QBE Insurance (Australia) Limited v Gleeson - [2023] NSWPIC 220

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: QBE Insurance (Australia) Limited v Gleeson [2023] NSWPIC 220
Case: [2023] NSWPIC 220
Decision Date: 12 May 2023

CaseChat Overview and Summary

The Personal Injury Commission was presented with an application for settlement approval from the claimant, who was involved in a motorbike accident with an unidentified car on 2 September 2020. The matter was brought before the Commission under the Motor Accident Injuries Act 2017, and the primary concern was the claimant's entitlement to compensation for injuries sustained in the accident. The initial settlement offer was not approved, prompting the need for further medical evidence to be obtained.

The key legal issue that the Commission had to decide was whether the claimant's injuries warranted a settlement exceeding the initial offer. Specifically, the Commission needed to determine if the claimant's injuries met the criteria for exceeding the whole person impairment threshold, as well as the appropriate amount for non-economic loss. The claimant suffered injuries to his right hand, which resulted in an inability to form a fist and grip. Additional medical evidence confirmed that the claimant had surpassed the whole person impairment threshold with an assessment of 15%.

The Commission held that the settlement should be approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017. It was determined that the claimant's injuries, including the right hand impairment, justified a settlement amount that exceeded the initial offer. Consequently, the settlement was approved for a total of $476,643.15, which included an allowance for non-economic loss of $250,000. The Commission carefully considered the evidence and statutory provisions to reach its decision, ensuring that the claimant's entitlements were appropriately recognised and compensated.

Orders