Transport Accident Commission v George
[2024] NSWPIC 515
•16 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Transport Accident Commission v George [2024] NSWPIC 515 |
| CLAIMANT: | Ruth George |
| INSURER: | Transport Accident Commission |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 16 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement under section 6.23; damages for non-economic loss; damages for costs relating to travel; section 4.5(1)(b); claimant now 69 years of age; significant injuries including acute endplate fractures, acute C1 bilateral arch fractures, fracture through the manubrium of the sternum, fracture through the right second rib, interspinous ligament rupture, cord edema at C4-5, right parasagittal large full-thickness scalp laceration with skull exposed that required surgical repair, abrasions, and swelling to right knee; Held – proposed settlement of $330,000 approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement sum of $330,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The Commission notes that there are no deductions to be made by the insurer from the settlement sum for any other matters. A statement setting out my reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 7 September 2023, the claimant, Ruth George made a claim for common law damages for injuries she sustained in a motor accident on 11 October 2022.
On 28 November 2023, the insurer accepted liability for the claim.
The insurer and the claimant have now agreed to settle the claimant’s claim for the sum of $330,000 (the proposed settlement).
The claimant is not legally represented.
Section 6.23(2) of the Motor Accident Injuries Act 2017 (MAI Act) provides that a claim for damages by a claimant who is not represented in respect of the claim by an Australian legal practitioner, cannot be settled unless the proposed settlement is approved by Personal Injury Commission (Commission).
On 16 August 2024, the insurer lodged an application with the Commission to have the proposed settlement approved.
The matter was referred to me to consider approval of the proposed settlement.
DOCUMENTS CONSIDERED
In making my decision whether to approve the proposed settlement, I have considered the following documents:
(a) the insurer’s bundle of documents filed with the application, marked A-1 to A-11 (57 pages), and
(b) the insurer’s supplementary bundle of documents filed at my request on 6 September 2024 (173 pages).
LEGISLATION
In making my decision, I considered the following legislation, rules and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (Regulation);
· Personal Injury Commission Rules 2021 (PIC Rules), and
· the Motor Accident Guidelines, Version 9.1 (Guidelines).
COMPLIANCE WITH THE PIC RULES
Rule 95 (1) of the PIC Rules requires the insurer to lodge the application for approval with the Commission within seven days of reaching an agreement with the claimant about the proposed settlement.
The material before me showed that the claimant accepted the insurer’s initial offer of settlement submitted for approval, on 27 July 2024. On that basis, there was compliance by the insurer with r 95(1).
THE MOTOR ACCIDENT
On 11 October 2022, the insured vehicle made a U-turn on the Newell Highway, south of Gilgandra, across the path of the vehicle in which the claimant was travelling as a front seat passenger, causing a collision and the claimant’s vehicle to slide sideways and roll several times before coming to rest.
The NSW Ambulance Service attended the scene of the accident and conveyed the claimant to Dubbo Base Hospital where she remained for seven days for treatment.
SUMMARY OF THE MEDICAL EVIDENCE
The clinical notes from Dubbo Base Hospital recorded the following injuries:
(a) acute T1, T2, T3, T4 endplate fractures;
(b) acute C1 bilateral arch fractures;
(c) fracture through the manubrium of the sternum;
(d) fracture through the right second rib;
(e) interspinous ligament rupture;
(f) cord edema at C4/5;
(g) right parasagittal large full-thickness scalp laceration, with skull exposed, that required surgical repair, and
(h) abrasions and swelling of the right knee.
On 12 October 2022, the claimant underwent a washout and closure of the scalp laceration.
The claimant was discharged on 18 October 2022.
Upon discharge, the claimant continued her treatment under the care of her general practitioners at the Golden Grove Health Centre in Wynn Vale, South Australia.
The claimant was referred for further management by spinal orthopaedic surgeon, Dr Matthew Rackham.
In a report dated 22 December 2022, Dr Rackham noted that he saw the claimant on that day in an Aspen collar which she had been wearing full time including at night and that she had a second collar for showering.
Dr Rackham believed that the fracture at C1 extended into the C1/2 articulation bilaterally and on one side to the C0/1 articulation. Given those circumstances, he believed that the claimant could have restriction or discomfort with rotation and extension/flexion of her neck, but time will tell.
Dr Rackham had a telephone follow-up with the claimant on13 January 2023 to monitor her progress after gradually coming off wearing her collar. In his report of the same date, Dr Rackham believed that physiotherapy treatment should be continued.
Dr Rackham noted that follow up X-rays showed stable alignment of the C1 with approximately 5mm of lateral listhesis of the right C1 lateral mass on C2. He believed this to be stable compared with the early X-ray of November 2022.
In a report dated 30 March 2023, physiotherapist, Catherine Ward indicated that the claimant was making good rehabilitation progress after a high-speed motor accident. Ms Ward recorded that she was working with the claimant to improve her balance and core strength.
Ms Ward reported that the claimant’s balance had measurably improved, and that the claimant has had intermittent bouts of Benign Paroxysmal Positional Vertigo and motion sensitivity and that her neck rotation had improved.
In a report dated 7 June 2023, Ms Ward indicated that she had been addressing the claimant’s issues of vestibular dysfunction, cervicothoracic pain and stiffness and persistent chest pain.
Ms Ward believed the claimant was suffering from cervicogenic dizziness and that she would the benefit from being seen by an ear, nose and throat surgeon or a neurophysiotherapist.
The claimant was assessed by consultant occupational physician, Dr James Economos on 7 December 2023 at the request of the insurer. Dr Economos provided a report on 22 April 2024.
Dr Economos noted that the claimant has had four treatment sessions with neurophysiotherapist, Ms Eileen Ting since July 2023 and that the claimant was due to see her again soon after his assessment. Dr Economos reported that treatment by Ms Ting has been hands-on, and the claimant reported a significant reduction in vertigo.
Dr Economos’ diagnosis was that of persistent mechanical cervicothoracic pain secondary to the cervical and thoracic fractures. He noted that there was significant restricted neck motion demonstrated on examination and the extent of pain and restricted movement may gradually increase with the advent of degenerative change.
Dr Economos assessed the claimant’s neck and thoracic injuries as giving rise to a whole person impairment of 10%.
In a letter to the claimant dated 9 May 2024, the insurer expressed the view that Dr Economos had incorrectly applied the Guidelines and the AMA 4th Edition Guides to Permanent Impairment in respect of the thoracic injuries. In his assessment, Dr Economos had overlooked the multi-level structure compromise which is reflected in clauses 6.143 to 6.151 of the Guidelines. The insurer conceded that the claimant’s injuries gave rise to a total whole person impairment of 25%, which is well above the permanent impairment threshold for an entitlement to damages for non-economic loss.
THE CLAIMANT’S STATEMENT
The claimant provided a statement to the insurer dated 26 June 2024, setting out the way the injuries and her continuing disabilities have affected and continue to affect her enjoyment of life and daily activities of living. These included the following:
(a) she has continuing pain in her upper back and neck. She is trying to reduce her medication intake – Panadol osteo.
(b) Life is a constant balancing act – keeping a balance between what she can do and for how long. She often gets it wrong. Her heat pack gets a very regular workout to help ease pain.
(c) She tires very easily.
(d) On most days she suffers from a dull frontal headache.
(e) She has issues with balance issues which are intermittent and more pronounced she is tired.
(f) She has restricted neck movement from side to side and when tipping her head backwards.
(g) Her height has been reduced.
(h) She cannot sit comfortably in her regular lounge chair because her head now “sits” in a different position against the head rest. She uses a pillow to assist.
(i) Swimming has been her “go to” sport since she was about 12 years old. She is disappointed with the severe restrictions that her injuries have placed on her ability to swim and snorkel. The limited swimming that she now does comes with the aftermath of increased pain killers and heat pack applications.
(j) Her reduced swimming capacity and the fact that she can no longer keep up with her swimming group, has reduced both her enjoyment of life and her social life.
(k) She can no longer ride her bicycle safely and had to give up cycling as a sporting activity.
(l) She has resumed playing golf after purchasing a motorised buggy, but she always fatigues well ahead of 18 holes played, due to increased sternal and upper back pain. Golf days always require pain killers before and after she plays.
(m) She is heartbroken because of the effect her injuries have had on her ability to sing. Singing, especially when singing the higher notes, now produces a sense of her head wanting to “explode”. On most Sundays of singing at a church service she suffers from a significant headache, and she is unable to sing all the songs.
(n) Her restricted neck movement makes reverse parking a very painful and difficult process.
(o) She has become a hypervigilant and anxious passenger when travelling in a motor vehicle. Her driving confidence has been shattered and she is very hesitant when driving beyond her local area.
(p) She has difficulty sitting or standing for too long and maintaining a conversation with people sitting at a dining table because of the constant requirement to turn her neck.
(q) Her lifting capacity has been severely reduced. She can no longer pick up her youngest grandchild.
(r) Her sleep is disturbed. On most nights she wakes every couple of hours.
(s) She is affected by the changes to her body. Her head is now in a “thrust forward and squashed down” position, which she finds unattractive. Her hair “self-parts” down the back of her head, as a result of the scarring from the scalp injury. This creates a bald spot which she also finds unattractive. She is conscious of the scar above her right eyebrow.
(t) She can no longer lie flat on a floor. She has difficulty reaching up above head height and hanging out the washing.
(u) Her low energy levels mean that she has reduced capacity to mind her grandchildren during school holidays.
CONSIDERATION
In conformity with s 6.23(3) of the MAI Act, before I approve the proposed settlement, I must be satisfied that it complies with the applicable requirements of the MAI Act and the Guidelines.
The claimant’s understanding of the proposed settlement
According to cls 7.37 (c) and (d) of the Guidelines, I must be satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner and understands the nature and effect of the proposed settlement and is willing to accept it.
I conducted two teleconferences with the parties to question the claimant about these issues and to explore the evidence. The claimant appeared for herself, and Ms Lauren Johnson appeared for the insurer.
At the first teleconference, the claimant stated that she is aware that she was entitled to be represented by a lawyer with respect to her claim. She had spoken to a lawyer, but she has chosen to represent himself. The claimant did her own negotiations with the insurer and accepted an offer of $280,000 to settle her claim.
Having considered the medical evidence and the claimant’s description of her injuries and ongoing disabilities, I expressed the view that the settlement sum of $280,000 is not just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
Ms Johnson requested a short adjournment to obtain instructions from the insurer as to whether it was willing to increase the offer of settlement. I therefore adjourned the matter to a further teleconference to allow Ms Johnson time to do so.
At the second teleconference on 9 September 2024, Ms Johnson informed me that the insurer has agreed to increase the settlement sum to $330,000. This is now the proposed settlement.
The proposed settlement is comprised of an amount of $300,000 for damages for non-economic loss and $30,000 for damages for the costs of travel (a replacement motor vehicle).
Ms Johnson confirmed that the insurer is not entitled to make any deduction for any matters from the proposed settlement. Ms Johnson confirmed that the insurer does not intend to seek a clearance to obtain a clearance notice from Centrelink before any settlement funds are paid to the claimant as the claimant was receiving an old age pension at the time of the accident.
I explained to the claimant that once she accepts the proposed settlement, this will end any entitlement to any further claim for damages of any kind.
I explained to the claimant that because she has sustained a non-threshold injury, she is entitled to claim reasonable and necessary treatment and care expenses for life. I explained to the claimant that these claims will be managed by NRMA as the nominal defendant insurer until 11 October 2027 and thereafter, by the Lifetime Care and Support Authority. The treatment and care benefits include the costs such as medical treatment, medication, home assistance such as lawnmowing and future surgery.
I indicated to the parties that I am minded to approve the proposed settlement.
The claimant confirmed her wish to accept the proposed settlement.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner, but she has chosen not to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making any further claim for damages arising from the motor accident.
I am satisfied that the claimant understands that following the settlement of her claim for damages, she has ongoing rights to claim future treatment and care.
I am satisfied that the claimant is willing to accept the proposed settlement.
Is the proposed settlement just, fair and reasonable?
According to cl 7.37 (b) of the Guidelines, before I approve the proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that it is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, 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.
The proposed settlement is in the sum of $330,000. There are no deductions from that sum for any other matters.
The insurer submitted that in the proposed settlement, an allowance of $300,000 was made for damages for non-economic loss.
Section 1.4 of the MAI Act defines “non-economic loss” as meaning:
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
The claimant was 67 years old at the time of the accident. She is now 69 years old. Taking into account the claimant’s significant injuries requiring surgery, the length of stay in hospital, the past rehabilitation process, the ongoing pain and restriction of movement, the psychological effects and the impact that these injuries have had upon her activities of daily living and recreational pursuits, I am of the view that this allowance is at the bottom of the range of damages for non-economic loss likely to be assessed by a member of the Commission.
The insurer submitted that an allowance of $30,000 has been made pursuant to s 4.5(1)(b) of the MAI Act for travel expenses for the cost of a replacement motor vehicle. The insurer submitted that due to the claimant’s ongoing limitation and restrictions in her head rotation, the claimant would benefit from driving a vehicle equipped with multiple cameras, sensors with extra parking and driving aids. I am of the view that this is an appropriate allowance.
CONCLUSION
Having regard to all the above matters, I am satisfied that 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 the Commission, taking into account the nature and extent of the claim and the injuries, the disabilities and the impairments sustained by the claimant.
The proposed settlement of the claimant’s claim for damages in the sum of $330,000 is approved under sub-s 6.23(2)(b) of the MAI Act.
I note that the insurer is not entitled to deduct any sum for any matters from the proposed settlement.
I thank the parties for their cooperation and assistance in reaching this outcome.
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