NRMA Insurance Limited v Khan
[2021] NSWPIC 394
•12 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | NRMA Insurance Limited v Khan [2021] NSWPIC 394 |
| CLAIMANT: | Voda Khan |
| INSURER: | NRMA Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 12 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claimant now 94 years of age; injured as pedestrian; multiple fractures to the clavicle, humerus, ribs, pelvis, hips, tibia and fibula and life-threatening internal bleeding; surgery later required for unrecognised but accident-related penetrating scalp wound with suppurating ulcer and sinus; pre-accident the claimant was independent in all household tasks and able to drive independently; post-accident capacity for domestic tasks limited; ongoing disability to left shoulder and left leg; no longer able to mobilise without walking stick or wheel walker; regained drivers licence but only able to drive short distances; age of claimant relevant consideration; Held – claimant sustained serious injury; claimant’s independence and relatively active lifestyle curtailed as a result of ongoing disability;settlement for non-economic loss approved. |
| 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). 3. The proposed settlement complies with cl 7.38 of the Motor Accident Injuries Guidelines. |
Introduction
On 22 December 2019 Ms Voda Khan (the Claimant) sustained serious injury in a motor vehicle accident (the accident).
Ms Khan 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 Khan’s claim for statutory benefits and has paid treatment benefits to, or on behalf of Ms Khan.
The Insurer has accepted that Ms Khan had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Ms Khan and the Insurer have agreed to settle the claim for lump sum damages for the sum of $150,000. Because Ms Khan is not represented by a lawyer, her settlement must be approved in accordance with 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 12 July 2021. Ms Khan was represented by her son Trevor Khan and was with her daughter Ms Alison Rout. The Insurer was represented by Ms Sophie Lee of Hall & Wilcox Lawyers.
Jurisdiction
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 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 clause 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.
Documents Reviewed
In considering this application for approval I reviewed the following documents:
·Insurer’s submissions dated 25 May 2021
·Liability Notice dated 16 April 2021
·Letter of offer from Hall & Wilcox dated 27 April 2021
·Emails between Mr Trevor Khan and the Insurer
·Application for personal injury benefits
·Report of the NSW Ambulance Service
·Clinical records of Wollongong Hospital
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 Khan was born on 13 June 1927 and is now 94 years of age.
On 22 December 2019 Ms Khan was walking across a marked pedestrian crossing at Westfield Figtree Grove Shopping Centre when she was struck by the insured vehicle.
Ms Khan sustained multiple fractures to her clavicle, humerus, ribs (2 – 10), pelvis, hips, tibia and fibula and life-threatening internal bleeding because of the accident. She also sustained abrasions to her head and arms.
The Claimant was conveyed by ambulance to Wollongong Hospital. She required a blood transfusion as a result of bleeding to the pelvis. The left tibia fracture was initially treated in a plaster and then a brace. The remaining fractures were treated conservatively. The Claimant was discharged on 18 February 2020 when she was transferred to Figtree Private Hospital for rehabilitation.
The Claimant received physiotherapy treatment at Shoalhaven Heads Physiotherapy. On 14 May 2020, the Claimant’s physiotherapist noted that the claimant had very limited left shoulder range of movement and that she was continuing to mobilise with the aid of a stick. On June 2020 it was noted that the claimant was continuing to mobilise with the aid of stick, but she was able to sit and stand, transfer and manage stairs more easily. There are no further physiotherapy records after 11 August 2020 (A7).
The Claimant was referred to Dr Punjabi, orthopaedic surgeon. At review on 18 May 2020, the claimant reported restricted movement in her left shoulder and mild discomfort on the medial aspect of the left knee. He noted the proximal humerus fracture had malunited. Dr Punjabi recommended the Claimant continue mobilising as tolerated and undertake further physiotherapy for the stiffness in her left shoulder.
On 13 July 2020, the claimant reported no pain in her knee but restriction of movement of the left shoulder. Dr Punjabi noted a malunited proximal humerus fracture, although the fracture of the proximal tibia had united. He also reported a complete tear of the supraspinatus and a tear of the infraspinatus tendon with osteoarthritic changes within the shoulder. Dr Punjabi recommended ongoing physiotherapy and suggested the Claimant may need a corticosteroid injection. He stated the surgical solution would be a reverse total shoulder replacement but suggested it would be preferable if the Claimant could manage her pain non-operatively given her age. (A8)
In June 2020, the Claimant was referred to Dr Pithum, neurosurgeon for a penetrating full thickness scalp injury which was accident-related and had gone unrecognised. The claimant underwent surgery for her left scalp wound at Wollongong Private Hospital on 16 June 2020 (A9).
Dr Pithum provided NRMA with a short report dated 25 June 2020. In that report, Dr Pithum diagnosed the Claimant with the following:
·Penetrating scalp wound with suppurating ulcer and sinus.
·Subgaleal empyema.
·Chronic front parietal osteomyelitis.
·Positive wound cultures for cutibacterium acnes.
The entire ulcer was cut out and a patch of osteomyelitis was found underlying the ulcer which was drilled back to the healthy bony margins. The Claimant was given four weeks of intravenous antibiotics via a long lasting PICC line followed by a lengthy period of oral antibiotics.
Benchmark Rehabilitation undertook an Activities of Daily Living Assessment on 8 April 2020. It was reported prior to the accident the Claimant was independent in all household tasks including taking the bins to the kerb, pool care, gardening, meal preparation, shopping, laundry, and cleaning tasks. The Claimant was also able to drive independently.
As a result of the accident the Claimant’s capacity for all domestic tasks is now limited. Whilst the Claimant lives in a three-storey house, it has been possible to adapt the middle storey to make it accessible for her activities of daily living.
The Claimant’s main complaints were in respect of her left leg and left shoulder. The occupational therapist noted the Claimant required a walking stick to mobilise, she had difficulty with ascending and descending stairs, mobilising from a sitting to standing position and had difficulty undertaking tasks which required movement above shoulder height. She required a wheel walker to mobilise between a car and the front door of her home. Rails were installed in the Claimant’s home together with a step platform for access to the main bathroom. The shower hob was also reduced to facilitate access to the shower. The Claimant’s daughter was available to assist the Claimant with personal care as needed.
As at August 2020, it was reported that the Claimant continued to have difficulty with her left upper limb function and that the Claimant’s home-based physiotherapy was unlikely to improve further function (A11).
On 21 December 2020 Nina Eagle of Benchmark reported the Claimant was able to mobilise unaided for short distances within her home, although she was observed to use furniture and door frames for steadying support. The Claimant uses a walking stick to mobilise short distances outside her home and uses a rollator to access the toilet during the night or when accessing the community such as the shopping centre with her carer. Whilst the Claimant had regained her driver’s licence, she was only able to drive short distances in quiet streets when accompanied.
Should I approve the settlement
Section 1.4 of the Act 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.
I am satisfied that Ms Khan is aware of her right to have her reasonable treatment expenses paid 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 Khan understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Ms Khan understood there will be no repayment to Centrelink or any impact on any ongoing entitlements.
In submissions dated 25 May 2021 the Insurer advised given treatment expenses are not impacted by the resolution of the common law claim for damages, no allowance will be deducted from the settlement sum for any benefits received under the Medicare benefits scheme.
Ms Lee 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. However, should Ms Khan receive a Notice of Charge from Medicare the Insurer will deal with any claim by Medicare in accordance with their obligation to pay reasonable and necessary treatment expenses which are causally related to the accident.
I advised Ms Khan if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, she should refer that charge to the Insurer for payment as part of their obligation to pay reasonable treatment costs.
In approving the settlement, I take into account the serious injury sustained by the Claimant and the impact of the ongoing disabilities on the Claimant’s activities of daily living. Indeed, I am mindful of the fact that the Claimant’s independence and relatively active lifestyle, having regard to her age, has been severely curtailed as a result of her ongoing disability. I also note the lengthy hospitalisation and ongoing rehabilitation experienced by the Claimant because of the accident. The impact of this accident will undoubtedly mar the Claimant’s remaining years.
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 $150,000 is an appropriate award of damages for non-economic loss.
Conclusion
I find the timing requirements of section 6.23(1) of the Act satisfied where it is agreed Ms Khan has sustained a permanent impairment greater than 10%.
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 Khan .
I am satisfied Ms Khan is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Khan 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 Khan is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the Act I approve the settlement of Ms
Khan ’s claim for damages.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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