Insurance Australia Limited t/as NRMA Insurance v Thomson
[2023] NSWPIC 357
•20 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Thomson [2023] NSWPIC 357 |
| Claimant: | Peter Thomson |
| insurer: | Insurance Australia Limited t/as NRMA Insurance v Thomson |
| Member: | Shana Radnan |
| DATE OF DECISION: | 20 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval $77,100.00; 65-year-old male; past and future economic loss only; resolved undisplaced fractures 5th and 8th rib right side; L3 undisplaced transverse fracture and contusions to forehead, arms, legs and back now healed; ongoing intermittent back pain; PTSD no further treatment required now healed; section 6.23 of the Motor Accident Injuries Act 2017; Held –proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 9 April 2020, Peter Thomson (the claimant) was driving his Nissan Navara along Warkwoth Street at Marylands when the insured lost control and collided with the claimant’s car.
The collisions forced both vehicles onto the incorrect side of the roadway.
Police and ambulance were called.
The claimant sustained injury in the accident to the following areas of his body:
(a) right posterior 5th and 8th rib fracture;
(b) lumbar – L3 transverse process fracture;
(c) chipped vertebrae;
(d) bruising to forehead, arms legs and back;
(e) concussion, and
(f) psychological injuries – post-traumatic stress disorder.
The claimant was then conveyed by ambulance to John Hunter Hospital (document A11) where he remained for two days.
Ambulance records (document A9) confirmed the claimant’s initial injuries.
Police attended the scene and event report E73802324 was created (document A7).
The claimant remained in the care of his general practitioner Dr Walter (document A10) thereafter for review and management.
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 4 December 2021 (document A5). By liability Notice (document A8) dated 4 March 2022, the insurer wholly admitted liability for the common law damages claim.
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) he is entitled to payment of reasonable treatment if required.
The insurer relied upon Dr Walter’s Certificate of Capacity dated 8 December 2020 and the CT scans to assess the nature of injuries. By letter dated 13 October 2021 (document A14) the insurer advised the claimant that it had formed the view his injuries did not exceed 10% whole person impairment. The claimant did not challenge this finding and conceded most of the injuries sustained had resolved.
The claimant and the insurer have agreed to settle the claim for lump sum damages in the sum of $77,100. The initial application referred to a settlement offer made by the insurer on 26 May 2023 in the sum of $66,000. The insurer increased its offer to $77,100 after further negotiations between the parties post preliminary conference held with me on 21 June 2023. The basis of this latter offer was as follows:
(a) past economic loss (statutory weekly payments to date) $48,225.24;
(b) future economic loss $15,000;
(c) past loss of superannuation (11%) $5304.76;
(d) future loss of superannuation (11%) 1650.00, and
(e) tax paid on statutory benefits $6,920.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act.
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 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
Sections 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 7.38 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 claims assessor, 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
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 21 June 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 21 June 2023. The claimant participated in person and the insurer was represented by solicitor Adrian Torio.
A discussion as to his ongoing symptoms and the impact of any residual injuries on his current role as an optical dispenser was canvassed.
The claimant confirmed that he had returned to employment on 3 December 2020 and was working on a casual basis that suited his lifestyle. He acknowledged that the ongoing symptoms “did not impact that much”. He conceded he could not stand up as long as he used to due to ongoing back pain but was not sure this was not age related. He did not think it was accident related. He took on work as offered to him.
The review of Dr Walter’s clinical records confirmed the resolution of physical injuries and the reductions of attendances for any treatment post December 2020.
As to ongoing psychological sequelae, “apart from the occasional loud noise startling me”, he confirmed to me that he had no ongoing treatment and did not envisage any ongoing problems now.
His use of medications related to blood pressure and depression. He confirmed that he had prior to the accident taken Sertraline for depression, Amlodipine for hypertension and Perindopril plus Indapamide also for hypertension. These conditions were treated prior to the accident and the regime of medication was the same as before.
The claimant was advised if he had any concerns about the ongoing consequences of his injuries that he should seek medical advice from his general practitioner or specialist to be fully informed as to any likely deterioration to his condition prior to finalising his settlement.
I discussed the details of the terms of settlement with the parties and it became apparent that the claimant may well have a greater loss than first considered by the insurer in relation to future economic losses The parties requested time to seek further instructions as it related to the claim for future economic losses. The claimant a qualified optical dispenser may well have time off due to aggravation of symptoms from time to time as he confirmed that long days at work aggravated his back symptoms and he was likely to continue working for a few more years.
The claimant confirmed he would inform the insurer of his position on future losses and if he felt he needed more time, he was aware he did not have any pressure to accept the settlement. The insurer indicated that “it was likely to increase its offer to $15,000 plus superannuation, but needed to obtain formal consent first.”
I asked the claimant if he understood the nature of the likely amended settlement terms and its implications and he stated to me “I understand the nature of the settlement and accept the additional sum for future economic loss, which I am happy with ” . I am satisfied that he accepted the settlement of his own free will.
I asked if he had any question or wished to make any further comments and he said words to the effect “I know I could seek legal advice and I am happy with what we have agreed upon, whether it be the initial sum or the additional sum and so I am happy with the outcome and just want it over”.
The insurer was also asked if any further information or statement was to be made and the representative said “No”.
The preliminary conference concluded with me advising the parties that I would upon their additional instructions to be received by 30 June 2023, either hold a further teleconference if requested or if the amended agreement was reached, I would make my decision and reduce it to writing. The parties were thanked for their assistance.
Directions were issued on this occasion that the parties were to confer on the issue of future economic losses and in the event an altered settlement was effected, I was to be provided amended terms and deed.
Amended terms of settlement dated 28 June 2023
The claimant confirmed he and the insurer had come to an agreement that future economic loss had now increased from a buffer of $5,000 to a buffer of $15,000 and that future loss of superannuation was increased from $550 to $1,650.
The parties confirmed that no further teleconference was required and I was requested to approve the amended terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle of 565 pages:
· Liability:
Application for Statutory Benefits dated 20 April 2020;
Application for common law damages dated 4 December 2021;
liability notice dated 4 March 2022;
police report dated 5 June 2020, and
whole person impairment letter dated 13 October 2021.
· Treating medical records:
clinical records of John Hunter Hospital (document A11);
clinical records of Dr Graham Walter (document A10), and
records of Medicare (document A13).
· Economic loss material:
claimant’s tax summaries (document A16);
employer records Eyecare Plus (document A17), and
statutory payments made (document A3).
· Settlement documents:
settlement agreement dated 28 June 2023 and executed on 28 June 2023, and
Centrelink Clearance – (document A15).
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed during the first teleconference his injuries sustained. He had no memory of the accident itself.
He confirmed he no longer required treatment for any injuries sustained physical or psychological.
He confirmed he was working the hours he chose and could undertake more if he wanted to. He had initially taken two weeks off work. He had time off and then the business he worked for was sold.
COVID-19 forced the closure of the business and he then commenced working part-time when a position became available with the same employer. This commenced on
27 October 2021 and he remains with the same employer to date.Treatment had concluded. There were no ongoing treatment needs except when an occasional flare up required over the counter pain relief.
The ongoing disabilities included intermittent back pain.
Pre-existing injuries and unrelated conditions
The claimant according to the clinical records produced had pre-existing depression, anxiety, and hypertension.
INJURIES
The claimant attended and was admitted to hospital for investigations. Notes of John Hunter Hospital and scans taken in emergency noted the following:
“No intercranial abnormality
Undisplaced right 5th and 8th rib fractures posteriorly
No intrathoracic or intra-abdominal visceral injury identified
Undisplaced right L3 transverse process fracture”
The medical records reviewed also confirm that the claimant was prescribed Sertraline since 24 February 2015. The medication regime had not changed post-accident as revealed in the prescribed benefits scheme records (document A13). The additional medications of Metformin and Rosuvastatin since December 2020 are for unrelated conditions.
Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment and that non-economic loss would not have been available to the claimant.
I accept that the claimant is still symptomatic from time to time as it relates to intermittent lumbar pain. There are no ongoing attendances with medical practitioners or psychologists for accident related complaints presently. The general practitioner has not changed his pre-accident anti-depressant regime.
The fractures have healed and there is no ongoing treatment needed.
ECONOMIC LOSS
Past economic loss
The claimant was deemed totally unfit to work post-accident until 3 December 2020. This followed by periods where his employment was impacted by the restrictions of COVID-19. He returned to his pre-injury role as an optical dispenser with his pre-accident employer at a different location on 27 October 2021 and remains with the same employer to date.
He works as a casual and intends to continue until he retires.
The basis for calculation of losses were that the claimant’s net weekly earning capacity was $847.12.
The past losses were based upon the claimant working 30 hours in the fortnight prior to the accident. Past losses in total were agreed in the sum of $48,225.24 which was inclusive of the statutory weekly payments amounting to $31,748.53.
An allowance of $6,920 was made for tax paid and superannuation losses on the past sum amounted to a further $5,304.76.
Total past losses amounted to $60,449.99 rounded up to $60,450.
Future economic loss
The claimant advised he continued to work and would do so for as long as possible as he had a casual position which allowed for work life balance. He confirmed he had not taken time off for any accident related reasons since his return to work. He would have the occasional increase in back pain but due to the hours worked he was also able to rest.
Noting the role as optical dispenser, he had the opportunity to sit and stand depending on the customer services being provided.
After review of the likely future circumstances but for the accident the parties agreed a small allowance for the occasional day off where symptoms flared up could result in future economic loss being suffered by the claimant.
A buffer of $15,000 with an allowance of a further $1,650 for future superannuation losses amounted to a total of $16,650 for future economic loss. This factored in his age of 65 years and the likelihood of work for approximately a further two or so years.
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 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 claimant was working as an optical dispenser at the time of the accident and has returned to his pre-injury employment. The impact of the injuries sustained in the subject accident have healed and the impact is now minimal. The claimant has no ongoing treatment needs and in majority he has recovered fully from the injuries sustained. The only ongoing symptom reported is intermittent back pain.
The past economic losses were supported by medical certificates for the period 9 April 2020 to 22 November 2020 indicating the claimant was unfit during this period. The claimant received statutory benefits and a top up to reflect likely losses. Future losses by way of a buffer are supported where there is no distinct ongoing weekly loss. I am satisfied that the past and future losses accord with the claimant most likely circumstances but for the accident.
The claimant is aware that from his settlement the insurer will deduct the already paid statutory benefits in the sum of $31,748.53 and that he will receive the balance in sum of $45,351.47.
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 his 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 his 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.
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.
I consider the agreed buffer in the sum of $15,000 plus loss of future superannuation in the sum of $1,650 is within the range of likely damages had the matter been assessed by a Member of the Commission.
I am satisfied that the claimant is aware of his right to have his reasonable treatment.
The documentation presented from Centrelink confirms no Centrelink deductions and that the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act 1995 (Cwlth) from the settlement sum. If any charge is raised the insurer will pay the charge as a treatment expense in addition to the settlement sum. The only deduction would be the statutory weekly payments already made to date in the sum of $31,748.53.I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
CONCLUSION
I am satisfied the proposed settlement of $77,100 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 he could seek legal advice but chose not to avail himself of legal representation.
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 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 from the proceeds a sum of $31,748.53 will be deducted as prepaid statutory benefits.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
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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