Insurance Australia Limited t/as NRMA Insurance v Ribeiro
[2023] NSWPIC 547
•17 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Ribeiro [2023] NSWPIC 547 |
| CLAIMANT: | Ana Ribeiro |
| INSURER: | NRMA |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $365,000; 63-year-old female; non-economic loss only; pedestrian suffered extensive injuries; fractures to pelvis, ribs and spine; burst anus and rectum; degloving gluteal injury; renal contusions and subarachnoid haemorrhage; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
Ana Ribeiro (the claimant) was a pedestrian struck at a petrol station and dragged and pinned by the insured’s vehicle on 13 April 2021.
She was transported to Royal Prince Alfred Hospital at Camperdown by ambulance.
The claimant sustained significant injuries. She remained in hospital to 28 July 2021.
The claimant brought a common law claim for damages dated 26 May 2021.
The insurer accepted liability for the damages claim on 14 June 2022.
The parties reached an agreement to settle the claim initially for the sum of $350,000 and upon a request from myself to provide additional material, the insurer revisited its offer and increase the sum to $365,000.
The claimant accepted the increased offer of settlement on 10 October 2023.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a Member of the Motor Accidents Division of the Commission.
THE RELEVANT LAW
Sections 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 Personal Injury Commission Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 23 June 2023
The parties had initially agreed on the settlement sum of $350,000 for non-economic loss. There was no claim for economic loss. At this preliminary conference with the parties, I discussed the nature of the application and confirmed that I would like to receive a statement from the claimant and updated medical information to reflect the claimant’s day-to-day functioning and impact of the injuries sustained. An interpreter was required and whilst a booking had been made by the commission the interpreter failed to appear.
The claimant was assisted by her daughter-in-law Samantha Cardosa during the videolink teleconference.
I requested updated treater’s reports to ascertain the present functioning of the claimant as it would relate to my assessment of the appropriateness of the amount agreed upon for non-economic losses.
I could not consider the appropriateness of the agreed settlement without this additional information. I also required a Portuguese interpreter to ascertain the claimant’s understanding of the agreement.
Preliminary conference on 19 July 2023
The arranged interpreter failed to appear for a second time.
I discussed the ongoing information received pursuant to earlier directions and requested further information as to ongoing treatment and likely operations, the extent of psychological treatment undertaken and the urgent need for psychological counselling to assist the claimant in making decisions as it related to the settlement of her claim as well as undertaking further recommended surgery.
The claimant was informed that she could undertake further investigations as to the nature and extent of her injuries and could delay any settlement pending the outcome of anticipated ongoing stoma surgery.
The parties were requested to provide additional information:
(a) copy of Dr Lahood’s patient history records;
(b) the claimant’s impact statement
(c) other statements from family members;
(d) details of psychological treatment and report of provider;
(e) updated clinical records of treating medical practitioner and specialists;
(f) records of Dr Grant Ewan, and
(g) report of treating psychologist.
I was informed that the claimant whilst not retaining legal representation had the benefit of her daughter’s father-in-law who was a practising barrister and that this person had provided advice to the claimant in relation to the appropriateness of the settlement. The claimant advised she was happy with the settlement and the opinion family barrister was supportive of the amount agreed to.
At this stage I advised the parties that I considered it premature to make a determination on the application without the additional information sought being produced.
The parties agreed to supply the material to me before I made my determination.
Teleconference on 4 October 2023
The lengthy video-conference took place with the assistance of a Portuguese interpreter arrange by the commission.
I confirmed with the parties that I had received the additional medical material and had also been informed that the claimant had in the interim undertaken further stoma repair on11 September 2023.
I questioned whether the claimant wished to delay the settlement pending the outcome of the most recent stoma repair. The claimant advised she did not wish to wait any longer for her settlement to be effected. She confirmed that apart from a recent incident with the new apparatus, she considered the operation a success. She confirmed that she considered her condition stable for now and wanted the application to be determined as soon as possible.
A lengthy questioning of the claimant as to her current limitations enabled the claimant to describe a recent incident where her stoma burst in public and she suffered humiliation when a member of the public abused her for the incident.
Upon hearing the distress to the claimant, the insurer made a further amendment to their offer to increase the sum by a further $15,000 for the recent incident post surgery.
The agreed settlement sum then was increased to $365,000.
I asked the claimant questions of her understanding of the finality of the claim as well as her confirming she was entering into the agreement of her own free will.
The claimant and her daughter-in-law confirmed her desire to accept the offer and confirmed she wanted the settlement to be approved. A break in the teleconference enabled the claimant to discuss the updated offer with her family. She had also the opportunity to seek additional advice from the barrister she had a connection with and on reconvening the video-conference confirmed she wanted to conclude her claim in the agreed sum.
I was requested to approve the amended terms of settlement by the claimant and the insurer.
The insurer was to prepare an amended terms of settlement and the claimant was to confirm the agreement in writing.
I received the further agreement dated 10 October 2023 and executed by both parties.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 467 pages:
· Liability:
police report dated 3 June 2022;
application for statutory benefits dated 9 May 2021;
application for common law damages dated 6 My 2022;
liability notice dated 14 June 2022;
concession to whole person impairment dated 3 November 2021;
Deed of release dated, and
submissions amended by insurer dated.
· Treating medical records:
ambulance report dated 18 May 2021;
discharge report Royal Prince Alfred Hospital (“RPAH”) dated 28 July 2021;
operation report RPAH dated 24 May 2021;
occupational therapy report dated 20 July 2021;
physiotherapy report RPAH dated 28 July 2021;
FIM assessment dated 19 July 2021;
Occupational Therapy rehab reports dated 30 August 2021 and 28 September 2022;
report of Dr Guzman dated 13 April 2021;
report of Dr Zhang 15 December 2021;
report of Dr Rizk dated 14 March 2023;
report of Dr Chung dated 10 March 2023;
report of Associate Professor Koh dated 13 May 2023;
report Associate Professor Hong dated 29 March 2023 and operation notes dated 8 May 2023;
certificate of fitness dated 14 April 2023;
various rehabilitation reports (document R20), and
Allied Health recovery reports (document R21 and R27).
· Statements:
Ana Ribeiro dated 17 July 2023.
Joao and Samantha Cardosa dated 17 July 2023.
· Settlement documents:
amended settlement agreement dated 4 October.
Injuries
Mrs Ribeiro sustained significant injuries which included:
· left occipital haematoma;
· multiple vertebral fractures right L2, L4, L5 and L3 with nil intervention required;
· rib fracture R3,4 and L7,8 and posterior 11and 12 no surgical intervention required;
· multiple right sided pelvis fractures ;
· right kidney laceration with thrombus right renal vein;
· burst injury to anal canal;
· multiple superficial lacertions subsequently healed, and
· psychological injuries.
On 13 April 2021 the claimant required a cystoscopy, defunctioning of a stoma and repair of anal sphincter. She remained in intensive care with multiple returns to theatre for drainage of bilateral flank and thigh collects as well as repair of back wound. She contracted a left lower limb deep vein thrombosis which required treatment.
She was discharged on 28 July 2021. Further management of her injuries came under the care of her general practitioner, Professor Koh for colorectal injuries and Dr Vasilaras urologist.
She was required to attend hospital for wound management, the fracture clinic for observations and treatment by a clinical psychologist. In addition to treatment, the claimant has required care and the insurer through rehabilitation services AHS provided additional care to assist the claimant with activities of daily living. Paid attendant care has been provided to the claimant.
The claimant’s pre-accident medical history included hypertension, Gastro-Oesophageal Reflux Disease and depression.
Medical opinion
The report of Katherine Whitmore of Rehab Consulting dated 19 August 2022 addressed the various care needs of the claimant as it relates to activities of daily living. (Document R22.)
As at 20 September 2022 reports from physiotherapists providing treatment confirmed the claimant had made good progress with exercise management. A limiting factor was the stoma “which restricts her movement and impacts on her confidence”. (Page138 of 184 of the insurer’s bundle.)
At this stage the claimant still had no capacity for lifting and carrying, pushing or pulling, bending or twisting. Pain was experienced at her lower back and upper right leg.
Right shoulder pain and range of motion had improved with physiotherapy.
Dr Rizk plastic surgeon reported on 14 February 2023 (p143 of insurer’s bundle):
“The examination revealed that the patient has a large split skin graft occupying 90% of the lower back, extending to the superior buttock and the lower portion of the mid-back. The skin graft is over the lumbar fascia, adipose tissue, and may extend onto the muscle. The patient is experiencing reduced flexibility, discomfort, and a feeling of carrying something on her back, along with dry skin. The split skin graft is meshed and healed well, but is contracted reducing mobility. The patient is also obese, with tissue superior and lateral to the graft moderately mobile. The patient also reported other injuries arising from the accident, including pelvic injuries, bowl injuries, a stoma, and a pulmonary embolus requiring a filter.”
As to ongoing management he commented:
“During the consultation, we presented a number of management options to the patient, including continuing physiotherapy and massage, adding hydrotherapy and exercise once the stoma is reversed, serial excision of the skin graft with advancement flaps for reconstruction, and multiple sessions of fractional carbon dioxide treatments to soften the scar. Considering her anxiety and some remaining function, non-surgical management is recommended”.
Parkway rehabilitation reviewed the claimant on 10 March 2023 to assess cognitive problems associated with mild blunt traumatic brain injury. At this consultation the only treatment being received was scar management and stoma management.
Dr Chung rehabilitation physician opined that anxiety impairs the claimant’s attention to tasks. “I suspect she does not absorb everything that is said and therefore presents as confused or uninterested... it is less likely that there is neurological deficits”.
Psychological treatment was recommended. It was also undertaken with seven out of eight sessions completed at the time of assessment. The report of Dr Sufredini dated 7 September 2023 diagnosed Post-Traumatic Stress Disorder and Generalised Anxiety Disorder. He reported improvement and reduction of anxiety with cognitive behaviour therapy.
Associate Professor Hong provided a second opinion on 23 March 2023 relating to stoma prolapse and hernia. He suggested a stoma reversal and repair of hernia. This was undertaken on 11 September 2023.
The evidence from the claimant at the last teleconference confirmed that apart from one episode of a slight leak, the stoma repair and hernia operation appeared to have been a success.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of Clause 7.37 of the Guidelines, in that it 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”.
Accordingly, the insurer recommended the proposed settlement figure of $365,000 be approved. The claimant also confirmed her desire that the settlement be approved by me.
Impact of injuries upon the claimant
The claimant’s statement made on 16 August 2023 highlighted the impact of the injuries sustained upon her. She reported the following:
“Before the accident I was very busy, I went out a lot with my friends. I am dancing in a Portuguese dance group. I like to spend time with my family, smoking sausage, cooking bread & gardening. I love going to English school to learn and meet new friends. Even though my English was no good. I still did everything by myself. I did not have a driver's license but I would catch the bus and walk everywhere. I like to catch the bus to the shops and go shopping. I would go out to dinner with my friends and travel Australia, Portugal & Spain to visit my family. I enjoyed looking after my granddaughters teaching them to cook and speak Portuguese. I also like to decorate my home and did some renovations with the help of my friends. I love to grow the most beautiful roses. I had a very very big backyard with lots of plants and a pizza oven for the bread. after my daughter died for the very first time I could go out. I could do the things for me. I couldn’t believe how happy I was, how much I could do on my own, learn and experience things. I was excited for the first time to look for a job after I finish English school. I could not do this before because of my daughter in wheelchair.
Now the pain is very bad, so bad I can’t do much, nothing. I get very scared at home in the bed and when I see a car, I cry, I cry so much. I get confused easily, I forget lots, my son has to tell me too many times the same thing. Sometimes I just sit in the chair in my house and cry for long time. I can’t speak of the accident. All I do is cry. Sometimes I wish I did not survive. Its very hard. I hate the stoma bag, I worry I smelly. It’s very hard for me to change the bag to go out with my friend maybe there’s no toilet. Some friends not talk to me no more. I feel very alone. The only person that look after me good is Samantha and my son. But they have a daughter very sick long time and it’s very hard for them to. Sometimes Samantha cry because it’s too much this accident not good for my family. for my life forever I will be very sad. My life is very hard now and the pain doesn’t go away ever. “
Her daughter in law made a further statement:
“Before the accident Ana cared for her severely disabled, wheelchair-bound daughter, for 29 years. Her daughter passed away five years ago. Ana grieved hard for 12 months, but finally Ana realised it was her time to live & enjoy her life. After not being able to have a career or social life due to her daughter’s care needs. She was finally a free woman. (Note: her husband died in 2004 so she was the sole carer of her daughter.)”
Statement of Joao and Samantha Cardosa
The claimant’s son and daughter-in-law made a joint statement dated 17 July 2023, it recorded the following:
“She was a very social woman, she was going to English school with the goal to ‘get’ a job, she was dancing in a Portuguese school, traveled & performed. Unfortunately when COVID hit Ana’s English school was closed. Ana enjoyed hours of gardening, growing her beautiful roses & cooking with her friends & family. She looked after her grandchildren regularly and taught them Portuguese. Overall a very social & happy woman. She was in good health and had future goals set to achieve.
The accident happened as Ana was preparing to return to English school post pandemic. On the day it happened she had actually just attended a Centrelink meeting to arrange her return to English school & was on her way home.
Now Ana is mostly at home & isolated due to the excruciating pain & anxiety she has. She can not dance, leave the house for long periods of time. Her anxiety is triggered by the sight of any car. She also struggles to sleep most nights because she has flashbacks of the accident. She cant bend over & touch the floor, she can’t cut her own nails, bend into pick up things from the freezer, do daily cleaning tasks, she can’t color her own hair or do any personal care without assistance including showering is very difficult & causes lots of pain. Panadol does not help with pain relief & because of the stoma bag stronger options are not appropriate. She spends at least two days a week in appointments/treatments. She comes home exhausted and sore from physiotherapy.
The stoma bag has effected her quality of life, both mentally with severe anxiety, depression & physically is a barrier when she tries to go out. She’s struggling to manage & needs to be close to a bathroom which can cause extreme stress.
She’s no longer able to have her grandchildren stay over, look after them, teach them Portuguese & the children struggle to deal with her disabilities. As ‘avo’ is not who she once was. The grandchildren no longer have the strong bond they once had with their grandmother.
Due to her mobility, pain issues & the future treatment required. She’s unable to work, go back to English school & achieve the goals she had set herself. Ana is even unable to travel back to Portugal to see her family, something she would do. The flight would be too long, painful & the risk for DVT is too high. Ana’s sister actually passed away last week in Portugal and she is unable to make trip for the funeral, this is taking a severe mental toll on her.
Everything that’s ever given her joy no longer does, because she’s no longer the fit & vibrant woman she once was. Ana spends many days crying, complaining & feeling completely helpless. She requires a lot of support from joao (son) & Samantha (daughter in law) for day to day activities, assisting with paying bills, managing banking problems etc. Ana also has support workers 5 days a week for home care and transport to appointments. Every time something happens she rings Samantha & She spends hours trying to help her as she cries completely overwhelmed by the woman she now is. Helpless, frail, exhausted & defeated. We are all exhausted Samantha has managed all of Ana‘s care and insurance claim since the day of accident.”
REVIEW OF THE EVIDENCE
Statements
The claimant, her son and daughter-in-law have provided information that reflects the pain and suffering the claimant suffered and continues to suffer as a consequence of her injuries both physical and psychological sustained in the motor vehicle accident.
She is in need of ongoing psychological treatment to assist her in adjusting to a life limited by her injuries.
She is still undertaking physical treatment, recently undergoing surgery to repair her stoma and hernia to improve bowel functioning.
She is limited in her ability to undertake activities of daily living and also social and
recreational activities which she enjoyed before the accident.
INJURIES
Upon review of the medical information, I am satisfied that the claimant suffered significant injuries. Many of the orthopaedic injuries, namely fractures to spine and ribs have now healed.
Abrasions and contusions have healed with the exception of significant scarring to her back. The scarring to her lumbar region has resulted in ongoing pain and lack of flexibility and restriction of movement.
The colorectal injury remains problematic. She continues to undergo treatment including recent repair to the stoma. The colorectal injury impacts on social and recreational activities and this will continue for the remainder of the claimant’s life.
The psychological impact of having to live with her injuries has been significant. The claimant suffers ongoing depression and anxiety. She has to date undertaken seven of eight approved sessions and will continue with the proposed treatment which is likely to include a further eight sessions. The claimant’s daughter-in-law Samantha Cardosa has noted some benefit of the recent treatment and its ongoing value.
The claimant requires ongoing assistance and care commercially provided to undertake activities of daily living. The insurer has regularly obtained progress reports and provided the necessary care to assist her with personal attendant care needs, assistance with performing household chores, cleaning, transportation and shopping.
The claimant at the time of determination of the application continues to have restricted mobility as well as restricted range of movement of her lumbar spine and upper limbs as well as limited left hip flexion due to her Stoma bag. She has reduced confidence and heightened anxiety regarding her ability to manage tasks independently.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the MA Guideline.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for non-economic loss is $365,000; there is no claim for any other economic losses.
(ii)Sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The sum of $20,000 has been paid to the claimant as an advanced payment for financial hardship and this amount will be deducted from the agreed sum.
(iii)Sub-clause 7.389.3 requires the amount of any advanced payments made be specified. This has been specified and is known to the claimant.
Medical expenses have been met by the insurer and these do not form part of the settlement.
(iv)Sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant period to date. I note the medical records provided and opinions of specialists as well as the records of the claimant’s general practitioner and relevant specialists produced in the matter give me a good indication of the injuries, treatment and prognosis. I have also received a written statement of the claimant, her son and daughter-in-law as well as oral information directly from the claimant and her daughter-in-law at video-conferences. There has been limited psychological treatment to date and it is anticipate that there will be ongoing treatment for psychological injury in addition to other treatment related to her stoma.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: Appropriateness – 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 injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satisfied that the nature of the ongoing injuries have been identified and that the sum agreed upon is is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(ii)Sub-clause 7.399.3: Understanding – the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses. She was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately, if appropriate.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $365,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant and the age of the claimant.
I am satisfied the claimant was aware she could seek legal advice and did through a related family member, but chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition. Whilst not legally represented she had the benefit of legal advice in relation to the offers made through the father-in-law of her son.
I am satisfied the claimant is aware that $20,000 will be deducted from the proceeds of settlement to reflect the advanced payment made on 26 July 2022. She will receive $345,000 net.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Injuries Guidelines.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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