Insurance Australia Limited t/as NRMA Insurance v Halloum

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Halloum [2024] NSWPIC 527
CLAIMANT:	Khaldie Halloum
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	David Ford
DATE OF DECISION:	23 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); claimant struck by a motor vehicle when attempting to cross an intersection; sustained multiple rib fractures, fractures of the lumbar spine, left wrist, left leg, head injury, and facial lacerations; insurer wholly admitted liability, conceded non-threshold injury and entitlement to non-economic loss; claimant is a pensioner; Held – the proposed settlement is just, fair and reasonable; settlement approved.
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 does comply with cl 7.38 of the Motor Accident Guidelines 2017.

STATEMENT OF REASONS

INTRODUCTION

On 28 June 2020 Khaldie Halloum (the claimant) was a pedestrian and was attempting to cross White Avenue at the intersection of Chapel Road at Bankstown. As she commenced walking from the northern curb of Chapel Road, a motor vehicle being driven by the insured driver attempted to make a right-hand turn from Chapel Road into White Avenue. It then transpired the insured driver failed to notice the claimant and accordingly, his vehicle struck the claimant as he attempted to make the right-hand turn into White Avenue.
As a consequence of the accident, the claimant sustained the following injuries:
(a)    rib fractures on the right-hand side from 2nd to 7th.
(b)    fractures of the ribs from 3rd to 8th and they were primarily and anteriorly.
(c)    subdural haematoma at the left tentorium 6mm in size.
(d)    L4 transverse process fracture;
(e)    left L3 pelvic ring injury.
(f)    left discal radial fracture.
(g)    left midshaft fibula fracture.
(h)    facial lacerations, and
(i)    pre-septal and upper eyelid haematoma.
The claimant was rendered unconscious at the scene and was taken by ambulance to Liverpool Hospital. She remained in Liverpool Hospital undergoing rehabilitation for over five months.
The insurer wholly admitted liability by letter dated 14 July 2023. The insurer conceded the claimant sustained a non-threshold injury and submit she is entitled to damages for non-economic loss. The claimant was born in 1964 and is presently 60 years of age. She is a pensioner and there is no claim for either past or future economic loss.
The insurer has proposed an amount of $300,000 for damages for non-economic loss.
The insurer arranged for the claimant to be examined on a medico-legal basis by Associate Professor Brett Courtney, and I refer to his report dated 6 November 2023. He has provided a comprehensive report. On page 3 of his report, he states the claimant, prior to the accident, enjoyed good health, had no major medical problems, no injuries that he could detect. He noted she regularly used public transport and kept herself very active. He noted she states her memory is not good following the accident and he believes this may be attributed to the subdural hematoma. She was living in a Housing Commission unit on the third floor and had no issues regarding access to her third-floor unit. She would regularly carry her shopping from the shopping centre and was capable of cooking meals for herself. She now resides in a house provided by the Housing Commission.
On page 4 of the report, under the heading “Current Status” I note the following:
“The lady is very immobile. She is very frustrated at the time. She occasionally will take yourself by the bus to the shopping centre but that is minimal. She gets well supported from her son who does most of the shopping and her niece comes who lives nearby and regularly helps clean and helps with the housework. She only does very limited cooking and nothing major and just for herself. She is otherwise very limited. She does not sleep well. She has never driven. She is very limited in her walking and is effectively housebound most of the time. Prior to the accident, according to the son, she was very active, and I have outlined that above in the social history”.
On examination, he found she had significant restriction of the movement of her right arm, restriction of movement of the left wrist, the thoracic spine and lumbar spine.
On page 5 of his report, he states the following:
“There is certainly restricted movement with regards her left ankle as compared to the right. She walks with a very slow and steady gate and there certainly has been some significant alteration in her physical strength and mobility. I did not test her balance, as I believe she was a falls risk. She did not have any episodes of dizziness during the course of my examination.”
On page 6 of his report under the heading “Opinion”, he states the following:
“This lady had a very significant multi trauma accident with multiple bruising soft tissue. She had multiple fractures thankfully none of those presented in any major issue with minimal internal damage she did have a subdural haematoma and again related to the accident but that did not progress, but she does need assessment of her head injury and the neural situation as she does complain that she has lost a lot worse memory, and she suffers dizziness at the moment.
That is beyond my area of expertise however I have made my assessment regarding her lumbar spine, pelvis left ankle and left wrist. She has secondary problem with her right shoulder I note that has not been X rayed and I could not see any imaging, but she states that she was sore in the right shoulder since the original injury and there certainly is reduced movement of both the shoulders but what much worse on the right-hand side. A lot of the loss of movement that she has in her upper limbs, I would attribute to the fact that she is using the wheeled frame and in that position she is doing minimal work above the horizontal and that there is a very common cause of loss of function and movement in the elderly and I believe that is what has occurred in this lady, but nevertheless, there is an increased problem in her right and she does relate that to the original injury
There is certainly consistency of her current presentation on examination. These type of multiple injuries with an extended period of time in rehabilitation in a lady of her age have a major detrimental effect on the overall mobility and effectively does cause significant ageing of the patient. She has lost all her confidence. She is now gone from someone who used to be able to do her own shopping and cooking to being very dependent on a lot of other people.”
On page 7 of his report, he states the following:
“Within the area of psychological there has been an impact on that due to her mobility but I also believe that she does need assessment from that subdural haematoma. She is complaining of dizziness and some memory loss, and it is beyond my area of expertise but certainly a subdural hematoma in a lady in their 60s due to severe trauma with those other associated injuries can be a cause of the dizziness and loss of memory. There is other injuries as described above.”
One page 8 more please report I note the following:
“I do believe there is significant functional incapacity that interferes with her ability to undertake all activities. She does not have any ability to do any gardening. She gets help from her family by way of her niece and by her son. She can do personal care, but this about the limit of what she can do, and that incapacity is permanent. I would anticipate she would require 6-8 hours assistance each week with regards to shopping, cleaning, and general help in the home.”
I refer to the submissions of the insurer dated 17 April 2024 and on page 3 and page 4 under the heading “Clinical Records” the insurer has provided details of the claimant’s pre-accident medical history. I note on page 1 of the report of Associate Professor Brett Courtney he states, “thank you for the documentation provided.”. I therefore presume the insurer forwarded these pre-accident medical records to him prior to his examination of the claimant. In any event, I am of the opinion these records do not disclose a pre accident medical history which would diminish the amount of damages to be awarded to the claimant for non-economic loss arising from the injuries and ongoing disabilities sustained by her in the subject accident.
Furthermore, I note the concerns of Associate Professor Brett Courtney, referred to in paragraph 11 above, that the claimant needs psychological assessment in relation to her complaints of dizziness and some memory loss. I considered it appropriate if the insurer were to arrange for her to be examined on a medico-legal basis by a neuropsychologist and thereafter by a neurologist. I considered these examinations necessary before her claim for damages can be resolved.
Subsequently the insurer arranged for the claimant to be examined by Dr Grant Walker neurologist, and I refer his report dated 30 July 2024. Dr Walker records details of the claimant’s past medical history on page 3 of his report. He carried out a physical examination of the claimant and under the heading “Summary” on page 4, he states the following.
“…she suffered from a number of bony injuries in her accident in June 2020. she obviously had a head injury in view of her imaging, but it is less clear that that has contributed to any of her comorbidity. Her gradual decline in mobility would appear to be multifactorial, including her age, her obesity, and her multi regional musculoskeletal problems some of which have been caused or exacerbated by the accident.”
On page 5 of his report, he opines the following.
“I do not believe there is any significant sequelae from her traumatic brain injury. Treatment for her other pre-existent and post traumatic musculoskeletal problems are detailed above and all appeared to be reasonable and necessary.”
After receipt of the report of Dr Walker, the insurer arranged for her to be examined by Dr Nicola Gates, clinical neuropsychologist, and I refer to her report dated 3 September 2024. She has provided a comprehensive report and I note the following under the heading “Opinion” on page 8 of her report:
“My opinions regarding her current cognitive and psychological status are based upon,
1.information of neuro psychological relevance from the supplied documents
2.observation of her emotional behavioural and cognitive functioning.
3extensive clinical interview
4results of standardised psychometric assessment measures
She presents as cognitively frail older woman and testing confirmed severe cognitive impairment consistent with DSM 5 diagnosis of Neurocognitive Disorder. This impairment is not attributed to the subject accident, but pre-injury status. Her personal history indicates limited cognitive intellectual development and limited learning consistent with below intellectual capacity.
Additionally she has deteriorated consistent with Neurocognitive Disorder and this was evident in her brain CT which indicated the ventricles and CSF spaces show mild age related involutional change. Mild periventricular hypoattenuation is in keeping with chronic microvascular ischemic disease. She has multiple risk factors for neurocognitive disorder including obesity, hypertension, hypercholesterolaemia, low intellect, no employment and no life hobbies or interests.
The neuropathy of neurocognitive disorders commences decades prior to symptoms becoming evident. Brain and cognitive reserve artificially support ongoing capacity until a critical level of pathological change and then impairment becomes obvious.”
On page 9 of her report Dr Gates states the claimant is diagnosed with neurocognitive disorder consistent with her pre-injury status as evidenced by brain CT. She opines this is not related to the accident. She also agrees with the opinion of Dr Walker the claimant has no sequelae from her traumatic brain injury. Her recovery from the injury has stabilised as expected, with natural recovery. She is of the view her preinjury status and cerebral ischemic issues have continued and she has continued to cognitively deteriorate. Within her area of expertise as a neuropsychologist, Dr Gates states the claimant has recovered from the subject accident.
The claimant advised me she wishes to accept the proposed settlement I am satisfied the some proposed for non-economic losses is both reasonable and adequate. I consider the sum is appropriate in all the circumstances of this case and I have decided to approve the proposed element 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’s son 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 she can seek legal advice but does not wish to do so
I am satisfied the claimant understands the binding nature of the settlement and she 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.

PRELIMINARY CONFERENCE ON 13 SEPTEMBER 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 13 September 2024. The claimant participated in person with the assistance of an Arabic interpreter and her son, Sam. The insurer was represented by Vitalina Pleskach.,

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 $300,000. The net amount of settlement monies payable to the claimant is $300,000.
Accordingly, pursuant to s.6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.

[2024] NSWPIC 527

23 September 2024