate independently.
Following surgery, the claimant underwent 20 sessions of physiotherapy treatment lasting until June 2022.
The claimant participated in a rehabilitation program with Benchmark Rehabilitation from May 2021 until January 2022.
Prior to the accident, the claimant led an active life and was living independently. In answer to the questions that I posed to the claimant at the teleconferences, she said:
a) She still experiences numbness over the surgical scar.
b) She has ongoing pain in her left hip region and her lower back.
c) She feels that her left leg is now shorter than the right.
d) Prior to the accident, she was doing yoga and attending exercise classes. She is no longer able to do these activities. She has started doing some swimming and she does home exercises that have been recommended by the physiotherapist.
e) She is able to manage her grocery shopping by walking to the local shops. She can manage basic chores at home. She does her own cooking. She can manage basic cleaning which has been made easier with a robotic vacuum cleaner. She has had some modifications done to the back steps of her home so that she can access the backyard. Her granddaughter comes to do her lawn.
f) She is worried about her “false hip” and about whether she will eventually be able to get up and down stairs and steps or to walk on uneven ground.
The evidence shows that the accident has inflicted a significant degree of pain and suffering upon the claimant which has so far lasted two years. The accident has compromised the claimant’s quality of life and the claimant’s evidence suggests that it is unlikely that there will be any improvement.
Conclusion
The current maximum amount that may be awarded for non-economic loss damages is $605,000.
Having regard to all of the above matters, I am satisfied that 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, the disabilities and the impairments sustained by the claimant.
The proposed settlement of the claimant’s claim for damages in the sum of $250,000 is approved under sub-s 6.23(2)(b) of the MAI Act.
0
0
0