| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAX v QBE Insurance Ltd [2021] NSWPIC 141 |
| APPLICANT: | AAX |
| RESPONDENT: | QBE Insurance Ltd |
| MEMBER: | Mr Terence Stern |
| DATE OF DECISION: | 24 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Claims assessment; whether the proposed settlement should be approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; widow; pedestrian; contributory negligence; turned right without his right indicator light on; no witnesses; no crossing there; treatment only by GP; pain in multiple areas; pre-morbid mental health; anxiety and depression; diagnosis of husband’s cancer four years before; hypersensitive; soft tissue injuries; shop assistant; after the accident walked about 15 minutes until she arrived home; insured not keeping a proper lookout for pedestrians; cash income of $370 per week; proposed settlement of $100,000; significant functional overlay causally related to the accident which is chronic; Held- offer is appropriate and should be 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 (the Act). 3. The proposed settlement complies with cl 7.392 and cl 7.393 of the Motor Accident Injuries Guidelines. |
NATURE OF THE DISPUTE
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Act, about whether, pursuant to section 6.23 of the Act, the proposed settlement offer made by the Claimant on 21 December 2020 to settle her claim on payment of the sum of $100,000 inclusive of weekly payments for statutory benefits and accepted by the Insurer on 23 December 2020 should be approved.
INTRODUCTION
The Claimant was born on 00 March 1964 and is a widow.
At about 6:00pm on 9 May 2018, the Claimant, a pedestrian, alleges that she sustained injury as a result of being impacted by the vehicle driven by the Insured Driver as a result of which she alleges she sustained injury, loss and damage.
The Claimant has not had the benefit of legal representation, although she may have had some incidental legal advice.
The Insurer alleges contributory negligence of 50% but does not take into account or seek a reduction for contributory negligence.
The Claimant’s injuries have not been assessed at the Medical Assessment Service (MAS).
The Claimant told me in the course of the first Preliminary Conference that she did wish to resolve the matter and was happy to accept the sum of $100,000 inclusive of weekly payments for statutory benefits in full settlement of her claim (i.e., payments for statutory benefits will be deducted).
Both parties have requested that the Personal Injury Commission (PIC) approve this settlement.
THE QUESTION BEFORE ME
The question for me to resolve is whether or not this settlement should be approved.
LEGISLATION AND GUIDELINES
Legislation relevant to whether or not proposed settlement should be approved in the circumstances where the Claimant is unrepresented:
Section 6.23 of the Act provides:
“6.23 Restrictions on settlement of claim for damages
(1) A claim for damages by an injured person cannot be settled…
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- AGLC
- Aax v QBE Insurance Ltd [2021] NSWPIC 141
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- [2021] NSWPIC 141
- Decision Date
CaseChat Overview and Summary
The court had to consider whether the proposed settlement was appropriate, taking into account the claimant's injuries and the defendant's contributory negligence. The court assessed the claimant's pain and suffering, her ability to manage daily activities post-accident, and her financial needs. The court also had to consider the degree of contributory negligence, as the claimant did not use a pedestrian crossing and turned right without indicating. The court recognised the importance of the driver's duty to keep a proper lookout for pedestrians and the increased risk posed by motor vehicles. The court considered the legislative framework and case law, including the principles set out in Boral Bricks Pty Limited v Cosmidis (No 2), which emphasised the need to consider the relative dangers and responsibilities of both drivers and pedestrians.
After thorough consideration, the court concluded that the proposed settlement was appropriate and should be approved. The court found that the claimant's injuries and their impact on her life were significant enough to warrant the settlement amount, and that the degree of contributory negligence did not preclude an appropriate settlement. The claimant's pre-existing mental health conditions and the chronic nature of her injuries were also taken into account. The court's decision recognised the claimant's need for compensation while also considering the statutory requirements for approving settlements in motor accident claims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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