Aax v QBE Insurance Ltd - [2021] NSWPIC 141

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aax v QBE Insurance Ltd

Details

AGLC: Aax v QBE Insurance Ltd [2021] NSWPIC 141
Case: [2021] NSWPIC 141
Decision Date: 24 May 2021

CaseChat Overview and Summary

In the case of Aax v QBE Insurance Ltd, the court was asked to decide whether to approve a settlement offer of $100,000 in the context of a motor accident claim. The claimant, Aax, was a widow who was a pedestrian when she was struck by a vehicle driven by the defendant, who was found to be negligent. The claimant suffered soft tissue injuries and pre-existing mental health issues, including anxiety and depression, were exacerbated by the accident. The defendant’s insurer, QBE Insurance Ltd, proposed the settlement but it required court approval under the relevant statutory provision.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

His Honour then referred to the decision in Podrebersek v Australia Iron and Steel Pty Ltd 59 ALJR 492 at [43]: “The making of an apportionment as between the Plaintiff and the Defendant of the respective shares in the responsibility of the damage involves a comparison base of culpability, i.e. of the degree of departure from the standard of the reasonable man … and of the relative importance of the acts on the parties in causing the damage…” His Honour then referred to what Handley JA said in Talbert-Butt v Holloway (1990) 12 MVR 70 at [44]:“The evaluation and assessment of the culpability of the Plaintiff and the Defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving … was in charge of a machine that was capable of doing great damage to any human being who got in his way.” His Honour then said at [45] that caution was necessary with respect to authorities pre-dating the Civil Liability Act 2002. His Honour continued at [53] to state that there were difficulties in applying the same legal principles in determining the negligence of the defendant and whether the injured party was contributorily negligent in failing to take precautions against the risk of harm. His Honour then said at [54]:“The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.” In Boral Bricks Pty Limited v Cosmidis (No 2) [2014] NSWCA 139, Basten JA, with whom Emmet JA agreed, referred to section 5R of the Civil Liability Act 2002 at paragraph [99] – [100]:“No distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, while from the perspective of the pedestrian, it was the likelihood of serious harm that was to be considered. If the plaintiff was aware, or ought to have been aware, of the presence of a large forklift operating in the area and the forklift driver ought to have been aware, or should have been aware, of the likely presence of pedestrians and, if each were careless, liability should be shared equally.[100] A purposive approach to the operation of s 5R (s 5B) requires that this approach be adopted…”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.