Insurance Australia Limited t/as NRMA Insurance v Tonkin
[2024] NSWPIC 195
•18 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Tonkin [2024] NSWPIC 195 |
| CLAIMANT: | Catherine Tonkin |
| INSURER: | IGA Limited t/as NRMA Insurance |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 18 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.23; assessment of damages; liability wholly admitted; claimant trapped for over an hour; injuries to her shoulder, neck, and the development of psychological symptoms; claimant in receipt of disabilities benefits for many years; insurer conceded claimant entitled to damages for non-economic loss plus costs for previous legal representation; claimant entitled to reasonable and necessary treatment for accident related injuries; Held – settlement within the range of likely potential damages assessment if claim was to proceed to assessment; settlement just, fair, and reasonable; settlement approved for non-economic loss damages plus costs. |
| DETERMINATIONS MADE: | CERTIFICATE Motor Accident Injuries Act 2017 1. Approval of settlement in the sum of $360,000, $345,000 for non-economic loss in accordance with s 6.23 of the Motor Accident Injuries Act 2017, plus $15,000 for costs and disbursements. |
STATEMENT OF REASONS
INTRODUCTION
On 12 November 2019 Catherine Tonkin (the claimant) sustained injury in a motor vehicle crash on the Great Western Highway between Bathurst and Orange in the Central West of New South Wales. She was travelling at approximately 100kmph when an oncoming car turned right directly into the path of Ms Tonkin’s vehicle.
She was trapped in the wreckage for around an hour before being conveyed by ambulance to Orange Base Hospital. She remained in hospital for two days under observation.
Ms Tonkin has made a claim against IGA limited t/as NRMA Insurance (the insurer) the insurer of the at fault vehicle, for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted that Ms Tonkin is entitled to damages for non-economic loss and that she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries pursuant to the Motor Accident Injuries Act 2017 (the Act).
Ms Tonkin and the insurer have reached agreement as to settlement of the claim for damages.
Because Ms Tonkin is not represented by a lawyer, her settlement must be approved in accordance with the Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
The claim is limited to damages for non-economic loss and costs as Ms Tonkin was initially legally represented.
THE RELEVANT LAW
Section 6.23(2) and (3) of the Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any requirements of the Act or the Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied the proposed settlement is just, fair and reasonable. The proposed settlement must be within the likely potential damages assessment for the claim were the matter to be assessed by a Member of the Personal Injury Commission (Commission). The matters to be taken into account include the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by
Ms Tonkin. I also must take into account any proposed reductions or deductions in the proposed settlement.Ms Tonkin also must understand the nature and effect of the proposed settlement and is willing to accept the amount.
DOCUMENTS CONSIDERED
I have considered the documents provided by the insurer including but not limited to submissions, claim form, police report, correspondence between the claimant and insurer, report by Dr Richard Powell, letters from the general practitioner Dr Peyman Mirarabshahi and physiotherapist Mr Mark Ritchard, and a report by Ms Margaret Anne Hind, psychologist.
REVIEW OF THE EVIDENCE
At the time of the accident, Ms Tonkin was 56 years old. She will turn 62 years at the end of this year.
Ms Tonkin sustained injuries to her cervical spine and aggravated minor underlying spondylitis changes in the accident. Investigation of soft tissue injury to her left shoulder revealed evidence of a rotator cuff, labral, bicipital and AC joint pathology. She underwent surgery to her shoulder which has left her in considerable pain and discomfort.
Ms Tonkin consulted her general practitioner Dr Mirarabshahi. The doctor diagnosed whiplash injury, left shoulder tendinopathy, tendinitis, possible fat necrosis, hematoma, and odynophagia. She suffered significant bruising in the region of her breasts. She was certified unfit for work.
She attended regular physiotherapy sessions which she found to be unhelpful.
Ms Tonkin developed mental health issues. She was referred to Ms Hind for counselling in June 2022. Ms Hind records extremely severe depression, anxiety, and stress. Her scores were consistent with a diagnosis of complex post-traumatic stress disorder.
Due to an unhealthy relationship, Ms Tonkin has separated from her husband. This caused her additional stress due to the need to relocate her animals and birds. Unfortunately, at one accommodation, she was forced to leave her birds because she was not permitted to have them remain with her.
The insurer arranged for Ms Tonkin to see orthopaedic surgeon Dr Richard Powell on
8 March 2023. Dr Powell took a detailed history from Ms Tonkin as well as examination of the medical records provided to him by the insurer.Ms Tonkin reported to the doctor she experienced intermittent aching discomfort in the midline region of her neck which radiates across her left side. She reported a stiff neck with restriction in the range of motion and she has developed headaches. She has pain in her left upper limb to the hand. She experiences pins and needles which involves the ulnar two digits and her thumb.
She reported constant aching pain over the anterosuperior aspect of the shoulder. This was accompanied by stiffness and some restriction in range of motion.
Ms Tonkin reported pre-accident chronic lower back pain and a previous right shoulder claim.
At the time of this accident, she was not working. She was in receipt of a disability pension since 1997.
THE PROPOSED SETTLEMENT
The insurer calculated the offer of settlement in the sum of $360,000. There are no deductions as the insurer has not paid any statutory weekly benefits. The amount of $345,000 net to the claimant is subject to a Centrelink clearance.
I held a preliminary conference on 3 April 2024. Ms Tonkin attended the conference. She told me she continues to experience anxiety. She told she had found herself homeless after the accident. She said she was very keen to settle her claim.
She initially had legal representation, but she was no longer represented.
The proposed settlement amount is for non-economic loss. Dr Powell was asked by the insurer to assess whole person impairment (WPI). The doctor concluded the total WPI is obtained by combining impairments due to Ms Tonkin’s left upper extremity 13% and cervical spine 5% resulting in a 17% WPI.
As the claimant’s assessment of WPI is greater than 10%, she is entitled to damages for non-economic loss, which is defined in the Act to mean pain and suffering, loss of amenities of life, loss of enjoyment of life and disfigurement/scarring.
As Ms Tonkin has not worked for many years pre-accident, the insurer submits no damages for past or future economic loss can be awarded.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied Ms Tonkin is aware the settlement finalises her entitlements to further common law damages under the Act.
I am satisfied that Ms Tonkin is aware of her rights to have her reasonable treatment expenses paid for the remainder of her life. I urge the claimant to consider seeking treatment for her anxiety and depression.
The insurer’s initial proposed settlement amount was for $325,000 for non-economic loss plus $15,000 for costs.
After the preliminary conference, when I voiced my concerns that the amount did not appear to reflect the claimant’s psychological injuries, the insurer increased the amount for non-economic loss to $345,000.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is 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 Tonkin.
I am satisfied Ms Tonkin is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Tonkin understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising from the accident. I am satisfied Ms Tonkin is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of Ms Tonkin’s claim for damages in the sum of $360,000, inclusive of costs and disbursements.
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