Transport Accident Commission of Victoria v Brady
[2023] NSWPIC 239
•15 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Transport Accident Commission of Victoria v Brady [2023] NSWPIC 239 |
| Claimant: | Bianca Brady |
| insurer: | Transport Accident Commission (VIC) |
| Member: | Gary Victor Patterson |
| DATE OF DECISION: | 15 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23(2)(b); 49-year-old female; claimant a passenger in a Victorian registered vehicle; driver lost control and collided with another vehicle near Marimbula; liability wholly admitted; claim made in New South Wales under the relevant choice of law principles; claimant working full-time as a registered nurse prior to the accident; claimant returned to work on restricted hours and lost two opportunities for promotion; agreed entitlement to non-economic loss; initial settlement offer not approved; proposed amount increased substantially after further discussions; Held – proposed settlement is just, fair and reasonable; settlement approved for $630,000.00. |
| determinations made: | CERTIFICATE OF DETERMINATION 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. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Bianca Brady, (the claimant) was involved in a motor vehicle accident in New South Wales on 10 February 2020, when she was travelling as a passenger in a Victorian registered vehicle. The driver (her husband) lost control of the vehicle whilst travelling in a northerly direction along Sapphire Coast Drive, at Bournda (near Merimbula) and collided with another vehicle, being driven in the opposite direction.
The claimant is a Victorian resident who has been receiving benefits pursuant to the Transport Accident Act1986 (Vic). Notwithstanding that the claimant and the driver are both Victorian residents and the vehicle at fault was registered in Victoria, the claim is made in New South Wales under the Motor Accident Injuries Act2017 (NSW) (MAI Act), which is the lex loci delictus under the relevant choice of law principles.
The claimant was 43 years of age at the time of the motor accident. The claimant was working full-time as a Registered Nurse and Midwife. The claimant has a Bachelor of Nursing and a Bachelor of Midwifery as well as a Post Graduate Certificate in Perinatal Health. The claimant has not been able to return to her pre-accident full-time duties.
The claimant suffered severe bruising and lacerations to both legs, two broken teeth, bruising to the left breast, severe jaw pain, severe right thigh and knee pain, ongoing memory loss and ongoing vertigo, as well as an injury to the right ankle/foot, for which she underwent surgery.
On 21 July 2022, the claimant lodged an Application for Damages under Common Law on the TAC. On 21 October 2022, the TAC issued a s 6.20 liability notice admitting liability for the common law damages claim.
On 11 May 2022, the claimant was assessed by Dr Nicholas Ingram, psychiatrist, for the TAC. Dr Ingram diagnosed a chronic Adjustment Disorder with Depressed Mood as a result of the accident. He did not undertake an assessment of the claimant’s whole person impairment.
On 25 July 2022, the TAC conceded that the claimant’s physical injuries exceeded 10% permanent impairment, for the purposes of s 4.11 of the MAI Act.
On 1 November 2022, the claimant was re-examined by Dr Graeme Doig, orthopaedic surgeon, for the TAC. Dr Doig reported as follows:
“Ms Brady’s primary injuries were to her dominant right shoulder, knee, foot and ankle. She had surgery performed on the shoulder by way of arthroscopic decompression and an open biceps tenodesis in September 2020 with ongoing stiffness, requiring a hydro-dilation. She suffered a direct blow to the front of the right knee with ongoing quadriceps weakness and inhibition. She … has undergone surgery to fuse the first and second tarsometatarsal joints of her mid foot … there was an occult fracture ... at the base of the second metatarsal.”
Dr Doig found that the claimant’s disabilities are wholly attributable to the motor accident.
Dr Doig assessed whole person impairment under AMA 4 and the Guidelines as follow:
Description
Percentage (% WPI)
Right shoulder
7%
Right knee
5%
Right foot and ankle
7%
Scarring
4%
Total
23% WPI
On 3 March 2023, the claimant was examined by Dr Margaret Gibson, occupational physician, for the TAC. Dr Gibson accepted that the claimant sustained injuries to her right shoulder and right knee as well as dental injuries. Dr Gibson did not accept that the condition of the claimant’s right foot and ankle was caused by the motor accident due to a lack of confirmatory records.
Dr Gibson assessed 9% whole person impairment, assigning 4% to the right shoulder and 5% to the right foot and ankle. Dr Gibson was unsure if the right foot and ankle injury were caused by the motor accident. No other possible cause was suggested. Dr Gibson made no assessment of scarring.
On 4 April 2023, the TAC made a settlement offer of $430,000 all inclusive in full and final settlement of the claim. The TAC advised that, from the amount, it was required to deduct $148,672.06, for pre-payments made for loss of earnings and loss of earning capacity.
The settlement offer was particularised as follows:
Description
Amount
Non-economic loss
$200,000.00
Past economic loss
$160,000.00
Repayment of tax
$20,000.00
Future economic loss
$50,000.00
Total
$430,000.00
Additionally, the TAC paid an impairment benefit of $11,160, which was not to be recouped in the overall settlement.
By email dated 6 April 2023, the claimant advised that she wished to accept the settlement offer.
TAC provided a Deed of Release which the claimant executed on 14 April 2023.
THE RELEVANT LAW
Section 6.23(2) of the MAI Act requires approval of the settlement as the claimant is not legally represented.
Section 6.23(3) of the MAI Act provides that I am not to approve the settlement unless I am satisfied that it complies with any applicable requirements of, or made under, the MAI Act or the Motor Accident Guidelines (the Guidelines). I also must have regard to Procedural Direction MA3 – Approval of Damages Settlement.
Clause 7.37 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 assessed for the claim, where the matter to be assessed by me or another 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, and
(b) the claimant understands the nature and extent of the proposed settlement and is willing to accept the proposed settlement.
TELECONFERENCE ON 1 MAY 2023
The insurer lodged the application for approval of the settlement which was referred to me for consideration. I held a teleconference on 1 May 2023 at which the claimant participated by telephone and the insurer was represented by Stephanie Davis, solicitor, of Holman Webb Lawyers. The claimant confirmed that she had not sought legal advice, as she just wants to conclude the matter and put it behind her.
The claimant noted that TAC had paid 80% of her loss of wages, for which she was grateful, but it left her considerably out of pocket. The claimant said that she was working a minimum of 32 to 40 hours a week before the motor accident. Now she is working only 24 hours a week which she struggles to complete. The claimant confirmed that, prior to the motor accident, it was her intention to continue working until at least age 67 years. She does not think that the provision of $50,000 for future loss of earnings is sufficient but thought she had no choice but to accept it. The claimant said that the accident prevented her accepting two offers of promotion.
The claimant said that she does not accept Dr Ingram’s diagnosis of a Chronic Adjustment Disorder with Depressed Mood. Rather, the claimant thinks that she suffers from Post-Traumatic Stress Disorder, as she suffers flashbacks which Dr Ingram did not record.
The claimant confirmed that she is undergoing psychological treatment/therapy each fortnight and is taking anti-depressant medication.
I indicated to the parties that I am not prepared to approve the proposed settlement for the following reasons:
(a) the amount proposed for non-economic loss does not seem to include any provision for the claimant’s accident-related mental health issues, and
(b) the amount proposed for future loss of earning capacity is inadequate, given that the claimant has tertiary qualifications as a Registered Nurse and Midwife, and has not been able to return to her full-time duties, with no guarantee that she will be able to do so.
The parties agreed to enter into further discussion. I indicated that I would hold a further teleconference on 11 May next to review the position.
TELECONFERENCE ON 11 MAY 2023
I was informed that, following further discussions between the parties, the insurer had increased its proposed settlement offer to $630,000, which the claimant wishes to accept. That offer is particularised as follows:
Description
Amount
Non-economic loss
$250,000.00
Past economic loss
$190,000.00
Fox v Wood
$20,000.00
Future economic loss
$170,000.00
Total
$630,000.00
The insurer will deduct from the settlement the sum of $148,672.06 in refund of the weekly statutory benefits paid. The insurer will not recoup the partial impairment benefit of $11,160 paid under the corresponding Victorian legislation. As the claimant has not received Centrelink benefits, there is no need for the insurer to obtain a Centrelink clearance, before making payment of the net settlement sum.
The parties are to execute a Deed of Settlement which will be uploaded to the Portal before finalisation of the claim.
DOCUMENTS CONSIDERED
I have had regard to all of the documents listed in the insurer’s Application for Approval of Settlement and particularly the medical evidence.
REVIEW OF THE EVIDENCE
The evidence has been reviewed sufficiently in the introduction (above).
DETERMINATION
This application has been determined on the papers with the parties’ consent.
Having regard to the claimant’s age, the medical and other evidence, I am satisfied that the proposed settlement is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines, in that it is relevantly:
“… just, fair, reasonable and within the range of likely potential damages to be assessed for the claim, were the matter to be assessed by me, or another 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 s 6.23(2)(b) of the MAI Act, the proposed settlement of the claim for damages is approved.
The parties are reminded of the claimant’s entitlement under ss 3.24 and 3.26 of the MAI Act.
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