QBE Insurance (Australia) Limited v Dawar
[2023] NSWPIC 294
•20 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Dawar [2023] NSWPIC 294 |
| Claimant: | Bhavya Dawar |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Elizabeth Medland |
| DATE OF DECISION: | 20 June 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of damages settlement pursuant to section 6.23; 31-year-old male injured in motor accident on 11 March 2020; self-represented; injury caused by accident included thoracic spine fracture; entitlement to non-economic loss conceded; initially insufficient evidence, insurer asked to provide further evidence, including a report following assessment by occupational physician; claimant has continued to work since the accident, however, with disruption to continuity of employment; evidence suggests will be able to continue working as a landscape architect into the future; following indication that initial settlement was inadequate, claimant accepted revised offer of settlement from the insurer of $400,000 (including non-economic loss of $260,000); Held – the proposed settlement is approved for the purposes of section 6.23. |
| determinations made: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act 1. The claimant and the insurer have agreed to settle the damages claim in the amount of $400,000. 2. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Mr Bhavya Dawar (the claimant) is a 31 year-old male who suffered injuries as a result of a motor vehicle accident which occurred on 11 March 2020.
The claimant was riding his bicycle down Macquarie Road towards Fassifern Station. The insured vehicle was travelling in the opposite direction when it turned into the path of the claimant, thereby causing a collision.
The claimant subsequently lodged an application for personal injury benefits (statutory benefits claim). The insurer accepted liability for statutory benefits and has attended to payment of treatment expenses and weekly statutory benefits.
The claimant at some stage also lodged an application for common law damages. I am advised that the insurer accepted liability on 12 July 2022.
The claimant is self-represented.
As I understand the insurer and the claimant entered into settlement discussions and the claimant ultimately accepting an offer of $307,175. The breakdown of the offer being:
· Non-economic loss $260,000
· Future-economic loss $47,175
· Past-economic loss $8,174.87
· Total: $315,349.87 less weekly payments made ($8,174.87)
· TOTAL $307,175
The insurer subsequently lodged an application with the Personal Injury Commission (Commission) seeking approval of the settlement.
I have held a number of teleconferences with the parties. Initially, the material submitted by the insurer was scant in both detail and volume. I did not have any medical evidence before me.
As such, I set a further teleconference to allow the insurer to provide me with all relevant information.
However, once further information was provided it was apparent that I had no medical evidence before me that went to the issue of the claimant’s future earning capacity. Noting the claimant’s young age I was not satisfied that I was able to consider approval of the settlement figure without such evidence.
As such, the insurer arranged for the claimant to be examined by occupational physician, Dr Keller. Following receipt of the report of Dr Keller dated 4 April 2023, a further teleconference was held on 26 April 2023.
To the insurer’s credit, it took on board my comments and demonstrated agility in obtaining approval for a revised settlement figure of $400,000.
Subsequently, the claimant has formally accepted the offer of $400,000 the breakdown of which is as follows:
· Non-economic loss $260,000
· Past economic loss (paid) $8,174.87
· Past economic loss (Common law) $2,000 (rounded up - 20% of payments)
· Past loss of superannuation $1,120
· Fox v Wood $463
· Future economic loss $126,806.40 ($240 per week for 15 years)
· TOTAL (rounded up) $400,000
LEGISLATIVE FRAMEWORK
Section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“(1) (repealed)
(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 that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Motor Accident Guidelines (the Guidelines) provides:
“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 satisfied 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 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, 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.
(d)the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and reply, the information provided to me at the teleconferences and all other information/documentation provided by the parties.
SUMMARY OF EVIDENCE
The claimant was transported from the scene of the motor accident via ambulance to the John Hunter Hospital. He was observed overnight in hospital. No injuries were noted in the hospital discharge form other than abrasions and was discharged with pain relief and a note to follow up with his general practitioner if any ongoing pain.
Evidently, the claimant continued to experience symptoms and a CT scan of his thoracic spine was performed. A report of 30 March 2020 showed a T7 interplate fracture, with 22% loss of height. An MRI of 17 July 2020 reportedly showed the T7 vertebral fracture with 20% loss of height.
The claimant was referred to neurosurgeon, Dr Yanni Sergides. In a report dated
12 May 2020, Dr Sergides described the claimant as doing well with pain easing. The claimant reported worsening pain if he sat for too long at his desk. It was also noted the claimant was becoming more active, however, jogging made the thoracic pain worse. He was advised to avoid such activity for a number of weeks, with the fracture expected to heal well.An ultrasound of the right forearm showed three tiny glass foreign bodies, one of which was surgically removed and the others self-expelled.
An ultrasound of the right elbow of 11 May 2020 showed mild common extensor tendinopathy and an ultrasound of the right shoulder was reported as normal.
An MRI of 28 July 2021 of the right shoulder revealed a labral tear. As a result the claimant underwent arthroscopic repair on 24 February 2022. Dr Kwa, surgeon, noted in a report dated 19 November 2021 that the claimant had persistent right shoulder pain since the accident and the doctor opined that the accident was likely the cause of such ongoing issues.
The claimant received physiotherapy treatment following the accident and after surgery.
He is no longer in receipt of any active treatment and is not taking any medications for his accident related injuries.
A certificate of capacity dated 18 March 2020 and signed by a Dr Trista Valk certified the claimant fit for pre-injury work from 19 March 2020 with restrictions described as “as tolerated”.
Report of Dr Keller dated 4 April 2023
Dr Keller noted that the claimant complained of ongoing issues with his thoracic spine, including pain occurring every day rated 8/10. The claimant also complained of regular shoulder pain and weakness occurring on a daily basis.
Examination revealed full symmetrical range of motion in the cervical spine. Similarly, there was a full symmetrical range of motion in both elbows, wrists and all finger joints. Dr Keller noted a particularly flexible range of motion in the thoracic and lumbar spine, however, with pain on lateral flexion.
Dr Keller confirmed that on the balance of probabilities he considered both the thoracic spine and shoulder injury to be caused by the subject motor accident.
No ongoing treatment was recommended and the claimant should be encouraged to return to exercise as tolerated. No indication of injections or surgery were found by
Dr Keller.In terms of fitness for work, Dr Keller noted the claimant had returned to his pre-injury role with no formal certified work restrictions. Dr Keller stated that there are no medical contraindications for the claimant continuing to work as a landscape architect until normal retirement age.
Claimant’s statement
At my request, the claimant prepared a typed summary of how he says the subject motor accident has affected his life. The statement is undated, but was prepared and provided after the commencement of the subject proceedings.
The claimant describes himself as always being an active person and has been a badminton player since the age of 10, playing at national level in India. He describes himself as an active person that likes to explore new places on foot and long distance driving.
He states that “things have changed exponentially since the accident”. He describes experiencing extreme pain in his back after the accident, with him sometimes crying through the night due to the pain.
In terms of work, the claimant describes himself as someone with strong willpower and therefore he resumed work only a couple of weeks after the accident. He was working on a fixed contract at the time of the accident until the end of June 2020. He describes difficulty with his job due to the pain commuting and sitting for extended periods of time. He also was unable to walk at sites and found standing for a while as exhausting.
The claimant states that eventually his contract was terminated the reason given was a decline in his performance. Due to his immigrant status, he felt that he had to continue working and found a new job in August 2020, which apparently only lasted a month after not being able to meet the expectations of the role.
The claimant obtained a further job, however, that new job was lost in July 2022 due to lack of performance. As a result of the mental stress both he and his wife were under they travelled to India to spend time with their families. The claimant explained that when in India everyone commented on him gaining weight. He states that he had gained 10kg after the accident.
Basic tasks such as cooking, ironing, carrying, sitting and the like are listed as being a struggle for the claimant in his day to day life. He states that he still tries his “level best” to do the things he is fond of despite his discomfort.
DAMAGES
Non-economic loss
The insurer has conceded an entitlement to non-economic loss damages.
Throughout the teleconferences in this matter the claimant impressed me as an honest, intelligent and earnest individual. I have no difficulty in accepting the claimant’s evidence that he experiences ongoing pain and symptoms and that same has impacted on his life and interests.
He is a man of young age and has many years ahead where he will endure the negative impact of the motor accident on his physical and mental health.
I am satisfied that the allowance of $260,000 is within the range of an assessment if the matter where to be assessed by the Commission.
Past economic loss
At the time of the accident the claimant was employed as a landscape architect with Lake Macquarie City Council, commencing in 2019. He worked 8 hours a day 4-5 days per week.
After the motor accident the claimant was certified unfit for work for around two weeks and returned to work full-time. He avoided site visits, however, was soon thereafter asked to work from home due to the COVID-19 pandemic. This role ended in June 2020 when his contract was terminated.
He then obtained a role for one month as a landscape architect for Octopus Garden Design on a full-time basis. Then from September 2020 to January 2021 he worked as a landscape architect for “Mud”, eight hours a day, three days a week.
From April 2021 until September 2021, the claimant worked as a full-time landscape architect for Eco Landscape Design until he resigned. Then from October 2021 to July 2022 he worked for a further company, Sala4D until he was made redundant.
In October 2022 the claimant began work in his current role as a full-time landscape architect for Shoalhaven City Council in Nowra. During the most recent teleconference, the claimant told me that due to the government nature of his current work, his employer is much more accommodating to any issues arising from his accident related injuries.
The insurer has allowed the payments of weekly statutory benefits already made in addition to an amount to account for the fact that the payments represent a percentage of the pre accident earnings. In addition, an allowance for lost superannuation has been made. The amounts are set out above and equal $11,294.87 plus an amount of $463 for Fox v Wood damages.
Noting the claimant is currently working full time in a role similar to his pre accident employment, I am satisfied that the settlement amount for past economic loss is within the range of damages likely to be awarded if the matter was assessed by the Commission.
Future economic loss
It appears on the evidence that the claimant has experienced some issues holding onto his jobs since the accident, at least partly due to his injuries affecting his performance.
However, fortunately, the claimant’s current role is apparently accommodating to any difficulties he experiences as a result of this injuries. For instance, he has been provided with a sit-stand desk.
The claimant advised me at the latest teleconference on 26 April 2023 that he feels that he is not able to complete tasks to the best of his ability. He needs regular rest breaks and he advised me that he has lost employment opportunities as a result of the accident.
However, I do note and accept the opinion of Dr Keller that the claimant should expect some improvement in his condition as time passes and with the assistance of guided exercises. Dr Keller also did not find any ongoing impairment for the claimant to continue working in his current role until normal retirement age.
On the basis of the evidence before me, I am satisfied that the allowance of $126,806.40 ($240 per week for 15 years), is within the range of damages that would likely be awarded by the Commission if the matter were assessed.
OTHER CONSIDERATIONS
At the teleconferences, I raised with the claimant that he was not represented by a legal practitioner. I made it clear to the claimant that he was entitled to engage a suitably qualified legal practitioner to represent him in his claim. The claimant confirmed that he was aware of his rights in this regard, but would prefer to proceed with the settlement without the assistance of a lawyer. I note I found the claimant to be intelligent and understood all the relevant concepts involved in the assessment of his claim.
I am satisfied that the claimant understood his entitlement to legal representation and after considering such option, did not wish to take up such entitlement.
REASONS
I find the settlement amount to be fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
On the basis of the above, I approve the proposed settlement in the amount of $400,000 pursuant to s 6.23(3) of the MAI Act.
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