Insurance Australia Limited t/as NRMA Insurance v Hinkle
[2023] NSWPIC 186
•26 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Hinkle [2023] NSWPIC 186 |
| Claimant: | William Hinkle |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Gary Victor Patterson |
| DATE OF DECISION: | 26 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act; settlement approval; 83-year-old male; claimant stationary in his vehicle when it was struck in the rear by the insured vehicle; liability wholly admitted; more than threshold injuries to neck and left shoulder; 11% whole person impairment; no claim for past economic loss nor future loss of earning capacity as claimant is retired and in receipt of the Age Pension; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved for $200,000.00. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 29 August 2019, William Hinkle (the claimant) was the driver and sole occupant of a Ford Falcon sedan. He was wearing a seatbelt. He was stationary in the main street of Inverell behind a car which had stopped to allow another car to complete a reverse park. Whilst stationary, the claimant’s vehicle was struck from behind by the insured vehicle. The accident occurred outside the local police station. No airbags deployed in the claimant’s vehicle. The incident was reported. The ambulance service did not attend. The claimant was able to drive home. His car subsequently was repaired. The insurer wholly admitted liability for the claim.
The claimant is a retired gentleman 83 years of age. He previously was employed as a Boner in the abattoirs. He retired at the age of 65 years. He is in receipt of the Age Pension. He lives with his wife although the couple are estranged. There are no dependants.
Mr Hinkle attended the Accident and Emergency Department at Inverell Hospital where he was referred for CT scans of the cervical spine, thoracic spine, chest, abdomen and pelvis. No acute pathology was identified. He subsequently attended his local doctor complaining of neck and left shoulder symptoms. Diagnostic scans reported a partial thickness tear of the supraspinatus tendon. The claimant continues to experience symptoms in the left shoulder. Current treatment is limited to the use of medications.
The claimant was assessed on 8 November 2022 by Dr Richard Powell, orthopaedic surgeon, for the insurer. Dr Powell diagnosed the following injuries:
(a) Musculo-ligamentous injury of the cervical spine.
(b) Left shoulder rotator calf tear on a background of some underlaying tendinopathy and AC joint degeneration.
Dr Powell found that the claimant has significant ongoing symptoms and functional limitations in the left shoulder. He opined that the results of surgical repair of pathology in the claimant’s age group are poor.
Dr Powell thought that the overall prognosis is guarded. He states that the natural history is for continued deterioration over time. The claimant’s left shoulder and, to a lesser extent the neck, will remain a source of ongoing symptoms and functional limitations into the future.
Dr Powell assessed 0% whole person impairment for the cervical spine, as the claimant does not demonstrate radicular signs or symptoms, and there is no asymmetry in range of motion. He assessed 11% whole person impairment in the left shoulder using the range of motion method. Dr Powell accepts that the claimant’s whole person impairment is accident-related.
Based upon Dr Powell’s assessment of whole person impairment, the insurer offered $200,000, which the claimant has accepted. Prior to acceptance, the claimant sought advice from John Watts, who is a retired solicitor, formerly of Inverell. Mr Watts apparently advised the claimant to accept that offer.
The parties entered into a Settlement Agreement on 14 March 2023 to evidence the terms of the proposed settlement which is in evidence before me.
The claimant accepts that he has no entitlement to past or future economic loss.
As the insurer has accepted that the claimant has non-minor injuries, he is entitled to payment of the reasonable costs of treatment and care for his accident-related injuries, for the rest of his life, pursuant to Division 3.4 of the Motor Accident Injuries Act2017 (the MAI Act). That will be of particular significance if the claimant needs to undergo surgical repair of his left shoulder.
THE RELEVANT LAW
Section 6.23(2) of the MAI Act requires approval of the settlement as the claimant is not legally represented.
Section 6.23(3) of the MAI Act provides that I am not to approve the settlement unless I am satisfied that it complies with any applicable requirements of, or made under, the MAI Act or the Motor Accident Guidelines (the Guidelines). I also must have regard to Procedural Direction MA3 – Approval of Damages Settlement.
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 assessed for the claim, where the matter to be assessed by me or another 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; and
(b) the claimant understands the nature and extent of the proposed settlement and is willing to accept the proposed settlement.
TELECONFERENCE ON 26 APRIL 2023
The insurer lodged the application for approval of the settlement which was referred to me for consideration. I held a teleconference on 26 April 2023 at which the claimant participated by telephone and the insurer was represented by Peter Hunt, Solicitor, of McCabes Lawyers. The claimant confirmed that he had received informal legal advice, in relation to the proposed settlement, which he accepted was fair and reasonable.
The claimant also confirmed his understanding this is a once and for all settlement and that he will not be able to seek further compensation, if the condition of his neck and/or left shoulder deteriorates. He is satisfied with the settlement. He does not wish to obtain further legal advice.
DOCUMENTS CONSIDERED
I have had regard to all of the documents listed in the insurer’s Application for Approval of Settlement and particularly the medical evidence.
REVIEW OF THE EVIDENCE
The evidence has been reviewed sufficiently in the introduction (above).
DETERMINATION
This application has been determined on the papers with the parties’ consent.
Having regard to the claimant’s age, the medical and other evidence, I am satisfied that the proposed settlement is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines, in that it is relevantly:
“… just, fair, reasonable and within the range of likely potential damages to be assessed for the claim, were the matter to be assessed by me, or another 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.”
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, the proposed settlement of the claim for damages is approved.
The parties are reminded of the claimant’s entitlement under ss 3.24 and 3.26 of the MAI Act.
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