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AHB v GIO Insurance [2019] NSWDRS CA 186

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionClaims Assessment
CatchwordsClaim for damages – proposed settlement – unrepresented claimant – over 10% whole person impairment – pre-accident and post-accident functioning – hypertension – high cholesterol – osteoporosis – cleaner – government funding – volunteer work – non-disclosure of settlement amount – pedestrian accident – fracture left femur – fracture cervical spine
Legislation CitedMotor Accident Injuries Act 2017 (NSW) ss 6.23, 7.36(4), 7.36(5), Schedule 6.23(2)(b)

Motor Accident Injuries Regulation 2017

Motor Accident Guidelines 7.388, 7.396, 7.402.2, 7.405, 7.406
Cases CitedN/A
Text CitedN/A
PartiesAHB – Claimant

GIO Insurance – Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

CLAIMS ASSESSMENT CERTIFICATE

REASONS FOR DECISION – APPROVAL OF SETTLEMENT

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017

INTRODUCTION

1. The claimant and the insurer have reached an agreement on an amount for the claimant’s entitlement to non-economic loss or general damages. Pursuant to Section 6.23(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 Dispute Resolution Service.”

2. The claimant is unrepresented and has not had the advice of any Australian legal practitioner with regard to her claim. The proposed settlement has been referred to me for approval in accordance with the procedures set out in Sections 7.388 to 7.406 of the Motor Accident Guidelines.

3. The application for approval was lodged by the insurer by way of a DRS Application Form, stating the amount of the proposed settlement and attaching to it the following:

  • correspondence with the claimant of 16 August 2019 conceding that her injuries placed her over the 10% threshold for whole person impairment;
  • the claimant’s Application for Personal Injury Benefits of 5 July 2018;
  • the claimant’s Application for Damages under Common Law of 2 November 2018;
  • a Certificate of Fitness of 17 July 2018;
  • report of an x-ray to the left hip of 1 August 2018;
  • report of an x-ray to the cervical spine of 10 August 2018;
  • Discharge summary from the Illawarra Shoalhaven Local Health District of 4 July 2018; and
  • copy of a letter of 23 August 2019 to the claimant confirming settlement of her damages claim under common law.

4. On receipt of this information, I requested that the insurer provide me with all documents post-dating 27 July 2018 concerning the treatment and care provided to the claimant, together with any reports by rehabilitation providers, medical practitioners, physical therapists and the like. I did not at that stage have sufficient material to enable me to make an assessment of the claimant’s entitlement to non- economic loss based solely on old hospital records and x-rays.

5. In response, I received from GIO 211 pages of material representing all of the medical evidence held by the insurer. The vast bulk of the material comprised hospital notes. There was no material more recent than that forwarded to me with the original Application.

6. I then requested that the insurer confirm that it had not had any rehabilitation advisors attend on the claimant since immediately after she returned home from hospital. I also requested a list of payments made to her or on her behalf.

7. In response, GIO confirmed that no rehabilitation provider had been organised on this claim. The list of payments totalling over $7,500 indicated that, apart from reimbursement for travel and pharmacy of an amount of $161.17 on 18 September 2019, all payments related to services provided on or before 31 December 2018.

8. I arranged to telephone the claimant so that I could discuss her pre-accident and post-accident functioning for the purposes of making an assessment of her general damages, this being the only head of damages that was claimable. I spoke with her by telephone on 1 October 2018. She had with her a female relative to assist. Ms XX, claims officer with GIO, also attended at the teleconference but took no active part.

THE CLAIMANT’S BACKGROUND

9. The claimant is a 77 year old widow who, up until the time of her accident, lived alone in a ground floor unit. She has been a widow for 18 years.

10. At the time of the accident, she was suffering from hypertension and high cholesterol, for which she was taking medication.  She was found to be suffering  from osteoporosis while in hospital and was commenced on medication in relation to that problem. She now needs bone density screening.

11. She had given up driving some little time prior to the accident, but was still active in the community, attending as a volunteer at the local St. Vincent de Paul shop once a fortnight, where she served customers and used the cash register. She had a cleaner fortnightly and received some government funding for that.

12. Three or four years before this accident, she had fractured her right femur while holidaying overseas. She had moved from a unit that she owned to a rented unit on the ground floor in the same unit block some time prior to the accident.

THE ACCIDENT, INJURIES AND TREATMENT

13. While walking home, the claimant was struck by a reversing vehicle which hit her left thigh and caused her to fall to the ground. She suffered a nasty fracture to the left femur and a crush fracture to C7 in her cervical spine.

14. She was taken to Wollongong Hospital where she underwent surgery to have a large rod inserted into her left thigh. That remains in place. Her neck fracture was treated conservatively with an Aspen collar applied, to be worn at all times, except when she was in bed, for a period of six to twelve months.

15. The claimant remained in Wollongong Hospital for two weeks and was then transferred to a hospital closer to her home for rehabilitation. On discharge, she was assisted by hospital rehabilitation staff to make her home accessible for use with a four-wheel walker. Carers were arranged through ATAC who also arranged visits  from a physiotherapist and nurse and provided her with taxi vouchers.

POST-ACCIDENT FUNCTIONING

16. Shortly after returning home from hospital, the claimant’s niece moved from overseas to look after her. GIO paid for the airfare. She was taught how to manage the aspen collar and to change pads. The niece is still in residence and provides gratuitous care.

17. From my discussions with the claimant, she is clearly managing at home, despite having pain in her neck and leg, which she attributes to arthritis. She also suffers arthritis in her back and hands, worse in cold weather. She has resumed her volunteer work at St. Vincent’s  de  Paul  and  says  that  she  is  coping  with  it.  There is no lifting or prolonged standing involved. She uses a walking stick when out in the community for fear of falling. She uses a scarf for her neck on cool days to minimise pain. There are no plans to see the Neurosurgeon. She remains under the care of her general practitioner in relation to all her health issues. She is taking medication, Panadeine Forte and Endone, for pain as needed.

THE SETTLEMENT PROCESS

18. I asked the claimant about the circumstances in which an offer had been conveyed to her. She informed me that a claims officer had telephoned her and made an offer. She confirmed that she had been informed that she could make a counter-offer, but felt that the amount was appropriate and wished to accept it.

THE SETTLEMENT FIGURE

19. I have been requested by GIO to not disclose the settlement figure in my Certificate for the following reasons, communicated to me on 4 October 2019 in response to my request for clarification of that issue:

  • The settlement amount would make sense to the parties in the DRS Application for Approval as the parties are aware of the confidential settlement amount.
  • It is common in infant approval applications heard in the District Court that the settlement amount is not read out in open court and the Court approves the amount referred to in any Consent Judgment with terms not to be disclosed.
  • Non-disclosure of the settlement amounts in any publication of reasons for approval may avoid precedent or monetary expectations of unrepresented claimants seeking to settle a claim for common law damages.

20. There is no precedent for disclosure or non-disclosure of settlement amounts in approval applications, this being the first such application pursuant to the 2017 Act. The Act and Guidelines are silent on the point. I appreciate that the decision may have little informative value to other unrepresented claimants who are concerned whether an insurer’s offer may be appropriate. In accordance with the insurer’s request, I have omitted reference to the settlement figure in these Reasons.

21. The proposed settlement figure comprises only non-economic loss. Quite separately, the claimant is entitled to payment of her accident related treatment and care expenses for the rest of her life, initially by GIO and after June 2023, by the Lifetime Care and Support Authority. No doubt, GIO will inform the claimant about the arrangements to be made for payment of her treatment expenses after June 2023.

CONCLUSION

22. Having spoken with the claimant and her family member, I am satisfied that the proposed settlement figure is an appropriate one and that it complies with the requirements of Clause 7.402.2 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 claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”

23. Accordingly, pursuant to Section 6.23 of the Motor Accident Injuries Act 2017 and Part 7, Section 7.396 of the Motor Accident Guidelines, the proposed settlement of the claimant’s claim for damages is approved.

MARGARET HOLZ
DRS Claims Assessor Dispute Resolution Services