Insurance Australia Limited t/as NRMA Insurance v Townsend

[2023] NSWPIC 56

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Insurance Australia Limited t/as NRMA Insurance v Townsend [2023] NSWPIC 56

Claimant:

Gloria Townsend

insurer:

Insurance Australia Limited t/as NRMA Insurance

Member:

Shana Radnan

DATE OF DECISION:

15 February 2023

CATCHWORDS:

MOTOR ACCIDENTS - Settlement approval; 81-year-old female; non-economic loss of $235,000; physical injuries; multiple rib fractures, sternal fracture, abdominal haematoma and left ankle fracture; psychological injuries; exacerbation of pre-existing conditions; Held – the proposed settlement is approved.

determinations made:

Settlement Approval
Issued under s 6.23 of the Motor Accident Injuries Act 2017

1.    The proposed settlement is approved.

2.    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.

INTRODUCTION

1. The claimant is a retired pensioner who will turn 82 this year.

2. On 15 December 2019 (the claimant) was a passenger in a motor vehicle accident when the driver made a right-hand turn colliding with a 4 wheel drive. The vehicle losing control and hitting a tree a tree. The claimant had to be cut from the vehicle.

3. She was conveyed to Gosford Hospital. She was admitted to ICU and remained there until 27 December thereafter being returned to the ward for management. Eventual discharge from hospital took place on 7 January 2020 where she was transferred to Berkley Vale Hospital for rehabilitation. She returned home on 24 January 2020 under the care of treating general practitioner Dr Tim Barling.

4. The claimant has made a claim against NRMA (the insurer) of the at fault vehicle, for lump sum damages.

5. Her injuries included multiple rib fractures, fracture of her sternum and abdominal bruising.

6. The insurer has accepted that the claimant had 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 and care for the rest of her life for her accident caused injuries.

7. The insurer conceded that the injuries sustained resulted in whole person impairment exceeding 10% and thus entitling the claimant to non-economic loss.

8. The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $235,000 for non-economic loss. There is no claim for past and future economic loss.

9. Because the claimant is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.

JURISDICTION OF THE PERSONAL INJURY COMMISSION

1. The Personal Injury Commission (the 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 (the 2020 Act).

2. 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.

3. Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.

THE RELEVANT LAW

1. Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.

2. 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.

3. Clause 7.38 of the Guidelines states I must be satisfied as to the following:

   (a) the proposed settlement satisfies the timing requirements in s 6.23(1) of the Act;

   (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 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.

Teleconference on 30 November 2022

1. The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 30 November 2022. The claimant and her husband Albert participated in person and the insurer was represented by Smadar Rappaport.

2. I discussed the details of the terms of settlement with the parties and it became apparent that the claimant understood the nature of the settlement. I requested that she prepare a short statement as to the impact of the injuries upon her and details of current disabilities.

3. I reviewed the medical evidence provided and confirmed with the claimant that what was recorded accurately depicts her injuries and the basis of any ongoing complaints.

4. A request was made by the claimant, that the insurer make an advance payment as the claimant thought she would be receiving the settlement proceeds that day.

5. I asked the claimant if she wished to seek legal representation and she confirmed she did not wish to she was aware that the settlement would be the finalisation of her claim for damages and that she could not come back for more at a later stage should her situation change.

6. Her husband was present throughout the teleconference to assist if required.

7. I asked if she had any question or wished to make any further comments and she said words to the effect “I am happy with the resolution of the matter and would like it to be finalised as soon as possible”.

8. The insurer was also asked if any further information or statement was to be made and the representative said “No”.

9. I explained to the parties that with the additional information obtained that addressed pain and suffering and the report of current treater, I would be in a position to determine the matter. There was at this stage, a lack of particulars which could easily be addressed and the matter would be able to be finalised.

Teleconference on 10 February 2023

1. Again the claimant participated as well as Smadar Rappaport for the insurer.

2. The claimant provided a short hand-written statement AD4 which addressed the ongoing symptoms and her wishing to accept the settlement. She reported:

   (a)A life changing experience

   (b)Memory of the crash causing distress

   (c)Inability to go to church

   (d)Whilst using a walker before, she now uses a wheel chair when she goes out in the village she lives in

   (e)Poor concentration and loss of confidence

   (f)No longer able to knit sew and play piano

3. The claimant was informed that the settlement amount of $235,000 would result in a payment to her of $235,000 and that the insurer confirmed any Medicare liability would be paid by the insurer. An application would be made to Centrelink prior to the completion of the matter to address any payback. Noting that the claimant did not receive any economic loss in her settlement it was unlikely there would be a payback.

4. I asked the claimant if she understood the settlement and its implications and she confirmed to me that she understood the nature of the agreement and was accepting the terms using her own free will.

5. Ms Rappaport confirmed that no advance payment had been made to the claimant since the last teleconference.

6. The teleconference concluded with me advising I would make my decision and reduce it to writing. The parties were thanked for their assistance.

DOCUMENTS CONSIDERED

1. I had regard to the following relevant documents:

   (a)    Liability:

   (i)Application for Statutory Benefits and insurer admitting liability for the first 26 weeks on 15 December 2019;

   (ii)liability notice for the period post 26 weeks and confirming non minor-injury dated 20 May 2020;

   (iii)application for common law damages dated 27 October 2021;

   (iv)insurer’s liability notice dated 10 January 2022, and

   (v)offer of settlement from NRMA to the claimant dated 27 October 2022.

   (b)    The insurer relied upon the following medical records in bundle of documents noted on the portal as AD1.

A10	Discharge Summary – Gosford Hospital	various dates
A11	Certificate of Capacity/Fitness	6 March 2020
A12	Certificate of Capacity/Fitness	1 October 2021
A13	AHHR Plan 1 ( Psychologist)	12 May 2020
14	AHHR Plan2 ( Psychologist)	15 October 2020
A15	AHHR Plan 3 ( Psychologist)	11 April 2021
A16	AHHR Plan4 ( Psychologist)	25 February 2022
A17	Benchmark Rehabilitation – Activities of Daily Living Assessment report	7 April 2020
A18	Benchmark Rehabilitation- ADL Review report	7 May 2020
A19	Clinical records-Dr T. Barling	various dates
A20	Clinical records-Kaylen Atkins	various dates
A22	Medical report – Kaylene Atkins	5 September 2022

(c)    A Further bundle of medical material was uploaded in AD2 containing a further 1692 pages of clinical records of Dr Baling and Bateau Bay Medical Centre. Pages 1587 to 1692 contained the most recent patient history treatment records of 2022.

(d)    Settlement documents:

(a)signed agreement for release.

REVIEW OF THE EVIDENCE

1. The insurer provided one bundle document A1 of 993 pages of medical records in the application and a further bundle marked AD2 of 1,692 pages of medical records. I have perused both bundles and note a significant proportion of the material was unnecessary. The clinical records contained records from 2002 to date with all conditions treated. Much of this information was time consuming to review and irrelevant.

2. I was able to ascertain the extent of injuries relevant to the claim as contained in the various hospital records pertaining to the treatment of the claimant after the motor vehicle accident and clinical records of Dr Barling as a more concise history and relevant to this assessment.

3. The claimant’s reporting of ongoing issues were contained in the clinical records of Kaylene Atkins with hand-written progress notes relating to the psychological counselling sessions as noted in bundle A1 of the documents submitted to the portal at pages 918 to 961. These records provided intimate details of the psychological difficulties the claimant sustained due to her injuries and included reactive depression, anxiety, stress and trauma.

Statement of the claimant

1. The handwritten statement of the claimant uploaded as AD4, provided the details of the pain and suffering and loss of enjoyment of life experienced since the accident.

Pre-existing injuries and unrelated conditions

1. The clinical notes of Dr Barling were reviewed. The records reveal the following pre-existing injuries and conditions:

   (a)    pulmonary sarcoidosis;

   (b)    osteoarthritis;

   (c)    fibromyalgia;

   (d)    chronic pain;

   (e)    breathlessness;

   (f)    reduced mobility, and

   (g)    other conditions which bear no relevance to the current claim and too numerous to record.

INJURIES

1. Following the accident, the claimant attended upon her doctor Dr Barling of Bateau Bay Medical Centre for regular ongoing treatment.

2. As a result of the accident the claimant suffered the following injuries confirmed by
   Dr Barling:

   (a)    12 rib fractures 6 on each side;

   (b)    sternal fracture;

   (c)    abdominal bruising and abdominal wall haematoma;

   (d)    left ankle fracture, and

   (e)    psychological injury.

3. The claimant was regularly reviewed by Dr Barling who noted the following in his report dated 20 December 2022 at page 1:

   “Her current physical status includes chronic pain in the chest, spine, abdomen and left foot. She also experiences left sided headaches. She relates this pain to the injuries she sustained in the MVA (notably rib fractures, abdominal wall bruising, left ankle fracture). She takes paracetamol + codeine for pain management - which is a medication she was taking for chronic pain management before her accident.

   Mrs Townsend has reduced mobility due to her accident. She can mobilise up to 5 metres within her home with a rollator.

   She usually requires the use of a wheelchair if she leaves her home. I note that prior to her accident she required the use of a rollator, and at times a wheelchair. However, her mobility has deteriorated since her accident and she can now only leave her house with great difficulty.

   Because of decline in mobility she has more difficulty in completing personal care and requires her husband's assistance for showering. Her husband performs most domestic tasks - which was also largely the case before her accident.

   Regarding her psychological status, Mrs Townsend has had psychology visits with Kaylene Akins. I do not have a report available. Mrs Townsend reports that since the accident she experiences anxiety, frustration, low mood, social withdrawal, episodes of calling out at night, and flashbacks to the injury. She feels that the MVA has been a life-changing experience that has caused her loss of autonomy. I note that she has been treated for many years with antidepressant medications venlafaxine and amitriptyline.”

   At page 2:

   “In summary, Mrs Townsend is experiencing symptoms of chronic pain, very poor mobility, functional decline in personal care, loss of autonomy, depression and anxiety, and social isolation. I note that prior to her accident Mrs Townsend was experiencing similar symptoms due to her diagnoses of Pulmonary Sarcoidosis, Osteoarthritis and Fibromyalgia. Nevertheless, I consider that her symptoms have been exacerbated and her functional decline accelerated by the considerable injuries she sustained in the MVA.”

4. In the report of treating psychologist – Kaylene Atkins dated 31 August 2022 at page 992 of bundle A1, she opined:

   “In my opinion Mrs Townsend’s reported psychological symptoms have reached maximum improvement and will be unlikely to change significantly over the next 12 months… her DASS scores had decreased which did show psychological improvement.. the impact of the motor vehicle accident relates to the limitations on functional capacity. Ongoing treatment will include acceptance of her limitations and finding alternate ways of connecting with people.”

5. The report of Dr Narmita Gupta dentist made reference to fracture of one tooth requiring root canal therapy. The presentation occurred on 11 January 2021 in relation to a recent accident.

NON-ECONOMIC LOSS

1. The claimant sustained significant injuries in the motor vehicle accident which required extended hospitalisation and rehabilitation. This was against a background of pre-existing conditions which reduced her mobility, required constant pain medications and significant assistance provided by her husband.  The sum of $235,000 for non-economic loss is the sum agreed to between the parties.

2. When considering the appropriateness of the damages agreed to, consideration is made of the impact of her injuries upon her and the recovery she has made since. Her age is also a factor to address as to the impact upon a person with a life-expectancy relevant to a person of 82 years of age.

3. The ongoing symptoms of chronic pain, very poor mobility, functional decline in personal care, loss of autonomy, depression and anxiety and social isolation has been an exacerbation of her prior symptoms experienced and an acceleration of functional decline.

4. At the time of determination of this application the claimant is 81 nearing 82 years in May.

5. Whilst the claimant sustained significant physical injuries, she has made considerable recovery. She continues to suffer from chronic pain and reduced mobility against a background of conditions (osteoarthritis and fibromyalgia and pulmonary sarcoidosis) that produced chronic pain and mobility restrictions before the accident (AD3).

6. Her pre-existing psychological injuries recorded by Dr Barling as it pertained to her various medical conditions had been aggravated considerably. Review of the clinical records of Kaylene Atkins has provided me with the details of the claimant’s improvement to a level nearing that which pre-existed the accident. This is also noted by Dr Barling in his 2022 report.

7. The amount of damages agreed in the sum of $235,000 is just, fair and reasonable and within the likely range of damages had the matter proceeded to an assessment.

SHOULD I APPROVE THE SETTLEMENT

1. Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:

   (a)    Unless a claimant has a whole person impairment of greater than 10%, the claim cannot be settled within two years.

   Time frames have been complied with.

   (b) The settlement must be approved by a Member of the 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 MA Guideline.

   I am satisfied that there has been compliance with the Act and the Guidelines.

   (c)    Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:-

   (i)sub clause 7.389.1  requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.

   The amount is $235,000 for non economic loss;

   (ii)sub clause 7.389.2 requires the amount of any deductions in the proposed settlement.

   The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There are no deductions to the settlement sum. This was confirmed in the teleconference;

   (iii)sub clause 7.389.3 requires the amount of any advanced payments made.

   There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement, and

   (iv)sub clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.

   I have received considered amount of clinical and medical records effectively convering the last 20 years of medical treatment.

   (d)    Clause 7.399 of the Guidelines, requires me to consider the following:

   (i)sub clause 7.399.1 :  Timeliness – the proposed settlement satisfies the timing requirements in the Act. This has been satisfied;

   (ii)sub clause 7.399.2:   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, 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 satified that the nature of the claimant’s injuries and the ongoing disabilities are known and have stabilised, the extent of past and future treatment is known as it related to ongoing pain and suffering, sufficient enough for me to ascertain whether the damages agreed to in the sum of $235,000 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.

   The final report of Dr Barling confirmed the current status of injuries and disabilities, and

   (iii)sub clause 7.399.3:   Understanding – 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 teleconference that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses. She was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer.

   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.

   I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.

Determination

1. This settlement is approved.

2. The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.

3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Guidelines.

Legislation

1. 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;

   ·        the Guidelines, and

   · Personal Injury Commission Rules 2021.

Case Law

1. The insurer highlighted the key principles in the following decisions:

   ·        James Hardie & Co v Newton (1977) 42 NSWLR729 as per Handley J at 732;

   ·        Hodgson v Crane [2002] NSWCA 276, and

   ·        Reece v Reece (1994) 1 19 MVR 103 – the claimant’s age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss.