Insurance Australia Limited t/as NRMA Insurance v Mirenzi
[2022] NSWPIC 225
•12 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Mirenzi [2022] NSWPIC 225 |
| CLAIMANT: | Teresa Mirenzi |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | David Ford |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor accidents settlement approval; 88-year-old female; passenger in a motor vehicle accident, sustained a buckle type fracture of the 7th rib together with aggravation of pre-existing spondylosis of cervical and thoracic spine, bilateral knee pain, no allegation of contributory negligence alleged, agreed claimant has 20% whole person impairment in respect of physical injuries; entitlement to non-economic loss; no claim for past or future economic loss; Held- proposed settlement is just, fair and reasonable; Settlement approved; 1. the proposed settlement is approved; 2.the proposed settlement is approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017. |
| DETERMINATIONS MADE: | 1. The proposed settlement is approved under Section 6.23(2)(b) of the Motor Accidents Injuries Act. 2. The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines. |
Introduction:
On 6 April 2019 the claimant was a rear seat passenger in motor vehicle being driven by her cousin along Old Northern Road at Glenhaven when her vehicle was struck from behind by the motor vehicle being driven by the insured’s driver.
She was taken by ambulance to Westmead Hospital and admitted. Following discharge from Westmead Hospital, she continued to complain of pain and her daughter took her to the emergency department at Royal North Shore Hospital on 8 May 2019 and she was subsequently discharged on 9 May 2019, whereupon she was conveyed to Hunters Hill Private Hospital for rehabilitation where she was an in-patient for approximately 2 weeks and thereafter attended as an out-patient.
The records of Westmead Hospital confirm the claimant sustained a buckle type fracture of the 7th rib anteriorly on the right.
The submissions lodged by the insurer (document A1) under the heading “medical evidence” commencing at paragraph 16 provide a good summary of the various imaging reports and treating medical reports obtained on behalf of the claimant.
The claimant was examined by Dr Robert Breit on two occasions, and I refer to his reports dated 17 March 2020 and 9 November 2021. In his first report Dr Breit noted the following:
“The Claimant reported pain in the lower ribs and across the abdomen where there was a lot of bruises. There was pain in the knees, elbows and forearms. The Claimant’s daughter reported that she was seeing an Italian speaking psychologist.
Dr Breit diagnosed cervical spondylosis, probably thoracic spondylosis but no back pain, bilateral knee pain with soft tissue injuries with underlining arthritis, but there were no x-ray reports to review. The same applied to the shoulder. In his subsequent report Dr Breit gave a combined whole person impairment of 20% and accordingly, the claimant surpassed the threshold which entitles her to receive damages for non-economic loss. The claimant was born in June 1933 and is currently 88 years of age. The claimant has only sought damages for non-economic loss and has not sought damages for either past or future economic loss.
The claimant is not represented by a lawyer and accordingly, her settlement must be approved in accordance with the MAI Act.
I have decided to approve the proposed settlement as submitted in this application.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the dispute resolution service was abolished by clause 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.
Because the date of the accident clause 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (The Guidelines) continue to apply.
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) (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 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement certifies the timing requirements in section 6.23 (1) of the 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 the 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
(c) The claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
Teleconference 31 March 2022
The Insurer lodged the application for approval of the settlement and was referred to me for consideration. I held a teleconference on 31 March 2022.
The claimant participated in person with her daughter Rose Brett and also an Italian interpreter. The insurer was represented by Zorama Crnobrnja.
The insurer lodged on the portal the proposed deed of release and I approve the terms and conditions stated therein and I confirm the claimant will be paid the sum of $100,000.00 by the insurer and there are no deductions to be made from this said sum.
Should I Approve the Settlement
The I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $100,000.00 and I consider this amount to be acceptable and within the range likely to be awarded.
I am satisfied the claimant is aware of her right to have her reasonable treatment expenses paid.
Ms Crnobrnja advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act 1995 from the settlement sum. If any charge is raised, the insurer will pay the charge as a treatment expense in addition to the settlement sum.
CONCLUSION
I find the timing requirements of Section 6.23 (1) of the MAI Act satisfied where it is now 2 years since the date of the accident.
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 and impairments sustained by the claimant.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed sum.
Accordingly, pursuant to Section 6.23 (2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
David Ford
Member (Motor Accidents Division)
Personal Injury Commission
0
0
1