Dhakal v QBE Insurance (Australia) Limited
[2021] NSWPIC 296
•18 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dhakal v QBE Insurance (Australia) Limited [2021] NSWPIC 296 |
| APPLICANT: | Sandeep Dhakal |
| RESPONDENT: | QBE Insurance (Australia) Limtied |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 18 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Settlement Approval; 23-year-old on student visa; injury as passenger, small bowel and sigmoid injuries; laparotomy and small bowel resection; good recovery; 0% WPI; economic loss; unfit for work for 49 weeks, buffer for future earning impairment.; Held – proposed settlement is just, fair and reasonable; settlement 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 MAI Act). 3. The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines. |
Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
Introduction
On 30 June 2019 Mr Sandeep Dhakal (the claimant) sustained injury in a motor vehicle accident (the accident).
The claimant has made a common law claim against QBE Insurance (Australia) Limited (the insurer) the CTP insurer of the at fault vehicle, for lump sum damages.
The insurer accepted liability for the claimant’s claim for statutory benefits and has paid treatment benefits to, or on behalf of the claimant.
The insurer has accepted that the claimant had non-minor injuries and has accepted liability for the claim for common law damages under the MAI Act.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $30,872.71. The offer is calculated as follows:
· Past economic loss calculated at $383.76 for the period 30 June 2019 to 5 June 2020 (49 weeks) plus super at 11% in the sum of $20,872.71.
· Future economic loss assessed by way of buffer for any future impairment of the claimant’s earning capacity in the sum of $10,000.
Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act.
The claimant has not been able to establish he has sustained a whole person impairment in excess of 10% and therefore is not entitled to recover damages for non-economic loss.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 18 August 2021. The claimant appeared in person and the insurer was represented by Elveen Lal.
Jurisdiction
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
Documents considered
· Personal Injury Claim form dated 18 July 2019.
· Application for statutory benefits dated 17 July 2019.
· Application for damages under common law dated 13 May 2021.
· Clinical records of MedFirst Medical Centre.
· Report of Dr Siddarth Sethi dated 11 June 2021.
· Email from Elveen Lal of QBE to Mr Dhakal dated 17 May 2021.
· Police Report Event Ref. No. 71506747.
· Particulars provided by Mr Dhakal on 18 May 2021.
· Geewizzard payslips (x 3).
· Email from Elveen Lal of QBE to Mr Dhakal re offer dated 19 July 2021.
The relevant law
Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23(2) and (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(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 claims assessor, 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
The claimant is now 25 years of age. After completing a bachelor’s degree in Information Technology (IT) the claimant taught at a boarding school for four years.
On 23 May 2019 the claimant was granted a student visa. A condition of the student visa was that the claimant does not work more than 40 hours per fortnight whilst his course of study was in session.
The claimant arrived in Australia from Nepal in early June 2019 to undertake a master’s degree in IT.
On 30 June 2019 the claimant was a rear seat passenger in a vehicle driven by a friend. At the intersection of Bexley Road and Forest Road, Bexley, the driver of the vehicle was distracted and collided with a telegraph pole by the side of the road at 60 kilometres per hour. The claimant was conveyed by ambulance to St George Hospital having sustained a blunt injury to the abdomen and upper chest. He also sustained a non-displaced fracture of the 4th rib.
The claimant was admitted to St George Hospital on 30 June 2019. The claimant had small bowel and sigmoid injures. He underwent a laparotomy, small bowel resection, primary anaestomosis and resection of the sigmoid colon plus formation of an abcarian stoma. He was taken to the Intensive Care Unit postoperatively, recovered and was discharged home on 9 July 2019.
Following his discharge from hospital the claimant attended his general practitioner to have his wound dressed.
On 12 September 2019 the claimant underwent stoma reversal. Following the surgery, the claimant states he was unfit for work for about 12 months because he was advised he should not undertake activities requiring lifting, pushing and driving. The claimant also states he had difficulty mobilising for a time.
In June 2020 the claimant commenced work at Geewizzard a strata cleaning and garden maintenance business. The claimant provided two payslips from Geewizzard. For the pay period 12 June 2020 to 18 June 2020 the claimant earnt the sum of $383.76 net and for the pay period 19 June 2020 to 25 June 2020 he earnt the sum of $188.79 net.
In or about September or October 2020 the claimant commenced work at Woolworths. He continues to work about 20 hours per week earning on average $400 per week.
The claimant informed me he has completed his master’s degree. He has not sought work in the field of IT and informed me once the lock down is over, he hopes to return to his home country. In the meantime, he intends to continue his employment at Woolworths.
The claimant also informed me that from time to time after returning home from work he experiences abdominal pain. About one month ago the pain was severe, and he saw his doctor and underwent a CT scan. He was reassured by his doctor that there was nothing to be concerned about and the pain subsided. Overall, the claimant stated he has made a good recovery, advising me his condition is good now.
Report of Dr Sethi
The claimant was assessed by Dr Siddarth Sethi on 8 June 2021 at the request of the insurer. He provided a report dated 11 June 2021. He reported since the accident the claimant had experienced sharp burning pain in the mid abdomen every day. However, there was no change in bowel habit, PR bleeding or weight loss. There was no nausea or vomiting and no experiences of bowel obstruction.
He reported at that time the claimant was close to completing his master’s degree and he was working 20 hours a week at Woolworths. On completion of his degree, he noted the claimant intended to work in IT. The claimant was residing in a unit with his uncle and was able to perform all activities of daily living without any difficulty.
Dr Sethi concluded the episodes of abdominal pain likely reflected cutaneous hypersensitivity relating to the earlier surgery. Whilst there was a small risk of small bowel obstructions secondary to adhesions caused by the surgery Dr Sethi was of the opinion that the likelihood of the claimant experiencing small bowel obstructions was very low, or very unlikely to occur where two years have passed since the accident without bowel obstruction.
Dr Sethi stated further treatment was not required, other than the small possibility of small bowel obstruction which he thought would be likely to settle with conservative management, and failing that, may potentially require surgery.
Dr Sethi concluded the claimant had reached maximum medical improvement. He assessed a 0% whole person impairment.
He stated the claimant had made a full recovery and was fully fit to work full time without restrictions. Specifically, he concluded the claimant was unlikely to encounter any difficulty in working the in the field of IT.
Should I approve the settlement
The insurer has accepted the claimant had non-minor injuries and pursuant to Division 3.4 of the MAI Act he is entitled to ongoing payment of reasonable treatment for his accident caused injuries.
I am satisfied the claimant understood that the settlement was only in respect of his entitlement to damages for economic loss.
He agreed the assessment of his past economic loss was appropriate having regard to his likely earnings during the 49 weeks post-accident. He understood the basis of the allowance for the future impairment of his earning capacity.
The claimant informed me he had not received any benefits from Centrelink, and I am satisfied he understood there will be no repayment to Centrelink.
The claimant is an overseas resident and is not entitled to claim Medicare benefits. Therefore, there will be no obligation to repay treatment expenses to Medicare.
I confirm that there will be no deductions to be made from the settlement sum of $30,872.71 and the full amount will be payable to the claimant.
The claimant agreed he did not wish to seek legal representation in respect of this claim.
I consider the settlement sum to be an appropriate assessment of the claimant’s entitlement to damages for the injury sustained in the accident.
Conclusion
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is over two years since the accident.
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident. I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the MAI Act I approve the settlement of this claim for damages.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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