Insurance Australia Limited t/as NRMA Insurance v Lang
[2022] NSWPIC 481
•1 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Lang [2022] NSWPIC 481 |
| Claimant: | June Lang |
| insurer: | Insurance Australia Limited trading as NRMA Insurance |
| Member: | Susan McTegg |
| DATE OF DECISION: | 1 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; appointed representative; non-economic loss; 88 years of age; lateral tibial plateau fracture; fractures of the bones of the right foot; fractured ribs; just fair and reasonable; section 6.23(1) of the Motor Accident Injuries Act 2017 (2017 Act); clause 7.37 of the Motor Accident Guidelines considered and applied; approval of settlement; section 6.23 of the 2017 Act; non-economic loss; claimant under legal incapacity as result of injury and age related cognitive deficit; daughter appointed representative under rule 97(1) of the Personal Injury Commission Rules; claimant now 90 years of age; 88 years of age at date of accident; left lateral tibial plateau fracture; multiple fractures of the calcaneus, talus and cuboid bones of the right foot; rib fractures; claimant moved into residential care; Held – settlement of claim in sum of $200,000 approved; settlement just fair and reasonable. |
| determinations made: | 1. The proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the MAI Act). 3. The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines |
INTRODUCTION
On 11 September 2020 a vehicle estimated to be travelling 110km collided with the vehicle in which Ms June Lang (the claimant) was a passenger as it turned right onto the Pacific Highway, Lake Innes (the accident). The vehicle in which Mrs Lang was a passenger spun and the air bags deployed. Mrs Lang suffered multiple injuries including:
· a left lateral tibial plateau fracture;
· right 5th and 6th anterior rib fractures;
· multiple fractures of the calcaneus, talus and cuboid bones of the right foot, and
· exacerbation of left upper limb pain and weakness.
Mrs Lang is now 90 years of age. She was 88 years of age at the time of the accident on 11 September 2020.
The claimant has made a common law claim against Insurance Australia Limited trading as NRMA Insurance (the insurer) the insurer of the at fault vehicle, for lump sum damages.
On 24 June 2022 the insurer accepted liability for the claim for common law damages.
The insurer has accepted that the claimant had non-minor injuries.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $200,000 for non-economic loss.
Because the claimant is not represented by a lawyer, her settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
Mrs Lang’s daughter Mrs Patricia Leo holds a Power of Attorney for Mrs Lang and has been her authorised representative in relation to the claim.
Pursuant to rule 97(1) of the Personal Injury Commission Rules I appoint Patricia Leo as the appointed representative entitled to represent June Lang who is under legal incapacity as result of the injury she sustained in the accident and her age-related cognitive decline.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 1 September 2022. Mrs Leo represented Mrs Lang. The insurer was represented by Ms Vitalina Pleskach.
JURISDICTION
The Personal Injury Commission (the 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 Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
DOCUMENTS REVIEWED
In considering the application for approval I reviewed the following documents:
· insurer’s submissions dated 26 July 2022;
· Police Report Event Reference 7787916;
· Application for personal injury benefits dated 18 September 2020;
· Liability Notice – Benefits up to 26 weeks dated 22 September 2020;
· Liability Notice – Benefits after 26 weeks dated 30 November 2020
· Application for Damages under Common Law dated 14 March 2022;
· Liability Notice – Claim for Damages dated 24 June 2022;
· Certificates of capacity/certificate of fitness dated 18 September 2020 and 16 March 2022;
· report of the NSW Ambulance Service;
· clinical notes of Port Macquarie Base Hospital;
· clinical notes of Macquarie Private Hospital;
· reports of Dr Arun Maram dated 23 October 2020, 15 December 2020, 26 March 2021, 30 July 2021 and 4 February 2022;
· occupational therapy report of Mary-Kate Dennis of Port Macquarie Private Hospital dated 11 November 2020 and 19 November 2020;
· Allied health recovery request dated 14 December 2020, 22 February 2021 and 30 April 2021;
· Benchmark Initial Needs and Activities of Daily Living Assessment Report of Peter Proctor dated 8 December 2020;
· Benchmark Progress Reports of Peter Proctor dated 14 January 2021, 9 February 2021, 30 March 2021 and 6 April 2021;
· emails from Peter Proctor dated 30 March 2021 and 7 July 2021;
· letter from the insurer to Mrs Lang dated 23 February 2022 re entitlement to damages for non-economic loss;
· letter from the insurer to Mrs Lang dated 4 July 2022 conveying offer of settlement, and
· email from Patricia Leo dated 14 July 2022 accepting the offer of settlement on behalf of Mrs Lang.
THE RELEVANT LAW
Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23(2) and (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 7.37 of the Guidelines states I must be satisfied as to the following:
“(a) the proposed settlement satisfies the timing requirements in s 6.23(1) of the MAI Act;
(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 a claims assessor, 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.”
REVIEW OF THE EVIDENCE
The pre-accident medical history
Prior to the accident Mrs Lang suffered several age-related medical conditions including reduced mobility, arthritic pain and dysfunction in her joints, left arm weakness, diverticulitis, constant lower back pain, reduced kidney function, high cholesterol and reflux.
Mrs Lang attended Dr Arulanandam, general practitioner (GP) monthly to manage those conditions, and she was prescribed oxycontin for her back pain and anti-depressant medication.
Prior to the accident Mrs Lang was “quite social” and attended multiple community outings each month relating to her craft activities and also met with friends for coffee or lunch.
In his report dated 8 December 2020 Peter Proctor, occupational therapist reported prior to the accident Mrs Lang received a Level 3, MyAgedCare Package with the following services:
· 2 x 2 hours per week – grocery shopping assistance and meal preparation;
· 1 x 2.5 hours fortnightly house cleaning/heavy laundry service (including stripping and remaking her bed linen);
· gardening/lawn care as needed, and
· home maintenance tasks as needed.
The post-accident medical history
Following the accident Mrs Lang was conveyed by ambulance to Port Macquarie Hospital where she remained a patient until 25 September 2020. She came under the care of Dr Rupert Snyman, orthopaedic surgeon who recommended the left lateral tibial plateau fracture be managed conservatively with a range of motion knee brace and non-weight bearing on that leg.
She was transferred to Port Macquarie Private Rehabilitation Hospital under Dr Maram. As a result of the ongoing pain in her right foot Dr Maram organised a CT scan which disclosed multiple fractures of the calcaneus, talus and cuboid bones of the right foot. Dr Snyman advised a non-weight bearing period of six weeks and thereafter Mrs Lang was encouraged to weight bear as tolerated through a Camboot on that leg.
In an email dated 17 November 2020 Laura Begbie, physiotherapist reported Mrs Lang had participated in hydrotherapy and balance training. She reported she would require physiotherapy once a week upon discharge and noted Dr Synman had expressed concern that she may require a future total knee replacement in the future due to the damage to the tibial plateau.
Mrs Lang was discharged on 7 December 2020 using a 4-wheel walker and with the provision of aids including an over toilet aid and a shower chair. Recommended equipment included a mobility scooter for community access and a portable self-propelled wheelchair and pressure cushion when mobilizing for long distances.
On discharge Kate Dennis, occupational therapist recommended the need for care for all domestic and community activities of daily living including personal care, meal preparation, cleaning, shopping, and transport.
As of 15 December 2020, Dr Maram reported Mrs Lang was able to mobilise and weight bear as tolerated although it was suggested she wear a small, hinged knee brace as support for the left tibial plateau for the rest of her life.
Dr Maram reviewed Mrs Lang on 26 March 2021 and reported one fall which resulted in a small skin tear which had since healed. He reported she was supported by Sports Spinal Physiotherapy home visit sessions and was receiving assistance three days a week with showering needs. She also receives assistance on other days with different self-care needs, domestic and transport needs. Dr Maram reported Mrs Lang is well supported by her son and daughter who live locally and by friends.
Due to floods in the Port Macquarie region in March 2021 Mrs Lang had water go through her home and initially moved in with her brother and subsequently with a friend. Mr Proctor reported in his email of 30 March 2021 that Mrs Lang had regained her independence with personal tasks including showering, dressing and toileting. However, she was still unable to drive.
Dr Maran reviewed Mrs Lang on 30 July 2021 when he reported:
“She did not report any falls, she is getting weekly physiotherapy support and she is progressing with her function. Most times she is walking without any aid and she is walking long distances or on uneven surfaces with a four-wheel walker. She does get support through her package and can access help with domestic needs, transport needs as and when she needs, in addition to the weekly physiotherapy sessions. Cognitively, she is well. Her pain is stable with the current medication. The main focus of pain is in the lower back, left knee, right ankle and foot and the left shoulder and they are all stable with OxyContin…”
Dr Maran reviewed Mrs Lang on 4 February 2022 when he reported a decline in her physical and cognitive function including her short-term memory. She was at that time receiving respite care at Whiddon Nursing Home with a view to permanency. She was continuing to take oxycontin for the chronic pain in her lower back, left shoulder and also the injuries sustained to the right knee and foot.
At the teleconference Mrs Leo informed me Mrs Lang had moved into full time residential care and was happy. She apparently enjoys the company, the activities and has gained weight. She informed me Mrs Lang uses her walker in the home as required but can move around her room independently.
Mrs Leo informed me her mother was happy to receive any settlement sum and that she did not wish to retain a lawyer to represent her in respect of the injuries sustained in the accident.
SHOULD I APPROVE THE SETTLEMENT
Section 1.4 of the MAI Act defines non-economic loss as
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $595,000.
Mrs Lang sustained serious injury in the accident, and she underwent a lengthy period of rehabilitation. Whilst she already required some assistance to live independently prior to the accident she was still able to drive and mobilise independently in her community. That ability was lost as a result of the accident, and she required additional assistance to live independently until she found it necessary to move into care earlier this year.
I am satisfied that Mrs Lang is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
I am satisfied Mrs Lang understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Mrs Lang understood there will be no repayment to Centrelink or any impact on her ongoing entitlements although no doubt it will become part of her assets and may impact on the assessment undertaken as to the costs of her care.
Ms Pleskach advised the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. She advised in the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement amount.
I advised Mrs Leo if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, Mrs Lang should ask the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
Taking into account Mrs Lang’s pre-existing disability, her age and the further impact on her ability to live independently in the latter stage of her life I am of the view that the sum of $200,000 is an appropriate award of damages for non-economic loss.
CONCLUSION
I find the timing requirements of s 6.23(1) of the MAI Act satisfied where it is agreed Mrs Lang has sustained a permanent impairment greater than 10%.
I am satisfied the proposed settlement is just, fair and reasonable and 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 Mrs Lang.
I am satisfied Mrs Lang is aware she can seek legal advice but does not wish to do so.
I am satisfied Mrs Lang understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Mrs Lang is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of Mrs Lang ’s claim for damages.
1
0
0