QBE Insurance (Australia) Limited v Harper
[2023] NSWPIC 182
•24 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Harper [2023] NSWPIC 182 |
| Claimant: | Paul Harper |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | David Ford |
| DATE OF DECISION: | 24 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 66-year-old male, pedestrian injured whilst struck by insured motor vehicle when attempting to cross a zebra crossing; laceration of left hand and injuries to the left knee, foot and lumbar spine; employed as a warehouse manage; entitled to damages for past and future economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION DETERMINATIONS MADE 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
Paul Harper (the claimant) on 11 May 2021 was a pedestrian attempting to cross Mort’s Road Mortdale at a zebra crossing when the insured motor vehicle drove onto the crossing, failed to stop and collided with the claimant. As a result of the collision, he sustained laceration of his left hand, a graze to his left elbow and injuries to his lumbar spine, left knee and left foot. He was taken by ambulance to St George Hospital, where he was admitted and subsequently discharged after six hours. He then came under the care of his general practitioner, Dr Han and was prescribed analgesic medication. Presently, he is not receiving any active treatment for his injuries.
After the accident, he was unfit for work for a period of one week, and then returned to his pre-injury duties at Harvey Norman and Woolworths. He is employed as a warehouse manager with Harvey Norman and his part time employment at Woolworths was as a retail sales assistant. Due to his problems with ongoing pain, he was forced to resign from his part time employment with Woolworths in December 2022
The insurer arranged for the claimant to be examined on a medical legal basis by Dr Raymond Wallace, orthopaedic surgeon, and I refer to his report dated 16 August 2022. Dr Wallace was of the opinion the claimant would benefit from unsupervised home exercise programme, concentrating on mobilisation and strengthening exercises at his lumbar spine and left foot with intermittent use of simple analgesic medication. At the time of this examination, he was of the opinion, the claimant was fit to continue in his pre-injury employment duties without restriction.
He was born in 1957 and is presently 66 years of age. He informed me he does suffer from stiffness and aching In the left foot after work, however, he can carry out all the tasks required of him by his employer. Dr Wallace also assessed his various injuries and concluded his whole person impairment to be 0%. The claimant confirmed he had read the report of Dr Wallace and accepted this assessment and acknowledged he was not entitled to damages for non-economic loss.
The claimant advised me he wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant only has a claim for past and future economic loss and Fox v Wood. (1981) 148 CLR 438
I consider the settlement is appropriate in all the circumstances of this case.
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). I have decided to approve the proposed settlement as submitted in this application.
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 can carry out the day-to-day employment tasks required by him.
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.
I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
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, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
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 the injuries, disabilities, impairments, and losses sustained by the claimant, 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 18 APRIL 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a first preliminary teleconference on 18 April 2023. The claimant participated in person in the insurer was represented by Meena Singh.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past and future economic loss in the sum of $51,375, Fox v Wood $265. Total settlement $51,640, less payments to date of $440, results in a nett payment to the claimant of $51,200.
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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