Pantelis v AAI Limited trading as GIO
[2021] NSWPIC 446
•5 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Pantelis v AAI Limited trading as GIO [2021] NSWPIC 446 |
| CLAIMANT: | Faneromeni Pantelis |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 5 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 71 year old female pedestrian travelling against pedestrian don’t walk sign injured in a collision with a car; periprosthetic fracture of left femur and left ankle fracture; admitted to hospital for 28 days; Claimant had significant pre-accident medical history; 20% whole person impairment assessment; liability admitted but 20% contributory negligence agreed and Cheetham v Bau discussed; RACQ Insurance Limited v Motor Accidents Authority of NSW and Reece v Reece considered regarding assessment of non-economic loss and claimant’s age; Held - proposed settlement is just, fair and reasonable; settlement 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. |
Background
Mrs Panetlis is 71 years old and a pensioner.
She was involved in an accident on 15 March 2019 at approximately 8.15am when she was a pedestrian crossing an intersection and a car ran into her.
The insurer accepted liability but initially alleged contributory negligence of 60% by letter of 29 April 2021.
Mrs Pantelis suffered the following injuries:
(a) periprosthetic fracture of the left femur, and
(b) left ankle fracture.
Mrs Pantelis had a significant pre-accident medical history including:
(a) six surgeries to left knee;
(b) bilateral total knee replacements;
(c) chronic back pain;
(d) chronic renal impairment;
(e) type 2 diabetes;
(f) atrial fibrillation;
(g) hearing impairment;
(h) hypertension, and
(i) diverticulitis.
The claimant requests that the Personal Injury Commission (the Commission) approve the proposed settlement. Mrs Pantelis is not legally represented. The parties have entered into negotiations and have concluded a settlement. The claim comes before me for approval.
Reasons
Treating medical evidence
Immediately after the accident, Mrs Pantelis was taken by ambulance to Royal Prince Alfred Hospital (RPAH). She came under the care of Dr Guzman, orthopaedic surgeon. She underwent an open reduction and internal fixation, left femoral supracondylar fracture, that is, of the lateral plate. Complications during the admission from 15 March 2019 to 12 April 2019 included a pulmonary embolism.
Mrs Pantelis was non-weight bearing for three months post accident. Her ankle fracture was in a plaster cast for six weeks.
Following discharge from RPAH, Mrs Pantelis was transferred to Metro Rehabilitation Hospital for further rehabilitation. Finally, she returned home in about August 2019.
Medical evidence for the insurer
Mrs Pantelis was examined on behalf of the insurer by Dr Rimmer, orthopaedic surgeon, on 18 November 2020. He provided a report of 1 December 2020.
Mrs Pantelis described a weakness of her left knee and an inability to walk without a frame. Even with a frame, she can only walk short distances. Prior to the accident, she walked with the aid of a stick only.
While Mrs Pantelis has stiffness in her left ankle, she has no pain.
A very limited examination took place due to Mrs Pantelis being extremely unsteady on her feet. She was not able to proceed from a seated position to the examination couch. No specific physical examination took place because of this.
Dr Rimmer said that Mrs Pantelis did not require any future treatment. He did not believe that her poor mobility and function would be remediable to appropriate exercise and strength programming. Mrs Pantelis had previously had extensive physiotherapy since the time of the accident and which she said provided no real benefit.
The insurer also had Mrs Pantelis examined by Professor Cameron. He saw her on 18 May 2021 and provided a report of 28 May 2021.
It was reported that within her home, Mrs Pantelis mobilises with a wheeled frame but outside, she uses a wheelchair. However, it was reported that historically, Mrs Pantelis would catch a bus to go shopping and walked only with the aid of a walking stick.
Professor Cameron noted that any future treatment would be limited trying to improve the mobility of Mrs Pantelis.
With respect to the whole person impairment of Mrs Pantelis, relating to her accident injuries only, Professor Cameron provided an assessment of 20%.
The settlement
The parties, having entered into negotiations for settlement, several offers and counter offers having been made. Mrs Pantelis was assisted in this process by her son, Nickolas.
Ultimately, settlement was agreed for $275,000 less 20% for contributory negligence and leaving a final figure of $220,000.
Contributory negligence
The insurer initially alleged contributory negligence of 60%. Ultimately, after considerable negotiations, the insurer accepted liability for the insured driver at 80% and for Mrs Pantelis at 20%.
The circumstances of the accident were that Mrs Pantelis was a pedestrian waiting at a set of traffic control lights at the intersection of Homer Street and Joy Lane in Earlwood. The insured driver was driving a Toyota Kluger and was turning right from Homer Street into Joy Lane. The driver would have had elevated vision, in her particular car.
The insurer conducted its own investigations into the circumstances of the accident. A detailed investigation report forms part of the documentation for my consideration. The insured driver declined to be interviewed and to give a statement. The insurer did not pursue this. However, the driver of a car, behind the insured driver and also turning right, provided a statement. That driver was able to say that when the insured driver was turning right, she did so in compliance with a green arrow enabling her to turn right, after she had been stopped and facing a red arrow traffic control light.
It was confirmed by the investigator that the when the pedestrian walk sign is red to cross Joy Lane, which is what Mrs Pantelis would have been facing, that at that same time the traffic light signal to turn right into Joy Lane, from Homer Street, is green.
Mrs Pantelis has no real recollection of the accident.It is clear that inadvertently, Mrs Pantelis has commenced to cross Joy Lane, against a red pedestrian control light. The insured driver has though, not kept a proper lookout in making her right hand turn, has failed to see Mrs Pantelis and has collided with her, causing injury. Professor Cameron referred to Mrs Pantelis as having a significant hearing impairment. This may have contributed to her lack of awareness of what was going on around her.
The circumstances of the accident in this claim are similar to those in a case of Cheetham and anor v Bou (1989) 10 MVR 242. In that case the plaintiff pedestrian set off to cross the street at an intersection in the Sydney CBD, which was controlled by traffic lights, when the lights were red against him. The defendant motorist came through the green lights and struck the plaintiff pedestrian, severely injuring him. It was held that the driver was negligent and the pedestrian was contributorily negligent. In that case, the apportionment was 50/50. With this claim of Mrs Pantelis, the insurer has, as I said, accepted apportionment at 80% against the driver and 20% against
Mrs Pantelis.I am satisfied that Mrs Pantelis has not kept a proper lookout for herself and has contributed to the cause of the accident. The driver though, had she been paying proper attention, could have and should have avoided the collision. The apportionment agreement of 80% to the driver and 20% to Mrs Pantelis is appropriate on my finding.
The maximum that may be awarded for non-economic loss since 1 October 2021 is $595,000. With Mrs Pantelis being entitled to non-economic loss damages, this is to be assessed in accordance with Common Law principles.
In RACQ Insurance Limited v Motor Accidents Authority of NSW (No 2) [2014] NSW SC 1126. It was stated:
“It is a relationship of the award to the injury and its consequences… which is to be proportionate…. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases… The principle to be followed… is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant….and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing… The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring … to allow for differences between the circumstances of other cases and the circumstances of the case in hand.” (Planet Fisheries Pty Ltd V La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ at paragraph 11).
I am mindful of the decision of the Court of Appeal in Reece v Reece [1994] NSWCA 259 where it was discussed that a decision maker must consider the age of the claimant when determining the appropriate amount of non-economic loss. The claimant’s age at the time of assessment of damages is a relevant factor but only one of a number of matters which the Court should take into account and as discussed in Varga v Galea [2011] NSWCA 76 where McColl JA stated at paragraph 72:
“Reece v Reece states the uncontroversial proposition that the plaintiff’s age at the time of the assessment of damages is a factor relevant to the assessment of non- economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshal v Clarke.”
I am satisfied that Mrs Pantelis understands the nature and effect of the proposed settlement by the insurer and is willing to accept the proposed settlement.
Should I approve the settlement?
I am satisfied that Mrs Pantelis is aware that her statutory benefits claim continues for life. This was explained in great detail to Mrs Pantelis and her son Nickolas at the preliminary conference on 27 October 2021. It was also explained that the insurer is required to pay for any reasonable and necessary accident related:
(a) medical (GP and specialist) follow up consultations and future surgery, if her injuries come to that;
(b) medication (over the counter or prescription);
(c) domestic assistance, care and rehabilitation which may be needed, and
(d) home modifications.
I am satisfied that Mrs Pantelis is aware that if I approve this settlement that it will be a final resolution of her claim and that she can make no further claim for damages for non-economic loss arising out of this accident.
Whilst I can refuse to approve a settlement, the fact that this is a reasonable settlement offer, taking into account the injuries and Mrs Pantelis’ age as well as the fact that Mrs Pantelis is fully informed about her possible future medical condition and the chances of a deterioration of significance are slim, this reassures me that the settlement is appropriate.
The amount of the settlement that I am asked to approve comprises the following:
Non-economic loss $275,000
Less contributory negligence 20% $55,000
Total $220,000
Non-economic loss
The claimant is entitled to non-economic loss which is defined in the Act to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
There is no suggestion in the medical evidence that Mrs Pantelis’ life expectancy has been reduced because of her injuries. At the age of 71, the medium life expectancy tables based on data from the Australian Bureau of Statistics suggests the claimant has a further 17 years to live with the impacts of the accident.
Mrs Pantelis has suffered a serious injury following the accident on 15 March 2019. She was in hospital from 15 March 2019 to 12 April 2019 following the accident and then required a long course of rehabilitation.
Mrs Pantelis has been assessed by Professor Cameron as having a 20% whole person impairment arising out of this accident. She is entitled to an award of damages for non-economic loss.
I am satisfied that the sum of $220,000, after deduction of contributory negligence is within the range of damages likely to be awarded if this matter had progressed to hearing.
Legislation
The Commission was established on 1 March 2021 and the DRS 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 Commission and cl 14B(1) of the Personal Injury Commission Regulation 2020 designates GIO’s application ‘pending proceedings’ and cl 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, cl 14B(4)(c) provides that the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
Section 6.23 of the MAI Act says:
“(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(2) A claim for damages cannot be settled unless-
(a)the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b)the proposed settlement is approved by the Commission
(3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements or of or made under this Act or the Motor Accident Guidelines”
Clause 7.38 of the Guidelines says that in considering the settlement I must consider whether:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the MAI 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 (member of the Commission), taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Clause 11 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
(b) the amount of any reductions in the proposed settlement;
(c) the amount of any advance payments made, and
(d) the evidence, documents and materials relevant to the assessment of the proposed settlement figure.
Conclusion
Having spoken with Mrs Pantelis, I am satisfied that she:
(a) is happy with the manner of negotiations that have taken place with the insurer and is happy to settle the matter on the basis of the last offer made by the insurer;
(b) is aware she can seek legal advice but that she does not wish to do so;
(c) understands the binding nature of the settlement and this approval and that she may not be able to make a further claim for damages in the future, and
(d) the insurer has confirmed that the claimant will not be out of pocket for any amount that has to be repaid to Medicare.
I am therefore satisfied that the proposed settlement figure of $220,000 is an appropriate one and that it complies with the requirements of cl 7.304.2 of the Guidelines, in that it is,
“… just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], 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”.
Accordingly, pursuant to section 6.23(2)(b) of the MAI Act, the proposed settlement of the claimant’s claim for damages is approved.
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
· the Guidelines.
Alexander Bolton
Member (Motor Accidents Division)
Personal Injury Commission
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