QBE Insurance (Australia) Limited v Gleeson
[2023] NSWPIC 220
•12 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Gleeson [2023] NSWPIC 220 |
| Claimant: | Perrin Gleeson |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Alexander Bolton |
| DATE OF DECISION: | 12 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the claimant was involved in a motorbike accident with an unidentified car on 2 September 2020; claimant made an application for damages and the matter was before the Personal Injury Commission for settlement approval; initial offer of settlement not approved by the Member and further medical evidence obtained; claimant suffered injuries, among others, to his right hand and was unable to form a fist and grip with his hand; further medical evidence confirmed the claimant exceeded the whole person impairment threshold with an assessment of 15%; Held – settlement approved under section 6.23(2)(b); settlement approved for $476,643.15 with an allowance for non-economic loss of $250,000. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 3. The proposed settlement complies with clause 7.392 to clause 7.411 of the Motor Accident Guidelines 2017 |
STATEMENT OF REASONS
INTRODUCTION
The motor accident the subject of this claim occurred on 2 September 2020. It is now more than two years after the date of the accident.
Perrin Gleeson (claimant) is not represented by an Australian legal practitioner.
QBE, the insurer, has made various offers of settlement to the claimant. Initially, Mr Perrin was prepared to accept an offer of $134,234.95. The claimant had said that he proposes to accept the settlement and confirmed this during the course of a preliminary conference on 11 October 2021.
A subsequent offer was made after I expressed concern that a number of matters had not been addressed in the medical evidence. This offer was in the amount of $241,434.55 less payments of $21,434.55. This would have left a balance to Mr Gleeson of $220,000.
Initially, the insurer relied on a report of Dr Wallace dated 25 January 2023. Having considered this report, I requested more information about issues that might arise in the future that could affect Mr Gleeson’s recovery. The insurer then obtained a further report from Dr Wallace. Amongst other things, Dr Wallace reported that Mr Gleeson has suffered no permanent impairment of his right hand and had a full range of movement at the time of examination. I said to Ms Hurcum that I could not reconcile this statement noting the demonstration of lack of mobility/use by Mr Gleeson of his hand at a previous teleconference. I expressed concern that a proper examination of Mr Gleeson’s right hand could result in a total whole permanent impairment assessment (WPI) in excess of 10%.
I suggested to Ms Hurcum that an objective further medical report was required and that it might be more appropriate not to have this report from Dr Wallace. Subsequently, a report was obtained from Dr Gothelf of 18 April 2023 following examination by him of Mr Gleeson.
Legislative framework
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by cl 3 of Part 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division of the Commission and clause 148(1) of the Personal Injury Commission Regulations 2020 delegates GIO’s application ‘pending proceedings’ and clause 14B(3) empowers me to determine those proceedings.
Because of the date of the accident, cl 14B(4)(c) provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
Section 6.23 of the MAI Act says:
“(1) A claim for damages by an injured person cannot be settled within 2 years after the motor accident unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(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 or of or made under this Act or the Motor Accident Guidelines”
Clause 7.38 of the Guidelines says that in considering the settlement I must consider whether:
(a) the proposed settlement satisfies the timing requirements in section 6.23(1) of the MAI 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 a (member of the Commission), taking into account any proposed reductions or deductions in the proposed settlement, and
(c) the Claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Clause 11 of the Commission’s Procedural Direction MA3 provides that the Application must include:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
(b) the amount of any reductions in the proposed settlement;
(c) the amount of any advance payments made, and
(d) the evidence, documents and materials relevant to the assessment of the proposed settlement figure.
Clause 7.294 of the Guidelines requires GIO to include in its Application details of:
(a) the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage, and
(b) the insurer has provided me with a copy of a letter sent to the claimant on 29 July 2021 which provides a breakdown of the offer and an explanation of the various components of the offer which the claimant has accepted.
The claimant requests that the Commission approve the proposed settlement of $476,643.65.
Clause 7.294.2 of the Guidelines requires the amount of any reductions in the proposed settlement:
(a) QBE has confirmed that an amount will be deducted for past statutory benefits paid of 21,434.65.
QBE will deduct $21,434.15 and leaving a balance clear to Mr Gleeson of $455,208.50.
There are no other payments to be deducted to any statutory authority.
The accident
The claimant was involved in an accident on 2 September 2020. He was riding a motor bike on a country road proceeding into a corner when he was confronted by a car travelling on his side of the road. He took evasive action to try and straighten his bike but lost control and collided with a sign and a rock. The car did not stop.
An ambulance was called and the claimant was conveyed to hospital.
Claimant’s injuries and medical evidence
Initially, the insurer provided a report from Dr Wallace dated 29 November 2021 and then that my request, the supplementary report from Dr Wallace dated 25 January 2023. I was not confident that the opinion of Dr Wallace was accurate as in his subsequent report said that Mr Gleeson has suffered no permanent impairment of his right hand and had full range of movement. This was clearly not correct,
Mr Gleeson demonstrated to me during one teleconference the restrictions he had in class been his right hand. Mr Gleeson cannot fully grip with his right hand and this prevents him from playing golf, for which he had previously been a professional golfer. He is also now no longer able to ride his motorbike.
As a result of the accident the claimant had the following injuries;
(a) bruising and bleeding to nose and head;
(b) bruising and small fractures to right hand, index, middle and ring finger;
(c) laceration to right hand elbow requiring surgery;
(d) bruising and damage to right shoulder, and
(e) small abrasion and squeaky to right knee.
Mr Gleeson still has pain in his right shoulder and suffers recurrent swelling of his right hand and trouble with grip strength.
Dr Gothelf provided a report of 18 April 2023 and said that Mr Gleeson had suffered the following:
(a) right shoulder strain, acromioclavicular joint strain;
(b) right elbow laceration;
(c) right wrist strain;
(d) right knee soft tissue strain, and
(e) right facial lacerations.
Mr Gleeson reported no pain with his right hand but he does have pain on completing tasks.
He cannot apply a full grip with his righthand. Mr Gleeson has ongoing swelling of his right hand which he manages with ice and analgesics. While Mr Gleeson can work he finds that he is in pain at the end of each day and has swelling of his right hand.
Dr Gothelf assessed a total whole person impairment of 15%.
Should I approve the settlement?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether or not to approve or not approve Mr Martin’s settlement, I need to consider:
(a) timing – whether the date of the settlement is more than two years after the accident;
(b) appropriateness – whether the amount of the settlement is just, fair and reasonable, and
(c) understanding – whether Mr Gleeson understands the settlement and its terms and the effect of the settlement in ending his claim for damages.
Timing
I am satisfied that the timing requirements of the MAI Act have been met. It is more than two years since Mr Gleeson’s motor accident. There is now also an allowance for non-economic loss of $250,000.
Appropriateness
The amount of the settlement I am asked to approve a settlement of $476,643.50 which comprises the following:
Non- economic loss $250,000
Past economic loss $21,434.65 (past payments made under statutory benefits and loss of overtime)
Future economic loss $196,018.50 (calculated at $300 net per week to age 69)
Fox v Wood $9,190
Subtotal $476,643.65
Deductions $21,434.65
Total $455,208.50 inclusive of costs and disbursements.
There is an entitlement to non-economic loss which is now conceded by the insurer. Dr Gothelf assessed the claimant’s whole person impairment at 15% for physical disabilities. The insurer has allowed $250,000 for this head of damage and I am satisfied that this figure is satisfactory.
Mr Gleeson had a closed period of time off work and for which he received statutory benefits of $21,434.65. The insurer is to have a credit for the sum of $21,434.65 paid in weekly statutory payments. Mr Gleeson is entitled to have his reasonable treatment expenses arising from the accident to be paid for the remainder of his life. The insurer is only liable to pay statutory benefits including treatment expenses for five years. Thereafter, the claim may be transferred to Lifetime Care and Support which will be liable for ongoing reasonable treatment expenses.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states that no allowance may be made for future loss of earning capacity unless Mr Gleeson establishes that the accident has caused a change in his most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR 1 and Husher v Husher (1999) CLR 138 the High Court confirmed that the fundamental questions to be determined in a case such as this is whether Mr Gleeson has sustained a loss or diminution in his earning capacity and, if so, whether that loss or diminution will result in economic loss.
Having considered the report of Dr Gothelf and noting that the claimant has made a good recovery from his injuries and has also returned successfully to full time work, I am satisfied that the allowance of $196,018.50 for future economic loss is an appropriate allowance taking into account the nature of Mr Gleeson’s injuries, his ongoing disabilities and his age. This amount is calculated on the basis of a loss of $300 per week to age 69 less vicissitudes.
Understanding
Having spoken to Mr Gleeson, I am satisfied that he:
(a) accepts the insurer’s offer and wishes to finalise his claim now;
(b) is aware that he can seek legal advice but does not wish to do so, and
(c) understands the binding nature of the settlement and this approval and that he may not be able to make a further for damages in the future.
CONCLUSION
I am satisfied that the proposed settlement figure of $476,434.65 less deductions is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines in that it is:
“…just, fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a [member], 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.”
Pursuant to s 6.23 of the MAI Act, I approve the proposed settlement of the claimants claim for damages.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017, and
· the Guidelines.
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