Maloney v NRMA Insurance Ltd - [2021] NSWPIC 144

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 144
Decision Date: 27 May 2021

CaseChat Overview and Summary

The case of Maloney v NRMA Insurance Ltd involved the assessment of a claim for compensation following a motor accident. The plaintiff, Mr. Maloney, was 86 years old when he sustained a comminuted fracture of his femoral condyle, resulting in the need for a total left knee replacement. The dispute centred on the evaluation of the proposed $200,000 settlement for non-minor injuries, considering the plaintiff's age and the circumstances of the accident, which occurred as he was walking across the road. The court was tasked with determining whether the settlement amount was just, fair, and reasonable under section 6.23(2)(b) of the Motor Accident Injuries Act 2017.

The legal issues revolved around the assessment of the total value of the claim, taking into account the plaintiff’s age, the severity of the injury, the medical treatment required, and the potential impact on his Parkinson’s disease. The court had to balance these factors against the standard of care expected of someone of Mr. Maloney’s age and the inherent risks of falls due to his condition. The plaintiff argued for a higher settlement, considering the long-term implications of the injury and the risk of acceleration of his Parkinson’s disease. The defendant, NRMA Insurance Ltd, contended that the proposed amount was appropriate given the circumstances.

The court found that the proposed $200,000 settlement was just, fair, and reasonable. It considered the risks associated with Mr. Maloney's age and pre-existing condition, along with the extent of the injury and the medical treatment required. The court concluded that the settlement appropriately compensated for the injury and the potential exacerbation of the plaintiff's Parkinson’s disease, without excessively penalising the insurer. The approval of the settlement was based on a comprehensive assessment of all relevant factors, ensuring that the plaintiff received fair compensation for his injuries.

The final order was to approve the settlement of $200,000 as just, fair, and reasonable. The court emphasised the importance of considering the totality of the circumstances, including the plaintiff's age, the nature of the injury, and the potential long-term effects on his health and mobility. The decision underscores the necessity of a balanced approach in assessing motor accident compensation claims, particularly when involving elderly claimants with pre-existing conditions.

Orders