Abbott v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Abbott v QBE Insurance (Australia) Limited [2021] NSWPIC 340
CLAIMANT:	Derek Abbott
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	6 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); damages claim; approval of settlement under section 6.23 of the MAI Act; claimant self-represented; settlement of $875,000 for non-economic loss; past loss of earnings and future loss of earning capacity; injury; multiple fractures (left and right wrist, left leg, right ankle, ribs, pelvis) and scarring; claimant developed depression; evidence suggested chance of arthritis and continued complaints long term; claimant (aged 63) had not returned to work and could not resume work as bus driver; Held -settlement approved; no matters of principle.
DETERMINATIONS MADE:	1. The claimant and the insurer have agreed to settle Mr Abbott’s claim for the sum of $874,597.70. 2. The proposed settlement is approved in accordance with section 6.23 of the Motor Accident Injuries Act2017. 3. The reasons for the determination are included with this certificate.

INTRODUCTION

Summary of the claim

On 17 June 2019, Mr Derek Abbott (the claimant) was riding his motorcycle straight along Old Norther Road towards Dural on his way to work. He was travelling behind another vehicle heading in the same direction.
There was a HiLux stationary at Vineys Road waiting to turn right into Old Northern Road. The driver of the HiLux waited for the vehicle in font of Mr Abbott to pass through the intersection but he did not see Mr Abbott and turned directly into Mr Abbott’s path. Mr Abbott’s motorcycle crashed into the side of the HiLux and Mr Abbott was flung over the bonnet and onto the road[1]. He was badly injured.
[1] This history comes from the Police Report – document AD 14 in the Commission’s file.
Mr Abbott has made two claims against QBE, the third-party insurer of the HiLux (the insurer):
(a) a claim for statutory (income support and treatment) benefits, and
(b) a claim for lump sum compensation or damages.[2]
[2] I do not have a copy of the application for statutory benefits. The claimant’s application for common law damages has been provided by the insurer twice as documents A2 and AD2.
QBE has paid Mr Abbott his statutory benefits and will continue to pay him benefits for his accident-related treatment and care needs. QBE has accepted liability for the damages claim[3] and has agreed with Mr Abbot on a lump sum to settle that claim.
[3] An email dated 25 May 2021 wholly admits liability for the claim and is document AD5.
Because Mr Abbott does not have a lawyer representing him, his settlement must be approved in accordance with the relevant provisions of the Motor Accident Injuries Act 2017 (the MAI Act)[4].
[4] Mr Abbott along with his wife did seek advice from a lawyer upon receipt of the insurer’s officer but have decided to proceed without formally engaging a lawyer.
QBE referred the settlement to the Personal Injury Commission (the Commission) and the matter was referred to me. I held two teleconferences with Mr Abbott, his wife Carita Abbott and representatives of QBE. Ms Vijay Mohan attended at the first teleconference on 9 August 2021 and Mr Robert Chatfield at the second on 3 September 2021.
The final settlement amount is the sum of $874,597.70 and I have decided to approve the settlement.

LEGISLATIVE FRAMEWORK

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 … 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.
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, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

REVIEW OF THE EVIDENCE

Documentary evidence

The state of the insurer’s presentation of the documentation in this matter has been sub-optimal and not in compliance with Procedural Direction PIC 3 clause 18. Individual ‘documents’ were uploaded to the portal with bundles of material included in each ‘document’. The documents were generally not in a logical order.
I have been provided with several certificates of capacity signed by Dr Christopher Chang[5], an email chain from an exercise physiologist detailing treatment[6], three radiology reports[7] and a list of expenses incurred in the statutory benefits claim[8].
[5] Only four were provided dated 11 February 2020, 10 May 2021, 14 April 2021 and 16 March 2021 bundled together in document A1.
[6] Document A2 includes a first email dated 25 March 2021 with the last date being 29 April 2021. These records are repeated as document A4.
[7] X-ray and scan reports of the claimant’s right wrist are included in a bundle comprising document A6.
[8] The list of expenses totalling nearly $291,000 is document AD3 comprises a list spanning 69 pages.
The claimant was taken to Westmead Hospital after the accident, but I have no documents from there although I do have five pages from Baulkham Hills Private Hospital suggesting the claimant may have been admitted there from Westmead on
[9] Document AD7.
1 July 2019 and discharged on 5 August 2019.[9]
A selection of letters from the claimant’s treating orthopaedic surgeons to his GP
[10] Document A9 is a bundle of letters from Doctors Baba, Yalizis and Suthersan who have dealt with Mr Abbott’s wrist, shoulder and femur fractures. Document AD11 includes another bundle of letters from these specialists to the claimant’s treating doctor.
Dr Chang have also been provided[10] which deal mainly with updates and requests for approval for surgery.
Within another bundle of documents[11] was a report from Occupational Physician
Dr Tania Rogers dated 13 May 2020. Although addressed to the claimant’s GP,
[11] More letters from the claimant’s various specialists are contained in document AD10.
Dr Rogers notes she was asked to provide an independent medical assessment following a one hour examination and in accordance with the expert code of conduct.
The aim of her assessment was to ‘assess the capacity for pre-accident employment as a bus driver and guidance on potentially safe work options’. Dr Rogers noted that
Mr Abbot had been a bus driver since 2007 for Hillsbus driving from Dural to the city and a number of school runs and local routes.
She records a period of two month’s hopsitalisation including admission to the Intensive Care Unit. She provides an excellent summary of the claimant’s primary injuries:
(a)    left shoulder dislocation relocated in emergency;
(b)    comminuted right distal and mid femoral shaft fractures requiring surgery and internal fixation on 17 June 2019 and revision surgery in September 2019;
(c)    non-displaced left hamate fracture along with displaced fractures of the left radius and ulnar requiring surgery and internal fixation on 17 June 2019;
(d)    right distal radius fracture requiring surgery and internal fixation on 17 June 2019;
(e)    displaced right intra articular tibial fracture with a fracture of the adjacent lateral malleolus, externally fixed then internally fixed in July 2019 and revision surgery in September 2019;
(f)    right 4^th and 5^th rib fractures – treated conservatively;
(g)    non-displaced fracture of the greater tuberosity of the left humerus – conservatively treated with an immobilizer, and
(h)    minimally displaced fracture of the right inferior pubic ramus – conservatively treated.
The claimant was apparently discharged with a walking frame and wheelchair but returned to hospital within three weeks as the right femoral fracture was not healing. Mr Abbott had further surgery to insert an intermedullary nail following which he was able to use crutches and then began to walk unassisted after three weeks.
Mr Abbott was also diagnosed with left axillary nerve paraesthesia in late 2019 and underwent hydrolysation of the left shoulder.
Mr Abbott complained to Dr Rogers of constant pain in the left shoulder, both wrists and right hip. He had fallen a few days before and had pain in the right knee.
Mr Abbott reported significant difficulties with walking and driving and restricted range of motion in the left shoulder and recorded:
(a)    Mr Abbott has a tendency to trip on hills and inclines;
(b)    he climbs and descends stairs very slowly;
(c)    he avoids lifting;
(d)    he had driven but held the bottom of the steering wheel only, and
(e)    he rides his motorbike on short trips to physiotherapy.
Dr Rogers notes previous medical issues including a laminectomy at L4/5, a right inguinal hernia, left clavicle reconstruction and an assault at work. Mr Abbott has severe dyslexia and difficulty using a computer.
Dr Rogers records medication includes Endep, Nexium, Pregalbin and Panadol Osteo.
Dr Rogers noted Mr Abbott resides in a six bedroom, three bathroom house on a five acre property and that Mrs Abbott was ‘doing all of the domestic tasks both external and internal’. Dr Rogers records that the claimant has been unable to return to tenpin bowling and golf and says:
He has residual post traumatic pain and stiffness of the wrists, the right more than the left. He appears to have reduced lower extremity proprioception and is at increased risk of falls. His left shoulder range of movement remains extremely restricted despite extensive treatment. He is deconditioned.
Dr Rogers considered the claimant fit for sedentary employment with limited walking and standing and no lifting. While she thought he might improve functionally over the following six months she considered him unfit to ever return to bus driving.
Dr Mark Burns also an Occupational Physician has provided a report to QBE dated 19 April 2021[12]. Dr Burns provides a comprehensive summary of the claimant’s injuries and the treatment Mr Abbott has received which is similar to that recorded by
Dr Rogers with additional (updated) detail including:
(a)    multiple courses of physiotherapy;
(b)    lengthy investigations during 2019 and 2020 into the decreased range of movement in Mr Abbot’s left shoulder;
(c)    surgery to remove one of the locking screws in the femoral intramedullary nail;
(d)    surgery on 7 July 2020 to remove the plate and screws in the right wrist and a shortening of the bone, and
(e)    surgery on 28 January 2021 to change the plate and screws and a bone graft in the left wrist due to non-union.
[12] Document A3.
The claimant complained to Dr Burns of numbness over the tip of the left shoulder with some decreased range of motion. He reported no significant pain in the left wrist but a constant dull pain in the right wrist. Dr Burns records ‘discomfort’ in the right leg in the upper and lower thigh but no decrease in range of motion in the hip or the knee. The claimant reported some pain over the right side of the pelvis but no pain or discomfort in the ribs. Mr Abbott said he had some stiffness in the right ankle, but no pain.
Mr Abbott was still seeing his GP and orthopaedic surgeon, having exercise physiology and hand therapy and was taking pain medication and an antidepressant.
Dr Burns took a history of the claimant’s previous accidents and injuries noting a right ankle fracture at the age of 18 which recovered and a 2016 fall from a ladder while holding a chain saw. This resulted in a fracture of the left ankle which was fixed surgically causing shortening of Mr Abbott’s left leg and a built-up left shoe.
Dr Burns noted the claimant was a bus driver who had not returned to work and that he had two vocational assessments[13] stating he was unfit to return to work due to his ‘quite marked dyslexia’.
[13] It is not clear whether one of those is the report of Dr Rogers. I do not appear to have any document which is in the usual form of a vocational report.
Dr Burns takes a social history from Mr Abbott that he does some work around the house including riding his lawn mower (although he cannot do the edges). He has returned to some of the cleaning (floors but not carpets) and he helps with some cooking and washing up.
On examination, the claimant’s left shoulder showed reduced range of motion when compared to the right, there was pain in both wrists and reduced range of movement. Dr Burns remarked on Mr Abbott’s ‘significant’ scars. Dr Burns made recommendations for treatment. He expressed the view that due to Mr Abbott’s significant orthopaedic injuries and his severe dyslexia he would be unlikely to obtain further employment.
Dr Burns thought it reasonable that Mr Abbott could not return to all his home and garden duties and recommended an occupation therapist assessment.
Dr Burns expressed the preliminary view that the claimant’s whole person impairment might be assessed at 24% but suggested his injuries had not yet stabilized following the most recent surgery.
In a further report dated 24 August 2021[14], Dr Burns expressed the view that the claimant’s fractures to his pelvis, femur, right ankle and ribs would give ‘little if any long-term issues’. Dr Burns then said that the injuries to the right wrist, left wrist and left shoulder ‘are likely to have ongoing medium to long-term issues’. Because of the involvement of joints, Mr Abbott would be likely to develop ‘accelerated arthritis of the joints’. He did not think there was a risk of further surgery.
[14] Document AD16.

The claimant’s evidence

Mr Abbott provided some excellent photographs showing the many surgical scars to various parts of his body and Mr Abbot said he was very conscious of some of them.
Mr Abbott provided an email to the Commission on 21 August 2021 which provided further detail about how his injuries were affecting him.
I asked the claimant a number of questions over the course of the two teleconferences. I was impressed by Mr Abbott, who was a most understated man and who has made an extraordinary recovery from very serious injuries. He also appeared as a very stoic individual who complained of few ongoing symptoms. His wife supplemented her husband’s evidence saying her husband was a man of few words.
Mr Abbott has been taking medication for his depression (Endep) but has not been seeing a psychologist. He said, ‘I am not a very talkative person and find it difficult to verbalise what I am feeling’. He noted his wife had started working from home and was looking after him and was not ‘home stewing by myself’. He expressed to me disappointment at no longer being able to work or do things around the house. He was most upset about having to sell his home. He told me he had returned to riding his motorbike because it was one of the few joys he had left.
Mr Abbott said he was now taking just Panadol osteo in the night as he has had difficulty sleeping and the medication ‘stops the niggles’ during the night.
He said:
(a)    his left wrist has a little bit more movement than the right, but he has no pain or pain that is ‘nothing to write home about’;
(b)    his right wrist still has limitation of movement and he is right handed so uses his wrist more and has a little more pain;
(c)    his left shoulder is now 80 – 90% of what it was before the accident. He still has trouble rising it and moving from side to side. He says it is getting more comfortable the more he uses it but it is still stiff. Further surgery has been offered but as he has not been promised significant results from it, he has declined;
(d)    his right leg gives him some knee problems which sometimes locks and most of the time there is just pain;
(e)    he still feels some pain and stiffness in his pelvis but nothing in this right ankle, and
(f)    he is bothered by the scars.
Mr Abbott said he had always done physical work because of his dyslexia so was never going to get a promotion. He liked working and is upset that he cannot work. He and his wife are now looking for something to keep him occupied. He told me that he will probably help his daughter out with her child.
In terms of retirement, Mr Abbott said he and his wife had not discussed it. He felt that at about 68 he would have left full time work but as he was not the sort of person who liked sitting around, he thought he would have worked part time or on a casual basis for some time after that. Mrs Abbott is younger than Mr Abbott and she would have turned 67 in 2032 and he suggested he could have worked until then.
During the first teleconference, Mr Abbott told me about his home near Hornsby. He described it as a three acre block with a large garden and swimming pool and tennis court. He and his wife said they had built the house with some professional assistance but that Mr Abbott had done a lot of the work including bricklaying and carpentry.
Mr Abbott said ‘I have always enjoyed getting my hands dirty and building things’. He said, ‘Now I can’t screw a screw into the wall without pain and this makes me feel like I have lost a part of me’.
The house near Hornsby had been rendered but the render had failed and Mr Abbott was in the process of repairing the render when his accident happened. He said because of the accident he could not complete the repairs. He asked QBE to assist him with this, but they refused.
Mr Abbott acknowledged that his home was about a 30 minute drive from Hornsby and that while QBE attempted to provide him with home care and assistance the location made this difficult. He also said that the swimming pool cleaner used too many chemicals and the gardener had killed half the lawn.
When they sold the house, he said they sold ‘at a loss’. Mr Abbott said he sold the house because he could no longer look after it or live in it. It was a large home split over three levels with too many stairs. He could also not maintain the lawns and the pool. While he and his wife tried to keep up the house, they realised they could not do so and they sold it. They purchased a home in Canberra to be near one of their daughters. Mr Abbott said they bought a home all on one level and that there were a number of people competing for it at auction because of this. He said a one level home cost about $130,000 more than a two level home in the same area.
Mr Abbott said the removalists cost over $6,000 and that their furniture is stuck in Sydney due to the COVID lockdown.
Mr Abbott said he had bought a new car that was easier to get in and out of with his injuries but he could not quantify any loss in relation to that as he was intending to replace the car in any event.
Mr Abbott said he had played tenpin bowling for five years in a league at Castle Hill but had been unable to continue this. He used to play social golf one or twice a month but as he cannot walk for 20 minutes without pain and due to the loss of movement in his left shoulder, he had not returned to that either. Mr Abbott was also a skier and he was intending to resume that pastime at the time of the accident. He had been given a season pass (which he could not use because of the accident) and had bought new ski boots and skis (also unused). Part of their retirement plan was a block of land they had purchased in New Zealand near Lake Taupo upon which they planned to build a house and operate some form of bed and breakfast type accommodations.

SHOULD I APPROVE THE SETTLEMENT?

The offer

Section 4.3 of the MAI Act provides that damages may only be awarded for non-economic losses and economic losses. The types of economic losses which can be awarded are limited to those set out in section 4.5(1) which are:
(a)    damages for past or future economic loss due to loss of earnings;
(b)    damages for costs relating to accommodation or travel;
(c)    damages for the cost of the financial management of damages, and
(d)    damages for reimbursing tax pain by the insurer on statutory benefits paid.
Lost superannuation contributions may also be recovered under s 4.6(3) of the MAI Act.
QBE’s final offer conveyed at the second teleconference was as follows:
(a)    non-economic loss  $350,000.00
(b)    past loss of earnings  $149,255.76
(c)    tax paid on statutory benefits  $16,259.00
(d)    past superannuation at 12%  $17,910.59
(e)    future loss of earning capacity  $304,379.00
(f)    future superannuation at 12%  $36,525.56
Total  $874,597.70
Mr Chatfield confirmed that the amount of $119,404.51 would be deducted from the settlement being the amount of weekly benefits paid as at 31 August 2021. He confirmed that even if a further fortnight of weekly payments were made Mr Abbott’s settlement and the deductions would not be affected.
Mr Chatfield confirmed there was no Medicare payback but that if there was, it would be paid out in Mr Abbott’s statutory benefits claim and would not affect his damages claim.

The requirements of the legislation

When considering the provisions of s 6.23 of the MAI Act and clause 7.38 of the Guidelines along with the rules and practice directions of the Commission, in determining whether to approve Mr Abbott’s settlement I must consider:
(a)    timing – whether the date of the settlement is more than two years after the accident unless the claimant has a whole person impairment of more than 10%;
(b)    appropriateness – whether the amount of the settlement is just, fair and reasonable, and
(c)    understanding – whether Mr Abbott understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
It is now more than two years since Mr Abbott’s motor accident and in any event, QBE concedes he has a whole person impairment in excess of 10%. I am therefore satisfied that the timing requirement has been met.
I am also satisfied that Mr Abbott, and his wife, understand that Mr Abbott is entitled to reasonable and necessary, accident-related treatment for the remainder of his life. The settlement of this damages claim does not affect that claim and Mr Abbott understands that he can continue to ask and receive assistance and treatment from QBE.
Mr Abbott accepts that the settlement of his damages claim is binding upon him and that he cannot make a further claim for damages in the future.
Mr Abbott and his wife explained to me that they had sought some legal advice in the early days of the damages claim but that they do not wish to engage the services of a lawyer in relation to this settlement.
The allowance for non-economic loss is within the range of damages available to
Mr Abbott noting the current maximum ($590,000), the level of his impairment (24%), his remarkable recovery, his age and his pre-existing issues.
In terms of past loss of earnings, Mr and Mrs Abbott had checked the figures and identified QBE had allowed $300 more than it should. QBE did not wish to reduce the offer. I am satisfied that the allowance for past loss is therefore appropriate. Mr Abbott is now 63 and QBE have allowed him damages for lost earning capacity to age 70. The calculation adopted by QBE has been checked and is correct.
I explored with Mr Abbott and QBE at the first teleconference whether Mr Abbott had an entitlement to damages for the additional cost of travel (his new car) or accommodation (the move from greater Sydney to Canberra) under s 4.5(1)(b).
[15] [1991] NSWCA 346
[16] [2006] NSWSC 680
I referred the parties to a previous Commission case as well as the decisions of the courts in Weideck v Williams[15] and Imbree v McNally[16] and suggested both parties may wish to seek legal advice about this. Mr Abbott and his wife said at the second teleconference that they did not feel the need to pursue this. They were happy with the settlement from QBE and wished to accept it and move on with their lives.
I am therefore satisfied that the total amount of damages offered to Mr Abbott by QBE is appropriate and within the range of damages I would assess.

CONCLUSION

I am therefore satisfied that the proposed settlement figure of $874,597.70 is an appropriate one and that it complies with the requirements of cl 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.
Accordingly, pursuant to s 6.23 of the MAI Actthe proposed settlement of Mr Derek Abbott’s claim for damages is approved.

Belinda Cassidy

Member (Motor Accidents Division)
Personal Injury Commission

[2021] NSWPIC 340

6 September 2021