Insurance Australia Limited t/as NRMA Insurance v Marrison
[2023] NSWPIC 471
•1 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Marrison [2023] NSWPIC 471 |
| CLAIMANT: | Joel Daniel Marrison |
| INSURER: | IAG Limited trading as NRMA Insurance |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 1 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - This was a settlement approval of $300,000 for damages following an accident on 6 May 2020; the claimant is a serving officer with the Royal Australian Navy; the claimant was riding home from work when a collision occurred with the insured car causing a L4 compression fracture of his vertebra; liability was admitted by the insurer; the claimant had suffered microfractures to his T1, T2, T3, T6 and T9 vertebrae on 6 May 2020 in a mountain bike accident but these injuries were not made worse as a result of the accident; because of the injuries suffered by the claimant he was unable to undertake a sea posting and because of this, and also family circumstances, this will continue for the remainder of the claimant’s service; Held – that the offer of settlement was satisfactory and was approved. |
| DETERMINATIONS MADE: | CERTIFICATE 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Guidelines 2017 |
STATEMENT OF REASONS
INTRODUCTION
This is a claim for damages made by Lieutenant Commander (Lt Cmdr) Marrison (the claimant) which comes before me for approval. Lt Cmdr Marrison is not represented by an Australian legal practitioner.
Lt Cmdr Marrison was injured in a relatively low-speed motor vehicle accident on 23 June 2020 when he was riding his elite pushbike. He was riding his bicycle home from work and was stopped at an intersection with one foot on the ground and the other locked in his cleats/pedal. The insured driver was turning into the road where Lt Cmdr Marrison had stopped. The driver said that the sun was in her eyes she did not see the claimant. A collision occurred, knocking him off his bike. This elite bike was not able to be repaired.
As a result of the accident, Lt Cmdr Marrison suffered a compression fracture of his L4 vertebra.
Approximately six weeks before this accident, on 6 May 2020, the claimant suffered an injury in riding his mountain bike. On that occasion he went over the handlebars of his bike and landed on his back. He suffered compression fractures of the T9 and T11 vertebrae. In his claim form, it was noted that there were micro fractures of the T1, T2, T3, T6 and T9 vertebrae.
At the time of the accident, Lt Cmdr Marrison was, and still is, an officer serving in the Royal Australian Navy.
Legislative framework
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 3 of Part 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division of the Commission and clause 148(1) of the Personal Injury Commission Regulations 2020 delegates the insurers application ‘pending proceedings’ and clause 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, cl 14B(4)(c) provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
Section 6.23 of the MAI Act says:
“(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 or of or made under this Act or the Motor Accident Guidelines”
Clause 7.38 of the Guidelines says that in considering the settlement I must consider whether:
“(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 (member of the Commission), taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the Claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement”.
Clause 11 of the Commission’s Procedural Direction MA3 provides that the application must include:
“…the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
the amount of any reductions in the proposed settlement;
the amount of any advance payments made, and
the evidence, documents and materials relevant to the assessment of the proposed settlement figure.”
Clause 7.294 of the Guidelines requires the insurer to include in its Application details of:
12.“…the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage, and…”
The insurer has provided me with a copy of a letter sent to the claimant on 17 August 2023 which provides a breakdown of the offer and an explanation of the various components of the offer which the claimant has accepted.
The claimant requests that the Commission approve the proposed settlement of $300,000.
Clause 7.294.2 of the Guidelines requires the amount of any reductions in the proposed settlement. NRMA had not confirmed that an amount would or would not be deducted for any expenses. On questioning Mr Samyia, for the insurer, he confirmed that there would be no deductions made by the insurer.
There are no other payments to be deducted to any statutory authority. Lt Cmdr Marrison confirmed that there has been no Centrelink involvement.
Mr Samyia confirmed that on approval of this settlement, Lt Cmdr Marrison will receive payment in full of $300,000.
The accident
The accident occurred at approximately 3.50pm on 23 June 2020. The claimant was stationary on his bicycle, at the intersection of Richard Avenue and Stuart Street in Queanbeyan. He was waiting to turn right from Richard Avenue into Stuart Street. The insured driver was travelling west along Stuart Street and in the process of turning right into Richard Avenue, collided with the claimant.
No ambulance attended, nor were the police called. Lt Cmdr Marrison was taken home from the accident scene but thereafter immediately attended Queanbeyan hospital. X-rays were undertaken and it was determined that he had a new fractured L4 vertebra.
Lt Cmdr Marrison was off work for one week.
Due to his collective injuries, Lt Cmdr Marrison is now not able to undertake normal see duties as part of his role in the Royal Australian Navy.
Liability
The claimant lodged an application for damages on 18 May 2022. The insurer has omitted liability in full. There is no claim of contributory negligence.
The insurer has prepared a settlement agreement which is document A2 in the bundle provided to me and this is in order.
Medical evidence
The insurer arranged for the claimant to be examined by Dr Richard Powell and relies on his report of 29 December 2022.
Dr Powell noted the earlier mountain bike accident and referred to compression fractures of T9 and T11 vertebrae. He said that following the subject accident, repeat MRI scans confirmed the healing thoracic fractures in addition to a new fracture of the L4 vertebra as a result of this accident.
Lt Cmdr Marrison was under the care of Dr Ow-Yang. He was referred for pain management and underwent a corticosteroid injection and radiofrequency ablation although this was not beneficial according to the claimant.
During treatment, the claimant has had physiotherapy, hydrotherapy, osteopathy, acupuncture and Pilates. At the teleconference for approval of the settlement agreement, Lt Cmdr Marrison expressed his very great appreciation at the amount of assistance provided to him by NRMA to enable his recovery and rehabilitation.
Dr Powell said that based on his examination, he did not believe that the claimant required any further specific treatment in relation to his injuries he encouraged a self-directed exercise programme incorporating regular core strengthening and flexibility work as well as intermittent use of simple analgesia to assist in symptom control.
Dr Powell said that the claimant’s overall prognosis was reasonable. His condition is stable although his lower back may represent a source of intermittent symptoms into the future.
Dr Powell did not suggest that the previous injuries to the claimant’s thoracic vertebrae were impacted by this accident. On questioning by me, Lt Cmdr Marrison and also confirmed that he did not feel that his previous thoracic injuries had been made worse by the accident.
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 or not to approve or not approve Lt Cmdr Marrison’s settlement, I need to consider:
(a) appropriateness – whether the amount of the settlement is just, fair and reasonable, and
(b) understanding – whether Lt Cmdr Marrison understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
Appropriateness
The amount of the settlement I am asked to approve a settlement of $300,000 which comprises the following:
Past economic loss $50,000
Future economic loss $250,000
Subtotal $300,000
Deductions $nil
Total $300,000.
There is no entitlement to non-economic loss.
The claimant only had one week off work but it is arguable that he has missed out on a sea posting and increased income because of the accident and injuries suffered by him. Lt Cmdr Marrison’s ability to serve at sea is also compromised by his family circumstances.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states that no allowance may be made for future loss of earning capacity unless Lt Cmdr Marrison establishes that the accident has caused a change in his most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR 1 and Husher v Husher (1999) CLR 138 the High Court confirmed that the fundamental questions to be determined in a case such as this is whether Mr Gleeson has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
Having considered the report of Dr Powell and noting that the claimant has made a good recovery from his injuries and has also returned successfully to full time work, I am satisfied that the allowance by the insurer of $250,000 for future economic loss is an appropriate allowance. This takes into account the nature of Lt Cmdr Marrison’s injuries, his ongoing disabilities and his age. This amount is calculated with the benefit of a very extensive forensic accountants report from Mr Gwynne of PKF. Two accounting reports were obtained by the insurer. The second report was obtained in light of additional information and submissions made by Lt Cmdr Marrison. I accept the calculations and reasoning of Mr Gwynne within these reports.
Negotiations for settlement were entered into between the parties and these ultimately led to an agreement for settlement in the amount of $300,000.
Understanding
Having spoken to Lt Cmdr Marrision at the teleconference, I am satisfied that he:
(a) accepts the insurer’s offer and wishes to finalise his claim now;
(b) is aware that he can seek legal advice but does not wish to do so, and
(c) understands the binding nature of the settlement and this approval and that he may not be able to make a further claim for damages in the future.
CONCLUSION
I am satisfied that the proposed settlement figure of $300,000 complies with the requirements of clause 7.38 of the Guidelines in that it 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 the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.”
Pursuant to s 6.23 of the MAI Act, I approve the proposed settlement of the claimants claim for damages.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
· the Guidelines.
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