QBE Insurance (Australia) Limited v Hinchen
[2022] NSWPIC 147
•21 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Hinchen [2022] NSWPIC 147 |
| CLAIMANT: | Lynette Hinchen |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 21 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment; approval of proposed settlement under section 6.23(2)(b) of the Motor Accident Injuries Act 2017; non-minor injuries; claim for damages for non-economic loss; whole person impairment of 14%; claimant aged 64 years; L3 vertebral body fracture; bilateral sacral fractures; bilateral rib fractures; traumatic bowel injury; recurring bowel obstructions; Held- proposed settlement of $280,000 approved. |
| DETERMINATIONS MADE: | The proposed settlement is approved under section 6.23(2)(b) of the Motor Accident Injuries Act 2017 |
STATEMENT OF REASONS
INTRODUCTION
The insurer and the claimant, Lynette Hinchen, have agreed to a settlement for her common law damages claim.
The claimant is not legally represented.
Section 6.23(2) of the Motor Accident Injuries Act 2017 (MAI Act) provides that a claim for damages for a claimant who is not represented in respect of the claim by an Australian legal practitioner, cannot be settled unless the proposed settlement is approved by Personal Injury Commission (the Commission).
This application has been lodged by the insurer with the Commission for the purpose of having the proposed settlement approved.
BACKGROUND TO THE CLAIM
The claimant is a 64-year-old woman who suffered serious injuries a motor accident on 13 December 2019.
On that day, the claimant was travelling as a passenger in a vehicle driven by her husband, when the insured vehicle crossed to their side of the road and caused a head-on collision.
On 19 November 2021, the claimant made a claim for common law damages. It is apparent from the nature of this application that the insurer has admitted liability, although I have not been provided with such documentation.
By letter of 26 November 2021, the insurer made an offer of settlement to the claimant pursuant to section 6.22 of the MAI Act.
By letter of 29 November 2021 to the insurer, the claimant rejected the insurer’s offer and made a counter offer supported by submissions.
By letter of 6 December 2021, the insurer accepted the claimant’s counter offer which is now before me for approval as the proposed settlement.
CLAIMANT’S RELEVANT BACKGROUND
After completing her secondary schooling, the claimant completed combined degrees in Arts and Law over a period of five years. She then practiced as a lawyer for about eight years before commencing work as a lecturer and tutor in law.
The claimant then relocated with her husband to Norfolk Island for a period and subsequently spent another period travelling. Upon her return to Australia, the claimant resumed work as lecturer and tutor in law for about two years.
At the time of the accident, the claimant was not working and does not intend to return to the workforce.
THE PROPOSED SETTLEMENT
The proposed settlement is the sum of $280,000 for damages for non-economic loss.
The claimant did not make a claim for economic loss.
DOCUMENTS CONSIDERED
I considered the following documents in making this determination:
(a)the clinical notes of the Royal North Shore Hospital;
(b)the clinical notes of the Lindfield Medical Practice, which include the reports of Dr Dimitri Papadimitriou and Dr Julian Ip;
(c)the report of Dr Siddarth Sethi dated 7 June 2021;
(d)the report of Dr Ron Haig dated 13 October 2021;
(e)the application for damages under common law dated 19 November 2021;
(f)correspondence from the insurer to the claimant regarding offers of settlement, dated 26 November 2021 and 6 December 2021;
(g)correspondence and submissions from the claimant to the insurer regarding offers of settlement, dated 21 November 2021 and 29 November 2021, and
(h)a series of four coloured photographs depicting the claimant’s scarring and disfigurement.
CONSIDERATION
The application
Section 6.23(3) of the MAI Act provides I am not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under the Act or the Motor Accident Guidelines (the Guidelines).
Time requirements to make the application
Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the motor accident unless the degree of permanent impairment of the injury caused by the motor accident is greater than 10%.
The proposed settlement concerns approval of damages for non-economic loss. On that basis, the time requirements of section 6.23(1) of the MAI Act are satisfied.
The claimant’s understanding of the proposed settlement
Sub-clauses 7.37 (c) and (d) of the Guidelines provide that before I approve the proposed settlement under section 6.23(3) of the MAI Act, I must be satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner and understands the nature and effect of the proposed settlement and is willing to accept it.
On 16 February 2022, I conducted a teleconference with the parties to question the claimant about those issues. Mr Robert Chatfield of QBE appeared for the insurer.
The claimant stated that she and her husband (who had also practised as a solicitor before retirement) had researched precedent cases on the Commission’s website for the purpose of negotiating the proposed settlement with the insurer.
The claimant stated that she is aware that she was entitled to be represented by a lawyer with respect to her claim, but she has chosen not to do so.
The claimant stated that she is aware that she is entitled to also claim damages for economic loss but does not wish to do so as she has no intention to return to the workforce.
The claimant stated that she is satisfied with the outcome that she had negotiated with the insurer and confirmed her wish to accept the proposed settlement.
I established from Mr Chatfield that the claimant is currently receiving statutory benefits for treatment and care and that a determination that the claimant had sustained a non- minor injury had been made.
I explained to the claimant that the proposed settlement represents lump sum damages for her non-economic loss only and that proceeding with the proposed settlement will not affect her ongoing rights to benefits for reasonable and necessary treatment and care, for the rest of her life.
I explained to the claimant that those benefits cover a wide range of benefits, including the costs of medication and future surgery.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner but does not wish to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising from the motor accident.
I am satisfied that the claimant is willing to accept the proposed settlement.
Is the proposed settlement just, fair and reasonable?
Clause 7.37 (b) provides that before I approve a proposed settlement under section 6.23(3) of the MAI Act, I must be satisfied that it 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.
For that purpose, I have considered the medical evidence provided to the Commission, the claimant’s submissions to the insurer during negotiations of the proposed settlement, the claimant’s statements at the teleconference and a series of photographs depicting the claimant’s scarring and disfigurement.
The proposed settlement is in the sum of $280,000 for damages for non-economic loss and there are no deductions from that sum for any other matters.
Section 1.4 of the MAI Act defines “non-economic loss” as meaning:
(a)pain and suffering, and
(b)loss of amenities of life, and
(c)loss of expectation of life, and
(d)disfigurement.
Following the accident, the claimant was taken by ambulance to the Royal North Shore Hospital (RNSH) where she remained for treatment for about three weeks.
The clinical notes of RNSH show that the claimant sustained the following injuries in the accident:
a.Bilateral sacral fractures requiring an operation to insert sacroiliac joint screws.
b.Traumatic bowel injury requiring exploratory trauma laparotomy and bowel resection.
c.An L3 vertebral body fracture treated conservatively.
d.Bilateral rib fractures treated conservatively.
On 3 January 2020, the claimant was discharged, non-weightbearing in a wheelchair, to Arcadia Pittwater Private Hospital, where she remained for another two weeks. She eventually graduated to walking with a wheelie-walker and then one stick. This was followed by extensive physiotherapy at the RNSH fracture clinic.
The claimant was seen by her RNSH treating orthopaedic surgeon, Dr Dimitri Papadimitriou on 24 February 2020 and 11 May 2020 for follow-ups. Dr Papadimitriou provided progress reports to the claimant’s general practitioner on the same dates.
By May 2020, Dr Papadimitriou reported that the claimant was recovering well from her orthopaedic injuries, that she was walking with a normal gait with a full range of motion in both hips with no hip irritability, and no pain on stressing the sacroiliac joints.
The claimant reported to Dr Papadimitriou that she was having some lower lumbar back pain that occurs after prolonged standing, but her level of activity was improving. She had started to ride an electric bike as a means of exercising.
Dr Papadimitriou believed that the claimant would continue to improve and that she may experience some ongoing symptoms for 18 months from the time of her injury. He
did not impose any restrictions of the claimant’s activities and asked her to return if she had any ongoing concerns. The claimant has not had the need for any further treatment from Dr Papadimitriou to date.
On 12 October 2021, the claimant was examined by orthopaedic surgeon, Dr Ron Haig at the request of the insurer.
The claimant reported to Dr Haig that her low back/pelvis was "not that bad". She was experiencing stiffness in that area after sitting for prolonged periods and intermittent low back pain which "comes and goes".
Dr Haig believed (from an orthopaedic perspective), the claimant “has done well” and appears to have regained her pre-accident lifestyle. Her daily activity was largely that of managing hers and her husband's self-managed superannuation fund in which they appear to take a most active role.
Dr Haig believed there were impairments associated with the lumbar vertebral body fracture and the fractures of the sacral alar. He assessed the claimant’s whole person impairment arising from those orthopaedic injuries at 9%.
The evidence suggests that the claimant has faced and will continue to face more serious ongoing problems and loss of amenities of life as a result of her bowel injuries.
On 1 March 2021, the claimant was reviewed by her treating colorectal and general surgeon, Dr Julian Ip. By that stage, the claimant has had about five episodes of bowel obstructions which Dr Ip described as “sub-acute”. One of those episodes required a hospital admission in June 2020.
The claimant’s evidence is that these episodes are quite painful and distressing. They usually occur over a period of many hours involving bloating, nausea, cramping abdominal pain and eventually culminating in vomiting.
Dr Ip believed that the claimant is significantly affected by these recurring bowel obstructions and has placed her on a trial low residue diet.
Dr Ip’s prognosis presents a difficult dilemma for the claimant. He opined that if the bowel obstruction becomes more debilitating and occurs more frequently, the claimant may need surgery, which in the claimant’s case carries the risk of adhesions in having further surgery. However, Dr Ip thought that living with recurring bowel obstructions was not an option for the claimant.
On 7 June 2021, the claimant was examined by a gastroenterologist and hepatologist, Dr Siddarth Sethi at the request of the insurer.
Dr Sethi’s believed the claimant may experience further episodes of bowel obstruction in the future and that the low residue diet should likely reduce their occurrence. If they do occur, Dr Sethi believed that they are likely to resolve spontaneously and are unlikely to require surgery. He thought the possibility that future surgery to resect adhesions would be required, was “remote”.
Dr Sethi assessed the claimant’s whole person impairment arising from her bowel injuries at 5%.
During negotiations of the proposed settlement with the insurer, the claimant made submissions to the insurer expressing her disagreement with Dr Sethi’s opinion and his failure to consider the significant scarring and disfigurement to her abdomen after surgery.
Firstly, the claimant submitted that Dr Ip did not advise her to stay on the low residue diet permanently. It was a trial solution, and a low residue diet is so severely restrictive that it is neither practical nor advisable to stay on one in the long term.
Secondly, the claimant submitted Dr Sethi’s opinion downplayed the loss of amenity of life she is likely to encounter in the future regarding the severity and frequency of the bowel obstructions and the real possibility of facing further surgery. The claimant said that those episodes were completely debilitating and come on quickly and without warning.
Thirdly, the claimant submitted that Dr Sethi failed to consider the extent of her abdominal scarring and disfigurement. In that regard, the claimant submitted a series of four photographs to the insurer for consideration.
I have seen the photographs. They depict a long purplish scar across the full length of the claimant’s abdomen and a large bulge on the left side of the abdomen.
Fourthly, the claimant submitted that her treating endocrinologist, Dr Anthony Glover advised her that the bulge in her left abdomen was caused by a ‘wide necked left lateral lumbar hernia containing loops of bowel’ which was revealed in a CT scan performed by Dr Peter Carr on 22 October 2021. The claimant stated that Dr Glover advised that the hernia may be surgically corrected, if it becomes necessary, but to do so will require a major operation.
Following those submissions, the insurer revised the offer of settlement to what is now the proposed settlement.
At the teleconference, the claimant stated that since the accident, she has been severely restricted in travelling, both in terms of frequency and the places she can travel to.
Prior to the accident, the claimant travelled overseas and interstate several times each year, sometimes to exotic, out of the way places without guaranteed access to modern medical care. As a result of her disabilities, she can no longer do so.
The claimant stated she has been advised to avoid changes in diet such as those associated with travel. Since the accident she has found that any change in diet can adversely affect her bowel habits such that she always needs to be close to a bathroom. On her regular cycling holidays prior to the accident, she often found herself a long way from the nearest bathroom. As a result of the accident, she has lost her confidence to undertake those travels.
CONCLUSION
The maximum amount that may be awarded for non-economic loss damages is currently $595,000.
Having regard to all of the above matters, I am satisfied that 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, the disabilities and the impairments sustained by the claimant.
The proposed settlement of the claimant’s claim for damages in the sum of $280,000 is approved under section 6.23(2)(b) of the MAI Act.
Member Maurice Castagnet Motor Accidents Division Personal Injury Commission
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