Oliver v IAG t/as NRMA Limited [2021] NSWPIC 146 (27 May 2021)

Last Updated: 10 June 2021

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Oliver v IAG t/as NRMA Limited [2021] NSWPIC 146
APPLICANT:	Clare Oliver
RESPONDENT:	IAG t/as NRMA Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	27 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Claims assessment; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; passenger; multiple cerebral contusions with right fourth nerve palsy; double vision; Claimant lived at home alone; recommended for Guide Dog assistance; glasses provided; cannot see well enough to prepare or cook her own food; domestic assistance; driver licence was taken away; was a very independent and very busy person; Held- entitled to non-economic loss; permanent impairment to her vision; $50,000 for future travel expenses; $195,000; approved.
DETERMINATIONS MADE:	The Claimant and the Insurer have agreed to settle Mrs Oliver’s claim for the sum of $195,000. The proposed settlement is approved in accordance with section 6.23 of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

1. Mrs Clare Oliver (the Claimant) was a passenger in a car, the driver of which failed to give way at an intersection in Holbrook. A collision with another vehicle occurred and Mrs Oliver was injured.
2. Mrs Oliver has made two claims against NRMA, the third-party insurer of the vehicle she was in, a claim for statutory (treatment) benefits and a claim for lump sum compensation or damages. NRMA accepts it is the relevant insurer for the purposes of the statutory benefits claim and has been paying Mrs Oliver those benefits. NRMA has also accepted liability for the common law claim in a letter dated 12 March 202.
3. Mrs Oliver and NRMA have agreed on a sum to settle the lump sum damages claim. Because Mrs Oliver does not have a lawyer representing her, the settlement must be approved in accordance with the relevant provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
4. On 6 May 2021, NRMA referred the settlement to the Personal Injury Commission (the Commission) and the matter was referred to me. I held a teleconference with Mrs Oliver (assisted by her son Neville) and Mr Kent Owen (solicitor for NRMA) on 21 May 2021. Upon receipt of additional information and a further offer from NRMA, I have decided to approve the settlement.

LEGISLATIVE FRAMEWORK

5. 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 of or made under this Act or the Motor Accident Guidelines.”

6. Clause 7.38 of the Motor Accident Guidelines (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 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

7. 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.

(d) The evidence, documents and materials relevant to an assessment of the proposed settlement figure.

8. The Insurer has provided me with a copy of an email sent to the Claimant on 25 May 2021 which provides a breakdown of the offer and an explanation of the two components of the offer which the Claimant has accepted. NRMA has indicated there are no amounts to be deducted from the proposed settlement and there is no evidence before me of any advance payments made.

Documentary evidence

9. I have reviewed the statutory benefits claim form [A2] and the certificate of capacity dated 1 April 2019 completed by Dr Chow. I note Dr Chow recorded the following injury ‘headstrike from MVA’ and diagnoses ‘multiple cerebral contusions (Centrecoup) lesion with extra-axial haemorrhage’. Conservative management was recommended including physiotherapy, occupational therapy and conditioning.
10. I have also reviewed the common law claim form [A3] which contains no additional information relevant to the Claimant’s injuries, impairments or disabilities.
11. The Insurer has provided me with a copy of the Discharge Summary from the Albury-Wodonga Hospital where the Claimant was admitted to the rehabilitation ward on 1 April 2019 and discharged on 18 April 2019. The principal diagnosis was said to be multiple cerebral contusions with right fourth nerve palsy.
12. On page 4 of the discharge summary under the heading ‘physiotherapy’ the notes suggest the Claimant had daily physiotherapy improving her mobility and balance although her double vision was affecting this. It was noted the Claimant lived at home alone, volunteered at the Hospital and was an active participant in the Country Women’s Association. When she was discharged home, family lived with her for two weeks and she was recommended for Guide Dog assistance.
13. In the material are two reports from Dr Dang [A4] and Dr Pham [A5] two registrars of the Albury-Wodonga eye clinic. These reports, along with the comprehensive discharge summary suggest that the primary problem experienced by Mrs Oliver as a result of her accident was the development of Diplopia or double vision ‘mostly on downward gaze’ which is a result of damage to the Claimant’s right fourth facial nerve palsy. The most recent report (Dr Pham in October 2019) indicated there would be no improvement due to the time since the accident and the Claimant’s age. The Claimant had glasses provided with ground prisms in an effort to improve her vision.
14. At the teleconference, Mr Owen confirmed that NRMA had paid benefits for the Claimant’s treatment in the sum of about $37,000.

The Claimant’s evidence

15. An email from the Claimant’s son, Mr Neville Oliver dated 19 April 2021 details how the Claimant’s injuries have affected her life.
16. At the teleconference Mrs Oliver gave some further evidence but as she was hard of hearing, Mr Oliver provided much of the information about his mother, her accident and the effect of it on her life. Mr Owen, the Insurer’s representative was happy with this approach.
17. Mr Oliver explained that his mother was hospitalised for two to three weeks after the accident. In addition to the disturbances to her vision (set out in Dr Dang and Dr Pham’s reports), Mr Oliver said his mother was knocked out, sustained a head injury (subdural haematoma) and a fist-size bruise to her leg (which has now healed).
18. Mr Oliver indicated that NRMA has done many things, that their rehabilitation advisor had arranged for a new, more appropriate kettle and the ‘wheelie walker’. They have been paying for three half meals a week (now seven half meals a week) because Mrs Oliver cannot see well enough to prepare or cook her own food. A carer now comes to shower Mrs Oliver on Mondays, Wednesdays and Fridays (for half an hour each time) and on Thursdays someone comes for two hours and takes Mrs Oliver to the bank or to the doctor or runs other errands. An additional 1.5 hours of cleaning and domestic assistance per week was provided by NRMA.
19. Mr Oliver said his mother has had a few falls because she cannot see well, and he has made a few trips from his home because he cannot contact his mother and is worried she may have fallen.
20. Mr Oliver expressed disappointment at the process for reimbursement of expenses. He said while NRMA had a rehabilitation advisor who managed the paperwork for his mother after the accident and before COVID, he said that for the last year he has had to manage things. He said his mother cannot see well enough to read and cannot complete the paperwork associated with her claim in order to obtain payment for her expenses or request additional treatment. He said he lives an hour and half north of Albury and works full time. He finds it difficult to attend to all the things he has to do for his mother as a result of her injuries. He says she cannot shop because she cannot see her way around the supermarket or get there on her own.
21. The major impact of the impairment to the Claimant’s vision is that her driver license was taken away. She has now sold her car. Mr Oliver said his mother used to drive everywhere before the accident and that she was a very independent and very busy person. She used to drive and visit him (1.5 hours away) and fly to Queensland to visit her daughter. Mrs Oliver said she was heavily involved in CWA activities including judging at country shows and has had to give that up and is dependent on friends and family for getting around Albury.
22. Mrs Oliver said that before the accident she took medication for diabetes but apart from that she was well and healthy. Mr Oliver said that this accident ‘pulled the rug out’ from under his mother’s feet. Mrs Oliver said that the loss of her mobility and her independence ‘grieves me very much’.
23. I asked Mrs Oliver whether she caught taxis to go to church or go to her social engagements. Mr Oliver said NRMA had paid for some of her transport costs but they were careful because they were aware of the requirement for such transport to be ‘reasonable’.

SHOULD I APPROVE THE SETTLEMENT?

24. When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, what I need to do in deciding whether to approve or not approve Mrs Oliver’s settlement is to consider:

(a) timing – whether the date of the settlement is more than two years after the accident,

(b) appropriateness – whether the amount of the settlement is just, fair and reasonable, and

(c) understanding – whether Mrs Oliver understands the settlement and its terms and the effect of the settlement in ending her claim for damages.
Timing

25. I am satisfied that the timing requirements of the MAI Act have been met. It is more than two years since Mrs Oliver’s motor vehicle accident but in any event the Insurer has conceded she has a whole person impairment of greater than 10%.

Appropriateness

26. The amount of the settlement that I am asked to approve comprises the following:

Non-economic loss $145,000

Travel $50,000

Total $195,000.

Non-economic loss

27. The Insurer has conceded that the Claimant is entitled to non-economic loss. I explained to Mrs Oliver that this includes damages for loss of expectation of life, pain and suffering, loss of amenities of life (how the accident related injuries affect the Claimant) and scarring. Mr Oliver was aware the maximum amount claimable was currently $590,000.
28. I referred the parties to the below cases published on the AUSTLII website:

(a) AOR v NRMA [2020] NSWSIRADRS 185 – 79 year old claimant sustained injuries to ribs, facture to lumbar spine and thoracic spine and laceration on his liver and bruising with minor abrasions. He lived for one year after the accident dying of an unrelated cancer. His claim was settled by his estate for $130,000.

(b) AMZ v NRMA [2020] NSWSIRADRS 137 – 79 year old claimant with injuries to her neck and shoulder and fracture of one rib. She experienced continued pain, pins and needles in the left arm, physiotherapy and acupuncture and required pain killers. No surgery had occurred (although it had been offered but was refused). She lived alone, changed car from manual to automatic because of her injuries and was unable to return to volunteering which she did before the accident. Her claim was settled for $130,000 two years after the accident.

(c) AAQ v NRMA [2021] NSWPIC 100 – 77 year old involved in a high speed collision with the vehicle rolling. The claimant sustained multiple fractures to the neck, feet and ankle. She had poor mobility and health care assistance and domestic help was required. The claimant also suffered a small subdural haematoma. She had to wear a hard collar for a while, sustained a DVT and had a background of epilepsy. She is recorded to have made an ‘excellent recovery’ and was awarded $143,000 which included $130,000 for non-economic loss.

29. While the above cases concerned claimants with orthopaedic injuries, they are of relevance because of the ages of the persons involved. Mrs Oliver is 86½ years of age and, according to the medium life expectancy tables women of her age live for a further 6½ years.
30. Mrs Oliver has sustained a serious injury to her facial nerve which has resulted in what appears to be permanent impairment to her vision. This is impacting every day of her life and almost every aspect of her life. She has been required to give up driving and she has therefore lost her independence. She is dependent on others now for her personal care, her meals and domestic assistance. She is dependent on her family for aspects of care and for help with administration and paperwork.
31. NRMA’s original offer included $100,000 for non-economic loss and I did not consider that amount within the range of likely damages and refused to approve the settlement.

Additional costs of travel

32. NRMA’s original offer consisted only of an allowance for non-economic loss damages. At the teleconference I asked Mr Owen whether compensation for travel expenses (such as taxis) under s 4.5(1)(b) of the MAI Act had been considered. Mr Owen was unaware as to what had been considered by his client but noted the settlement offer did not include anything for that head of damage. On that basis I was not prepared to approve the settlement.
33. I am now advised that the Insurer has allowed the sum of $50,000 for future travel expenses which would enable Mrs Oliver to access the community and travel relatively independently to CWA meetings, visit friends and attend church.
34. The Insurer’s solicitor has explained in an email dated 25 May 2021 how the sum of $50,000 has been calculated. In summary the Insurer has allowed four trips per week at an average of $50 per trip, that is the sum of $200 per week. Mr Owen has carefully explained to Mrs Oliver through her son how the actuarial tables work (adopting the multiplier for 6.5 years) and the concept of vicissitudes (15%) and rounded up the result to $50,000.
35. I am satisfied that the total amount of damages comprising the settlement is appropriate and within the range of damages I would assess.

Understanding

36. Having spoken with the Claimant and her son, I am satisfied that Mrs Oliver:

(a) Accepts the Insurer’s offer and wishes to finalise her claim now.

(b) Is aware she can seek legal advice but 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.

37. I am satisfied that Mrs Oliver is aware that her statutory benefits claim continues for life and that the Insurer is required to pay for any reasonable and necessary accident related treatment including:

(a) Medical (GP and specialist) follow up consultations.

(b) Medication (over the counter or prescription).

(c) Domestic assistance, care and rehabilitation.

(d) The provision of assistance with meals – and I note the email from NRMA’s solicitor dated 24 May 2021 has encouraged Mrs Oliver to contact NRMA and seek additional assistance with meals if it is required.

(e) Transport to access treatment – the email from NRMA’s solicitor makes it clear that the cost of transport (including taxis) to attend accident related treatment is covered by the statutory benefits claim.

CONCLUSION

38. I am therefore satisfied that the proposed settlement figure of $195,000 is an appropriate one and that it complies with the requirements of clause 7.38 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.”

39. Accordingly, pursuant to s 6.23 of the MAI Act the proposed settlement of the Claimant’s claim for damages is approved.
40. Because I have approved the settlement, there is no need for the further teleconference on 4 June 2021 and I vacate that date.

Belinda Cassidy
Member (Motor Accidents Division)
Personal Injury Commission