QBE Insurance (Australia) Limited v Carne

[2023] NSWPIC 458

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

QBE Insurance (Australia) Limited v Carne [2023] NSWPIC 458

CLAIMANT:

Thomas Carne

INSURER:

QBE Insurance (Australia) Limited

MEMBER:

Terence Stern OAM

DATE OF DECISION:

8 September 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages claim; approval of settlement under section 6.23; claimant self-represented; pedestrian struck by car; non-threshold injuries; liability admitted by insurer; no reduction for contributory negligence; offer of $175,000; claimant born 1928; Reece v Reece and Varga v Galea applied; Held – settlement approved as just, fair and reasonable, and within the range of likely outcomes.

DETERMINATIONS MADE:

CERTIFICATE OF DETERMINATION

Having considered the claim in accordance with s 6.23 of the Motor Accident Injuries Act 2017, and noting that the claimant and the insurer have proposed to settle the claim for the sum of $175,000, the Personal Injury Commission determines:

1.     The proposed settlement is approved.

2.     There are no deductions to be made by the insurer.

STATEMENT OF REASONS

BACKGROUND AND ACCIDENT

1. The claimant was born in October 1928.

2. On 10 November 2020, the claimant was attempting to cross Edward Street, Wagga Wagga. Before crossing, he stopped to look if it was clear to cross. When he began to cross, he was immediately struck by a car that had turned left from Peter Street into Edward Street, approximately 10m from Peter Street. There was a pedestrian crossing nearby which the claimant could have used had he chosen.

3. The insurer has admitted liability, with an allegation of contributory negligence of 10%, but says that the offer of settlement is not affected by the allegation of contributory negligence.

4. The insurer has conceded that the claimant is entitled to damages for non-economic loss, as the injuries which the claimant has sustained are non-threshold injuries:

   (a)    a complex fracture of the left ankle and hind foot, and

   (b)    a fracture of the right lateral tibial plateau.

5. The insurer has made an offer of $175,000 for non-economic loss, which the claimant has accepted.

MEDICAL INFORMATION

1. QBE obtained an expert opinion from Associate Professor Paul Miniter, orthopaedic surgeon, of 26 April 2023.

2. The claimant gave the following history to A/Prof Miniter:

   “…He lives in Wagga alone, and… [he] enjoys good general health.

   
   

   …He caught the bus down to South Wagga School and then went to the pub and had a couple of beers… After this, he left the pub, looked both ways on Edward Street, and as he stepped forth, he was struck by a car… He had an open fracture of the left distal tibia and fibular… a segmental fibular injury, and… also… a fracture of the right lateral tibial plateau.

   The… [surgery] involved internal fixation of a complex fracture of the left ankle… surgical fixation appeared to be satisfactory… he… underwent internal fixation and reduction of a lateral tibial plateau fracture…

   …sent to Leeton for… rehabilitation… unfortunately there was a wound break down… this [led to] him returning to Wagga Base Hospital… the wound was debrided… he underwent internal fixation, removal, and finally a tibial nail across both the left subtalar and left ankle joints…

   …he has recovered to some extent… his left leg is short and… he has some issues with his right knee… he is not seeking further treatment…

   He takes long-term antibiotics… [for] osteomyelitis… This… will continue for… life.

   He presents as a man who belies his age. He is in very good physical health, presents with a stick… and has substantial shortening of his left lower limb by [about] 4cm. This shortening is at the level of the ankle and below.”

3. Associate Professor Miniter comments:

   “[He] has been involved in a severe… accident from which he has made quite a remarkable recovery… complicated by the development of bony infection and wound breakdown… He [has]… achieved bony union of the left ankle and hind foot… he has… a satisfactory outcome of the right knee.”

4. Associate Professor Miniter was of the opinion that he probably did not require any further treatment.

THE LEGISLATION AND LEGAL PRINCIPLES

1. In Reece v Reece (1994) 19 MVR 103; NSWCA 259, the Court took into account the position of a much younger woman with the same range of interests and the same injuries [15].

2. The Trial Judge had assessed non-economic loss damages at 33.33% of a most extreme case. The Court of Appeal held that, taking into account the age of the plaintiff, 33.33% was a wholly disproportionate assessment of the degree of the plaintiff’s loss, and assessed 22.5% of a most extreme case.

3. In Varga v Galea [2011] NSWCA 76, the plaintiff, who was 63 years at the time of Trial, had sustained significant injuries in a fall, and had ongoing incapacitating disabilities in his low back and left knee. The respondent conceded that he would never be able to return to the full-time workforce.

4. At paragraph [72], McColl JA said:

   “Reece v Reece states the uncontroversial proposition that the Plaintiff’s age at the time of the assessment of damages is a relevant factor to the assessment of non-economic loss…”

5. At [74], McColl JA stated:

   “The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a ‘most extreme case’. In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent: ‘Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables.’"

6. In making my decision I have considered the following legislation and Guidelines:

   (a)    the Personal Injury Commission Act 2020;

   (b)    the Personal Injury Commission Regulation 2020;

   (c)    the Motor Accident Injuries Act 2017 (MAI Act), and

   (d)    the Guidelines.

7. Section 6.23 of the MAI Act provides:

   “6.23 Restrictions on settlement of claim for damages

   (1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor vehicle is greater than 10%.

   (2) A claim for damages cannot be settled unless –

   (a) the claimant is represented in respect of the claim by an Australian legal practitioner, or

   (b) the proposed settlement is approved by the Commission.

   (3) The Commission is not to approve the settlement of a claim unless satisfied the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”

8. Clause 7.37 of the Guidelines states:

   “Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:

   (a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the Act;

   (b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim were the matter to be assessed by the Commission, and 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

   (d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”

9. I am satisfied that all these requirements have been met.

DETERMINATION

1. I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that he will be precluded from making a further claim for damages arising out of the motor accident but is entitled to ongoing treatment and care needs. I am satisfied he knew he was entitled to legal representation.

2. The proposed settlement is appropriate and complies with cl 7.04.2 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 member of the PIC, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.”

3. Accordingly, I approve the proposed settlement of $175,000.

4. Note that I dispensed with the allocated preliminary conference, which I had appointed for

   
   

   10 September 2023, for the following reasons:

   (a)    took into account the claimant’s advanced old age;

   (b)    the claimant’s nephew, Shane Carne, confirmed in his email to Charlie Ewan of the insurer, of 25 Augst 2023, that he spoke the previous evening with the claimant in detail and confirmed that the claimant was happy to accept the offer, and

   (c)    given that the claimant made, what A/Prof Miniter described as “a remarkable recovery” and given that he probably requires no further medical treatment, no purpose would have been served by the preliminary conference. The sooner the insurer pays the settlement sum, and the claimant has the use and benefit of the money, the better, given his age.