Insurance Australia Limited t/as NRMA Insurance v Rumble

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Insurance Australia Limited t/as NRMA Insurance v Rumble [2022] NSWPIC 616
Claimant:	Fay Rumble
insurer:	Insurance Australia Limited trading as NRMA Insurance
Member:	Susan McTegg
DATE OF DECISION:	4 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claim for non-economic loss; claimant now 86 years of age; injured as driver; fractured ribs; injury to cervical and thoracic spine; headache; post-concussion syndrome; dizziness; light headedness; feeling “spaced out”; impaired balance; post-traumatic stress disorder; major depression; pre-accident the claimant was independent and able to drive independently; post-accident capacity for domestic tasks limited; housebound; no longer able to drive or use public transport; unable to express self; Held – claimant sustained serious injury; accident has adversely impacted the claimant’s quality of life with no likelihood of improvement; settlement approved.
determinations made:	Settlement Approval 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

INTRODUCTION

On 19 March 2018 Fay Rumble (the claimant) sustained serious injury when the vehicle she was driving was T-boned by the at-fault vehicle which collided with the rear passenger door of her vehicle causing it to spin around before coming to a stop facing the opposite direction to her path of travel and on the opposite side of the road (the accident).
Mrs Rumble has made a claim against Insurance Australia Limited trading as NRMA Insurance (the insurer) of the at fault vehicle, for lump sum damages.
On 29 March 2022 the insurer accepted liability for the claim for common law damages.
The insurer has accepted that Mrs Rumble had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
The insurer has conceded Mrs Rumble has sustained a whole person impairment (WPI) of greater than 10%. This means Mrs Rumble is entitled to recover damages for non-economic loss.
Mrs Rumble and the insurer have agreed to settle the claim for lump sum damages for the sum of $320,000. Because Mrs Rumble is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
I held a teleconference on 4 November 2022. Mrs Rumble appeared in person with her daughter Tracie Martin and the insurer was represented by Ms Estelle Horrocks.

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 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.

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 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 Mrs Rumble, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) Mrs Rumble understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

DOCUMENTS CONSIDERED

I have considered the index and documents uploaded by the insurer to the portal numbered A1 to A78 including the submissions prepared by Ms Rapaport dated 12 October 2022.

REVIEW OF THE EVIDENCE

Mrs Rumble is now 86 years of age.

Pre-accident medical history

Mrs Rumble had chronic lumbar pain requiring surgery including an L4/5 and L5/S1 laminectomy and fusion at L4-S1. She developed cauda equina nerve entrapment with chronic neuropathic pain and left leg numbness leading to the insertion of a nerve stimulator in November 2017.
Mrs Rumble was on a range of medications prior to the accident including Lexapro, Thyroxin, Crestor, Vitamin D and Symbicort in relation to her pre-accident conditions of depression, hypothyroidism, cholesterol and past episodes of bronchitis.
Mrs Rumble also reported experiencing deafness in the left ear around five years ago and undergoing a left hearing implant.
Mrs Rumble underwent hernia repair surgery after her second spinal surgery and she suffers from ischaemic heart disease.
Prior to the accident Mrs Rumble lived alone at home and was independent in her activities of daily living, able to drive long distances and socialised with friends and family.

Post-accident medical history

After the accident on 19 March 2018 Mrs Rumble was transported by ambulance to St George Hospital where she was admitted. She complained of tenderness over her 8th and 9th ribs with posterior bruising over the left 8th and 9th ribs as well as cervical spine and mid thoracic spine tenderness. She exhibited pain of her right shoulder on abduction.
Mrs Rumble was seen by the trauma team and underwent investigations including CT scans of the brain, spine and chest. The CT scan of the cervical spine revealed moderate degenerative changes throughout the cervical spine with ankylosis of C5 and C6 vertebral bodies. Mild foraminal stenosis was noted at C3 and C4 bilaterally. A diagnosis was made of fractures of the 8th and 9th ribs and possibility of right rotator cuff injury. She was provided with physiotherapy treatment whilst an inpatient to regain mobility and was discharged on 22 March 2018.
Mrs Rumble developed worsening intermittent headache associated with some photophobia and occasional nausea. She developed headache with confusion and on 26 March 2018 was admitted to Sutherland Hospital where she was diagnosed with post-concussion syndrome. The neurological examination was unremarkable with the CT scan of her brain showing no acute intra-cranial haemorrhage.
Mrs Rumble did not feel secure for discharge home. She was assessed by an occupational therapist at home, and it was agreed she had below baseline mobility and function. She was transferred to Kareena Private Hospital on 29 March 2018 for rehabilitation under Dr Philip Conroy. Mrs Rumble commenced rehabilitation on 30 March 2018 with ongoing issues of headache, dizziness and shoulder pain managed with analgesia. She was ambulant with a
four-wheel walker and required minimal assistance with activities of daily living.
An ultrasound of the right shoulder on 4 April 2018 revealed a partial thickness tear at the insertion of the subscapularis tendon with focal tenderness and an effusion at the acromioclavicular joint.
Mrs Rumble was discharged on 9 April 2018. She was able to mobilise with a four-wheel walker but continued to complain of dizziness on walking.
On 27 April 2018 Mrs Rumble was reviewed by Dr Tan, consultant neurologist and neurophysiologist who noted her complaints of holocephalic headaches, associated with significant photophobia and nausea as well as mental fog. Mrs Rumble took Panadeine Forte and Panadol averaging three to four tablets a day with some relief of symptoms.
Dr Tan’s view was that Mrs Rumble had post-concussion syndrome with headaches and mental fog and her symptoms were gradually improving as expected. An MRI study was contraindicated due to her nerve stimulator. Dr Tan performed a greater occipital nerve block which she tolerated well.
The claimant commenced physiotherapy with Alex Rtshiladze on 23 April 2018. His clinical assessment was of severe cervical spine soft tissue trauma with headaches and eye pain, right shoulder injury, right acromioclavicular and right sacroiliac joint and sternum pain with soft tissue injury from the seatbelt.
Mrs Rumble was reviewed by Dr Geoffrey Rosenberg, orthopaedic surgeon who noted she did not report pain in her lower spine, the site of previous surgery, nor any leg symptoms.
Dr Rosenberg diagnosed soft tissue injuries and recommended treatment such as heat, massage and physiotherapy.
Mrs Rumble commenced psychological treatment on 21 June 2018 with Amanda Jones of Authentic Psychology. In a report dated 13 August 2019 Ms Jones provided a diagnosis of Major Depressive Disorder and PTSD. She also reported persistent headaches, especially when attempting to read, complete forms or discuss her situation, difficulty with balance, sleep disturbance, difficulty remembering words and often felt confused and “fuzzy” in her head. On 1 October 2019 Ms Jones reported Mrs Rumble had decided to see a psychologist experienced with neurological/chronic headache patients suggested by Dr Schwartz.
On 23 August 2018 Mrs Rumble returned to see neurosurgeon, Dr Saeed Kohan. He was of the view she had sustained whiplash injury to the capsule of the joints above and below the level of her pre-existing fusion due to the severe flexion and extension that occurred during the accident. Dr Kohan suggested bilateral facet blocks at C3/4 and C6/7 and if unsuccessful radiofrequency ablation of the sub occipital region targeting the greater occipital nerves.
Mrs Rumble saw geriatrician, Dr Shikha Jain on 29 August 2018 for cognitive assessment. She was noted to be independent with activities of daily living and personal care. Dr Jain considered her cognitive deficits could be a manifestation of ongoing depression and post-traumatic stress disorder and she was at high risk of developing dementia. Dr Jain recommended a change in medication and psychotherapy with a clinical psychologist.
On 3 December 2018 Mrs Rumble underwent bilateral C3/4 and C6/7 facet joint injections.
Mrs Rumble was reviewed by Dr Raymond Schwartz, neurologist on 24 April 2019. He noted the CT scan of the brain of 18 March 2018 revealed small vessel cerebrovascular disease likely to have been exacerbated by her post concussive syndrome. Dr Schwartz reported the CT SPECT bone scan revealed mild degenerative changes in the disco vertebral joints as well as in the atlantodental articulation of the left C6-C7 facet joints. He recommended a
C3-C4 and C6-C7 facet joint injection. Otherwise, he encouraged Mrs Rumble to attend a psychologist as he considered post-traumatic stress disorder was significantly undermining her well-being. He also recommended a program of core and proximal muscle strengthening with an exercise physiologist or physiotherapist.
Mrs Rumble underwent an activities of daily living assessment with OT Rehab Consulting on 29 August 2019. She was still experiencing neck pain, headaches, dizziness, difficulty sleeping and symptoms of “fuzziness” in her head and intermittent periods of confusion.
Mrs Rumble transitioned to exercise physiology with Luke Ursino, aiming to improve her mobility and activities of daily living. He undertook an Initial assessment on 9 August 2019 with reported symptoms being:
·        difficulty with memory retention;
·        dizziness and unsteadiness on feet;
·        general weakness and fatigue;
·        pain in lower back described as dull and constant;
·        pain in neck and shoulder described as ‘annoying and always there when moving’;
·        poor sleep patterns and inconsistency with sleep, and
·        decreased feelings of self-worth and motivation.
On 14 November 2019 Mrs Rumble commenced psychological treatment with Allie Mackay, psychologist. In an undated report she said the most recent appointment was on 4 May 2021 and Mrs Rumble had attended 29 appointments. She suggested Mrs Rumble’s psychological distress about her pain and feeling off balance since the accident has been associated with the belief that something physical is wrong and can be attended to. As a result, Mrs Rumble has explored many avenues, including review by a neurosurgeon, having her balance checked and having her hearing aids improved to improve her balance. She reported anxiety gets in the way of Mrs Rumble enjoying an active life, noting she is afraid to go out of the house in case she falls over.
On 13 April 2021 Dr James Yu, pain specialist assessed Mrs Rumble. He reported she had persistent widespread body pain including headaches, thoracic back pain, neck pain and lower back pain. Her headache was associated with dizziness, light headedness, sleepiness, confusion, fatigue and inability to concentrate with feeling of being “spaced out”. She had an unstable gait and was unbalanced during ambulation.
In accordance with Dr Yu’s recommendation Mrs Rumble completed the RESTORE multidisciplinary one on one pain management program over eight weeks with Sydney Spine & Pain in late 2021.
On 11 November 2021 Dr Yu reported that since commencing the programme there had been an improvement in physical function and balance. On 7 December 2021 Dr Yu reported continuing symptoms including widespread body pain and headaches associated with dizziness and light-headedness. He noted Mrs Rumble had completed the pain management programme and that she continued to engage in regular walking and chair exercises to improve her physical function.

Medico-legal reports

Mrs Rumble was reviewed by Dr Graham George, psychiatrist. He provided a report dated 16 August 2021. Dr George concluded Mrs Rumble had major depression with anxious mood incorporating elements of post-traumatic stress disorder. Dr George reported Mrs Rumble is now dependent on care, although she endeavours to do light household tasks. She cannot go out of the house without being accompanied. He reported she was socially withdrawn and could not drive. He recommended she continue with her treating psychologist while she had chronic pain. Dr George assessed 17% whole person impairment.
Mrs Rumble was reviewed by Dr Robert Breit, orthopaedic surgeon. He provided a report dated 25 January 2022. Dr Breit diagnosed soft tissue injury to the cervical and thoracic spine. He diagnosed soft tissue injury to the right shoulder which he considered had settled. Dr Breit reported Mrs Rumble had ongoing restrictions with lifting and carrying as well as overhead activities. Whilst he felt there was the possibility of improvement should her cerebral symptomatology improve, he also noted there would be natural functional deterioration as she aged. Dr Breit assessed 10% whole person impairment.

The claimant’s evidence

In negotiating the settlement figure Ms Tracie Martin, the claimant’s daughter provided the following comments of Mrs Rumble:
“This past 4 ½ years since the accident has been nothing short of horrific for me. I never asked for this. I did not ask to be hurt, to need on going medical treatment, to lose all my independence, not to mention the daily suffering from pain and the debilitating effects of my injuries. The life I had before the accident was filled with outings, travel, socialising with my friends, I was completely independent, I was happy.
I cannot put into words how this has destroyed my life, it has had such a major impact on everything, and all of it was caused by a man who did an illegal right-hand turn and said to me he was in a hurry. I often think how he is going about his day-to-day life and not even giving me a second thought. His life has not been destroyed because of his recklessness. But mine has.
Some days I am so bad with loss of balance and head spaced out I cannot leave the house at all. I rely on my daughter for practically everything, I only go out on my own when she is unable to take me to an appointment. She was forced to change her job to one of reduced hours so she could provide care and support.
My injuries including, loss of balance, head trauma, post-concussion syndrome, PTSD not to mention my physical pain and impairment impact heavily on my day-to-day life. I can no longer enjoy the things I use to. I cannot read books, follow a storyline, watch a movie, going out with my friends, or just going to a shopping centre to walk around the shops”.
During the teleconference Mrs Rumble informed me she was now housebound because she could no longer drive and was not confident catching the bus because of her poor balance. She stated she felt lightheaded or “spaced out” every day and found it difficult to get words out to express herself or to explain how she felt. She stated she no longer had a life and was merely existing.
Mrs Rumble and her daughter said the insurer has been extraordinarily supportive and helpful throughout the life of the claim and she did not feel there was any need to get legal representation.

Should I approve the settlement

Section 1.4 of the MAI Act defines non-economic loss as:
(a)     pain and suffering;
(b)     loss of amenities of life;
(c)     loss of expectation of life, and
(d)     disfigurement.
The current maximum payable for non-economic loss is $605,000.
Mrs Rumble has a life expectancy of seven years. The accident has adversely impacted her quality of life with no likelihood of improvement. Indeed, it is likely there will be an inexorable increase in her pain and disability as she ages.
Taking into account Mrs Rumble’s age and the impact of the accident on her activities of daily living I am of the view that the sum of $320,000 is an appropriate award of damages for non-economic loss.
I am satisfied that Mrs Rumble 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 Rumble understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Mrs Rumble understood there will be no repayment to Centrelink or any impact on her ongoing entitlements, although she may need to consider how the additional funds impact the assets test for her pension.
The insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. 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 sum.

Conclusion

I find the timing requirements of s 6.23(1) of the MAI Act satisfied where it is agreed Mrs Rumble has sustained a permanent impairment greater than 10% and where it is now two years since the date of 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, impairments and losses sustained by Mrs Rumble.
I am satisfied Mrs Rumble is aware she can seek legal advice but does not wish to do so.

I am satisfied Mrs Rumble 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 Rumble 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 Rumble’s claim for damages.

[2022] NSWPIC 616

4 November 2022