QBE Insurance (Australia) Limited v BHR
[2024] NSWPIC 477
•28 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v BHR [2024] NSWPIC 477 |
| CLAIMANT: | BHR |
| INSURER: | QBE |
| MEMBER: | David Ford |
| DATE OF DECISION: | 28 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 51-year-old driver of a motor vehicle involved in a rear-end collision with a large motor lorry; claimant sustained injuries to her neck, back, head and right shoulder; insurer wholly admitted liability, conceded non-threshold injury and also conceded entitlement to damages for non-economic loss, past and future economic loss; claimant is a pharmacy assistant, has not been able to engage in either full-time or part-time employment since the accident; total amount of damage proposed is $500,000 less statutory payments made to the claimant; Held – the proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE 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 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 15 November 2021 [BHR], (the claimant), was the driver of a motor vehicle stationary at the intersection of Coronation Parade and Georges River Road at Croydon Park, when the driver of the insured truck collided with the rear of the claimant’s vehicle.
Consequently, the claimant sustained several injuries to her neck, back, right shoulder and head. Later that day, she consulted her general practitioner at Campsie, who arranged for her to have an ultrasound of her right shoulder, a CT scan of her cervical spine and plain X- ray of her lumbar spine. Subsequently, she had an MRI scan of her shoulder, and as a result, was referred to a specialist.
The claimant was born in 1972 and will shortly be 54 years of age. At the time of the accident, she was working as a pharmacy assistant and in her Application for Personal Injury Benefits, she recorded her weekly wage to be $1,449. She has not been able to engage in either full time or part time employment since her accident.
The insurer wholly admitted liability by letter dated 8 September 2023 and the insurer has conceded a non-threshold injury and has also conceded she is entitled to damages for non-economic loss, past economic loss, and future economic loss.
The insurer arranged for the claimant to be examined on a medico legal basis by Dr John Bentivoglio, orthopaedic surgeon, and I refer to his report dated 12 September 2023. This was a joint medical examination arranged by the parties. On page 3 of his report, under the heading “current symptoms”, he records the following:
“NECK
She has neck pain most of the time. She still has pain radiating down her right upper limb extending to involve the ulnar 3 fingers of her right hand. She also experiences decreased sensation over the dorsal aspect of her right forearm.
She feels that she has decreased movement present in her neck and all movements appear to be equally diminished. She notices some crepitation present on moving her neck and these generally cause her neck symptoms to worsen.
There is no particular time of the day or night when her symptoms are at their worst. She feels if anything, her next symptoms are worsening.
RIGHT SHOUILDER
She experiences pain over both the anterior and posterior aspect of her shoulder. She feels that she has decreased movement present in her shoulder and all movements appear to be equally diminished. She notices some crepitations present on moving her shoulder which makes her shoulder symptoms worsen.
BACK
She experiences her low back pain 50% of the time. She has pain radiating down her right lower limb, extending as far as her foot. Her back and lower limb symptoms are of equal severity. Walking does not appear to affect her symptoms. She is aware of bladder sensation. She does not describe any symptoms suggesting of saddle anaesthesia. Sitting and standing cause her an equal amount of discomfort. She does not feel as though there have has been any improvement in her back symptoms recently.”
The claimant stated her pre accident recreational activities included cycling, yoga, and dancing. She is no longer capable of undertaking these activities. Dr Bentivoglio on page 6 of his report states the following under the heading “diagnosis and opinion”:
“She would have sustained a non-displaced fracture of her right acromion in the motor vehicle accident she described. The fracture has united uneventfully. She still has residual symptoms present in her shoulder and the most recent MRI scan taken off her shoulder indicates she does have some degree of damage to her supraspinatus tendon. She is not at risk of developing degenerative osteoarthrosis involving her shoulder”.
Dr Bentivoglio opines the claimant has significant ongoing symptoms and note she has not returned to the workforce since her accident. He believes it is unlikely she will be capable of returning to work in the foreseeable future.”
The insurer has proposed to resolve the claim for the sum of $500,000 less statutory payments made to date. As of 20 August 2024, the amount of such statutory payments is $145,251.90. I anticipate there will be further statutory payments, after the preliminary conference on 20 August 2024 which must also be taken into calculation. The solicitor for the insurer provided comprehensive submissions in support of the proposed settlement and I note the detailed schedule of medical evidence (document A11) dated 30 July 2024 which comprises of 187 pages. It is sufficient to say the insurer, when proposing the amount of settlement monies payable to the claimant, has considered, not only her present medical condition both physical and psychological, but also her pre accident medical history. The calculation of the proposed settlement is as follows:
· non-economic loss $150,000
· past economic loss $87,848
· future economic loss $220,000
· tax instalment reimbursement $17,152
· legal costs $25,000
Total $ 500,000 less statutory benefits
The claimant advised me she wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
The claimant is not represented by a lawyer and accordingly the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
I am a General Sessional 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 those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, considering the nature and extent of the claim.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she 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 s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (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 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, taking into the account the nature and extent of the claim, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 20 AUGUST 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 5 July 2024. The claimant participated in person and the insurer was represented by Michele Landers.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess total damages in the sum of $500,000 less statutory payments made to the claimant.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
The parties have agreed my reasons and certificate will be de-identified.
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