Insurance Australia Limited t/as NRMA Insurance v Schranz
[2023] NSWPIC 437
•1 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Schranz [2023] NSWPIC 437 |
| CLAIMANT: | Erika Schranz |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | David Ford |
| DATE OF DECISION: | 1 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 89 -year-old female, passenger in motor vehicle; accident in a car park when vehicle accidentally drove through the boom gate, through a glass wall into premises of a car wash; claimant sustained a non-displaced fracture through the C2 vertebra; subsequent pain and restriction of movement of cervical spine; claimant is retired; surgery not recommended; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE DETERMINATIONS MADE 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 7.38 of the Motor Accident Guidelines |
STATEMENT OF REASONS
INTRODUCTION
On 7 March 2019 Erika Schranz (the claimant) was a passenger in a motor vehicle being driven by her husband out of the exit to the Penrith Westfield car park, via Riley Street. There was a complication at the boom gate, and her husband accidentally accelerated the vehicle through the boom gate, through a glass wall, into the premises of Star Car Wash. Police and ambulance attended the scene of the accident.
The claimant was taken by ambulance to Nepean Hospital, where she underwent
X-rays which disclosed an undisplaced fracture through the C2 vertebra. This fracture extended into the right lateral C1-2 joint and the left C2 pedicle. Her injury was managed by the wearing of an Aspen collar. She remained in hospital until
26 April 2019, and then transferred to Braeside Hospital at Fairfield until 28 May 2019. She remained in the brace for a period of 12 months.
The claimant suffered from several pre accident conditions, which are set out in detail in paragraph 8 of the admissions lodged by the insurer. Her injuries were managed with physiotherapy, occupational therapy, psychology, dietetics and social work. She came under the care of Professor Eftekhar. On 5 December 2019, Professor Eftekhar was pleased with her progress, and she had come off the collar and her flexion-extension lateral cervical
X-rays were satisfactory cervical X-rays were satisfactory. On 5 December 2020, he reported he was pleased with her progress as the X-rays of her cervical spine was satisfactory.
The insurer arranged for the claimant to be examined on a medico legal basis by
Dr John Bosanquet and I refer to his report dated 2 March 2022. He undertook a physical examination of the claimant and also viewed a number of imaging reports. He confirmed she had sustained an undisplaced fracture of the body of the C2 vertebra which has been managed non operatively. He considered the claimant had regained good movement in her cervical spine, with minimal symptoms. He also stated she had regained most of her pre-injury functions.
The claimant was born in 1934 and is presently 89 years of age. She is retired.
The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only. The insurer has proposed a settlement offer of $200,000.
The claimant advised me she wishes to accept the proposed settlement.
I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (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 (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 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 of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim.
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 he 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 settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
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 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, taking into the account the nature and extent of the claim and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 23 AUGUST 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 23 August 2023. The claimant participated in person and the insurer was represented by Simon de Chasteigner Du Mee.
The amended proposed deed of release was subsequently lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages in the sum of $200,000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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