Macdonald v Transport Accident Commission of Victoria
[2022] NSWPIC 424
•29 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Macdonald v Transport Accident Commission of Victoria [2022] NSWPIC 424 |
| CLAIMANT: | Lauren Macdonald |
| INSURER: | Transport Accident Commission of Victoria |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 29 July 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Damages claim – approval of settlement under section 6.23 of the Motor Accident Injuries Act 2017; claimant self-represented; claimant sustained compound fracture to right tibia when crushed between two cars while guiding a van into a parking space; insurer alleged 25% contributory negligence for placing herself in a position of danger; insurer conceded non-economic loss damages; claimant is a psychiatric registrar in United Kingdom hospital system and injured whilst on holidays; career put back by one year; allowances made for past and future loss of earnings and earning capacity on basis claimant could do full time work but no on-call overtime work; insurer allowed losses to mid-2027 only on basis she injuries would have recovered and she could find a job that suited her injuries and disabilities; medico-legal evidence provided by insurer about current situation but limited evidence as to future prognosis; claimant said treating doctors in UK advised she may develop arthritis and may come to a knee replacement; Held — settlement offer not approved; non-economic loss well below the range and issues with past and future economic losses. |
DETERMINATIONS MADE: | 1. The proposed settlement of Ms Macdonald’s claim for damages is not approved. |
INTRODUCTION
Lauren Macdonald was visiting Australia from the United Kingdom when, on
18 November 2018, she was injured in a car park at Byron Bay. She provides the following description of the accident in her claim form:
“My partner was attempting to park our hired campervan in the Pass car park. It was very busy with few spaces. I got out to help guide my partner. I walked to the very back of the space and turned to face the van. He drove front first at a steady controlled speed. The van suddenly jolted forwards pinning me against the vehicle behind me and crushing my legs.”
Ms Macdonald sustained injuries including a fracture of her right tibia and significant bruising which led to a right leg thrombosis and neuropraxia.
Ms Macdonald will be 38 later this year and is a doctor (psychiatric registrar) in the United Kingdom.
Following her accident, Ms Macdonald made two claims under the Motor Accident Injuries Act 2017 (the MAI Act):
(a) a claim for statutory (income support and treatment) benefits[1], and
(b) a claim for lump sum compensation or damages[2].
[1] The application for personal injury benefits is dated 28 November 2018 and is document A2 in the insurer’s bundle of documents.
[2] The application for damages is dated 28 October 2020 and is document A3 in the insurer’s bundle of documents.
Because the insurer of the campervan that hit her was registered in Victoria with third-party insurance provided by the Transport Accident Commission (TAC), the Nominal Defendant paid her statutory benefits[3]. The Nominal Defendant accepts Ms Macdonald has non-minor injuries and was not at fault and, had Ms Macdonald remained in Australia, the Nominal Defendant would have been required to continue paying benefits to cover Ms Macdonald’s reasonable and necessary accident-related treatment and care needs[4].
[3] With GIO managing the claim and paying benefits on behalf of the Nominal Defendant pursuant to s 3.2(6).
[4] See s 3.28.
TAC has accepted liability for the damages claim[5] but alleges contributory negligence on the part of Ms Macdonald assessed by TAC at 25%.
[5] The insurer’s liability notice is dated 23 April 2021 and is document A4 in the insurer’s bundle of documents.
TAC has offered, and Ms Macdonald has accepted, an offer to settle her claim. That offer was the second offer made by TAC and was an increased amount from the first offer following a query from Ms Macdonald about the loss of superannuation (or pension) benefits. Ms Macdonald has made no counter offers of her own.
Because Ms Macdonald does not have a lawyer representing her, the settlement must be approved in accordance with the relevant provisions of the MAI Act.
TAC referred the settlement to the Personal Injury Commission (the Commission) and the proceedings have been allocated to me to consider whether the settlement should, or should not be approved.
The final settlement figure was $320,000 and I do not approve the settlement.
LEGISLATIVE FRAMEWORK
Claims for damages
The MAI Act limits the types of damages that can be awarded and the amounts of those damages.
Damages for non-economic loss
Damages are available for non-economic loss if the injured person has a whole person impairment of greater than 10%. There is no dispute in this matter that Ms Macdonald has a significant impairment[6] and the insurer has included an award of $175,000 for non-economic loss in its offer.
[6] The insurer’s letter conceding entitlement to non-economic loss is dated 1 December 2021 and is document A6 in the insurer’s bundle.
Non-economic loss is defined in the MAI Act[7] as including pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement or scarring (which includes surgical scarring). I have no medical or photographic evidence about any scarring before me although Ms Macdonald did give evidence at the teleconference that she has visible scarring on her injured leg, particularly at the location of her compound fracture.
[7] Section 1.4.
The current maximum amount for non-economic loss damages allowed under the MAI Act is $590,000[8].
[8] Section 4.13 and the amount is adjusted on 1 October every year.
Damages for economic losses
Section 4.5 of the MAI Act limits the types of damages that can be awarded for economic losses to:
(a) damages for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity;
(b) damages for costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations;
(c) damages for the cost of the financial management of damages that are awarded, and
(d) damages by way of re-imbursement for income tax paid or payable on statutory benefits arising from the injury that are required to be repaid on an award of damages to which this Part applies.
The insurer’s offer did not include the cost of financial management which is usually only awarded to persons who have limited capacity and cannot make financial decisions on their own. This is not the case with Ms Macdonald.
The insurer has made allowances for past and future loss of earnings (including lost superannuation or pensions) and the re-imbursement of taxation paid by the insurer on the weekly statutory benefits paid to the claimant.
The insurer has not made any allowance for past or future accommodation or travel costs. Ms Macdonald gave evidence at the teleconference that she and her partner remained in Australia six months longer than anticipated and paid rent, that they otherwise would not have paid for that six months. Ms Macdonald also said that she returned home flying business class and not economy because of her injuries. While TAC did not pay that, the additional expense associated with that was paid by her travel insurer and therefore it would appear the claimant was not out of pocket.
I note section 4.5 of the Act does not allow a claimant to be awarded damages for economic losses related to treatment and care needs as these usually continue to be paid under the statutory benefits claim for the remainder of a claimant’s life. However, Ms Mcdonald lives outside Australia and therefore while she does so, section 3.33 of the MAI operates to prevent the payment of any statutory treatment and care benefits.
Settlement approval
Common law damages are awarded on a once and for all basis. An injured person cannot usually make a claim for further damages once a claim has been settled.
Section 6.23 of the MAI Act says:
“(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(2) A claim for damages cannot be settled unless—
(a)the claimant is represented … by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Section 6.23(2)(b) is an important safety net for persons settling a damages claim without legal advice. The Commission must approve the settlement before the claim can be finalised.
Clause 7.37 of the Motor Accident Guidelines[9] (the Guidelines) says that in considering the settlement the Commission must consider whether:
“(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the MAI 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 (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, 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
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
REVIEW OF THE EVIDENCE
[9] The current version is version 8.2 effective April 2022.
Liability
TAC has alleged[10] that the claimant contributed to her own injures by failing to take reasonable care for her own safety because:
(a) she positioned herself in a situation of danger;
(b) she was aware the driver was not familiar with the vehicle and had reported the brakes had been “sticking”;
(c) she was in a position of danger between two vehicles in a tight parking area, and
(d) standing in front of the vehicle while it was travelling forward was an “inherently dangerous act”.
[10] In its liability notice referred to in paragraph 6 above.
The police report is dated 17 June 2019 and was completed by Senior Constable Pryke of Byron Bay Police. The report notes the accident occurred at about 10.27 am and that it was daylight and dry. The speed limit was said to be 20 km per hour and the pre-crash speed of the Toyota Hi-Ace vehicle driven by Benjamin Talbot was 5 km per hour. The crash summary details are reported as follows:
“… driver 1 of vehicle 1 was attempting to park his vehicle in a parking spot at the Pass car park … At the time driver 1’s partner was out of the vehicle and standing in front of the vehicle in the spot guiding him in. As driver 1 got closer to the vehicle in front, his foot accidentally slipped off the brake and hit his partner in her right leg region causing [her] to fall to the ground after briefly being pinned to vehicle in front … Driver 1 was not affected by intoxicating liquor and followed the ambulance to Tweed Heads Hospital.”
GIO on behalf of the Nominal Defendant appear to have commissioned an investigation of the accident. Attached to their report dated 25 May 2019 is a statement from Ms Macdonald’s partner, Ben Talbot dated 15 May 2019. He says:
(a) he moved to Australia from the UK in 2015 and is a doctor, having worked at Concord Hospital. He was (at the time of the statement) 36 years old;
(b) he had a current UK driver licence but had no car of his own in Australia, hiring cars when he needed to travel;
(c) he was given an infringement notice for “negligent driving” as a result of the accident;
(d) he and the claimant had hired a campervan for three weeks and were planning to drive to the Gold Coast then fly back to Sydney. The accident happened on the fifth day of the hire. Mr Talbot had not driven a campervan before;
(e) the van was an automatic Toyota Hi-Ace, with accommodation built into it. At [9] Mr Talbot says:
“It seemed to be in good condition at the time. On the day of the accident the tyres, brakes and steering were all working well”;
(f) he and the claimant had been in a relationship since meeting in the UK and had both been in Australia since September 2018;
(g) they had a couple of overnight stops heading up the coast and had been in Byron Bay for a couple of days staying at a campsite;
(h) he was not familiar with the area although had been there the day before;
(i) he describes where the parking spot was and said it was busy and he had to queue up for a parking spot “for a while”. After waiting for the vehicle to exit the space he was heading into, Lauren got out of the campervan in order to guide him in. He thinks there were vehicle on both sides and also one directly in front of him;
(j) he does not recall a conversation about that - Lauren just got out of the car which was something they had both done throughout their trip;
(k) Lauren stood on the white line marking the end of the space in front of the driver’s side and she was facing him;
(l) he turned into the space and moved forward at a slow speed;
(m) he was two thirds of the way in when he went to apply the foot brake but nothing happened;
(n) he says at [16]:
“I went to push it again straight away and the campervan then jolted forward by about a metre pinning Lauren between the front driver’s position of the campervan and what I think was the front passenger side of the parked vehicle directly ahead of us. I am not now certain if my right foot slipped off the brake pedal and then accidently pushed down the accelerator pedal. I just don’t know. It all happened so fast.”
(o) he also says at [16] that “the brake pedal had been a bit sticky on occasions during the trip” but not enough to get it investigated;
(p) he drove the campervan to the hospital after the accident and the brakes worked fine;
(q) after being issued with the infringement notice he told the police he wanted the brakes of the campervan tested. While they did not do so, he asked the campervan owner to test them and was provided with a brake test printout showing they were operating properly, and
(r) a copy of the brake test was provided to him and is attached to his statement and is dated 21 November 2018.
There is an earlier report dated 5 May 2019 which incorporates a sketch diagram from the police records, the police officer’s statement (which adds little to my understanding of the matter) and a number of photographs of the car park at the Pass.
There is no statement from the claimant herself and no marked up photographs or diagrams to show precisely where the claimant was standing. As I understand it from what Ms Macdonald said at the teleconference she was standing on the white line between the van and the vehicle in front (as opposed to the lines between the van and the vehicles on either side) but that she stood to the side in front of the driver’s corner of the van which was why her left leg was uninjured.
Ms Macdonald said at the teleconference that she had driven the van during the trip and that she had no recollection of the brakes being sticky or of having any trouble with the van although she did say it was a “rubbish old van” and generally a bit “rickety”. She does not recall Ben ever complaining or saying to her that the brakes were sticky.
Medical and related evidence as to quantum
Dr Lee from the Tweed Hospital completed the medical certificate attached to the personal injury benefits claim which included the following detail:
(a) admitted to Tweed Hospital on the day of the accident (discharged a week later on 23 September 2018);
(b) Ms Macdonald would require medical treatment at the Royal Prince Alfred Hospital (RPAH) fracture clinic;
(c) Ms Macdonald was to be non-weight bearing for six weeks then partial weight bearing for four more weeks, and
(d) her leg was to remain elevated when resting but there was to be no prolonged seating and she was unable to drive for at least 10 weeks.
The insurer obtained a report dated 23 September 2021 from Dr Zbigniew Poplawski an orthopaedic surgeon[11]. He examined the claimant from his rooms in New Zealand by video conference.
[11] Document A5 in the insurer’s bundle.
Dr Poplawski notes that the claimant was delayed in returning to the UK after her accident which delayed the finalisation of her studies and her qualification as a psychiatrist by one year.
Dr Poplawski has a history of Mr Talbot’s vehicle coming to a stop but “because of a malfunction” suddenly lurching forward impacting Ms Macdonald’s right knee causing a compound fracture of the upper end of the tibia and avulsion of the gastrocnemius muscle.
He notes Ms Macdonald was taken to Tweed Hospital where she had surgery (internal fixation with plates and screws). She was discharged after a week had follow up at RPAH and had physiotherapy and hydrotherapy. She developed a DVT about two weeks after the accident which required anticoagulant therapy (daily Clexane injection) over two months. On returning to England, she has had follow up treatment at the North Devon Hospital fracture clinic and private physiotherapy treatment.
Dr Poplawski has a history from the claimant of an unstable right knee and that on
27 December 2020 during one such episode she fell sustaining a fracture at the right ankle which also required surgery (open reduction and internal fixation). The fixation devices have been removed in further surgery.
He notes the following current complaints:
(a) difficulty sleeping, limits to standing and walking;
(b) her ankle is stiff when getting up and causes a limp which people notice;
(c) she has difficulty with stairs and navigating slopes. She cannot kneel or squat. She has difficulty with removing and replacing shoes socks and trousers and difficulty with home duties;
(d) Ms Macdonald lives in an apartment;
(e) cycling, running, bushwalking, surfing, teaching yoga, aerobics and horse-riding none of which she can do, and
(f)
Ms Macdonald’s knee movements were measured and recorded but
Dr Poplawski has not noted whether these movements were normal or not. He did note that Ms Macdonald’s ankle movement was reduced by 25% on the right.
Dr Poplawski found the December 2020 and right ankle fracture as caused by the accident and he gave a guarded prognosis in respect of the claimant’s recovery but did not elaborate and declined to undertake a whole person impairment assessment at that time on the basis the right ankle injury had not stabilised. He did express the view there was an impairment to the claimant’s earning capacity as she cannot do overtime.
The insurer also obtained a report from Dr Graham George psychiatrist dated
15 February 2022[12]. He has a history of the claimant having a malignant melanoma removed in 2014 and a possible chest malignancy which was treated. The claimant told Dr George she had been cancer free for six years.
[12] Document A7 in the insurer’s bundle.
Dr George noted at the time of her accident, Ms Macdonald was a registrar in the public hospital system undergoing her speciality (psychiatry) training.
Ms Macdonald told Dr George she had 16 weeks in a splint and has pain on a daily basis. She has restricted mobility and her sleep is disturbed by pain. The claimant reported that she thinks about the circumstances of the accident and has consulted several different psychologists. Her mood is affected and she is more on edge.
Dr George has a history of the 27 December 2020 injury and that Ms Macdonald now has ache in ankle and swelling which is adding to her depressed mood.
Dr George expressed the opinion Ms Macdonald “has typical symptoms of chronic post-traumatic stress disorder and persistent depressive disorder”. He found these injuries wholly attributable to the car accident. He too said the prognosis was guarded because of chronic pain and continuing symptoms.
He also expressed the view while she was able to work full time as a psychiatric registrar, the claimant was not capable of working the “on call roster” and therefore overtime as a result because of the amount of walking and the constant pain.
Dr George assessed the claimant’s whole person impairment from a psychiatric perspective at 8%.
Ms Macdonald’s evidence
Ms Macdonald said at the teleconference that after the accident, she and Ben remained in Sydney renting a friend’s home in Surry Hills until they returned home.
She confirmed that before the accident she was a very active person and loved hiking but that she has been unable to return to any of her pre-accident activities. She said she tried to do a yoga class but could not and that her only exercise now is swimming.
She complained of chronic pain.
I said the insurer’s submissions suggested she had taken the research job because she wanted that job, as she had an interest in the research area which implied this was not accident related.
Ms Macdonald said she took the research job because she needed to add to her resume. Because of the accident and her inability over the last three years to do the on-call work she said she was at a disadvantage compared to the other trainees.
I asked her about the future, and she said that she anticipated finalising her training in July 2027. At that time, she would then be eligible to join the relevant college and become a consultant psychiatrist either in the National Health Service or as a private consultant. She said there is a lot of competition and her career was being impacted by her injuries because of her inability to undertake on-call and overtime work. This involves her working extended hours and walking all over the hospital to visit patients. She hopes she will get a position as a consultant in a job that would allow her to be seated and not navigate the wards of a hospital.
Ms Macdonald also told me that she had seen a lot of orthopaedic specialists seeking opinions as to her injuries and how she could improve her recovery. She said she had been told she is likely to develop arthritis in her knee joint, that she will be likely to require cortico-steroid injections in time and eventually a knee replacement. She has been told she is unlikely to improve further and she is still pretty disabled.
Ms Macdonald still has the hardware in her tibia and has been advised to leave it there unless the pain becomes “absolute agony”. She says she has developed keloid scars at the ankle and at the site of her fracture although the scar down the inside of her leg has healed well without keloid features.
CONSIDERATION OF THE SETTLEMENT
Insurer’s submissions
TAC lodged comprehensive and helpful submissions explaining the components of the offer made[13]. TAC does not take issue with causation of the right ankle fracture in 2020 and accepts that the claimant’s losses extend to those flowing from her right knee fracture as well as the right ankle injury.
[13] Document A1 in the insurer’s bundle.
TAC notes that the claimant has received weekly benefits totalling $33,270.36 in her statutory benefits claim (which will have to be deducted from the settlement) and that the parties agreed on an exchange rate (pounds to dollars) to apply to all of her damages.
TAC offer included the sum of $175,000 for non-economic loss.
The past economic loss component includes periods of total incapacity and reduced capacity based on her ability to undertake on-call work and receive overtime payments and totals the sum of over $68,000.
There is no component for a period of total incapacity after the December 2020 ankle injury and TAC has not included any damages for the year February 2022 to
January 2023 when the claimant took up the research post saying “as the claimant elected to take on a research position, mainly due to her interest in the research area” this would delay her qualifications by a year and there is no overtime or on-call work in this role.
Superannuation was included in the past loss and the tax on weekly benefits paid by the insurer was also added to the past loss.
Future loss of earning capacity was allowed until July 2027 which is the expected date of the claimant’s completion of her qualifications. The loss for this period is based on a loss of on-call work and consequent overtime which was reduced by 15% for the usual vicissitudes to give a figure of close to $144,000 plus superannuation.
TAC then submitted that “by the time the Claimant completes her psychiatry training … she should have recovered to a large extent from her injuries and have more flexibility to find employment that suits her needs at that time” and therefore did not allow anything beyond July 2027.
TAC reduced the total sum of damages by 25% on the basis that the claimant was contributorily negligence for placing herself in a position of danger. TAC rounded up the final figure to $320,000.
Should I approve the settlement?
I have determined I should not approve the settlement of Ms Macdonald’s claim for the sum of $320,000 because:
(a) the medical evidence in this matter that is before me is limited and there is no evidence of how the claimant’s injuries are likely to progress in the short, medium or long term. Both of the insurer’s doctors say the prognosis is “guarded”. This concerns me in particular because the claimant has reported she has been told that her knee injury may progress to develop arthritis and all that is likely to entail in the future;
(b) at the time Dr Poplawski examined the claimant he was of the view her ankle injury had not stabilised and therefore the prognosis for the progression of that injury was not certain;
(c) there are no photographs of the claimant’s scarring available to me and the submissions from TAC do not suggest the scars have been considered;
(d) at 38 years of age the claimant has, on the usual life expectancy tables a further 48 years of life. If her pain is likely to continue at its current level or increase as her injuries deteriorate in time that is a considerable period of time with which she has to live with that pain;
(e) the impact on the claimant’s recreational pursuits, domestic activities and career prospects appears significant;
(f) the amount allowed by TAC for non-economic loss was considerably lower than the very bottom of the range I had in mind for this head of damage;
(g)
the absence of any consideration of any costs associated with travel and accommodation in the past or the future pursuant to section 4.5(1)(b).
Ms Jenkins conceded she had not considered this and as a result there is no medical evidence dealing with, for example, whether Ms Macdonald will need to travel business class versus economy for any future overseas travel and whether she might need to live in a ground floor flat or one level home closer to work and if so whether there is any additional cost associated with that;
(h) the evidence from the claimant as to why she took the research job appears to suggest it was related to the impact of the accident and therefore the past loss of earnings may need to be adjusted accordingly;
(i) there is no evidence as to any past accident-related sick leave taken by the claimant (for example after the December 2020 accident) and whether that could be reimbursed and re-credited and therefore whether the value of that should be included in the calculation of past loss;
(j)
the future loss of earning capacity allowance is based on the insurer’s submission that the claimant will have recovered from her injuries by
June 2027 and can chose a job suited to her injuries. I have significant concerns about this head of damage. Firstly there is no medical evidence to suggest the claimant’s injuries will have recovered by June 2027 and secondly the claimant says she may not be able to find a more sedentary job and may have to get a job requiring hospital work and more walking. Thirdly even if she could choose a job more suited to her injuries (over others), there is no evidence about whether such a job would earn her more or less or the same. I note these sorts of issues are usually dealt with in a report from a vocational expert, and
(k) the future loss of earning capacity after June 2027, if there is any, may not be amenable to precise calculation but may be accommodated in a buffer or cushion amount that includes the medium and long term prognosis for the claimant’s injuries.
Finally, I am not approving the settlement because I have concerns about the allowance for contributory negligence. The test to be applied when considering whether there should be any contributory negligence at all is a consideration of what a reasonable person in the position of the claimant would have done based on what they knew or ought to have known at the time. It is my preliminary view that it would be reasonable for a person to get out of the van and help the driver park it in a tight spot in a popular car park. Where the claimant was standing is likely to be an issue. TAC appears to be of the view she was standing more to the middle of the van as opposed to the side. Whether the claimant should have placed herself where she did will depend on what her view would have been like where she was versus where the insurer suggests she stand and what she knew or ought to have known about the van. The insurer says that the claimant knew the brakes were sticky but that is not the evidence from the claimant. She does not recall her partner saying anything about the brakes being sticky and she herself had driven the van without issue. Of course, there is also no evidence of there being any problem with the brakes or any other component of the van. The evidence in the police report suggests the cause of the accident was driver error, Mr Talbot’s statement suggests he is not really sure what he did. There is evidence from the insurer’s investigator that there were broken edges and potholes in the surface of the car park and a small lip / kerb between the car park and the car space which may have provided resistance to the van’s forward motion and caused it to lurch as the rear wheels overcame that resistance. That may of course be a matter for expert evidence.
If the claimant was contributorily negligent, then the assessment of the percentage reduction for that contributory negligence requires a consideration of the relative culpability of the two protagonists, Mr Talbot and Ms Macdonald and that will also depend on the real cause of the accident, a malfunction with some component of the van or merely driver error.
CONCLUSION AND NEXT STEPS
In a matter where there may only be one head of damage issue, or a matter where the settlement is not too far from the range of damages that might be awarded in an assessment, I would not usually determine the matter but defer it to allow the parties to negotiate a further settlement. However, in this claim there are significant gaps in the evidence which, if addressed might result in a substantially higher settlement figure. That may take time.
As the claimant only has one opportunity to recover damages and, as there is a related application for general assessment currently on foot, I will not defer the current proceedings but determine them.
I am not at all comfortable in approving the settlement and I will not approve it.
While I cannot give legal advice, I can encourage the claimant to obtain it.
Ms Macdonald said she had sought legal advice in the UK, but no one indicated any familiarity with the compensation system in this state. She also said she had tried to find a lawyer in Sydney before she left, but she felt the costs of having a lawyer were excessive. I informed Ms Macdonald that the MAI Act and the scheme provides that the insurer pays for some (but not usually all) of the legal costs incurred by a lawyer should she choose to retain one. I suggested to her that there were Sydney-based solicitors who act for overseas visitors or foreign persons injured in car accidents in NSW. I suggested she may wish to contact the Law Society of NSW or that Ms Jenkins (albeit a Victorian practitioner from a Victorian insurer) might be able to recommend to the claimant someone with experience in NSW based TAC claims.
I did indicate to Ms Macdonald at the teleconference that the assessment of damages for someone relatively young with serious injuries may require the assistance of a legal practitioner with personal injury motor accident specialist experience and accreditation.
Ms Macdonald’s related damages assessment matter has been allocated to me (matter M10473375/21). I will defer that matter for a period of a month to enable Ms Macdonald and TAC to consider their positions further before holding a further teleconference in that matter.
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