QBE Insurance (Australia) Limited v Elliot

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	QBE Insurance (Australia) Limited v Elliot [2025] NSWPIC 93
CLAIMANT:	David Elliot
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	David Ford
DATE OF DECISION:	18 March 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 68-year-old pedestrian struck by the insured motor vehicle whilst attempting to cross at an intersection; sustained several fractured ribs, fracture of the left distal fibula, and a small pneumothorax; claimant worked as a pathology courier driver unable to return to his employment; claimant has not been able to engage in either full time or part time work since the accident; claimant considered retirement eventually in the future; sustained a non-threshold injury; insurer admitted liability; no entitlement to non-economic loss (NEL); claim for past and future economic loss; the total amount of damages proposed is $96,403 less statutory payments made to the claimant; 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 1 May 2024, David Elliott (the claimant) was a pedestrian attempting to cross the intersection of Erith Street and McPherson Street at Mosman, when he was struck by the motor vehicle being driven by the insured driver.
As a consequence of the accident, he sustained multiple left sided rib fractures, a fracture of the left distal fibula and a small pneumothorax. He was transported by ambulance to the Royal North Shore Hospital, where he was admitted. He was discharged from hospital on
3 May 2024 and was required to wear a CAM boot on his left ankle.
The insurer wholly admitted liability and conceded he sustained a non-threshold injury.
He was born in 1956 and is presently 68 years of age. At the time of the accident, he was employed as a pathology courier driver with NSW Health. He was employed on a casual basis, working eight hour shifts, four days per week earning $845 net per week. Following the accident, he was unable to return to his employment and remains unemployed up until the present time.
I refer to his email to the insurer dated 5 February 2025, in which he states the following:
“At the time of the accident, I was employed by NSW Health as a pathology courier driver operating out of row North Shore Hospital. My employment status was casual but rostered to work on average 4 days a week on 8 hour shifts. The very nature of the job requires an ability to walk large distances between pickups and deliveries (average of 16,000 steps per shift), strict collection/delivery times required to be adhered to, which meant a need to walk at speed. Specimen collections required to be transported in dry ice containers which can be heavy in weight, (often exceeding 12 kgs) and required lifting onto the back of a transport vehicle. The nature of my injuries determines that even now 8 months after the accident, I feel unable to return to preaccident employment levels without suffering pain as a result of the need to walk long distances at speed and lift heavy specimen containers.
I continue to take painkillers to alleviate pain in the ankle and the ribs. Even now, I sustain discomfort whilst attempting to sleep on my left side. I'm unable to participate in appropriate physiotherapy to assist with rehab of a pre-existing injury to my left shoulder (tendon tear and capsulitis)-injuries which were severely aggravated by the accident.
My employment contract with NSW Health was severed in November 2024 when it became clear I felt unable to return to work (incorporating previously mentioned physical requirements), despite my GP failing to provide a continuation of my Certificate of capacity for work. It seems that medical professionals are either unable or unwilling to recognise a distinction between fulfilling a work function which involves sitting behind a desk, as opposed to one which requires many forms of physical activity.
I chose to work beyond official retirement age for two specific reasons,
1. To maintain fitness levels of the body and the mind. Prior to the accident I was able to walk to work from home (a distance of 4.5 kilometres) and then fulfil the courier 8-hour shift. This job presented an ideal opportunity for maintaining great fitness levels. Concentration on driving,pick up/ drop off requirements and maintenance of a strict route schedule also kept my brain active.
2. I have two children both of whom have decided to get married within a week of each other to accommodate family and friends visiting from the UK. The weddings came as a bit of surprise to us and therefore some employment was needed to help with expenses of these occasions. Such earning opportunity has now been lost to me under my pathology courier role, and at 68 years of age, it's unlikely I'll be able to pick up suitable alternative employment at any time soon.
‘if I am to be pressed as to my ongoing employment aspirations/ intentions I would say this. My wife is practice manager at Mosman Medical Centre. She has notified her employers of her intention to retire from work at end October this year. This timing was always intended to be the catalyst of my own retirement from the said workforce. Such timing coincides with wedding expenses scheduled for payment’.”
The insurer arranged for him to be examined on a medico legal basis by Dr Raymond Wallace, orthopaedic surgeon, and I refer to his report dated 20 December 2024. This report post-dates the above-mentioned email from the claimant to QBE dated 5 February 2025. On page 4 of his report, he states the following under the heading “Present Complaints”:
“At his chest wall, he notes intermittent aching pain at the left lateral chest wall which is worse on doing a home exercise programme for his left shoulder condition or lying on his left side and is relieved by medication. He notes no shortness of breath. At left ankle he notes intermittent throbbing pain at the distal fibula. The pain is worse on walking at a fast pace and is relieved by rest or elevation. He notes swelling in the left ankle.
He complains of intermittent paraesthesia globally about the left foot at night. He notes giving way at left ankle but intermittent mild stiffness at the joint”
I also refer to page 6 of his report where he states the following under the heading, “Fitness for work Mr Elliott he is currently fit to resume his preinjury work as pathology courier driver, his preinjury hours, 32 hours per week without restriction”.
Dr Wallace assessed the whole person impairment of the claimant's left ankle to be 4%. The claimant acknowledged he is not entitled to damages for non-economic loss.
At the preliminary conference on 13 March 2025, I discussed in detail with the claimant his intentions regarding retirement. At the conclusion of these discussions, I determined his intention to retire in October 2025, was more of a possibility, rather than a probability. I determined if he decided to find some form of full time or part time employment, such as his previous occupation, or any alternative occupation, which required him to walk some distance and carry equipment, then, I determined the most likely future circumstance for the claimant, would be that he would suffer a diminution in future earning capacity.
After further discussions between the parties the insurer proposed to resolve the matter for $96,403 less statutory benefits paid in the sum of $22,195.97. This results in a net sum to the claimant of $74,207.03. The calculation of the proposed settlement is as follows:
·        past economic loss (including super)      $38,870
·        tax withheld   $2,403
·        future economic loss   $44,000
Total $96,403 less statutory benefits totalling $22,195.97 results in a net settlement of $74,207.03.
The claimant advised me he 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 he 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 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.

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 13 MARCH 2025

The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 13 March 2025. 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 and past superannuation in the sum of $ 44,000. Tax paid on statutory benefits is $2,403. Damages for future economic loss in the sum of $44,000. The net amount of settlement monies payable to the claimant is $74,207.03.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.

[2025] NSWPIC 93

18 March 2025