QBE Insurance (Australia) Limited v Borham
[2022] NSWPIC 705
•9 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Borham [2022] NSWPIC 705 |
| Claimant: | John Borham |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | David Ford |
| DATE OF DECISION: | 9 December 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents settlement approval; 76 year old male pedestrian; struck by a motor vehicle; sustained fracture involving the right sacral ALA and the superior and inferior pubic rami and rotator cuff tear at the left shoulder; allegation of 50% contributory negligence which is considered appropriate in the circumstances of the accident; insurer conceded claimant entitled to damages for non-economic loss, submitted an amount of $250,000,00 for non-economic loss reduced by 50%; Held – this proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b) of the Motor Accidents Injuries Act 2017. |
| determinations made: | 1. The proposed settlement is approved under s 6.23 (2)(b) of the Motor Accidents Injuries Act 2017 (MAI Act). 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines. |
introduction
On 16 April 2021 John Borham, the claimant, was a pedestrian attempting to cross Newton Road near the corner of Lang Road at Broadmeadow and had walked halfway across the road when he was struck by a motor vehicle being driven by the insured’s driver.
The claimant was transported by ambulance to John Hunter Hospital where he remained as an in patient for three weeks. The claimant suffered a rotator cuff tear at the left shoulder and a fracture involving the right sacral ala and the superior and inferior pubic rami.
He underwent surgery on 19 April 2021 which involved an internal fixation of the fracture of the right sacral ala with a sacroiliac joint screw and right anterior pelvic stabilization with a TENS nail.
He also underwent further surgery on 29 April 2021 being a reverse left shoulder replacement. Afterwards, he was treated with bed rest and analgesic medication and commenced a course of physiotherapy.
After discharge from John Hunter Hospital on 7 May 2021 he was transferred to Newcastle Private Hospital for in patient rehabilitation which continued for approximately 10 weeks. After discharge from Newcastle Private Hospital he continued with a program of physiotherapy for a period of eight weeks.
The insurer accepted liability for statutory benefits after 26 weeks but alleged contributory negligence in the amount of 50%. The insurer arranged for Dr Raymond Wallace, orthopaedic surgeon to assess the claimant’s whole person impairment and I refer to his report dated 15 July 2022. In summary, Dr Wallace assessed the claimant’s whole person impairment as being 24%. Details of the assessment are as follows:
(a) left shoulder 20%;
(b) pelvis 5%, and
(c) scarring (surgical on the temski scale) 0%.
The insurer therefore conceded the claimant is entitled to damages for non-economic loss.
The claimant was born in December 1946 and he is currently 76 years of age. The claimant is retired and has only sought damages for non-economic loss and has not sought damages for either past or future economic loss.
The claimant was not represented by a lawyer and accordingly, his settlement must be approved in accordance with the MAI Act.
I have decided to approve the proposed settlement as submitted in this application.
I questioned the claimant at length in relation to the circumstances surrounding his accident and he conceded, in his opinion, the insurer was entitled to deduct 50% for contributory negligence having regard to the fact he was not keeping a proper lookout when he commenced to cross the roadway. The insurer assessed the amount of damages to be awarded for non-economic loss to be the sum of $250,000 less the amount to be deducted for contributory negligence being 50% which results in an amount of damages for non-economic loss in the sum of $125,000.
I have considered the amount proposed for non-economic loss, being a total of $250,000 to be appropriate and I also consider the deduction of 50% for contributory negligence to be appropriate in the circumstances of this accident.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the 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 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 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) (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 certifies the timing requirements in s 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 the 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 proposed settlement and was willing to accept the proposed settlement.
Teleconference 28 November 2022
The insurer lodged an application for approval of the settlement, as referred to me for consideration. I held a teleconference on 28 November 2022.
Mr Borham participated in person and the insurer was represented by Charlie Yuen. I advised Mr Yuen the proposed deed of release was not included in the documents lodged in the portal. I arranged for Mr Yuen to lodge the proposed deed of release in the portal and I have now read the said deed of release signed by both parties and dated 28 November 2022 and I approve the terms and conditions stated therein and I confirm the claimant will be paid the sum of $125,000 by the insurer and there are no deductions to be made from the said sum.
| Should I Approve the Settlement |
| 23. I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $125,000, taking into account 50% contributory negligence. I consider this amount to be acceptable and within the range likely to be awarded. 24. I am satisfied the claimant is aware of his right to have his reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to ICARE who will be liable for ongoing reasonable treatment expense. 25. Mr Yuen 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 charge is raised, the insurer will pay the charge as a treatment expense in addition to the settlement sum. |
CONCLUSION
I find the timing requirements of s 6.23 (1) of the MAI Act satisfied.
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, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant and also the allegation of contributory negligence.
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 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 s 6.23 (2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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