Insurance Australia Limited t/as NRMA Insurance v Lawton
[2024] NSWPIC 232
•6 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Lawton [2024] NSWPIC 232 |
| CLAIMANT: | Margaret Lawton |
| INSURER: | IAG Limited t/as NRMA Insurance |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 6 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; proposed settlement approval; elderly claimant involved in high speed accident; liability wholly admitted; injuries to both legs; insurer conceded whole person impairment greater than 10%; entitled to damages for non-economic loss only; having regard to the age of the claimant and the impact the injuries have had to her quality of life and ongoing pain and suffering; entitled to treatment and care for the rest of the claimant’s life; proposed amount reasonable and within the range of likely potential damages; Held – settlement approved in the sum of $220,000 pursuant to section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $220,000. |
STATEMENT OF REASONS
INTRODUCTION
On 24 February 2022 Margaret Lawton (the claimant) sustained injury in a high-speed motor vehicle crash on the Pacific Highway near Coffs Harbour. She suffered a right fibular head and neck fracture and a left fibular head and neck fracture.
Ms Lawton has made a claim against IGA Limited t/as NRMA Insurance (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Ms Lawton is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Ms Lawson and the insurer have reached agreement as to settlement of the claim for damages.
Because Ms Lawton is not represented by a lawyer, her settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer has conceded Ms Lawton has sustained a whole person impairment (WPI) greater than 10% and accordingly, is entitled to damages for non- economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(b) the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Ms Lawton, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) Ms Lawton understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, applications, police, factual and ambulance report, assessment of daily living, clinical notes and reports and a questionnaire by Dr Duguid, and communications between the parties.
REVIEW OF THE EVIDENCE
The crash happened on 24 February 2022. Ms Lawton was the driver of the vehicle, accompanied by her husband. They were travelling south leaving Grafton along the Pacific Highway.
The police report records the roadway was wet due to torrential rain and generally wet conditions. There was low visibility. The insured driver was travelling directly behind
Ms Lawton and when she hit a pothole and braked, the insured driver slammed into the rear of her vehicle.
The ambulance attended the scene and conveyed Ms Lawton to South Grafton Hospital. She was later transferred to Coffs Harbour Hospital. She was diagnosed with a right fibular head and neck fracture, and a left fibular head and neck fracture.
After discharge, she was advised to follow up with her general practitioner and to return to the hospital for dressing changes twice weekly. She was under the care of a rehabilitation physician and an assessment of activities of daily living was carried out on 2 June 2022.
Ms Lawton is 82 years old. She was not working, retiring many years before the accident.
She has a long history of Ischaemic heart disease, hypertension and underwent a left total hip replacement 20 years ago.
She lives with her husband in a single-story dwelling and receives an aged pension.
SHOULD I APPROVE THE SETTLEMENT
Ms Lawton has been retired for many years. As such it is agreed she is not entitled to damages for economic loss.
The insurer reviewed the report of Dr Duguid and determined Ms Lawton’s permanent impairment in line with the combined tables is 19% WPI. As such Ms Lawton is entitled to damages for non-economic loss by virtue of s 4.11 of the Act and s 4.13(1) of the Act describes a maximum that may be awarded.
Section 1.4 of the Act relevantly defines non-economic loss to mean:
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
Having considered the medical records and reports, and Ms Lawton’s description of how her injuries have impacted on her life, the pain she continues to experience, and her age, the proposed sum for damages for non-economic loss is fair and reasonable.
Dr Duguid in his report dated 12 December 2023 had no hesitation in opining Ms Lawton had made an excellent recovery from her hip replacement years before and therefore, any need for a wheel walker was caused by the accident.
He notes she had suffered anxiety after the accident which made her less confident to drive and more worried about her balance and coordination. He did note she had experienced improvement with counselling but still required the aid of a walker.
During the preliminary conference held on 22 April 2024, I impressed upon Ms Lawton her ongoing entitlement to reasonable treatment and domestic care for needs caused by the injuries which occurred in the accident. This included help with her daily activities such as house cleaning and transportation. She confirmed with me she understood her rights and entitlements and assured me she consults with her general practitioner on a regular basis and will discuss her needs and seek referrals when and where needed.
She further confirmed she just wanted this claim and settlement proposal over.
I am satisfied Ms Lawton is aware the settlement finalises her entitlements to further common law damages under the Act.
I am satisfied that Ms Lawton is aware of her rights to have her reasonable treatment expenses paid for the remainder of her life.
The insurer’s initial proposed settlement amount was for $220,000 for non-economic loss.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is 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 Ms Lawton.
I am satisfied Ms Lawton is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Lawton understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising from the accident. I am satisfied Ms Lawton is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of Ms Lawton’s claim for damages in the sum of $220,000.
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