Insurance Australia Limited t/as NRMA Insurance v Shahedunnisa
[2023] NSWPIC 641
•28 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Shahedunnisa [2023] NSWPIC 641 |
| CLAIMANT: | Shahedunnisa Shahedunnisa |
| INSURER: | NRMA |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 28 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $125,000; 37-year-old female; past and future economic only; no entitlement to non-economic loss; 1% whole person impairment; right wrist fracture open reduction and fixation now healed; small allowance for past loss and intermittent ongoing future loss; buffers awarded; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 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 7.37 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 24 September 2020, Shahedunnisa Shahedunnisa (the claimant) was a front seat passenger in a vehicle driver by her husband Javeed, when the insured proceeded straight through an intersection colliding with the vehicle the claimant was travelling in.
Police and ambulance were called. (documents A4 and A5)
The claimant was then conveyed by ambulance to Liverpool Hospital (document AA5). The claimant remained in hospital and was discharged on 28 September following surgery to her right wrist.
Police attended the scene and an event report E3404388 was created.
The claimant remained in the care of her general practitioner Dr Mahajan who subsequently referred her to specialist Dr Bazina for review and management of an anomaly showing in her brain scan following a precautionary MRI test.
The claimant has made a claim against NRMA (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 13 June 2022 (document A3). By liability Notice (document A25) dated 15 August 2022, the insurer wholly admitted liability for the common law damages claim.
The claimant claimed that she sustained injury in the accident to the following areas of her body:
(a) fracture right wrist;
(b) back pain;
(c) neck pain, and
(d) head trauma.
The insurer has accepted that the claimant had sustained 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 if required.
The insurer relied upon the medico-legal assessment undertaken by Dr Richard Powell and his report dated 19 September 2022 to assess the nature of injuries. (document A9)
By letter dated 19 October 2023 (document A26) the insurer advised the claimant that it had formed the view her injuries did not exceed 10% whole person impairment. The claimant did not challenge this finding and conceded most of the injuries sustained had now fully resolved.
The claimant and the insurer have agreed to settle the claim for lump sum damages in the sum of $125,000. The basis of this latter offer was as follows:
(a) past economic loss a buffer of $25,000, and
(b) future economic loss a buffer of $100,000.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act and relevant Guidelines.
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. Clause 14(A)(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14(D) empowers me to determine these proceedings.
Because of the date of the accident cl 14(D)(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) apply to this matter.
THE RELEVANT LAW
Under ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Part 95 of the Personal Injury Commission Rules apply to matters before the Commission.
The proposed settlement must comply with the following requirements where the claimant is not represented by an Australia legal practitioner:
(a) 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 (now member of the commission), 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
(b) understanding - the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 10 November 2023
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 10 November 2023. The claimant participated in person and the insurer was represented by Larissa Mepstead.
A discussion as to the claimant’s ongoing symptoms confirmed that most of the injuries sustained in the motor vehicle accident had resolved. The ongoing impact of the residual wrist pain had impacted on her ability to undertake her pre-injury duties as a chef.
The claimant was asked about her earning capacity prior to entering Australia in 2017 and she informed me she was a chef in India. I asked if she had details of her qualifications and past employment to ascertain the impact of her injuries on the ability to be a chef in Australia as she had undertaken minor kitchen hand position since her arrival.
I was informed she had qualifications and evidence in India but this information was not available. I asked if she wished to seek out this information as it may impact on the assessment of earning capacity as it related to future economic loss. The claimant declined to obtain this information and requested that the matter be determined without any further information from her.
At the time of the accident the claimant had left employment as a kitchen hand at Tamarin Indian Restaurant some years earlier during 2019. She was operating as a casual Uber Eats delivery service riding her pushbike at the time of the accident. This had commenced shortly before the accident.
After the accident she changed to delivery service for Door Dash upon obtaining her driver’s licence.
Post accident she works approximately 10 hours weekly and this enables her to care for her young son.
When questioned as to her career interests, she acknowledged during the preliminary conference that she was a chef previously in India and had attempted on one occasion to work in a restaurant, some time in 2021 but could not recollect where or when, but found the cutting of food too difficult with her wrist injury. She had not tried this again.
The claimant confirmed she preferred to continue with the delivery service as it suited her lifestyle. She prefers the delivery service as her husband helps with the carrying of the food items and this source of income does not impact on her ability to look after her young son.
The insurer relied upon the opinion of Dr Powell who determine that with the recovery of the wrist there was no assessable impairment but considered the keloid scar situated at the operation site was a 1% permanent impairment. Her reported that her prognosis was “excellent”. I checked with the claimant if she wished to seek a second opinion on the issue of permanent impairment and the claimant responded “No”.
Noting the assessed permanent impairment and no other evidence to support otherwise, I confirmed to the parties during the preliminary conference that the claimant is not entitled to non-economic loss as her impairment is below the statutory threshold.
I also referred the parties to the medical evidence before me to check if the claimant wished to correct any point. I referred to the opinion of Dr Powell after examining the claimant on 15 September 2022, when he reported the history that she had minor intermittent symptoms of pain at her right wrist and that the soft-tissue injury to her neck and back had resolved. (IB76). The claimant confirmed the reported history as correct.
I noted that the claimant was referred to Dr Bazina neurologist by her general practitioner to manage what was found to be an anomaly in her brain, when an MRI was undertaken post-accident. Dr Bazina in his report to Dr Mahajan, confirmed that the anomaly was a congenital hydrocephalus and was unrelated to the accident. The opinion offered by
Dr Bazina:“she has a family history of father and siblings suffering with hemicrania continua like symptoms ….It is unlikely chiari I malformation will deteriorate …The most likely cause for her headaches and neck pain is the car accident and therefor a whiplash injury.”(IB84)
There was no further treatment being undertaken and no ongoing use of any medication. The clinical records of Dr Mahajan confirm the claimant’s last attendance for wrist injury was
15 June 2022 and this was a telehealth consultation. This history was confirmed by the claimant as accurate.The claimant was advised in this conference that if she had any concerns about the ongoing consequences of her injuries that she could request a further period to seek medical advice and also had an opportunity to seek legal advice if she wished.
I was informed by the claimant that she did not wish to seek [BG1] any further investigations medical or legal. She responded “I don’t want to do any further investigations, I just want the settlement to proceed”.
I asked if the settlement as proposed was accepted and the claimant informed me of the following:
“I accept it I am happy with the amount I will be paid.”
I asked the claimant if she understood the nature of the amended settlement terms and its finality and if it was being undertaken of her own free will. She responded to me:
“Yes, I understand the settlement, I have not been forced into it and I agree to it.”
I confirmed there were no deductions to be taken from the settlement sum. Ms Mepstead confirmed this.
The insurer was also asked if any further information or statement was to be made and
Ms Mepstead said “Nothing further Member thank you”.The preliminary conference concluded with me advising the parties that I would determine the matter on the available information before me.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
· Liability:
application for statutory benefits dated 30 September 2020;
application for common law damages dated 13 June 2023;
liability notice dated 5 January 2021 and 15 August 2022;
police report dated 9 October 2020 E340438894, and
records released under freedom of information request dated 21 April 2021
· Treating medical records:
NSW Ambulance record case dated 23 October 2020;
clinical records of Liverpool Medical Centre (document A11);
clinical notes Dr Bazina (document A10);
Clinical notes Dr Dave (document A12), and
Rehabilitation closure report dated 25 February 2021 (document A14).
· Medico-legal opinion
report Dr Richard Powell medico-legal dated 19 September 2022 (document A9).
· Economic loss material:
claimant’s Notices of Assessment for years ending:
30 June 2018 – 30 June 2022; (documents A20-23)
Bank statement (A15-16), and
Payslips of Tamarin Restaurant (A17)Certificates of capacity (document A11).
· Settlement documents:
Settlement Offer (A26);
Proposed Agreement (A27), and
Executed deed of agreement dated 19 October 2023 (A28).
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed during the first preliminary conference her injuries to her neck and back have resolved. The major ongoing difficulty was cutting food and carrying heavier items with her right wrist.
The claimant confirmed that she took over the counter pain relief occasionally if her symptoms flared up.
She reported no ongoing treatment was envisaged. She advised me that she had not required treatment for any of the injuries sustained in the motor accident for quite some time.
INJURIES
The clinical records produced in the matter confirm that the claimant initially sustained the following injuries:
· fracture right distal radius requiring open reduction and fixation, and
· whiplash injury.
The claimant underwent an X-ray of her right wrist and forearm in Liverpool Hospital following the accident. The X-ray revealed an intra-articular fracture of the distal radius, residual mild displacement and relative volar displacement of the major fragment/shaft with associated distal radioulnar fracture. The claimant was treated with a sandwich slab.
The claimant was readmitted to Liverpool Hospital on 27 September 2020 to undergo an open reduction and internal fixation (ORIF) of the right wrist under the care of Dr Jayker Dave, orthopaedic surgeon. On 19 March 2021, Dr Dave reported that it had been six months since the claimant’s fracture, and it had firmly united clinically and radiologically.
Dr Dave reported that the claimant had returned to all her home duties and did not require any further treatment. Dr Dave reported that the claimant had some irritation over her keloid type scar at wrist and plate and screws, however he believed they should not be removed.Dr Powell qualified by the insurer opined that the claimant’s injuries in majority resolved when he assessed her on 15 September 2022. The current symptoms complained of were “minor intermittent symptoms involving the right wrist. The pain remains well localised. No report of any significant stiffness or restricted range of motion...She reported no symptoms of functional limitation in relation to the neck or back” (IB73). There was no ongoing injury and no permanent impairment. He opined 0% whole person impairment.
Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment. I am satisfied that the claimant has no entitlement to damages for non-economic loss.
I accept that the claimant suffers a very occasional flare up of wrist pain when preparing some food dished that require cutting of hard vegetables such as carrots. This is likely to impact on her ability to perform heavier cooking tasks such as lifting heavy pots and strain when undertaking cutting or any task placing pressure on her right wrist for prolonged periods. The remaining injuries have fully resolved.
ECONOMIC LOSS
Past economic loss
The claimant was only working part-time some ten hours weekly. She had left employment in mid 2019 to take maternity leave Her intention was to work part-time whilst looking after her child.
The claimant was certified as totally unfit to work post-accident for six weeks.
At the date of the accident the claimant was working on a casual basis as a food delivery operator. She worked approximately 10 hours per week.
Records of income provided show the claimant in years prior had worked at a restaurant some 2.5 hours away from where she lived at the time and the insurer was unsure of the nature of the arrangements noting 5 hours travel a day.
This venture cease in 2019 and the claimant did not return to that employment.
The insurer to date has made no payment of statutory benefits. There is no credit sought by the insurer as it related to s 3.40 of the Act.
The earning capacity of the claimant during the period she worked at the restaurant was $886.87 weekly. Her Notice of Assessment for the 2019 revealed this information.
The claimant’s earning capacity at the time of the accident having now a child to primarily care for was reduced as the consequences of COVID-19 for the 2020 and 2021 year impacted on the claimant’s ability to exercise her earning capacity.
Noting that the claimant and the insurer have not been able to ascertain a weekly loss for the period of the date of accident to date of assessment, it is appropriate that the parties have acknowledged that the claimant’s injuries for a period impacted on her earning capacity and resulted in loss due to her inability to work as a delivery service provider whilst she was recovering from her wrist operation.
The agreed buffer of $25,000 for past economic loss noting the impact of COVID-19 is appropriate in the circumstances of this matter.
I am satisfied by the evidence of the claimant that she had no intention of working outside of a position of casual nature once having a child. She enjoyed the freedom of being a delivery driver and intends to continue in this role. Her injuries are not impacted by this activity.
Future economic loss
The claimant advised she did not think she could ever work as a chef again, due to the nature of her wrist injury. She reported that she tried it once for a few hours and did not make any further attempt.
I asked the claimant at the preliminary conference if she wished to produce evidence of her qualifications and information on her position of a chef, however she declined to do so advising she probably would not be employed as a chef in Australia, as she now had a family to look after.
The claimant reiterated that she was happy working as a delivery driver and confirmed but for the accident, it was her intention to continue doing so. The claimant is currently working as a delivery driver of food Door Dash and her earning capacity has not been altered since the accident. Her earning capacity is dependent on the hours she performs and the number of deliveries undertaken whilst on duty.
As to calculations of economic loss into the future, both the claimant and the insurer accepted that when and if there was a flare up of right wrist pain, the claimant may require rest. Relying on the medical evidence of the general practitioner’s records, the notes of
Dr Dave, who performed the wrist surgery and the opinion of Dr Powell that the claimant was fit to return to pre-injury activities. The claimant is currently aged 37 years and has 40 years to retirement.The claimant did not give any intention to work full-time in the near future and was uncertain as to whether she would return to full-time when her children were older. The claimant’s ongoing intention is to work casually to the extent it suits her lifestyle.
Noting that the claimant’s weekly earning capacity is variable, and that her injuries do not preclude her from working longer hours if she wishes, the parties agreed on a buffer for future economic loss in the sum of $100,000.
When queried as to whether she would take up a position as a chef, as she had indicated that she had previously undertaken such a position in India, the claimant did not think she would. When asked why? she stated “I don’t think I can”. When asked what she meant, she replied “I can’t cut food as I used to”. I asked her had she tried, she responded I did once in 2021 but have not tried it again.
I note that the claimant has not worked as a chef in Australia and did not wish to prosecute this potential issue as it related to future earning capacity. She confirmed she did not seek to claim any loss of earning capacity as a chef. She would continue being involved in her current role as delivery driver. I accept that but for the accident the claimant had an intention to work as a food delivery operator and this has not changed. She was riding a bicycle as she did not have her licence at the time of the accident but upon obtaining her driver’s licence now operated as a driver delivery service.
The part-time work has been the chosen lifestyle choice as it enables her to care for her son as well.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss. The circumstances in this matter accord with the most likely circumstances but for the accident.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the evidence provided by the claimant and the insurer in this matter and are 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 of the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.
The injuries sustained in the subject accident have in majority healed and any ongoing impact is now minimal. The claimant has no ongoing treatment needs apart from occasional pain relief medication. This is supported by the clinical records before me. The only ongoing symptom reported is minimal right wrist sensitivity over the scar site. Pain may be aggravated from time to time by over exertion when preparing meals or carrying a heavy item.
Further, it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine, as per Penrith City Council v Parks [2004] NSWCA 201. I agree that this is an appropriate matter for the award of a buffer as the claimant’s impairment to future earning capacity is variable.
Having reviewed the medical information and the claimant’s evidence as to what employment she would undertake but for the accident, I am satisfied that the sum allowed for both past and future economic loss is appropriate and within the range of damages had the matter been assessed.
The claimant is aware that from her settlement the insurer will only deduct if a claim is made by Centrelink. The claimant has advised she has not been in receipt of any Centrelink benefits so there is to be no deductions to be made. The claimant will receive the sum of $125,000.
I consider the agreed buffer for both past economic loss in the sum of $25,000 as a weekly loss could not be identified and the sum of $100,000 for future economic loss to reflect the intermittent impact on her earning capacity when her wrist pain is present is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission.
CONCLUSION
I am satisfied the proposed settlement of $125,000 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.
I am satisfied the claimant was aware she could seek legal advice but chose not to avail herself of 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 accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that there will be no deductions from the settlement sum.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the amount of $125,000.
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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