QBE Insurance (Australia) Limited v Gleeson
[2024] NSWPIC 111
•11 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Gleeson [2024] NSWPIC 111 |
| CLAIMANT: | Brett Gleeson |
| INSURER: | QBE |
| MEMBER: | David Ford |
| DATE OF DECISION: | 11 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; 58-year-old motorcyclist injured in a collision with insured motor vehicle; sustained fractures through the distal left radius and left scaphoid bone of the left wrist, fracture of the tibula shaft of the left leg; absent from his employment for a period of several weeks and thereafter returned to full time duties; now employed as a fabricating accounts manager visiting clients to update computer software systems; experiences some discomfort in his back after driving his vehicle for more than one hour and also complains of pain in both right hand and left wrist after his daily activities; insurer conceded claimant had sustained a non-threshold injury; liability admitted; no entitlement to non-economic loss; claim for past and future economic loss; amount proposed for past economic loss is $6,660 and for future economic loss is $60,000; 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
Brett Gleeson (the claimant) on 22 December 2021 was riding his motorcycle at approximately 60kmph along the Princes Highway at Bomaderry. As he was approaching a roundabout, he decreased his speed, when suddenly and without warning his motorcycle was struck from the rear by the motor vehicle being driven by the insured driver. Consequently, he sustained the following injuries:
(a) fracture of the first metacarpal bone of the right thumb.
(b) fractures through the distal left radius and left scaphoid bone of the wrist, and
(c) fracture of the tibula shaft of the left leg.
An ambulance attended the scene of the accident, and he was taken to Shoalhaven District Memorial Hospital where X-rays were taken confirming the above-mentioned fractures. His left leg was treated conservatively, and he was discharged with a CAM boot and wrist split. Subsequently he attended the outpatient clinic and was then referred to the Sydney Hand Hospital where he underwent surgery in January 2022. He underwent open reduction and internal fixation of the fracture of the left distal radius and fracture of the right thumb at the base. The fracture at the base of the left thumb was apparently neither fixable nor united.
The insurer admitted liability for the common law claim and has conceded he has sustained a non-threshold injury.
The claimant was born in 1965 and is presently 58 years of age. At the time of the accident, he was working with Beechwood as a frame and truss detailer. He did engage in occasional installation work on a relief basis. Following the accident, he had several weeks off work and then returned to normal duties which was essentially computer based. He continued in this employment until June 2023 when Beechwood ceased business. Thereafter, he commenced employment with Mitek as a fabricating accounts manager, visiting clients to update computer software systems in relation to this company's software. At the preliminary conference, he confirmed he can carry out all the duties required of him in his employment but does experience some discomfort in his back after driving his vehicle for more than one hour and also complains of pain in both his right hand and left wrist after his daily activities.
The insurer arranged for him to be seen by Dr Frank Machart, orthopaedic surgeon, on a medico legal basis and I refer to his report dated 26 October 2023. The claimant confirmed he had read this report and did not disagree with its contents. Dr Machart carried out a physical examination and noted the claimant's condition is now stable and there has not been much change in the severity of his condition in the recent past and is not likely to be in the next 12 months. However, he was not prepared to provide a prognosis for improvement and recovery until a period of two years had expired since the date of the accident. He expressed the view the claimant is fit for his pre-injury employment, however long-term fitness could not be assessed without evidence of pathology of injury, pathology that could determine future potential complications.
Dr Machart provided an assessment of whole person impairment at 8%. In relation to the claimant’s scarring, he assessed the scarring to the left wrist at 2% WPI. Having regard to the fact Dr Machart was not prepared to provide a definite prognosis for future improvement and recovery, the insurer arranged for him to be examined by Dr Alan Home, occupational physician, and I refer to his report dated 12 December 2023. I found this report to be of assistance to me in determining whether I should approve this settlement.
I note the following under the heading “Current Symptoms” on page 2 of the report:
“Mr Gleeson states he experiences occasional ache in the distal left leg. His walking tolerance is primarily limited by more proximal symptoms of lower back and left thigh pain which he has experienced over the last two years. He states that he continues to experience pain at the base of the right thumb in the region of the CMC joint (indicated with the pain extending distally towards the MCP joint. He is aware of stiffness at the MCP joint. There is local thumb pain with gripping and pinching.
He describes prominence of a screw at the base of the thumb metacarpal which is sensitive to knocking. Mr Gleeson reports an intermittent ache at the left wrist present most of the day and of average intensity 3-4/10 on a Visual Analogue Scale (VAS). The pain increases with activity. He describes particularly pain associated with the use of vibrating tools and when previously riding his motorbike. There is increased ache in cold weather. He describes areas of numbness in the radio- volar aspect of the distal right forearm, adjacent to his scar.There is further mild numbness over the radio dorsal aspect of the left hand he describes mild stiffness of left wrist joint motion. There is overall weakness in grip strength. He says that he has noticed a tendency to drop heavier weights. He attempted to return to gymnasium-based weightlifting but could not manage the heavy weights. Mr Gleeson is right hand dominant. There is no significant disability for most activities of daily living. He says he wakes frequently from his sleep.”
Dr Home carried out a physical examination and viewed diagnostic imaging. He recommended the claimant take regular Panadol osteo should he experience mechanical wrist pain. He believes the claimant is fit to perform full-time hours of work, but would experience difficulties with heavy manual handling, safely lifting in excess of 20kg and is also incapacitated for activities such as forceful hammering and the pronged use of vibrating tools. He also believes there is a risk of progression of the post traumatic degenerative change in the wrist, which may lead to mild increased stiffness in the left wrist overtime. Overall, he believed the claimant had maximum medical improvement and he assessed the claimant’s whole person impairment at 7%, however he only assessed scarring of the left wrist at 0% on the TEMSKI scale.
The claimant is not entitled to damages for non-economic loss but is entitled to damages for both past and future economic loss.
The insurer has proposed to resolve the matter for $66,660 less statutory benefits. The claimant has already received an advanced payment of $10,000 from the insurer. The calculation of the proposed settlement is as follows:
· non-economic loss nil
· past economic loss (Inc Super) $6,660
· future economic loss $60,000
Total $66,660 less advance payment in the sum of $10,000, results in a net settlement of $56,660.
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 5 MARCH 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 5 March 2024. 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 $6,660. Damages for future economic loss in the sum of $60,000. The net amount of settlement monies, after deduction of advance payment of $10,000, payable to the claimant is $56,660.
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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