Maloney v NRMA Insurance Ltd
[2021] NSWPIC 144
•27 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Maloney v NRMA Insurance Ltd [2021] NSWPIC 144 |
| APPLICANT: | Mary Maloney |
| RESPONDENT: | NRMA Insurance Ltd |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 27 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Claims assessment; settlement approval under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; non-minor injuries; comminuted fracture of the femoral condyle; total left knee replacement; 86 years of age; $200,000; walking across the road; risk of falls; likely decline acceleration of previously mild Parkinson’s disease; Held- proposed settlement is just, fair and reasonable; approve the settlement. |
| DETERMINATIONS MADE: | 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). |
Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
Introduction
On 25 May 2019 Ms Mary Maloney sustained serious injury in a motor vehicle accident (the accident).
Ms Maloney has made a claim against NRMA Insurance Limited the CTP insurer of the at fault vehicle, for lump sum damages.
The Insurer accepted liability for Ms Maloney’s claim for statutory benefits and has paid treatment benefits to, or on behalf of Ms Maloney.
The Insurer has accepted that Ms Maloney had non-minor injuries and pursuant to Division 3.4 of the Act she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Ms Maloney and the Insurer have agreed to settle the claim for lump sum damages for the sum of $200,000. Because Ms Maloney is not represented by a lawyer, her settlement must be approved in accordance with the Motor Accident Injuries Act, 2017 (the Act).
The Insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 13 May 2021. Ms Maloney was represented by her son Bernard Maloney and the Insurer was represented by MP. Whilst I indicated I considered the settlement sum to be appropriate I was not prepared to approve the settlement until I received further advice as to any Medicare refund.
A further teleconference was held on 25 May 2021. Ms Maloney was represented by her son Bernard Maloney and the Insurer was represented by VZ.
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the DRS 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 PIC. 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 Clause 14D(3)(b) provides that the Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
The relevant law
Section 6.23(1) of the 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%.
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 of the requirements of the Act or the Guidelines.
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
(c)the Claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Review of the evidence
Ms Maloney was born on 11 May 1935 and is now 86 years of age.
On 25 May 2019 Ms Maloney was walking across the road in Ripon Street, Young after attending Mass when the at fault vehicle collided with her. Ms Maloney was knocked to the ground and her left leg was trapped under the vehicle. Ms Maloney was conveyed by ambulance to Young District Hospital. She sustained a comminuted fracture of her left medial femoral condyle
On 27 May 2019 Ms Maloney was transferred to Calvary Hospital. She came under the care of Dr Vinny Mamo and underwent a left total knee replacement with distal femoral replacement on 31 May 2019.
On 11 June 2019 Ms Maloney was transferred to Mercy Care Centre, Young for rehabilitation. She was discharged home with assistance on 12 July 2019.
Dr Fiona Gleeson, General Practitioner provided a response to a request for medical information by the Insurer on 19 March 2021. She stated Ms Maloney had participated fully in rehabilitation but had not returned to her pre accident status and never will. She stated Ms Maloney’s injuries had stabilised and she hoped she could maintain her current functional status for 12 months but there is likely to be a decline due to the severity of the injury. She reported Ms Maloney can mobilise both in and out of her home with a wheelie walker, but she is at risk of falls.
Dr Gleeson reported Ms Maloney cannot do housework, other than basic dusting, cannot make her bed, requires assistance to prepare meals and receives weekly homecare help. She reported Ms Maloney can no longer drive and requires transportation. Ms Maloney cannot shop independently and can no longer garden. She described not only a loss of strength in the left leg, poor stability, and a loss of confidence. Dr Gleeson also reported the accident had resulted in an acceleration of Ms Maloney’s previously mild Parkinson’s Disease with associated increase tremor, tone, and poor balance. She reported Ms Maloney wishes to stay in her own home if she can with support in her activities of daily living.
The Claimant’s son Bernard Maloney also provided a short response confirming the degree of disability described by Dr Gleeson.
Should I approve the settlement
Section 1.4 of the Motor Accident Injuries Act, 2017 defines non-economic loss as
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $590,000.
Prior to the accident the Claimant was healthy and active. She was able to drive, to do her own shopping, her own banking and drive herself to Mass. Ms Maloney cared for herself and her home including cooking, cleaning, and gardening. Up until several months before the accident Ms Maloney also cared for her husband until it became necessary for him to enter a residential facility for fulltime care.
Prior to the accident there was some suggestion Ms Maloney suffered from minor symptoms of Parkinson’s Disease. In or about August 2020 Ms Maloney consulted a neurologist, she had an MRI scan and was diagnosed with Parkinson’s Disease which her neurologist suggested was significantly worsened by the trauma of the accident.
The medical evidence suggests there is only likely to be an inexorable increase in the Claimant’s pain and disability.
In exercising my discretion, I am mindful Ms Maloney’s period of convalescence between 25 May 2019 and her discharge from Mercy Care Centre on 12 July 2019 and the nature of the surgery undergone by Ms Maloney.
I am satisfied that Ms Maloney is aware of her right to have the Insurer pay reasonable ongoing treatment expenses for the remainder of her life. Whilst the Insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
I am satisfied Ms Maloney understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Ms Maloney understood there will be no repayment to Centrelink or any impact on her ongoing entitlements.
VZ advised the Insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. She advised at the end of the five-year period when the Insurer’s obligation to pay treatment expenses ceases the Insurer will pay any charge owing to Medicare for treatment expenses.
VZ confirmed the Insurer will indemnify Ms Maloney in respect of any charge raised by Medicare in respect of treatment expenses paid by Medicare referrable to the accident.
I advised Ms Maloney if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, she should ask the Insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
I am mindful of the decision of the Court of Appeal in Reece v Reece (1994) 19MVR 103 in that I must consider the age of the Claimant when determining the appropriate amount for non-economic loss. I am of the view that the sum of $200,000 is an appropriate award of damages for non-economic loss.
Conclusion
I find the timing requirements of s 6.23(1) of the Act is satisfied where it is agreed Ms Maloney has sustained a permanent impairment greater than 10% and where it is now two years since the date of accident.
I am satisfied the proposed settlement is just, fair and reasonable and 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 Maloney .
I am satisfied Ms Maloney is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Maloney understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Ms Maloney is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2(b) of the Act I approve the settlement of Ms Maloney ’s claim for damages.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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