Allianz Australia Insurance Limited v McQuillian
[2025] NSWPIC 53
•19 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v McQuillian [2025] NSWPIC 53 |
| CLAIMANT: | Robert James McQuillian |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23; bicycle struck by insured driver; fracture fifth metacarpal; debridement and open reduction internal fixation of fracture; hardware removal post motor vehicle accident; decrease strength in left hand; time off work for treatment; assumptions as to most likely future circumstances; future economic loss; consideration of medical material; change in pre-injury duties; Held – the amount of the claim for damages is approved in the total amount of $63,000. |
| DETERMINATIONS MADE: | CERTIFICATE SETTLEMENT APPROVAL Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The amount of the claim for damages is approved in the total amount of $63,000. |
STATEMENT OF REASONS
INTRODUCTION
Robert James McQuillian (the claimant) is a 22-year-old man who currently lives in Sydney with his partner. At the time of the accident on 5 December 2022 he was employed as a scaffolder with Instant Access. On that day he was riding his bike to work at around 6.00am when the utility coming in the opposite direction turned in front of him and he struck the vehicle. This caused him to fall off his bike and he sustained an open wound fracture to his left little finger. He had never injured that finger before and was in good health at the time of the accident.
The claimant was taken by ambulance to John Hunter Hospital where he was examined and his injury was X-rayed. After being discharged home he was then re-admitted to hospital and underwent an internal fixation of the fracture of his fifth metacarpal on 7 December 2022,
two days post-accident. The surgery was performed by Dr Hunt. His hand was splintered for a period of about six weeks and thereafter he commenced physiotherapy which he found to be of benefit.
He continued to suffer ongoing symptoms in the small finger of his left hand as a consequence of the hardware which had been inserted to stabilise the fracture. Accordingly, and consequent on such discomfort, he underwent a further surgical procedure to remove the hardware from his left hand in January 2024.
The claimant confirmed that he has suffered no other injuries to any other body parts. He still has some problems with his left hand in terms of some weakness and ongoing pain and a loss of movement but is stoic about it and downplays the effect of his injury.
The parties have agreed on a settlement figure of $63,000 which is made up of an allowance for past economic loss of $20,000 and an allowance of future economic loss of $43,000.
The calculations in respect to past economic loss in fact total $17,264.71 but this has been rounded up to $20,000 by the insurer.
The insurer has made payments for past wage loss of $11,358.15 which will be deducted from the agreed settlement figure leaving the claimant with a figure of $51,641.85. There are no other deductions from this figure. Both parties have requested that I approve the proposed settlement.
Documents considered
I have considered and taken note of all the documentation attached to this application. In particular I note the claimant’s treating surgeon, Dr Joshua Hunt, in a report dated
16 February 2023, before the second surgical procedure, that the claimant “has a full active range of motion with no restrictions. He is now healed and I am happy for him to do whatever he wishes to do with no restrictions.” The insurer also provided the pay slips from Award Scaffolding Pty Limited which identify his pre-accident gross and net earnings.
The material also includes a report of Dr J Bentivoglio dated 5 September 2024. This report states, somewhat tellingly, “this gentleman is back doing his full preinjury duties. He is coping with them despite having ongoing symptoms”.
Injuries sustained
The claimant has sustained a significant injury to his dominant left hand. He is a man of some strength and stoicism and fairly young. It is for these reasons that both he and the medical practitioners seem to have quite a positive outlook on his prognosis. He returned to work as a scaffolder which he managed without too much difficulty. That said, he is still troubled by his injuries and disabilities.
Reasons
Both the claimant and the insurer have confirmed that the allowance for past economic loss is an appropriate figure and more than covers any past wage loss the claimant may have suffered. This takes into account the claimant’s pre-accident earnings, his time off work for both post-accident and post-surgical procedures together with any tax payments made on the claimant’s behalf consequent on the weekly payments made by the insurer. It is also noted that the figure was then rounded up by in excess of $2,000 to cover any other possible past wage loss contingency.
Future economic loss is expressed as a buffer to take into account the vicissitudes and possible reduction in the claimant’s earning capacity. The material discloses a calculation based on one day off every two months for about seven years plus an allowance for super and less for vicissitudes. This would seem to be something of a fiction noting that the claimant confirmed at the assessment conference that he is currently not working, having needed to move to Sydney although he anticipates obtaining employment most likely as a scaffolder. A figure of $43,000 is, in my view, more appropriately considered a buffer to take into account should there be any flareups or deteriorations which may require some time off work or reduced work capacities suffered by the claimant for years ahead. In any event, noting that the claimant’s most likely future circumstances but for the injuries are probably in accord with fairly much where he is today. I concur the figure of $43,000 as an allowance of future economic loss is appropriate in the circumstances in this accident.
The claimant has confirmed that he wishes this settlement approval made. He confirms that he is not working but has also confirmed that has nothing to do with his left hand or left finger. He has advised that he has had no treatment at all to his left hand since undergoing the surgery in January 2024 and does not anticipate receiving any further treatment. Noting all these matters I concur with the parties that the proposed settlement figure is an appropriate one and I have no hesitation in approving this settlement.
LEGISLATION
In making this decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017, and
· Motor Accident Injuries Regulation 2017.
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