Murray v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 332
•10 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Murray v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 332 |
| Claimant: | John Murray |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | David Ford |
| DATE OF DECISION: | 10 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 74-year-old male, passenger attempting to enter vehicle at a carpark and in doing so the vehicle rolled backwards causing the claimant to fall to the ground sustaining injury to left arm; sustained rotator cuff tear with impingement; subsequent continual pain and restriction of movement and weakness of the left arm; claimant is retired; surgery not recommended; no allegation of contributory negligence; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved; the proposed settlement is approved under section 6.23 (2)(b). |
| determinations made: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 12 December 2019, the claimant was a passenger, attempting to enter the insured vehicle at a car park at Ramsgate. As he attempted to enter the passenger side of the vehicle, the vehicle rolled backwards, causing the claimant to fall to the ground onto his outstretched left arm. Police and ambulance did not attend the scene of the accident.
He sought medical treatment from his general practitioner, Dr Gill at the Forest Mall medical centre on 19 December 2019, complaining of pain to the left shoulder, with restriction of movement. Dr Gill diagnosed a rotator cuff tear with impingement. He was treated with analgesic medication and referred for physiotherapy.
He was referred to an orthopaedic surgeon, Dr Popoff on 4 March 2022. At that time, he complained of severe pain to the deltoid muscle associated with forward flexion abduction with a feeling of weakness of the arm. His treatment had been Voltaren Gel, corticosteroid injections and physiotherapy. An ultrasound scan was taken which demonstrated a tear in the anterior half of the supraspinatus.
On examination by Dr Popoff, he had a slight decrease in active range of movement, a painful arc in forward flexion, abduction. Impingement test was positive. Jobes’ test was positive for pain and some weakness, external rotation, strength was 5/5 but painful and he had difficulty performing a lift off test.
He underwent an MRI scan which revealed a full thickness tear in the anterior supraspinatus. There was a large SLAP tear and some tearing into the superior subscapularis. Dr Popoff was of the opinion he would be best served with a left shoulder arthroscopic rotator cuff repair, biceps tenotomy and subacromial decompression. The claimant was not keen to undergo surgery because of his pre-existing medical conditions.
He was also referred to Associate Professor Justin Paoloni on 1 June 2022. On this occasion, continued with left shoulder pain, mainly with overhead activity, lifting or repetitive use of the left arm, some difficulty lying on the shoulder at night and had occasional distal paraesthesia. He had been treated with physiotherapy and six cortisone injections.
The insurer arranged for the claimant to be examined on a medico legal basis by
Dr Nair and I refer to his report dated 14 March 2023. Dr Nair noted he complained of pain and stiffness in the left shoulder. The pain was present at rest and with overhead lifting. He often wore a sling due to significant left shoulder pain. Dr Nair confirmed a supraspinatus tear of the left shoulder and surgical intervention was not indicated due to significant comorbidities. Dr Nair assessed the claimant as having an 11% whole person impairment.
The claimant was born in 1949 and is presently 74 years of age. He is retired.
The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only. The insurer has proposed a settlement offer of $140,000.
The claimant advised me he wishes to accept the proposed settlement.
I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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.
I am a General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (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.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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, taking into the account the nature and extent of the claim and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 23 JUNE 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 23 June 2023. The claimant participated in person and the insurer was represented by Smadar Rappaport.
The amended proposed deed of release was subsequently lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages in the sum of $140.000.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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