Garnsey v QBE Insurance (Australia) Limited
[2023] NSWPIC 660
•11 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Garnsey v QBE Insurance (Australia) Limited [2023] NSWPIC 660 |
| CLAIMANT: | Dennis Herbert Garnsey |
| INSURER: | QBE |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 11 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $265,410; 64-year-old male pedestrian; past and future economic only; lisfranc fracture left foot, surgery and DVT; whole person impairment 7%; off work for 64 weeks; future loss buffer; most injuries now healed; ongoing pain to left calf, knee and hamstrings; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 19 November 2021 at 8.30pm, Dennis Herbert Garnsey (the claimant) was a pedestrian walking along Smith Street at Summer Hill with his wife when the insured’s vehicle mounted the footpath and struck him.
The claimant sustained injuries in the accident.
Police and ambulance were called.
The claimant was then conveyed by ambulance to Royal Prince Alfred Hospital at Camperdown. He was discharged on 22 November 2021.
Ambulance records (document A) confirmed the claimant’s initial injuries so too the hospital discharge records.
Police attended the scene and an event report E85204728 (document A13) was created.
The claimant received treatment from Dr Chris Smithers orthopaedic surgeon who performed fixation of Lisfranc dislocation.
The claimant remained in the care of his general practitioner Dr Linda Pope thereafter for review and management.
The claimant has made a claim against QBE (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 2 March 2023 (document A4). By liability notice (document A12) dated 22 May 2023, the insurer wholly admitted liability for the common law damages claim.
The claimant claimed that he sustained injury in the accident to the following areas of his body:
(a) injury to head;
(b) injury to left leg;
(c) lis franc disruption to 1st and 2nd tarso meta tarsal -left foot;
(d) deep-vein thrombosis, and
(e) left knee haemarthrosis.
The insurer has accepted that the claimant had sustained non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) he is entitled to payment of reasonable treatment if required.
The insurer relied upon the medico-legal assessment undertaken by Dr Graeme Doig -general orthopaedics and trauma specialist and his report dated 30 May 2023 (document A8) to assess the nature of injuries. By letter dated 30 October 2023 (document A6) the insurer advised the claimant that it had formed the view his injuries did not exceed 10% whole person impairment. The claimant did not challenge this finding and conceded most of the injuries sustained had resolved.
The claimant and the insurer have agreed to settle the claim for lump sum damages in the sum of $265,410.
The claimant was employed as a network engineer with Telstra at the time of the accident. He was off work for one year and the insurer confirmed the basis of its offer was as follows:
(a) past economic loss $195,410:
(i) $2,250 weekly loss 64 weeks - $144,000;
(ii) Superannuation $15,840, and
(iii) tax paid on statutory benefits $35,570.
(b) future economic $70,000 buffer: (based on $300 per week for three years).
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the MAI Act and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a Member of the Motor Accidents Division of the Commission. Clause 14(A)(1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14(D) empowers me to determine these proceedings.
Because of the date of the accident cl 14(D)(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) apply to this matter.
THE RELEVANT LAW
Under ss 6.23(2) and (3) of the MAI Act a Member of the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a)(deleted)
(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 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(b) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 22 November 2023
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 22 November 2023. The claimant participated in person and the insurer was represented by Elveen Lal. I initially explained my role and the reason for approval.
A discussion as to the claimant’s ongoing symptoms of pain as it affected his left foot ensued. He confirmed he continues to suffer tenderness located at the left forefoot. He reported his left knee is normal with stability. He has retrograde discomfort from time to time in his left calf, knee and hamstring. This impacts on his hobbies of bushwalking and jogging.
He returned to work after 12 months and has been continuing with the sedentary role since.
The report of Dr Doig obtained at the request of the insurer to ascertain whole person impairment, was discussed where his opinion that the claimant was fit to continue working full-time at pre-injury duties was confirmed by the claimant.
The claimant reported his opinion that he has returned to full duties and is undertaking 90% pre-injury capacity. He confirmed there is no risk to his employment he has been with Telstra for over 19 years. The calculations of the past economic loss was confirmed as an accurate reflection of loss sustained by the claimant to date and the allowance of approximately $300 weekly for the remaining period the claimant intends to work was confirmed.
The provision of the buffer of $70,000 to reflect likely time off where his symptoms flare up was confirmed. The insurer confirmed the buffer was based on an estimated loss of $300 per week for three years for the period to retirement.
The claimant confirmed his role as a network engineer is a sedentary role. His major ongoing concern is the need for breaks from prolonged sitting at his desk.
As to current treatment I was advised by the claimant that he is not attending any doctor or specialist and his treatment is the ingestion of analgesics on an as needed basis.
I was informed that the claimant did not wish to seek and further investigations medical or legal. He was satisfied with the calculation of economic losses and wished for the settlement to be approved.
The claimant confirmed that he understood the nature of the settlement. He advised he was aware that his injuries did not exceed the statutory threshold of 10% whole person impairment and that he was not entitled to non-economic loss. He did not wish to seek a second opinion to that obtained from Dr Doig, by the insurer.
I asked the claimant if he accepted the offer of his own free will and understood the nature of the settlement and its finality. He responded with words to the effect “I do understand it and wish to have it approved”.
I asked if he understood that that from the settlement a sum of $107,404.18 would be deducted as the insurer had already paid this sum to him as statutory weekly payments and were to receive credit for this amount. He responded; “I know this will be deducted.”
The insurer was also asked if any further information or statement was to be made and
Mr Lal said “I don’t have anything further to add”.The preliminary conference concluded with me advising the parties that I would determine the matter on the information before me.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
· Liability:
application for statutory benefits dated 6 December 2021;
application for common law damages dated 2 March 2023;
liability notice dated 22 May 2023, and
whole person impairment letter dated 20 October 2023 (document A6).
· Treating medical records:
Dr Smithers dated 5 May 2022 (document A11).
· Medico-legal opinion
report Dr Graeme Doig medico-legal dated 30 May 2023 (document A8).
· Economic loss material:
Certificate of fitness (document A10), and
statutory payments made (document A7).
· Settlement documents:
Particulars (document A9).
initial draft settlement agreement (document A5), and
amended settlement agreement dated 20 October 2023 (documents A6).
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed he sustained injury in the accident. He was taken by Ambulance to Royal prince Alfred Hospital. He underwent surgery performed by Dr Smithers who inserted three screws and three months later removed them.
Dr Dunkley attended to his deep vein thrombosis a few weeks later and Dr Franks orthopaedic surgeon remained his treating specialist.
Dr Pope his general practitioner undertook his regular treatment needs post-accident.
He did not return to work for 64 weeks due to his extended period of recovery. He was totally unfit between the dates 21 December 2021 to 18 February 2022. Between the period 25 February 2022 and 26 April 2023 he returned to work full-time with slightly reduced capacity.
He required regular and ongoing physiotherapy to his foot on fortnightly sessions.
The claimant reported his ongoing disabilities as;
“I have ongoing pain in my left foot and knee, walk with a limp and can no longer run any distance. I can not sit for extended periods and need a standing desk to work, and cannot drive or sit in a vehicle or airplane for more than an hour and a half at a time.”
INJURIES
The records produced in the matter confirm that the claimant initially sustained the following injuries:
· injury to head;
· laceration and contusions to back and side of torso;
· injury to left foot requiring surgery on two occasions for Lis-Franc dislocation, and
· deep vein thrombosis -post operative.
Medical evidence
Dr Doig assessed the claimant for physical injuries sustained at the request of the insurer, and opinion on permanent impairment in his report dated 30 May 2023. The claimant reported to him his ongoing complaints and ongoing symptoms of retrograde discomfort to his calf, knee and hamstring (left leg). He had lower tolerance for driving and a difficulty bushwalking and jogging.
Upon examination Dr Doig on behalf of the insurer noted:
(a) Mr Garnsey stood with satisfactory foot and ankle alignment with a slight reduction in sensation over the metatarsal heads on the sole of the foot but no peripheral-nerve anatomical distribution. Examination of the left knee was unremarkable with normal movement and stability. He was able to perform a satisfactory squat and walk on his heels and toes with care.(IB22)
(b) In relation to future capacity to work he reported:
“Mr Garnsey has returned to his pre-injury employment which is sedentary in nature” (IB23)
(c) Prognosis:
“The prognosis considering the extent of injury appears reasonably good in that Mr Garnsey has returned to the majority of activities of daily living, including pre-injury employment.” (IB24)
(d) Future treatment:
“Should Mr Garnsey develop worsening degeneration and midfoot pain. Mid-foot fusion-surgery may be necessary, although this remains to be seen.”
Dr Smithers who operated on his foot fracture reported on 5 May 2022:
“I reviewed Dennis today principally in regard to his left foot now almost six months post operative fixation of his Lisfranc fracture dislocation. Pleasingly from the foot perspective he is doing very well. He is mobilising without pain and his repeat x-ray todays shows maintenance of his mid-foot alignment.” .. “His most recent ultrasound demonstrated no residual DVT.” (document A11).
Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment. I am satisfied that the claimant had no entitlement to damages for non-economic loss.
I accept that the claimant suffers ongoing pain to his left foot and calf from time to time and this is likely to impact on his ability to perform work related tasks on occasion.
The majority of his initial injuries have now resolved.
ECONOMIC LOSS
Past economic loss
At the date of the accident the claimant was working with Telstra as a senior network engineer earning $2,250 net weekly. The payslips provided evidence his pre-accident earning capacity.
Due to his injuries he was unable to return to work for 64 weeks and there after returned to full-time duties. The claimant feels his capacity is about 90% of his pre-injury ability currently.
Past economic loss was calculated as $2,250 weekly loss for 64 weeks amounting to $144,000. The loss of superannuation was agreed between the parties at the rate of 11% and amounted to $15,840.
Tax paid on statutory weekly payments amounted to $35,570.
Total past losses were agreed in the sum of $195,410.
Future economic loss
The claimant is currently aged 64 years and but for the accident had intended to retire at age 67. The claimant’s intention is to work until retirement age. The impact of his injuries are unlikely to result in any reduction of his working life.
The claimant confirmed he is working full-time but may require time off work resulting in economic loss where he suffers a flare up of his left calf pain and intermittent knee pain. On these occasions it could result in future economic loss to the claimant if he takes time off work. The nature of his ongoing pain in the left leg has been intermittent over the past few months and the claimant has confirmed that he has had little time off over the past year.
The insurer accepted that the claimant’s ongoing need to have breaks and the impact of pain is likely to impair his future earning capacity. For the periods of increase in symptoms to his left leg, he may take time off to rest and if off work, will likely be productive of loss of earning capacity from time to time. The insurer has allowed a buffer of $70,000 including superannuation losses. The claimant has agreed that this sum adequately provides for future loss of earning capacity.
Whilst a buffer was considered appropriate as no precise weekly amount is established on his current performance, the insurer informed me the basis of the sum agreed upon was reflective of an estimated loss of approximately $300 weekly for the next three years. I am satisfied on the basis of review of the claimant’s earnings to date that the amount agreed to between the parties is within the range of damages had the matter been assessed by the commission.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the evidence provided by the claimant and the insurer in this matter and are within the range of likely potential damages assessment 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.
The injuries sustained in the subject accident have healed and any ongoing impact is now minimal. The claimant has no ongoing treatment needs and in majority he has recovered well from his injuries. He continues to suffer intermittent left foot pain travelling into his calf and knee.
The ongoing disabilities of an inability to jog, traverse uneven grounds for lengthy periods will continue into the future. The contusions, grazes and lacerations have healed.
The past economic losses were supported by medical certificates for the period claimed post accident and the claimant received statutory benefits at the time as recorded in document A7.
The buffer for likely losses over the next three years accord with the claimant most likely circumstances but for the accident, that he would work until retirement and sustain intermittent periods of reduced earning capacity when symptoms flare up.
The claimant is aware that from his settlement sum the insurer will deduct the already paid statutory benefits in the sum of $107,404.18 for statutory payments made to 26 April 2023 and that he will receive the net balance of settlement funds in sum of $158,005.82.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in his most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss. The circumstances in this matter accord with the most likely circumstances but for the accident.
I am satisfied that the claimant is aware of his right to claim any ongoing treatment needs if approved by the insurer.
There is no Centrelink payback and no monies to Medicare owing under the Health and Other Services (Compensation) Act 1995 (Cwlth) from the settlement sum. If any charge is raised the insurer will pay the charge as a treatment expense in addition to the settlement sum. The only deduction would be the statutory weekly payments already made to date in the sum of $107,404.18.
I advised the claimant if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, he should refer the matter to the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
CONCLUSION
I am satisfied the proposed settlement of $265,410 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission 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 was aware he could seek legal advice but chose not to avail himself of legal representation.
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 and his decision to accept it was of his own volition.
I am satisfied the claimant is aware that from the proceeds a sum of $107,404.18 will be deducted as prepaid statutory benefits.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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