QBE Insurance (Australia) Limited v Halbherr

[2023] NSWPIC 282

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

QBE Insurance (Australia) Limited v Halbherr [2023] NSWPIC 282

CLAIMANT:

Daniel Halbherr

INSURER:

QBE

MEMBER:

Hugh Macken

DATE OF DECISION:

14 June 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; section 6.23; 30-year-old male; head on collision; future economic loss; left wrist fracture impairment; prognosis for ongoing stable function; no evidence of ongoing significant diminished earning capacity; slower pace at work; Held – settlement agreement between the parties; Motor Accident Injuries Regulation 2017 section 7.37; intentions of parties.

DETERMINATIONS MADE:

SETTLEMENT APPROVAL

Issued under section 6.23 of the Motor Accident Injuries Act 2017

The amount of the claim for damages is approved in the total amount of $95,600.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant is a 30-year-old man who was injured in a motor vehicle accident on 29 December 2021 when the vehicle he was driving was struck head on by the insured’s vehicle.

2. His primary injury was a fracture to his left wrist which has required a surgical procedure to insert pins to stabilise the fracture. The pins remain in place, and he has been advised they will be in place permanently.

3. The proposed settlement is $95,600. There are no deductions to this figure as there have been no payments made in respect to the claimant’s past loss of wages. The figure is made up of a claim for $30,600 for past economic loss together with a buffer of $65,000 for future economic loss.

Reasons

1. The claimant is a hardworking man who works as a Property Manager. His work involves some demolition work, painting work and general property management services. He retains contractors and consultants as required and is continuing to operate this business successfully.

2. He is left with ongoing difficulties associated with his left wrist. It troubles him from time to time and he says, and I accept, that he performs his home maintenance activities and employment activities at somewhat of a slower pace and is somewhat guarded in respect to the use and operation of his left arm and hand. That said, he describes his left wrist injury as one in which it “acts up after repetitive use”.

3. The report of Dr R. Wallace dated 12 April 2023 notes “a good prognosis for ongoing stable function to his cervical spine or left wrist”. That said, he identifies a whole person impairment of 6% as a result of the injury he sustained.

4. In my view the calculation of past economic loss is appropriate. It is precisely the figure which the claimant sought. Accordingly, there is no reason why it ought not be allowed in full given the insurer has similarly allowed it in full.

5. The calculation of a buffer for future economic loss of $65,000 is also appropriate in the circumstances. There is no evidence or suggestion of any ongoing significant diminished earning capacity although the difficulties with his left wrist, the slower pace in which he can apply himself to his work are reflective of a minor impairment to his earning capacity.

6. In my view an allowance of $65,000 probably reflects an allowance which could reasonably be considered to be “at the higher end of the scale”.

7. It follows that I have no difficulty in approving the settlement agreed to between the parties noting both parties have requested that such approval be given.

Legislation

11.In making my decision I have considered the following legislation and guidelines:

·        Motor Accident Injuries Act2017, Section 6.23 (3)

·        Motor Accident Injuries Regulation 2017, Section 7.37