Insurance Australia Limited t/as NRMA Insurance v Kundu
[2025] NSWPIC 104
•21 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Kundu [2025] NSWPIC 104 |
| CLAIMANT: | Dolly Kundu |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Philip Carr |
| DATE OF DECISION: | 21 March 2025 |
| DATE OF AMENDMENT: | 7 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; the claimant was injured on 16 December 2022 at her family home inside the garage; the claimant was working as a casual educator at the time of the accident and has not worked since the accident due to her injuries; liability is admitted; the insurer concedes 15% for whole person impairment; the claimant is aware no entitlement to future statutory benefits once settlement is approved; Held – settlement complies with clause 7.37 of the Motor Accident Injuries Guidelines, version 9.3; settlement approved. |
| DETERMINATIONS MADE: | AMENDED CERTIFICATE 1. The proposed settlement sum of $434,494.84 is approved under s 6.23(2)(b) of 2. Pursuant to s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $30,264.06 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3. |
STATEMENT OF REASONS
INTRODUCTION
The motor accident the subject of this claim occurred on 16 December 2022 (the accident).
On 21 October 2024 the claimant made an application for common law damages.
Insurance Australia Limited t/as NRMA (the insurer) has wholly admitted liability and acknowledges the claimant’s whole person impairment (WPI) exceeds the 10% threshold (the insurer conceded the claimant’s WPI was 15% - A 11).
On 8 January 2025 the insurer made an initial offer of settlement to Ms Kundu (the claimant) in the amount of $382,494.84 (the initial offer of settlement).
The insurer subsequently, made a further offer of settlement to the claimant, following the preliminary conference on 28 February 2025, in the amount of $432,494.84 (the revised offer of settlement) [A 7]. The insurer increased its initial offer of settlement by a further amount of $50,000, representing an increase to the non-economic loss (NEL) component, to a revised amount of $300,000 (from the previous amount of $250,000).
On 19 March 2025 the insurer filed an amended settlement bundle, which included the revised offer of settlement (A 7).
There is no claim of contributory negligence for the purposes of a deduction in respect of the settlement.
The claimant is not represented by an Australian legal practitioner and is aware that she can instruct an Australian legal practitioner to act for her, but she does not want to do this.
The claimant requests the Personal Injury Commission (Commission) to approve the revised offer of settlement in the amount of $434,494.84.
The claimant has executed the amended settlement agreement dated 3 March 2025 [sic]
[A 9]. It is noted the settlement deed was executed on 11 March 2025, not 3 March 2025
(the amended settlement agreement).
The insurer’s revised bundle of documents, filed on 19 March 2025, incorporates the amended settlement agreement but has not included the variation to the settlement offer in its submissions (A1) or provided a revised settlement offer letter [A 7].
THE ACCIDENT
The accident occurred at her home inside the car garage, where she was hit by a car. The car was owned and driven by Krishnadas Kundu.
The car’s impact pinned the claimant’s legs against the car and the ground.
THE CLAIMANT’S CIRCUMSTANCES
The claimant was 65 years of age at the time of the accident, she is currently aged 67 years.
The claimant was at the time of the accident employed as a casual educator at Kogarah Community Services (KCS) working between 11-12 hours per week (A 15).
THE CLAIMANT’S INJURIES
The claimant sustained the following injuries:
· a severe left knee bicondylar tibial plateau fracture (A 14);
· left shoulder rotator cuff tear and traumatic flare up against her pre-existing primary gleno - humeral joint and acromio - clavicular joint osteoarthritis (A 15), and
· possible post traumatic capsulitis in her left shoulder (A 15).
The claimant required surgery and on 29 March 2023 underwent a total left knee replacement, performed by A/ Prof Sam Adie (orthopaedic surgeon) (A 13 - 14).
The claimant has also consulted Dr Geoffrey Smith, orthopaedic surgeon (a shoulder and elbow specialist). The claimant last consulted Dr Smith on 15 February 2024.
The claimant has received extensive physiotherapy for her left shoulder primary glenohumeral osteoarthritis from Ms Yara Faris (Lifefit Physiotherapy at Kogarah). Initially the claimant reported severe 8-9/10 constant shoulder pain, aggravated by overhead movements. Physiotherapy was provided to improve the claimant's function.
On 28 February 2025, at the initial settlement conference, the claimant indicated that although she is continuing with her physiotherapy and is still experiencing ongoing shoulder pain, however she does not want to undertake any further surgery.
THE MEDICAL EVIDENCE
A/Prof Adie in May 2023 observed, following the claimant’s left total knee replacement, the claimant was progressing very well and had an excellent range of motion from 0 to 115 degrees and was essentially mobilising unaided with the occasional use of crutches. He noted that X-rays indicated a well-fixed and well-aligned prothesis and that the fracture was continuing to heal. He certified the claimant could travel for a lengthy trip to the USA (A 13).
On 27 November 2023, A/Prof Adie, observed the claimant’s recovery was progressing well, having a good range of movement and that her left knee was stable and that she was not in any pain and was mobilising well, but that her contralateral knee has end stage arthritis but that these symptoms appear to be relatively mild. He recommended she continue with her strengthening exercises over the next few months and discharged her form his care. He invited her to attend upon him of there were any further concerns. The claimant has not reattended upon his rooms since that time (A 13).
Over the course of her physiotherapy treatment there has been continuing improvement of the claimant’s functionality, the following observations have been made by Ms Faris during the physiotherapy treatment:
· she mobilises without the use of aids;
· has a walking capacity of 30 minutes;
· the tenderness over her tibial head has decreased in intensity in comparison to her initial assessment;
· the active range of knee motion has nearly normalised, scoring 0 – 117 degrees, and
· she is better able to tolerate prolonged walking and standing.
The claimant’s ankle range remains restricted, and she is weak in her quadriceps, particularly with single leg tasks. In March 2024 the claimant continued to experience pain, however with decreased intensity, then scoring 6/10 (Vas scale) and her shoulder was still aggravated by repetitive and prolonged overhead activities. There remains weakness in her shoulder musculature and she still has trouble carrying and lifting items with her left arm but continues to rebuild her capacity and tolerance.
Dr Smith provided a report to the insurer on 15 February 2024 and opined the claimant may require an arthroplasty if her symptoms did not improve in her left shoulder. Dr Smith considered further improvement was still to be expected, but that physiotherapy was unlikely to be of significant benefit given the claimant’s pre-existing osteoarthritis.
The claimant has not returned to see Dr Smith since early 2024 and as indicated earlier, she is not willing to undertake the further surgery as identified by Dr Smith. No further medicine has been obtained since Dr Smith saw the claimant in February 2024 (A 19).
The claimant has also indicated that since the accident, she exhibits post-traumatic stress disorder with frequent recurrent and intrusive flashbacks to the accident. She continues to seek treatment from Klia Glezakis (Clinical Therapy) [no reports have been provided from this provider] (A 6). The claimant asserts that the trauma from the accident has impacted her social and daily life and that she is triggered by loud, unusual or unexpected sounds in cars and her surrounding area, has difficulties in falling asleep and low social mood (A 6). I have not sighted any medical evidence, in the materials, that supports this aspect of her claim.
THE ECONOMIC LOSS CLAIM
The claimant asserts she has been unable to return to her role as an educator due to her ongoing physical limitations which prevent her from undertaking that role.
On 29 September 2024 the claimant was informed by her employer (KCS) that her services as an educator were no longer required.
The claimant has generally remained totally unfit to undertake any work since the accident and has been certified as having no capacity to work since the accident, except for a brief period in May – June 2023 (A 12 - Dr Theo Rothonis, general practioner (GP)). The insurer accepts the claimant has remained totally unfit for work since the subject motor vehicle accident (A 1).
The claimant has provided her tax returns for the FYE 2018 – 2024 (A 1 and A 6). The claimant’s pre-injury earnings were calculated by the insurer at $330.05 (10 hours per week at $33.03 per hour) (A 6).
The claimant has asserted that she would have stayed in the workforce until her 71st birthday and claimed a loss of $76,963.98 in addition to a future superannuation loss of $9,190.41.
The claimant has particularised her economic loss claim as follows (A 6):
· past lost wages - $12,084.34 (after weekly statutory payments of $30,146.34 – her full claim for lost wages is $42,230.68);
· past lost superannuation - $4,109.77;
· future wage loss - $76,963.98, and
· future lost superannuation - $ 9,190.41.
The insurer has accepted in full the economic loss claim as particularised and identified by the claimant.
THE STATUTORY FRAMEWORK
Clause 14d(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (MAI Act) and the Motor Accident Guidelines (the Guidelines) apply to this application.
I have considered the relevant legislation, guidelines and procedural directions, as identified below, in making my decision.
The MAI Act
Section 3.40(1)(b) of the MAI Act provides;
“3.40 Effect of recovery of damages on statutory benefits
(1) If a person ("the claimant") recovers damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle then (except to the extent that subsection (2) or (3) covers the case)
(a) …
(b) the amount of any statutory benefits already paid under Division 3.3 in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the statutory benefits.”
Section 6.23 of the MAI Act states:
"6.23 Restrictions on settlement of claim for damages:
(1) (repealed).
(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."
The PIC Rules 2021
Regulation 95 of the Personal Injury Commission Rules provides:
"95 Application for approval of Damages settlement
(1) If a claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act, on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
(2) (Repealed)."
The Guidelines (Version 9.3)
Clause 7.37 of the Guidelines provides:
"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 [since repealed];
(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, 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."
As identified earlier in the introduction the claimant is not represented by an Australian legal practitioner and is aware she can instruct an Australian legal practitioner to act for her, but she does not want to do this and has declined to do so. Further, the claimant understands the effect of the proposed settlement and that it resolves her rights and any claim arising from the accident.
The PIC Procedural Directions
Clause 10 of the Commission's Procedural Direction MA3 provides the application must include:
· a deed of release;
· the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
· the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
· the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
· the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
After reviewing the application and its supporting documentation including the executed deed of settlement for the revised settlement offer [A 10], I am satisfied it complies with cl 10 of the Commission's Procedural Direction MA3, as the application includes details:
· of the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
· a copy of a letter to the claimant identifying a breakdown of the initial offer of settlement, which sets out the amounts for each head of damage and the deductions sought to be made for weekly benefits paid to date (A 7), and
·
an executed amended agreement, for the revised settlement offer, dated
3 March 2025 (A 10), which identifies the total amount provided for the settlement and deductions sought to be made from the settlement.
THE TWO SETTLEMENT APPROVAL CONFERENCES
28 February 2025
On 28 February 2025 the claimant appeared at the initial settlement approval conference by Teams and her son was available to assist her.
The claimant confirmed she did not want legal representation, she did not seek further surgery as identified by Dr Smith (despite still experiencing pain in her left shoulder) and was happy with the initial offer of settlement.
Statutory benefits were confirmed by the insurer in the amount of $30,146.34, as contained in the list of payments annexed to the application (A 9). The insurer confirmed it sought to deduct the amount of $30,146.34 from the settlement amount, representing weekly benefits paid to the claimant.
The parties indicated:
· there is no money repayable to Centrelink, and
· as far as they were aware, there is no payback to Medicare.
I indicated to the parties that I was not satisfied the initial settlement offer was appropriate and invited the insurer to reconsider its settlement offer, particularly the non-economic loss component in the amount of $250,000.
21 March 2025
On 3 March 2025 the insurer increased its initial offer of settlement, as indicated above, to the revised offer of settlement of $434,494.84. This increased offer, which I am now asked to approve, represents an increase to the non-economic loss component from the original amount of $250,000 to the revised amount of $300,000. Both parties understood this.
On the 21 March 2025 the claimant appeared at the adjourned settlement approval conference by Teams again with her son, who was available to assist her.
The insurer confirmed the statutory benefits to be deducted from the settlement remained in the sum $30,146.34.
The claimant confirmed she did not seek further possible surgery, as identified by Dr Smith and had a strong dislike for any further surgical intervention and was happy with the revised offer of settlement.
The claimant also confirmed she was aware that statutory benefits paid by the insurer (calculated in the sum of $30,146.34) would be credited to the insurer from the offer of settlement of $434,494.84.
During the conference the claimant was questioned about her understanding of the settlement, its finality, the impact of a settlement and whether she was entering the settlement without coercion or without an understanding of her rights under the relevant legislation. I am satisfied by her responses, that she is entering into the settlement of her own free will, with the relevant understanding of its finality. Further, the claimant is aware, as indicated earlier, that she can instruct an Australian legal practitioner to act for her in respect of her claim, but she does not want legal representation and was confident with her son’s assistance.
The parties confirmed:
· there is no money repayable to Centrelink, and
· as far as they were aware, there is no payback to Medicare.
SHOULD I APPROVE THE SETTLEMENT?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether to approve or not approve the claimant’s settlement, I need to consider whether:
· the amount of the settlement is just, fair and reasonable (appropriateness), and
· the claimant understands the settlement and its terms and the effect of the settlement in ending her claim for damages (the claimant’s understanding).
The Guidelines requires the amount of any deductions in the proposed settlement be identified. The insurer has confirmed that $30,264.30 will be deducted from the offer made. This represents a refund to the insurer of past statutory benefits paid for wages to date.
I am satisfied that the claimant is aware this settlement will be a final resolution of her claim and that she can make no further claim for damages for economic or non-economic loss arising out of the accident.
The claimant has confirmed she was agreeable to accept the offer made by the insurer.
I can refuse to approve a settlement. However, I am satisfied the revised settlement offer is a just, fair and reasonable settlement offer in all the circumstances.
In RACQ Insurance Limited v Motor Accidents Authority of NSW (No 2) [2014] NSW SC 1126, the Court stated, when considering the issue of an appropriate damages award:
"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 awarded in a number of other specific cases … The principle to be followed … 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 be granted that a judge who is making such 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 by 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) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ at paragraph 11).
The amount of the offer of settlement that I am asked to approve (confirmed by the insurer on 21 March 2025) comprises:
· non-economic loss $300,000;
· past economic loss $42,230.68;
· past superannuation $4,109.77;
· future economic loss $76,963.98;
· future superannuation $9,190.41, and
· Total $ 434,494.84.
I am satisfied that the amount of $434,494.84 less statutory benefits paid of $30,146.34 is an appropriate settlement of the claimant's common law claim considering all the legislation, circumstances and materials and I approve the settlement.
DETERMINATION
The settlement of $434,494.84 is approved pursuant to s 6.23(2)(b) of the MAI Act.
Pursuant to s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $30,146.34 from the settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3.
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