QBE Insurance (Australia) Limited v Halliday
[2024] NSWPIC 134
•14 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Halliday [2024] NSWPIC 134 |
| CLAIMANT: | Sophie Halliday |
| INSURER: | QBE |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 14 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $645,000; 21-year-old female; entitlement to non-economic loss at $350,000; past economic loss at $15,000 and future economic loss buffer at $250,000; travel costs at $30,000; injury to spleen and liver now healed; buffer awarded for intermittent ongoing future loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 1. The proposed settlement is in the sum of $645,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 1 August 2020, Sophie Halliday (the claimant) was driving her landcruiser on a dirt road at the intersection of Lumley Road and Windellama Road at Bungonia when rounding a corner she came upon an oncoming car which had veered onto the wrong side of the road. Her vehicle left the road and collided with a tree.
She was picked up from the accident scene by her grandmother and taken to Goulburn Hospital and after five hours without being seen was taken to Bowral District Hospital with complaints of neck pain.
After X-ray and CT examination which disclosed a fracture/dislocation at C6/7 she was taken by ambulance to Liverpool Hospital for treatment under the care of Dr Bazina, neurosurgeon.
She underwent traction then open reduction of the facet joint dislocation and lateral mass fixation of the fracture at C6/7.
On 10 August 2020 she was discharged into the care of her treating general practitioner, chiropractor and physiotherapist.
Removal of the hardware took place on 1 March 2022.
The injuries sustained in this accident were:
· fracture and dislocation of C6/7.
Whole person impairment was examined by Dr Wallace at the request of the insurer on 14 July 2023 and in his report dated 20 July 2023 Dr Wallace assessed whole person impairment at 25% for the spinal fusion and included 1% for scarring. He considered her prognosis as good, with fitness to work as a full-time farm hand without restriction.
The claimant continued under the care of his general practitioner Dr Salami and neurosurgeon Dr Bazina.
On 20 August 2020 an application for statutory benefits was made.
On 4 October 2022 a common law claim form was lodged with the insurer and the insurer admitted liability on 10 February 2023.
The insurer conceded that the permanent impairment exceeded the statutory threshold under cover of letter dated 10 February 2023. The claimant is therefore entitled to damages for non-economic loss and the insurer has made provision for this in the settlement.
The injuries sustained in the accident have impacted on the claimant’s earning capacity as a farm hand even though at the time of the accident the claimant’s work with the family business had been impacted by Covid 19 and she was reliant on casual work in retail. She brings a claim for both past and future economic loss.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.
THE RELEVANT LAW
Under ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“• 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 the Commission, 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;
· the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
· the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Preliminary conference on 2 November 2023.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held the first preliminary conference on 2 November 2023. The claimant appeared by video-link with her mother Bronwyn to assist. The claimant participated in person and the insurer was represented by Elveen Lal.
The settlement reached at this stage, amounted to $464,752.48 broken down as:
· non economic loss – $300,000;
· past economic loss – $914,752.48,
· future economic loss – $ 150,000, and
· included in the economic loss was statutory payments in the sum of $10,735.01 which would be deducted.
Upon review of the medical information, I was concerned about the report of Dr Gratton-Smith which reported a 2mm slip of C6 on C7 and some narrowing of the C6/7 disc with marginal osteophyte formation in a scan dated 15 December 2021.
I requested at this preliminary conference that I required further information before I would undertake an assessment of the settlement.
Directions issued that the insurer obtain a further report of Dr Bazina the treating neurosurgeon to comment on the impact of this finding on the claimant as to future problems and its impact on earning capacity.
The claimant was asked to confirm her injuries and I sought further information as to her treatment and reported symptoms to Dr Salami her general practitioner.
The claimant was requested to provide me with an impact statement to enable me to gather relevant information as to the impact of her injuries, pain and suffering and details of any ongoing problems as it affected her quality of life.
Preliminary conference 21 November 2023
The claimant produced an impact statement and the insurer the additional information requested on the earlier occasion with the exception that Dr Bazina was unable to prepare the commissioned report until February 2024.
A discussion took place with the claimant as to the reason why the additional information was required. The claimant was initially frustrated with the delay as she wan ted the settlement to be finalised. After providing the claimant and her mother some time to reflect on the importance of a report on prognosis and the finality of a settlement, it was agreed that the parties wait for the report of Dr Bazina to issue.
The matter was adjourned to enable the report to be commissioned.
Preliminary conference 26 February 2024
I had the benefit of the report of Dr Bazina and the claimant and insurer further discussed the report and its impact on the claimant’s future treatment and future earning capacity.
The report also addressed the difficulty the claimant had with reversing her vehicle and the difficulty with her neck movements when reversing. The insurer then considered the claimant’s problem and made an allowance for the claimant to upgrade her motor vehicle and provision of a sum of $30,000 for a vehicle that had reversing cameras.
The claimant was pleased with this increase to include the additional costs to obtain such a vehicle.
The insurer and the claimant then considered the long-term prognosis and aging of the claimant with the likely impact of osteoarthritis and non-economic loss was increased to $350,000.
The additional information also prompted an increase to future economic loss to $250,000.
On this occasion, the claimant with her mother Bronwyn were asked if they wished to seek legal advice and more time to consider the updated offer.
I was informed that the claimant was very happy with the increase and were wanting the matter to be finalised.
A further explanation of the nature and effect of entering into a settlement was discussed with the claimant and her mother informed of its finality. The ongoing treatment needs were confirmed as outside of any settlement.
The deduction of the sum already paid in statutory benefits in the sum of $10,735.01 had been previously mentioned and was again confirmed that there was no change to this sum.
The parties were directed to upload the amended settlement and executed deed evidencing the claimant’s agreement of the new terms of settlement.
The amended documents were uploaded to the Commission portal on 11 March 2024.
Amended terms of settlement dated 7 March 2024
The parties have reached agreement to settle the claim in the sum of $645,000.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
· Liability:
application for statutory benefits dated 20 August 2020;
application for common law damages – dated 4 October 2022 – document A4;
permanent impairment letter dated 10 February 2023;
liability notice dated 10 February 2023;
police report E328326495 dated 3 August 2020 – document A15, and
replies to particulars – dated 23 November 2020 – document A11.
· Treating medical records:
Dr Salami – clinical records – dated 20 March 2023;
Dr Bazina – various – document A3, and
Liverpool Hospital records – dated 10 August 2020.
· Economic loss material:
Certificate of fitness – document A12.
· Settlement documents:
initial settlement offer – dated 23 October 2023;
agreement and release – documents A5;
amended settlement agreement dated 7 March 2024, and
executed deed of agreement dated 7 March 2024.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant’s statement illustrated the pain and suffering she has endured as a consequence of the injuries sustained in the accident. She reported the following in her statement dated 15 November 2023;
“Before the accident occurred, on 1st August 2020, I did a lot of sports and physical activities; for example, while in school, I played hockey, netball, judo and touch football. I also did activities such as showing cattle, farming and attending Camp drafts, with horses which continued after leaving school. I finished year 12 in 2019 and did my HSC then I went onto working in the Beef Industry, including on Cattle Stations in Northern Australia, then at Spring Hill Angus and the sale yards. After the accident, I spent 10 days at Liverpool hospital which was a pretty traumatic experience - laying flat on my back to try and get the c6 and c7 back into line with weight on the back of my head to pull back into place. Then they performed an operation to put C6 and C7 back in place with the bolts. After surgery, I went home to my family for support, assistance and care with my daily activities and recovery. I could not drive until the start of December. I then went back to work on light duties. Since the accident and recovery, I get fatigued, and my neck is very stiff; I must move my body instead to see and talk to people. When standing up for long periods of time. I get very sore and stiff. I have had to put a reversing camera in the car due to enable better vision as I have trouble turning my neck. I am self-conscious of the scar on the back of my neck from the operation. I either have my hair down or wear a long-collared shirt while out in public and at home, because I just don’t like the look of it and I don’t want people asking questions all the time. As a young person involved with agriculture, I want to develop a strong social network by participating in social activities with my friends and networking functions within the Beef Industry. Many of these activities take place in regional areas, with long travel times. I avoid some events now because of the potential for fatigue and neck pain from long distance driving. My chosen career path is to be a farmhand to start off with and then go into an Operations Manager role, as I gain experience in the Beef Industry. I’m concerned about my future as the doctor said about developing arthritis and I wonder how it will affect my career. I can’t play sport anymore and I my ability to exercise for fitness has been limited. At social functions, I now avoid the dance floor and any situations where I may have to stand for extended periods, and my self esteem has suffered.”
INJURIES
The clinical records produced in the matter confirm that the claimant initially sustained the following injuries:
· fracture and dislocation of C6/7 vertebrae.
The clinical records of Dr Salami evidence the progress of conservative treatment when required. There has been no ongoing treatment for quite some time.
In the latest report of Dr Bazina dated 23 February 2024 she reported;
“ Following today's telehealth consultation with the patient, I understand Sophie suffers with daily stiffness in the neck which has not affected her work currently but may affect her future capacity for employment due to earlier onset of secondary arthritis. Secondary osteoarthritis usually occurs when a joint has been injured, hence post trauma which involves injury to the bone or the articular cartilage. This osteoarthritis is typically a progressive disease and may lead to disability in her later years and potentially future interventions for chronic neck pain greater than her aged match cohort.”
Medical records indicate that the claimant has recovered from her initial surgery and the surgery to remove hardware in May 2022 both performed by Dr Bazina. There is little ongoing treatment forecast. The claimant confirmed she has not seen her doctor for many months. The recent contact with Dr Bazina was at my request to ascertain future issues, if any.
NON ECONOMIC LOSS
The insurer relied upon the assessment of Dr Wallace who assessed whole person impairment at 25%.
Whilst the insurer offered the sum of $300,000 in its first offer, this was increased to $350,000 by the conclusion of the preliminary conferences held with me.
The claimant sustained injury to her cervical spine which required surgical intervention. There is medical opinion that she may suffer from arthritic changes as she ages to her C6/7 vertebrae. Dr Bazina confirms the recovery from surgery but the prognosis of possible future complications as she ages.
Whilst the claimant confirms she has not needed treatment for a considerable period of time, the likelihood of future complications even minor have warranted the increased sum for non-economic loss.
The parties have agreed on the sum of $350,000.
I consider upon the review of the medical information before me and the information provided by the claimant in his reported histories, oral evidence and statement that whilst he continues to suffer life-long symptoms, there has also been significant recovery since the accident and that the sum agreed for non-economic loss is just fair and reasonable and within the likely potential damages assessment for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.
ECONOMIC LOSS
Past economic loss
The claimant was working as a farm hand within her family business at the time of the accident she reported working casually. The family business has been sold and she is no longer in family employment. She declared she earned approximately $1,000 weekly.
The claimant currently is engaged in causal work as the family business was sold during the period of her recovery.
The parties calculated past economic loss based upon her average weekly earnings and this was agreed in the sum of $731.77 nett. She was certified unfit for 18 weeks and losses were calculated for this period in the sum of $13,171.68. Superannuation at the rate of 12% was included and the total amounted to $14,752.48.
The sum was rounded off to $15,000.
I am satisfied that the losses have been incurred.
Future economic loss
Whilst the claimant is young and has the rest of her working life before her, the exact nature of her ongoing reduction to weekly earning capacity cannot be identified at this time. The provision of a buffer for future economic loss in the sum of $250,000 has been agreed between the parties.
I consider this decision to allow a buffer is appropriate in this situation where an exact weekly loss is not known. She is likely to vary her career path during her working life. At this stage she was herself as a farm hand to development manager. With the sale of the family business this career path has been altered as it was her intention to remain working in the family business. The impact of her spinal surgery impacts on tasks which place stress on her cervical spine. The buffer has taken into consideration the likelihood that her neck fusion will impact on some of the career choices she may make and she is likely to suffer an impairment to her future earning capacity where some roles are compromised by her ongoing injuries. She does have a significant residual earning capacity.
I note Dr Wallace considered her fit to return to farm hand duties full-time, the heavier nature of this role may be impacted as she ages.
The most likely circumstances but for the accident have been applied in this provision of a buffer that she may work in various career paths over the course of her working life and at times the injury to her cervical spine may impact on her earning capacity.
This assumption is verified by Dr Bazina in her latest report where she commented that
“as she ages the impact of secondary arthritis will impact on her greater than her age cohort”
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past economic loss in the sum of $15,000 accords with the evidence provided by the claimant and her earning capacity at the date of the accident.
I am satisfied that the buffer for future economic loss in the sum of $250,000 accords with the most likely circumstances but for the accident.
The amount agreed for non-economic loss in the sum of $350,000 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 of the Commission, taking into account the nature and extent of the injuries and the full recovery made by the claimant.
The injuries have in majority healed. The claimant is young and her ongoing neck pain will from time to time impact on her activities of daily living and her work related tasks.
The claimant has arduously attempted to improve her physical strength and undertaken treatment required to improve her functionality.
The claimant’s prognosis is good.
The past economic losses were supported by medical certificates for the period immediately post-accident and the claimant received statutory benefits at the time. Records of the insurer indicate that the sum of $10,731.01 has been paid to date for statutory weekly payments which will be deducted from the settlement.
The claimant is aware that from her settlement the insurer will deduct the already paid statutory benefits in the sum of $10,731.01 and that he will receive the balance in sum of $634,268.99.
I consider the agreed settlement in the sum of $645,000 is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission.
CONCLUSION
I am satisfied the proposed settlement of $645,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of injuries and losses sustained by the claimant.
I am satisfied the claimant was aware she could seek legal advice but chose not to avail herself of legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition. She also had the assistance of her mother Bronwyn to review her decision.
I am satisfied the claimant is aware that from the proceeds a sum of $10,735.01 will be deducted as prepaid statutory benefits.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the amount of $645,000.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
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