QBE Insurance (Australia) Limited v Bond
[2024] NSWPIC 468
•26 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Bond [2024] NSWPIC 468 |
| CLAIMANT: | Lorraine Francis Bond |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 26 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 76-year-old female; proposed settlement in the sum of $230,000; non-economic loss; degloving injury to left lower leg; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $230,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
Lorraine Francis Bond (the claimant) was injured on 30 May 2021 when the vehicle driven by her husband with camper trailer attached pinned her leg against an automatic gate causing injury.
An ambulance was called and the claimant was transported to Gosford Hospital. She was admitted and remained in hospital until 11 June 2021 and re-admitted on 15 June 2021 with further complications.
The claimant sustained non-threshold injuries including:
(a) degloving injury to lower left leg.
A personal injury claim was lodged on 19 June 2021 and the claimant brought a common law claim for damages dated 15 March 2023. The insurer accepted liability for the damages claim on 9 June 2023.
The parties reached an initial agreement to settle the claim in the sum of $200,000. After review of the matter and updated medical information the settlement sum was increased to $230,000. This amount represents an allowance for non-economic loss in the sum of $230,000 only as the claimant was retired and made no claim for past and future economic loss.
The application before me is approval of the settlement.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Personal Injury Commission 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 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
(b) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 13 August 2024
The conference was conducted via video-link. The circumstances of the accident, injuries received, the treatment to date, the ongoing problems and the impact of such injuries on the claimant’s daily life and the nature of the settlement were discussed. The claimant confirmed the injuries sustained and her understanding of the terms of settlement and their finality if approved.
The insurer further considered the impact statement of the claimant during the conference and agreed that the allowance for non-economic loss should be increased a further $30,000.
The claimant at this conference advised she required a bed which could elevate her lower limbs to reduce swelling and pain. Such assistance she considered would be of benefit in reducing her symptoms. The insurer requested the claimant separately provide a quotation and medical support for this purchase.
The parties agreed to amend the deed of settlement and upload same to the portal.
The claimant provided her understanding of the nature and effect of the reaching of a settlement.
She confirmed her willingness to accept the increased offer of settlement and advised that she did not wish to engage legal representation.
It was also confirmed that there were no deductions to be taken from the agreed sum.
I was requested to approve the terms of settlement agreed to between the claimant and the insurer.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle of evidence submitted by the parties:
Liability:
(a)police report dated 8 April 2021;
(b)application for statutory benefits dated 25 April 2021;
(c)application for common law damages dated 21 November 2022;
(d)liability notice dated 15 February 2023;
(e)deed of release – dated 30 July 2024, and
(f)submissions by insurer dated 16 July 2024.
Medical records:
(a)clinical records of Woopi Medical Centre dated 22 March 2023;
(b)clinical records of Gosford Hospital dated 18 May 2023;
(c)certificates of capacity dated 31 May 2021;
(d)clinical notes of Macquarie University hospital, and
(e)clinical notes of Coffs Coast Dermatology.
Medico-legal opinions:
(a)report of Dr Giles plastic and general reconstruction surgeon dated
23 October 2023, and(b) report of Dr Lee occupational physician dated 20 March 2024.
Settlement documents:
(a)offer of settlement dated 24 April 2024;
(b)amended offer of settlement dated 13 August 2024, and
(c)deed of settlement.
Injuries
The claimant’s application for common law damages noted she initially sustained the following injuries:
(a) degloving injury to left lower leg.
She was placed into the care of Dr Kao visiting orthopaedic surgeon. It was reported that she sustained an extensive degloving injury. X-rays of the leg and ankle did not reveal any fractures. Under general anaesthetic, Dr Kao attended to wound debridement and found underlying tendons were intact.
Further treatment was provided by Dr Lefter visiting plastic and reconstructive surgeon on
15 June 2021 where a further two operations were undertaken. Further debridement took place and split skin grafts were taken from her thigh to cover the raw surface of left shin.
Compression garments were required until her wounds healed. They continue to be worn.
She was referred to Dr Giles at the request of the insurer for an assessment of her injuries. In his report dated 25 October 2023 he recorded the ongoing complaints:
(a) the unsightly appearance of her left lower leg;
(b) she can no longer dance;
(c) loss of ability to use left leg first going upstairs;
(d) swelling of left foot;
(e) pain to her lower left leg in mornings requiring pain relief intermittently (Panadol Osteo);
(f) cellulitis requiring antibiotics, and
(g) use of dermeze cream daily.
The donor site where grafts were taken now have pigmentation changes and measure
17.5cm long x 8.0cm wide. Left leg has pigment changes noted in clinical examination.
Scarring on the left lower limb shows deformity over the medial and lateral aspects with depression 15cm x 8.0cm with the depressed area measuring 6.0cm x 1.5cm.
Dr Giles commented that:
“her scars have stabilised and they would not be improved by further surgery. Nevertheless, the scarred tissue is not as resilient as normal skin.. she will need to keep rubbing in the moisturing cream to prevent cracking and drying. In addition, a significant amount of lymphatic drainage of the foot and leg distal to the scarring has been disrupted and the leg will be prone to swelling, she will always need to wear compression stocking.”
Dr Giles assessed whole person impairment to left lower limb at 7%.
A further assessment was undertaken by Dr Lee occupational physician on 19 March 2024. e reviewed the claimant and assessed whole person impairment at 9%. This related to scarring, limb mobility and left ankle stiffness.
The parties agreed that entitlement to non-economic loss was enlivened by the abovementioned opinions.
At the time of the accident the claimant was retired having done so in 2008. There was no claim made for either past or future economic loss.
Impact of injuries currently upon the claimant
The claimant’s oral statement made during the video-link preliminary conference and the histories provided to Drs Giles and Lee were confirmed in her written statement included in this application.
The claimant’s statement reads:
“I cannot lead a normal life any more, my leg is a nightmare to me. Cannot go upstairs, only very few low ones at a time and only early mornings, after that my leg gets very heavy and I cannot lift it. Its easier if I lead with my good leg. As the day goes on my injured leg gets really heavy through swelling and fluid.
I was very active up until the accident but now I am restricted with leg movement, my husband and I use to dance a couple of times a week and then socially on weekends. This now cannot be done due to leg restricting me with movement, pain and too heavy.
I have to take pain killers each day to get me through the day and night and this helps sometimes slightly I have to wear special compression stockings made for me every day and for the full day. I am very self-conscious of them and try to hide my leg with outer garments, they become very hot and uncomfortable.
Every day my leg swells and is pain full, I have been told this will remain with me the rest of my life. I cannot wear dresses anymore, as my leg is horrible to look at, even with stocking on. I must elevate my leg twice a daily to try to slow down swelling. I have to massage my leg morning and night with special treatment cream. My skin around the wound as well as my leg from knee down will create cracks and flaking if my leg swells too. My leg gets sharp shooting pains around wound every night and some times during the day.
I have trouble sleeping due to pain and have spasmodic aches which also deprives me of sleep worrying about my leg, I use to have bad nightmares but thank good these are less frequent now. I have trouble sleeping due to pain and have spasmodic aches which also deprives me of sleep worrying about my leg,
I can only wear one type of flat shoes as all others hurt my swollen ankle. My skin around wound and leg gets really red, hot and peels with sever aching and pain when swollen. I must protect my leg at all times, I am constantly worried around people and dogs as skin is so fragile it breaks down easily and I’m frightened of infection of course. Travel which I loved has become an issue with not being able to elevate leg in car, bus or plane. I can only walk short distances at a time, this really restricts my activity. My social life has been disrupted due to not being able to keep up or go where my friends go due to my leg, they just don’t include me anymore. My life with my husband has been really affected especially sleeping together, I live in fear of being touched or kicked in the leg. My bed has had to be altered to help with protecting my leg and to help with swelling. I think if I had an elevated bed this would help at night with protecting, aches and swelling at night. I get depressed about the whole situation far too often.”
At the time of assessment the claimant’s condition remains unchanged.
Non-economic loss
Non-economic loss is defined as “pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement”. The impact of the injuries sustained by the claimant in the accident which took place on 30 May 2021 will be lifelong. The injuries do not impact on expectation of life.The claimant continues to suffer pain in her left lower leg and ankle. She finds it difficult to use her left leg going up stairs. She is required to wear compression stockings to reduce swelling every day and this is uncomfortable in periods of hot weather. She is acutely aware of the disfigurement to her left lower leg and this impacts on what she wears to cover her left leg.
Her injuries require her to use daily creams to support the moisture retention to her skin, pain relief medication is ingested on occasion and the claimant ensures that any activities undertaken do not threaten to cause further damage to her leg.
Records of Dr Htut her current treating general practitioner evidences the ongoing management of her left leg with intermittent assessments to care for the lymphoedaema when it flares up. Whilst the claimant has other medical conditions which includes aortic sclerosis, trigger thumb, psoriatic arthritis, hypertension, osteoporosis, psoriasis, eczema, gastro-oesophageal reflux disease, hiatus hernia and hypercholesterolaemia, these are unrelated to the motor vehicle accident and were not impacted by the injuries sustained in the subject accident.
Whilst unrestricted in sitting the claimant has a reduced walking capacity to 30 minutes and has difficulties walking on uneven surfaces. She is able to attend to her activities of daily living.
Her use of pain relief is intermittent at best and she uses Panadol Osteo when required. She remains in the care of the Lymphoedema Clinic for ongoing management when symptoms flare up, which over the past two years has reduced to an occasional episode in late 2022.
The claimant lives with her husband in a single storey house and undertakes her daily activities paced.
The claimant currently aged 76 years and her recreational activities such as dancing have been curtailed by her injuries. She also reports becoming depressed about her situation but has not required treatment and does not intend to seek assistance for this according to her response given during the preliminary conference.
The parties have reached agreement that the sum of $230,000 for non-economic loss.
I consider that the sum agreed to is within the range of damages likely to be awarded had the matter been assessed by a member of the commission noting the nature and extent of injuries, the claimant’s age and the level of recovery.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it 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”.
Accordingly, the insurer recommended the proposed settlement figure of $230,000 be approved. The claimant also confirmed her desire that the settlement be approved by me.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Motor Accident Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for non-economic loss is $230,000;
(ii)sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
There are no deductions to be made;
(iii)sub-clause 7.389.3 requires the amount of any advanced payments made be specified. There had not been any advanced payments made apart from known statutory benefits.
Medical expenses have been met by the insurer and these do not form part of the settlement, and
(iv)sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant period to date. I note the medical records provided and opinions of specialists as well as the records of the claimant’s general practitioner and relevant specialists produced in the matter give me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.2: appropriateness – 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 injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satisfied that the nature of the ongoing injuries to her left lower limb, scarring and the episodes of lyphoedema have been identified and that the sum agreed for damages is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(ii)sub-clause 7.399.3: understanding – the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the preliminary conference that in the event she took the settlement, she could not seek any further damages for non-economic losses or any other heads of damage. She was advised that the insurer would still provide ongoing medical treatment and care needs, if required and approved by the insurer.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately, if appropriate.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $230,000 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 and the age of the claimant.
I am satisfied the claimant was aware she could seek legal advice but chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that $0 will be deducted from the proceeds of settlement and that she will receive $230,000 net.
Accordingly, pursuant to s 6.23(2(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the sum of $230,000.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
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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