NRMA Insurance Limited v Khan - [2021] NSWPIC 394

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…

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 394
Decision Date: 12 July 2021

CaseChat Overview and Summary

The matter of NRMA Insurance Limited v Khan was before the court, where the dispute centred around the approval of a settlement for a motor accident claim. The claimant, now 94 years old, had been a pedestrian involved in an accident resulting in multiple fractures and life-threatening internal bleeding. The claimant's injuries also included a penetrating scalp wound which went unnoticed but was later found to be accident-related, requiring further surgery. The court had to determine whether the settlement for non-economic loss was appropriate given the claimant's age and the extent of the injuries sustained.

The court needed to address several legal issues, including whether the settlement amount for non-economic loss was reasonable under section 6.23 of the Motor Accident Injuries Act 2017. The court also had to consider how the claimant's age and the nature of the injuries affected the overall impact of the accident on their life. Another key issue was the extent to which the claimant's independence and capacity to perform domestic tasks had been impaired due to the injuries.

The court found that the claimant had indeed sustained a serious injury which significantly curtailed their independence and active lifestyle. The claimant's pre-accident independence in household tasks and driving ability was contrasted with their post-accident limitations, including the need for a walking stick or wheel walker and the inability to drive long distances. Given these considerations, the court approved the settlement amount for non-economic loss, acknowledging the claimant's age and the profound impact of the injuries on their life.

The court's approval of the settlement was based on a comprehensive evaluation of the claimant's pre- and post-accident circumstances, the nature of the injuries, and the ongoing disability. The final orders included the approval of the settlement for non-economic loss, recognising the claimant's significant loss of independence and quality of life due to the accident.

Orders