Insurance Australia Limited t/as NRMA Insurance v Thompson
[2025] NSWPIC 111
•25 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Thompson [2025] NSWPIC 111 |
| CLAIMANT: | David Victor Thompson |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 25 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $180,000 non-economic loss only; 92-year-old pensioner; insurer conceded entitlement to non-economic loss; injuries include now healed left and right rib fractures, sternal fracture, right shoulder fracture, and cervical injury; Held – settlement approved under section 6.23(2)(b); settlement complies with clause 7.37 of the Motor Accident Guidelines, Version 9.3. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $180,000 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 Injuries Guidelines version 9.3. |
STATEMENT OF REASONS
INTRODUCTION
David Victor Thompson (the claimant) was travelling in his car on 20 June 2021 when the insured’s driver collided with his vehicle head on.
The Port Macquarie Private Hospital Records dated 19 July 2021 recorded the following assessment following the accident: Multiple fractures. Mildly displaced fracture left transverse process C7. Fracture sternum. Right glenoid fracture. Bilateral rib fractures. Laryngeal cancer resection 6 years before. Home with supportive son. Prior to motor vehicle accident independent. No services. Then living with his wife. Wife passed away after a stroke during Mr Thompson's admission at Port Macquarie Hospital. Thereafter he remained under the care of general practitioner (GP) Dr Mina Sorial.
An Application for Personal Injury Benefits was lodged on 12 July 2021.
The claimant brought a claim for common law damages on 10 January 2025 alleging he sustained the following injuries:
(a) neck injury;
(b) rib fractures;
(c) sternum fracture, and
(d) shoulder fracture.
He reported that he has ongoing pain and restriction of movement in particular to his neck and ongoing difficulties with sitting for prolonged periods, undoing seat belt and dressing.
His treatment was limited after initial treatment to physiotherapy. Since mid-2022 the only ongoing treatment is ingestion of over-the-counter pain medication such as Panadol. There have been no ongoing GP attendances or physiotherapy.
Insurance Australia Limited t/as NRMA (the insurer) admitted liability for the common law claim on 30 January 2025.
The insurer conceded that the claimant was entitled to damages for non-economic loss on
17 October 2024.
An offer was made on 30 January 2025. and the claimant agreed to the terms on 3 February 2025.
The parties have reached an agreement to settle the claim in the sum of $180,000 for non-economic loss only. As the claimant was retired at the time of the motor vehicle accident, there is no claim for economic loss past or future.
The claimant is currently 92 years of age.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Motor Accident Guidelines version 9.3 commencing 4 December 2024. (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) repealed;
(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 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 19 March 2025
The nature of the application was discussed with the claimant and his son. The son of the claimant Nigel was present and provided the responses to my questions relating to the current status of his father’s injuries and disabilities. This was because the claimant had a laryngectomy due to throat cancer and had difficulty speaking. There is no claim for economic losses as the claimant confirmed that he was retired at the date of the accident. He is aged 92 turning 93 in June.
When discussing current and ongoing treatment the claimant was also informed that he could also seek legal advice in relation to his claim before the matter was finalised. The claimant confirmed he was not interested in seeking legal advice as he was happy with the terms of the settlement and considered it was “not necessary” to seek further advice.
The claimant confirmed his ongoing problems related to occasional neck pain requiring the ingestion of Panadol and heat packs for his neck stiffness. The other ongoing restrictions were:
(a) an inability to sit in a car for long periods of time;
(b) difficulty undoing his seatbelt;
(c) difficulty dressing if he raised his right shoulder in certain positions, and
(d) he had not required any treatment for a considerable period of time.
Due to his age now 92, he was receiving some assistance from his son Nigel.
The claimant confirmed to me his understanding of the nature of the agreement and its finality. The claimant requested the matter proceed to determination.
The insurer confirmed that there were no deductions relating to any statutory payments made and the whole amount would be paid to the claimant.
The insurer was requested to provide a copy of certificates of fitness and executed settlement. This was uploaded to the portal as requested.
Both parties confirmed their desire for the settlement to be approved and advised there was no other information to be relied upon.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of 501 pages:
Liability:
(a) application for common law damages dated 10 January 2025;
(b) liability notice damages claim dated 30 January 2025;
(c) liability notice benefits to 52 weeks dated 15 July 2021;
(d) liability notice benefits after 52 weeks dated 13 September 2021;
(e) submissions of the insurer dated 10 February 2025, and
(f) Permanent impairment decision dated 17 October 2024.
Medical records:
(a) ambulance report dated 20 June 2021;
(b) Port Macquarie Base Hospital records;
(c) The Good Shepherd Medical Centre clinical records;
(d) Allied Health Recovery Request (AHRR) psychology reports – 23 September 2021, 4 November 2021, 14 January 2022 , 17 March 2022 and 16 June 2022.;
(e) Rehabilitation ADL and closure reports dated 11 August 2021 and 22 October 2021, and
(f) Certificate of Capacity dated 8 July 2021.
Medico-legal opinion
(a) Dr Frank Machart dated 18 September 2024.
Claimant’s information:
(a) responses to my questions of the claimant with the assistance of the claimant’s son Nigel, present during the preliminary conference.
Settlement documents:
(a) settlement offer dated 30 January 2025, and
(b) settlement agreement dated 4 February 2025.
Injuries
The claimant’s application for damages noted injuries of rib fractures, sternal fractures and a fractured shoulder.
The ambulance eport dated 20 June 2021 reported that all patients were either out of the vehicle to able to get out of vehicle. Mr Thompson was complaining of cervical neck pain, increased on movement or palpation, had mild chest pain, but no bruising or swelling. There was no loss of sensation in lower or upper limbs, abdomen was soft and non-tender.
The Port Macquarie Private Hospital records dated 19 July 2021 recorded the following assessment following the accident: Multiple fractures. Mildly displaced fracture left transverse process C7. Fracture sternum. Right glenoid fracture. Bilateral rib fractures. Laryngeal cancer resection 6 years before. Home with supportive son. Prior to motor vehicle accident independent. No services. Then living with his wife. Wife passed away after a stroke during Mr Thompson's admission at Port Macquarie Hospital.
In the Sports and Spinal Physiotherapy Clinics report dated 30 September 2021 it was noted that Mr Thompson had limited right shoulder range of motion “notably not able to achieve above 45° sh abd abd flex to about 75°”, difficulty with sustained neck flexion. With regards to the glenoid fracture Mr Mark MacGibbon (Physiotherapist) was unsure of the impact this will have on Mr Thompson regarding him full ROM. Mr MacGibbon also reported that Mr Thompson’s hobby is watchmaking/restoration “and currently he is unable to perform this as he cannot sustain neck flexion, or adequately use his arm for all tasks required to do this”.
In the Sports and Spinal Physiotherapy Clinics report dated 18 November 2021 it was noted that Mr Thompson had right shoulder decreased range of motion which has “improved slightly but he can not move past approx 60° shoulder abd and about 90°sh flex”. Neck pain was “Much improved”, but when Mr Thompson “sustaining a position he gets increased pain”.
In the Sports and Spinal Physiotherapy Clinics report dated 13 January 2022 it was noted
Mr Thompson’s neck and left sided shoulder pain “has mostly resolved”, Mr Thompson had “couple flare ups but now feels is at 95% and is much happier”. Mr Thompson continued to have right shoulder decreased range of motion and pain impacting his function. 19. In the Physiotherapy AHRR No 5 dated 16 June 2022 it was noted that Mr Thompson had ongoing shoulder range of motion limitation – “appears to be limited to approx sh flex and abd 75 degrees. Rotation has also impacted range when moving through available range. Difficulty with supination/pronation is association with above shoulder rotation. Limits ability to left spoon to mouth”.
Medico-legal report
The medico-legal assessment of Dr Frank Machart dated 18 September 2024 is the most recent report addressing the claimant’s ongoing symptoms and prognosis.
The claimant gave him a history that he was a front seat passenger and wore a seatbelt at the time of the accident. Dr Machart noted that the claimant did not recall details of the subject accident as he was knocked out.
Dr Machart reported that as a result of the accident he sustained rib fractures, sternal fracture and right glenoid fracture. He suffered from pneumonia, presumed secondary to rib fractures. He was an inpatient for seven or eight weeks and was treated by physiotherapy for rehabilitation.
Dr Machart reported that the claimant’s right shoulder “remains painful and stiff”. He noted that prior to the subject accident he was independent living on his own.
Since the accident he lives with his son. He is able to do some aspects of housework, which involves heavy lifting and cutting the grass. He has returned to his hobby of clock repairs.
The claimant during the assessment reported he suffers from shortness of breath. Has difficulty walking and “uses a walking frame for reasons which are outside of the definition of pathology from the motor vehicle accident”. Current symptoms were identified as “neck and right shoulder pain and stiffness or variable intensity. Unable to reach up comfortably with the right arm.”
Dr Machart noted that the claimant was using a walking frame and had difficulties walking short distances “not as a result of the motor vehicle accident”. Current treatment consists of “Heat packs for the right shoulder and neck”.
On examination Dr Machart noted that the claimant’s right shoulder was tender anteriorly and exhibited reduced movement. Cervical spine showed no spasm, no deformity no muscle guarding, asymmetrical rotation, greater to the left that the right, by a quarter. Reflexes in upper limbs were intact and there was no sensory loss in the hands.
Dr Machart confirmed that the ribs and sternal fractures which had healed. No future treatment was necessary. He also noted the secondary injury of pneumonia, which was outside of Dr Machart’s area of specialty.
Orthopaedic injuries were confirmed as follows:
(a) cervical injury and
(b) fracture of the right shoulder.
Both injuries resulted in post-traumatic stiffness.
Dr Machart reported that there were additional features outside of the area of orthopaedic injuries sustained at the time of the accident, such as progressive loss of physical function due to age, which is the cause for the claimant being in a walking frame. With regards to future capacity Dr Machart reported that:
“There is competing need for care from age-related factors, and features outside of the pathology of injury, eg, instability, weakness in legs and pain in legs. From the view point of the right shoulder and neck injury, I expect that it would be reasonable to provide him with 2 hours of care per week.”
Dr Machart assessed whole person impairment (WPI) at 11% - 6% for the right shoulder and 5% for the cervical spine due to asymmetry. This enlivened the claimant’s entitlement to
non-economic loss.
In the Rehabilitation Management Closure report dated 22 October 2021 it was reported that the claimant’s son, Nigel confirmed that the claimant was independent with all self-care activities of daily iving and did not require any further assistance from Rehabilitation Management.
Non-economic loss
The claimant is entitled to damages for non-economic loss as the insurer conceded that WPIexceeds 10% on the assessment of Dr Machart.
The claimant continues to suffer neck stiffness and cervical pain from time to time. He initially suffered significant pain and suffering as a result of the fractures sustained to “ Left C7 TP #, glenoid scap #, left rib # 1 -6, 8-10, right rib # 2-6, depressed # of sternum.” As noted in Port Base Hospital physiotherapy records.
He also suffered from associated pneumonia that resulted from the rib fractures.
Whilst the fractures and sternum injury has now healed the claimant has reduced right shoulder movement. Certain positions result in pain. He continues to suffer stiffness to his neck and right shoulder making some activities difficult to perform.
He does not undertake ongoing treatment of any kind and has not seen his GPfor any treatment since late 2021.
When considering the assessment of damages for pain and suffering, I have regard to the nature of the injuries sustain, the resolution of the fractures and the age of the claimant.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 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 $180,000 be approved.
The claimant also confirmed his desire that the settlement be approved by me.
Impact of injuries upon the claimant
The claimant’s up to date information given at the preliminary conference confirmed that his ongoing problems are an intermittent sore neck and inability to sit for long periods of time. He reported some difficulty dressing when he needs to use his right shoulder at certain heights.
He confirmed he rarely took medication for pain relief and when he did it was intermittent use of Panadol only. He used a heat pack for relief of neck symptoms when necessary.
He avoids long car rides and now participates in his hobbies of clock repairs in a paced capacity.
There were no ongoing issues which required treatment by GP or physiotherapist.
He had not seen his doctor about his accident-related injuries since 2021.
REVIEW OF THE EVIDENCE
Clinical records of Port Macquarie Base Hospital provided treatment details and initial assessment post-accident.
Clinical records of Dr Mina Sorial confirmed initial treatment during October to December 2021.There are no further medical attendances relating to the motor vehicle accident since mid 2022.
The rehabilitation reports evidence improvement to activities of daily living and resolution of much of his symptoms of pain by October 2021.
From the material provided in the insurer’s application and the additional information provided by the claimant in person, I am satisfied that I have sufficient information to make a determination on the application.
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 Personal Injury Commission (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 Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) the insurer to include in its application details of the following:
(i)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 $180,000; there is no economic loss claimed as the claimant is an aged pensioner.
(ii)the amount of any deductions in the proposed settlement.
Therer are no statutory payments to be deducted. The claimant will receive net proceeds of $180,000.
(iii)the amount of any advanced payments made be specified. There had not been any advanced payments made.
(iv)the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively convering the period of injury and the relevant period to date. I note the medical records accord with the claimant’s reported symptoms, improvement and ongoing incapacity. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.37 of the Guidelines, requires me to consider the following:
(i)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 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 claimant has made significant progress and there is little ongoing treatment required except for occasional pain relief and use of heat packs.The amount of damages for non-economic loss agreed to between the parties is within the range of of likely range of damages had the matter been assessed by a member of the Commission. An assessment of damages would include factors such as the claimant’s age and pre-existing conditions and prognosis.
I find the sum agreed upon in the sum of $180,000 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.
(ii)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 teleconferences that in the event he took the settlement, he could not seek any further damages for non-economic losses and economic losses. He was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer based upon medical need.
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 his 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 $180,000 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, the age of the claimant nearing 93 years of age.
I am satisfied the claimant was aware he could seek legal advice and but chose not to retain legal representation. He was supported by his son throughout the process.
I am satisfied the claimant understands the binding nature of the settlement and that he 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 his decision to accept it was of his own volition.
I am satisfied the claimant is aware that there are no deductions from the proceeds of settlement and that he will receive $180,000 in final settlement of his claim.
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 sum of $180,000.
The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines version 9.3.
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 version 9.3 / Personal Injury Commission Rules 2021.
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