QBE Insurance (Australia) Limited v Daramy
[2024] NSWPIC 125
•14 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Daramy [2024] NSWPIC 125 |
| CLAIMANT: | Sallay Daramy |
| INSURER: | QBE |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 14 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; fractured sternum, fractured dislocation, fractured left little finger; calculation of past economic loss; future economic loss; insurer seeks credit for pre-injury average weekly earnings; repayment to Centrelink; prior good health; unrelated surgery; good recovery; no ongoing disabilities; assumptions as to most likely circumstances; consideration of medical material; Held – settlement approved under section 6.23. |
| DETERMINATIONS MADE: | CERTIFICATE SETTLEMENT APPROVAL Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The amount of the claim for damages is approved in the total amount of $111,733. |
STATEMENT OF REASONS
INTRODUCTION
Sallay Daramy (the claimant) is a 43-year-old woman who resides with her sister and her son and who was injured in a motor vehicle accident on 26 September 2020 whilst driving her sedan through Bass Hill. She was struck on the passenger side of her vehicle by the insured’s vehicle. In the accident she suffered a fractured sternum and a fracture dislocation to her left little finger. The proposed settlement figure of $111,733 is made up of an allowance for past economic loss of $66,000, an allowance of future economic loss of $40,000 and an allowance of $5,733 for the tax withheld on the payments made to the claimant by the insurer (Fox v Wood) (1981) 148CLR p438.
From this figure the insurer seeks a credit of $48,603.13 which they have paid in past weekly benefits. There is also likely to be a repayment to Centrelink of a figure in the order of $7,000, for family tax benefits paid to the claimant between September 2020 and March 2021.
The allowance agreed between the parties for past economic loss of a total of what is effectively $71,733 make sufficient allowance for the credit for QBE of $48,603.13 and any repayment to Centrelink in respect to the benefits paid to the claimant which she has confirmed were only made from September for about six months and were in relation to family tax benefits consequent on her caring for her son.
Both parties have requested that I approve the settlement.
Documents considered
The insurer filed a bundle of documents including its submissions, the draft settlement agreement and particulars and medical reports in respect to this matter. In addition to this the claimant was questioned extensively about the effects and ongoing sequalae of the injuries sustained in the motor vehicle accident at the teleconference. It ought to be said at the outset the claimant struck me as a very stoic and determined woman who has shown courage and commitment in making a very good recovery from the injuries sustained in the accident.
Reasons
At the time of the accident the claimant was in good health. She had suffered from diabetes and blood pressure. Since the accident, and unrelated to it, she has undergone surgery in respect to the removal of a cyst in her jaw. Other than this, she has been in good health and continues to be in good health.
At the time of the accident she was working as a support worker at AFEA Aged Care. She continues in this employment. She was earning about $830 a week. Following the accident she was off work for about eight months after which time she returned to part-time employment. Since that time she has commenced a new job as a care support worker for Civic Disability and is currently in full time employment. Noting the period in which the claimant was off work the insurer has made payments totalling $48,613 which reduced as she re-commenced her employment and increased her hours and ceased completely at the end of March 2022.
The claimant stated that she has made a very good recovery from the fractured sternum. No other injuries, other than that to her left little finger, have been noted. It is of significance that the claimant identifies as being left-handed and accordingly the damage to her left little finger is damage to a finger of her dominant hand.
The report of Dr Raymond Wallace dated 4 November 2022 states that the claimant does not require any treatment or medical review for the injuries suffered in the motor vehicle accident, she is fit to resume her pre-injuries duties without restriction and has no work incapacity as a result of the injuries sustained in the motor vehicle accident. That said, Dr Wallace does identify a whole person impairment of 2% consequent on the fractures to her left little finger. He also notes that she is still currently using self-massage and Panadol in relation to any ongoing problems she suffers occasioned by the injury to her left hand.
At the assessment conference the claimant was emphatic. She said I can drive and write. “I can do everything. The little finger – it’s all good.”
She now works as a support worker full time and states that she has no ongoing difficulties or disabilities.
Whilst there is some uncertainty in respect to the precise calculations of future economic loss I am satisfied that an allowance of $66,000, together with an allowance for Fox v Wood component, more than adequately compensates her for any past loss of earnings.
I further note that there is absolutely nothing in the material to suggest that the claimant would ever have any prospects of bringing a claim for whole person impairment which would exceed the 10% whole person impairment threshold established by the legislation. This is primarily because she has made a very good recovery and does not let any minor ongoing problem with her fractured little finger affect her ongoing work duties nor her day-to-day activity.
It then remains to be seen as to whether or not the allowance of $40,000 for whole person impairment is appropriate in the circumstances.
I have no doubt that it is an appropriate figure. In this regard, I note that s 47 of the Motor Accident Injuries Act 2017 (MAI Act) provides that damages for future economic loss may not be awarded unless the assumptions about future earning capacity accord with the claimant’s most likely future circumstances but for the injury.
As the medical material and the claimant have confirmed, the claimant’s current work duties are basically the same as she was performing prior to the accident. The medical material does not make out any contention that there is an impairment of earning capacity consequent on the motor vehicle accident. The claimant is similarly emphatic that she does not suffer any ongoing problems or impaired earning capacity as a result of the injury to her left little finger nor any ongoing injuries consequent on her sternum fracture. Whilst she was significantly impaired in the immediate post-accident period there would seem to be no ongoing impairment from about the end of 2022. She has received very good care including from Dr Simon Chan and Annie Leung, a physiotherapist. Ms Leung in a report dated 13 December 2021 noted that the claimant “should be able to continue gradually increasing work hours on pre-injury duties as tolerated.” This was at the end of her physiotherapy treatment. This is the case in this matter.
The evidence does not support any contention that the claimant’s most likely future circumstances but for the accident are in any way different to that which they would have been had she not sustained any injuries at all. As I have indicated above this is in part because of the strength and stoicism of the claimant but also because she has received good treatment and made a good recovery.
An allowance of $40,000 for future economic loss is more than adequate to compensate any prospect of any impairment of her earning capacity or vocational opportunities.
Noting the above I have no hesitation in approving the proposed settlement figure.
0
0
0