Insurance Australia Limited t/as NRMA Insurance v Sturge
[2025] NSWPIC 42
•11 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Sturge [2025] NSWPIC 42 |
| CLAIMANT: | Catherine Jane Sturge |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 11 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; motor vehicle accident; T12 compression fracture; non-economic loss; economic loss; section 6.23; liability admitted; Held – settlement approved in the sum of $447,706.19; settlement within the range of likely potential damages assessment. |
| DETERMINATIONS MADE: | SETTLEMENT APPROVAL Issued under s 6.23 of the Motor Accident Injuries Act 2017 |
INTRODUCTION
On 23 April 2022 Ms Catherine Jane Sturge (the claimant) sustained injury when the at fault vehicle collided with her pushbike causing her to be thrown onto the bonnet of the vehicle before landing on the pavement in the middle of the road (the accident).
The insurer accepted liability for the common law claim for damages on 10 November 2024.
Ms Sturge was 56 years of age at the time of the accident.
In the Application for personal injury benefits dated 8 March 2020 Ms Sturge described her injuries as follows:
“I received bruising to my legs. I have pain in the area of my coccyx. I have an acute endplate fracture of the T12 vertebral body with 50% loss of vertebral body height.”
The insurer accepted that Ms Sturge had non-threshold 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 conceded Ms Sturge sustained a whole person impairment (WPI) greater than 10% and agreed Ms Sturge is entitled to recover damages for non-economic loss.
The claimant and the insurer have agreed to settle the common law claim for damages in the sum of $447,706.19. The insurer will be entitled to credit for the sum of $1,394.13 in respect of statutory benefits already paid to her, leaving the claimant with a balance of $446,312.06.
The offer is calculated as follows:
· Non-economic loss $250,000
· Past economic loss $1,466.19
· Future economic loss $196,240.
Because Ms Sturge 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 with the Personal Injury Commission (Commission) and it was referred to me for consideration.
THE RELEVANT LAW
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 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 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 Ms Sturge, and taking into account any proposed reductions or deductions in the proposed settlement;
(b) Ms Sturge understands she is entitled to be represented in respect of the claim by an Australian legal practitioner, and
(c) Ms Sturge understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS CONSIDERED
I have considered the documents uploaded by the insurer in one indexed and paginated bundle on 7 January 2025 paginated from page 1 to 163.
THE EVIDENCE
Ambulance report
The ambulance report states:
“.. Car vs bike …Pt states car impacted bike, Pt fell onto bonnet and then landed on ground straight onto back. … Pt now C/O lower back pain. … Pt now C/O lower back pain. … Nil haematoma/bleeding to head, Nil C- spine pain on palpation. … nil pain palpation of hips, long bones intact, Pt pain palpation of lumbar spine, reports normal neurovascular sensation/movement to both legs …”
Royal Prince Alfred Hospital
Ms Sturge was conveyed by ambulance to Royal Prince Alfred Hospital. On examination there was tenderness over the lumbar region and limited ROM. A CT scan demonstrated an acute endplate compression fracture of the T12 vertebral body with 50% loss of vertebral body height. She was prescribed analgesia and discharged home for review by her general practitioner.
Dr Samuel Hay, general practitioner
Dr Hay first saw Ms Sturge on 27 April 2022. In a Certificate of capacity/certificate of fitness (certificate) he described the diagnosis as “T12 vertebral fracture and multiple soft tissue injuries”. He certified the claimant fit for work from 23 April 2022 to 16 June 2022 for six hours a day five days a week. He imposed a 10kg lifting capacity, and the claimant was otherwise to avoid prolonged standing, prolonged sitting and any repetitive lifting, pushing or pulling.
In a certificate dated 24 June 2022 the restrictions were continued until 16 August 2022.
Mitchel Van Noort, exercise physiologist
In his Discharge Report dated 10 October 2022 Mr Van Noort reported Ms Sturge had completed 32 sessions. Ms Sturge had sought treatment for symptoms of mid and lower back tightness. Mr Van Noort reported symptoms currently arise when sitting or standing in prolonged positions for greater than two hours.
He reported Ms Sturge was performing pre-injury duties with no limitations from her previous functional capacity. He reported nil functional or capacity limitations in relation to her pre-injury status. Mr Van Noort reported Ms Sturge completed a 50km recreational cycling event in early October.
Statement of Catherine Sturge
Whilst her statement was undated Ms Sturge referred to attending an exercise physiologist three times a week.
Ms Sturge described the collision as terrifying. She felt a sense of hopelessness lying in the road unable to move and in severe pain.
She stated due to the time sensitive project she was working on at the time she was unable to take much time off to recover from her injuries and worked in severe pain, whilst wearing a back brace. Ms Sturge stated she could not sleep due to the pain and movement was extremely difficult and painful.
Ms Sturge stated she continues to experience pain and stiffness in her back which limits her ability to walk or stand for extended periods of time. She described pushing a shopping trolley, vacuuming and dusting as tasks which cause pain and stiffness. She described sitting for extended periods caused discomfort and pain and she often must change positions or stand up. Ms Sturge stated her job as a Commercial Services Consultant requires her to sit at a desk for extended periods of time. She also described difficulty performing tasks that require standing such as cooking or tasks that require her to effectively bend and lift.
Ms Sturge described difficulty with socialising, noting she also needed to be close to a place to sit. She considered her injury would cause her limited mobility which might make overseas travel difficult.
Ms Sturge said her main concern is for the future and the deterioration of the T12 vertebrae. She considered the injury will shorten her ability to work due to pain, noting she had hoped to work into her 70’s or undertake volunteer work and travel.
Ms Sturge also discussed her restricted ability to ride her bike, a loved pre-accident activity. At that time, she said she rarely rode due to the psychological trauma of the accident and the subsequent injuries. She was limited to using a stationary bike for her rehabilitation at the gym.
Email from Catherine Sturge
In an email dated 2 December 2024 Ms Sturge advised she started work in a new role on Monday 2 December 2024 as Delivery Coordinator with Westpac on a fixed pay of $110,000 per annum plus super or $122,650 gross per annum including superannuation. She was also eligible for the variable reward of $12,000 per annum.
Ms Sturge stated the role was comparable to her previous role but introduces event coordination responsibilities. She states:
“These duties include attending events, setting up venues, greeting attendees, and addressing technical or logistical issues. These tasks require prolonged standing and significant physical effort, such as lifting and carrying items like furniture, stationery and event equipment. Given my T12 spinal injury, these physical demands are likely to exacerbate my condition.
I am concerned that the combination of these new physical requirements and prolonged desk work will shorten my working life. I anticipate being able to work full-time for the next two years. From 2027 to 2028, I expect to reduce my workload to four days per week. By 2029 and 2030, I anticipate working only two days a week, with retirement planned for 2031.
Additionally, the T12 fracture has introduced other challenges. For example, I am experiencing increasing difficulty getting in and out of my Subaru Impreza hatchback. The low seating position places undue strain on my back as I enter and exit the vehicle.
Further, I reside on the top floor of a three-story building without an elevator. Although I can currently manage the stairs, it is becoming increasingly difficult. Tasks such as carrying groceries, suitcases, or other heavy items will only be possible with the assistance of my partner.”
Taxation records
The insurer notes the claimant’s taxation records disclose the following taxable income:
Tax year
Taxable income
FY 2019
$79,073
FY 2021
$130,426
FY 2022
$130,317
FY 2023
$149,034
FY 2024
$145,159
PRELIMINARY CONFERENCE ON 10 FEBRUARY 2025
Ms Sturge appeared in person and Mr Gil appeared for the insurer.
Ms Sturge said she did not wish to seek legal advice and, in fact, was not even aware she had an entitlement to bring a claim for damages until advised by the insurer. Ms Sturge said the insurer has been very helpful and she understood the offer for future economic loss was based on her own assessment of her future earning capacity.
Whilst Ms Sturge was discharged from the care of Mr Van Noort on 10 October 2022 she informed me she has continued to attend exercise physiology under the care of his colleague.
Ms Sturge confirmed that the pain and restrictions described in her statement remain. I asked Ms Sturge about the 50 km bike ride she reportedly completed in early October 2022. She said she completed that ride because it was already booked in but she is generally not confident riding her bike, particularly in Sydney. She will occasionally ride on designated bike paths but even then remains fearful because she was riding on a bike path when the accident occurred.
Ms Sturge advised the job she commenced with Westpac late last year is going well, she walks to the station and catches the train to her office in Sydney.
Ms Sturge is concerned about the impact of the injury as she ages.
Ms Sturge confirmed she wished to settle her claim for damages for the sum of $447,706.19.
Ms Sturge confirmed she was aware approval of the settlement will mean she is unable to make any further common law claim for damages for non-economic loss and for wage loss arising out of the accident.
Ms Sturge confirmed she was aware of her right to have her reasonable treatment expenses paid for the remainder of her life.
I informed the parties I was prepared to approve the settlement.
SHOULD I APPROVE THE SETTLEMENT
Non-economic loss
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 $654,000.
Ms Sturge is currently 59 years of age with a life expectancy of 28 years. I consider the allowance of $250,000 for non-economic loss to be within the range of the award of damages the claimant would receive for non-economic loss if the matter was to proceed to assessment.
Past economic loss
At the time of the accident the claimant worked as a Learning Support Consultant. Her
pre-injury earnings were $2,154.89 per week.
The claimant received weekly statutory payments of compensation for the period
24 April 2024 to 1 May 2022 and from 27 June 2022 to 30 June 2022 under s 3.6 of the MAI Act at 95% of her gross weekly earnings.
Past economic loss of $1,466.19 has been calculated as follows:
· 24 April 2022 to 24 April 2022 – paid $89.66 – an additional 5% = $4.48;
· 25 April 2022 to 1 May 2022 – paid $500.35 – an additional 5% = $25.02, and
· 27 June 2022 to 30 June 2024 – paid $851.28 – an additional 5% = $42.56.
Adding the additional sum payable for the 5% loss ($72.06) to the amount of weekly payments ($1,394.13) give rise to the sum of $1,466.19. This is the sum the insurer submits is payable for past economic loss.
Future economic loss
In assessing future economic loss, it is necessary to 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.
I accept Ms Sturge will experience increasing difficulty in maintaining her employment particularly given her difficulty in sitting for prolonged periods. I am satisfied the injury will shorten the claimant’s working life and that it is reasonable for her to be compensated for her inability to maintain full time employment until retirement.
The insurer has calculated the claim for future economic loss by reference to the claimant’s current earnings of $122,650 inclusive of superannuation with Westpac.
Ms Sturge anticipates she will be able to maintain full time employment for the next two years. Thereafter she expects it will be necessary to reduce her workload to four days per week, during the 2027 and 2028 calendar year, further reduced to working two days a week in 2029 and 2030 with plans for retirement in 2031.
Based on this claim the insurer has assessed future economic loss of $196,240 calculated as follows:
(a) 2027 - 2028 based on diminished capacity for one day. One days diminished capacity per year is calculated at $122,650 divided by 5 = $24,530. One days diminished capacity for two years is $24,530 x 2 years = $49,060.
(b) 2029 – 2030 based on three days diminished capacity. Three days diminished capacity per year is $24,530 x 3 = $73,590. Three days diminished capacity for two years is $73,590 x 2 years = $147,180.
Generally
I am satisfied that Ms Sturge is aware of her right to have her reasonable treatment expenses paid for the remainder of her life.
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 as part of their obligation to pay statutory benefits.
CONCLUSION
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 Ms Sturge.
I am satisfied Ms Sturge is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Sturge 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 Ms Sturge is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of $447,706.19 in respect of the claim for damages.
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