QBE Insurance (Australia) Limited v Chen
[2023] NSWPIC 486
•19 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Chen [2023] NSWPIC 486 |
| CLAIMANT: | Huaqian Chen |
| INSURER: | QBE |
| MEMBER: | David Ford |
| DATE OF DECISION: | 19 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 32-year-old female passenger injured in a head on collision; suffered soft tissue injuries to cervical spine and psychological injury being an adjustment disorder with anxiety and depressed mood; insurer conceded claimant had sustained a non-threshold injury; claimant is employed as a school administrator; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b). |
| 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 11 February 2022, Huaqian Chen (the claimant) was a passenger in a motor vehicle being driven by the insured driver along the Punt Road at Tomago. It then transpired, the insured driver attempted to overtake another vehicle, crossed onto the incorrect side of the road and collided head on with a motor vehicle approaching from the opposite direction. Police and ambulance attended the scene of the accident, and the claimant was transported to John Hunter Hospital, where she remained and inpatient for two days. Imaging tests were performed, and she was treated with bed rest and analgesic medication.
She subsequently consulted her general practitioner, Dr Lan on 22 March 2022 and was referred for physiotherapy and prescribed analgesic medication. In addition to her physical injuries, she suffered psychological injuries and in respect of the psychological injuries, the insurer has conceded she sustained a non-threshold injury. The insurer wholly admitted liability.
The claimant was born in 1991 and is presently 32 years of age. At the time of the accident, she was, and still is, employed as a school administrator at the Department of Education working at a high school in the inner west of Sydney. She was employed on a contract basis 6.25 hours, five days a week, doing office duties. She also was working on a casual basis at a childcare centre but was not able to provide economic loss documentation in support of her loss of income from this employment. The insurer paid an amount of $750.88 in statutory payments to her.
At the teleconference, she advised me she has a supportive employer, who allows her to undertake light duties tasks at the present time, as she finds it difficult to lift and carry any object of significant weight.
The insurer arranged for her to be examined on a medical legal basis by Dr Raymond Wallace, orthopaedic surgeon, and I refer to his report dated 28 March 2023. He carried out a physical examination of her, viewed imaging reports and other clinical records. He noted her present complaints in relation to her cervical spine where she has intermittent aching pain at C 6-7 spinous process radiating to the superior border of the trapezius muscles bilaterally. The pain is worse with doing office work or looking down for long periods and is relieved by a home exercise programme, heat pack and physiotherapy. She notes no paresthesia or numbness at her upper limbs but complains of some weakness in her upper limbs and has difficulty in lifting heavy objects. She notes no stiffness in her cervical spine. At her interior chest wall, she complains of intermittent mild aching pain Dr Wallace assessed her whole person impairment of 5% of her cervical spine. He was of the opinion she is currently fit to continue full-time pre-injury duties at work as high school administrator without restriction. However, he did consider she had a guarded prognosis for further recovery of function at her cervical spine despite any ongoing treatment.
The insurer also arranged for her to be examined Dr Synnott, psychiatrist and I refer to his report dated 5 June 2023. He has provided a comprehensive report and has noted in detail her psychiatric symptoms on page 4 and 5 of his report. He noted she takes endep to help with sleep. She has not consulted a psychiatrist, has been assisted by consultations with a psychologist. She would like to continue with such treatment. He diagnosed she is suffering from an adjustment disorder with anxiety and depressed mood. He also expressed the view she has depressive disorder with prominent anxiety. He opined her prognosis was good regarding her capacity to work on a full-time basis on normal duties for the foreseeable future. He assessed her as having a whole person impairment of 6%.
At the commencement of the preliminary conference, I had discussions with the claimant regarding the proposal by the insurer to resolve her claim for $35,254 less statutory benefits. As a consequence of those discussions, she advised me she was not prepared to accept the sum proposed. At the request of the insurer, I allowed a further short period during the preliminary conference for both parties to enter settlement negotiations. After a short period, I recommenced the preliminary conference and was advised, the parties have now agreed to resolve the matter for the sum of 61,634 less statutory benefits. This results in a net settlement to the claimant in the centre $60,883.12 the calculation of the proposed settlement figure is as follows:
· non-economic loss nil
· pause economic loss $1,544
· Fox v Wood $80
· future economic loss $60,010
total $61,634 less statutory benefits in the sum of $750.88 results in a net settlement of $60,883.12.
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 6 SEPTEMBER 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 6 September 2023. The claimant participated in person and the insurer was represented by Elveen Lal.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss in the sum of $1,554. Tax paid on statutory benefits is $80. Damages for future economic loss, by way of a buffer, in the sum of $60,010. The net amount of settlement monies payable to the claimant is $60,883.12.
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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