Mitchell v QBE Insurance

[2021] NSWPIC 190

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Mitchell v QBE Insurance [2021] NSWPIC 190

APPLICANT:

John Mervyn Mitchell

RESPONDENT:

QBE Insurance

MEMBER:

Margaret Holz

DATE OF DECISION:

23 June 2021

CATCHWORDS:

MOTOR ACCIDENTS- Claims assessment; settlement approval under section 6.23 of the Motor Accident Injuries Act 2017; claimant is the husband; wife dies as a result of injuries; claiming damages for the loss of his wife’s financial support and her gratuitous services; claimant 80 years of age; aged pension; received a carer’s pension for looking after the claimant; dialysis treatment three times a week; settlement has been agreed; Held- satisfied that the settlement figure now proposed is an appropriate one; settlement is 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 to cl 7.411 of the Motor Accident Injuries Guidelines

Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017

Background

1. This is a claim pursuant to the Compensation toRelatives Act 1897.

2. The motor accident the subject of this claim occurred on 27 November 2018.

1. The claimant is not represented by an Australian legal practitioner.

1. The claimant, through his daughter who represented him at two teleconferences, has advised that he proposes to accept the settlement.

1. The claimant requests that the Personal Injury Commission approve the proposed settlement.

Documents Considered

1. I have considered the documents provided in the application and the reply and any further information provided by the parties.

Reasons

1. The claimant is the husband of the Late Valda Mitchell who died as a result of injuries she suffered in an accident involving a motor vehicle insured by QBE Insurance. He brings a claim pursuant to the Compensation toRelatives Act 1897 claiming damages for the loss of his wife’s financial support and of her gratuitous services.

1. Because he is not legally represented, the settlement of his claim needs to be approved by a member of the Personal Injury Commission pursuant to s 6.23 of the Act.

1. The claimant was 80 years of age at the time of his wife’s death and she was 77. Both were in receipt of the aged pension and Mrs Mitchell also received a carer’s pension for looking after the claimant.

1. The insurer lodged this application for approval of a settlement of $86,564.50 clear of the expenses (including funeral expenses) already paid by QBE. That comprised past and future loss of financial support of $31,120 and loss of past and future services of $55,444.50.

1. I spoke with the claimant’s daughter and a claims officer of QBE Insurance on 27 May 2021. It quickly became apparent that the sum agreed for loss of Mrs Mitchell’s services was wholly inadequate and I declined to approve the settlement. The claims officer advised that he was unaware of the matters outlined by the claimant’s daughter in relation to the care provided by her mother to the claimant. It was apparent that he had not previously asked for details.

2. That care included driving the claimant to and from his dialysis treatment three times a week, taking him to other medical appointments and to church and community events, and carrying out all domestic, maintenance and gardening work. The claimant’s three daughters have now assumed all their mother’s tasks, often rearranging their schedules and taking time from work to do so. The claimant remains in the matrimonial home and no outside services have been engaged to help.

1. I adjourned the teleconference so that the claims officer could make proper enquiries of the claimant and his family concerning the very extensive care that Mrs Mitchell provided to him.

1. On 10 June 2021, I was advised that further discussions had taken place and that a settlement had been agreed in the sum of $319,097.50 clear of expenses already paid by QBE. This comprised past and future loss of services of $287,977.50.

2. The settlement now put forward for approval is a vast improvement on that agreed earlier and demonstrates the need for the Commission’s oversight.

1. I am satisfied that the settlement figure now proposed is an appropriate one and that it complies with the requirements of Clause 7.402.2 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 claims assessor, taking into account the nature and extent of the claim and the .... losses sustained by the claimant.”

1. Accordingly, pursuant to Section 6.23 of the Act and Section 7.396 of the Motor Accident Guidelines, the proposed settlement of the claimant’s claim for damages is approved.

Legislation

1. In making my decision I have considered the following legislation and guidelines:

·The Act

·Motor Accident Injuries Regulation 2017

·Motor Accident Guidelines 2017

·Compensation to Relatives Act 1897

Margaret Holz

Member (Motor Accidents Division)

Personal Injury Commission