QBE Insurance (Australia) Limited v Jackson - [2024] NSWPIC 178

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	QBE Insurance (Australia) Limited v Jackson [2024] NSWPIC 178
CLAIMANT:	Alisia Jackson
INSURER:	QBE
MEMBER:	Shana Radnan
DATE OF DECISION:	10 April 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $48,661; 43-year-old female; past and future economic only; no entitlement to non-economic loss; past history of depression 10 years; whole person impairment 5%; closed period past economic loss; buffer for future economic loss; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved.
DETERMINATIONS MADE:	CERTIFICATE Settlement approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $48,661 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 27 November 2022, Alisia Jackson (the claimant) was a driver in her vehicle in a 100km zone when the insured attempted a right hand turn in front of her causing the vehicles to collide. Airbags were not deployed as her vehicle did not have this fitted. The claimant was transported to Port Macquarie by ambulance having sustained injuries to her chest from a seat belt injury. She remained in hospital until 2 December 2022.
The injuries sustained in this accident were:
· fracture of sternum, and
· adjustment disorder with mixed anxiety and depressed mood.
Upon release from hospital she remained in the care of her doctor. She did not require any specialist care. She was certified fit for pre-injury duties by his general practitioner Dr Han on
17 January 2023 on the basis that she had fully recovered from her physical injuries to her sternum.
On 5 December 2022 an application for statutory benefits was made by the claimant.
On 15 March 2023 a common law claim form was lodged with the insurer and the insurer admitted liability on 8 June 2023.
The claimant has recovered from her fractured sternum according to the report of Dr Han dated 17 January 2023. This is also confirmed by the medico-legal assessment undertaken by Dr Bentivoglio for the insurer. In his report dated 13 June 2023 he confirmed 0% whole person impairment and no ongoing physical symptoms.
The claimant’s psychological injuries were assessed by Dr Bisht on 30 October 2023 at the request of the insurer and an assessment of 5% whole person impairment was made noting “the claimant had a pre-existing history of depression having been on Pristiq an antidepressant for 10 years.” (Page 32 of bundle.) Noting the medication level did not change between pre and post-accident, Dr Bisht considered there was no ongoing treatment required as a consequence of the accident. He also found no impact of employment. He did not make any deduction for the pre-existing depression.
Based upon the medical reports and medico-legal assessments obtained by the insurer there is no claim made for non-economic loss. The claimant has…

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

Case: [2024] NSWPIC 178
Decision Date: 10 April 2024

CaseChat Overview and Summary

QBE Insurance (Australia) Limited brought an application for the approval of a settlement amount for a motor accident claim made by Ms Jackson, a 43-year-old female, following an accident. The dispute centred on whether the settlement sum of $48,661 was just, fair and reasonable under the Motor Accident Injuries Act 2017. The court was tasked with determining whether the settlement appropriately compensated Ms Jackson for her past and future economic losses, as well as whether it included a buffer for future economic loss and whole person impairment. Additionally, the court had to consider whether Ms Jackson was entitled to compensation for non-economic loss.

The court addressed several legal issues, including whether the settlement amount was adequate given Ms Jackson's whole person impairment of 5%, her past history of depression, and the requirement for a buffer for future economic loss. It also had to assess whether the settlement was consistent with the statutory criteria for approval, particularly given the absence of entitlement to non-economic loss. The court reviewed the evidence provided by both parties and the statutory guidelines for assessing the fairness of the settlement.

The court found that the proposed settlement was just, fair and reasonable. It acknowledged the limited whole person impairment and the closed period for past economic loss, but concluded that the buffer for future economic loss was appropriately included in the settlement amount. The court determined that the settlement did not need to account for non-economic loss due to Ms Jackson's past history of depression, which was adequately addressed in the economic loss calculations. Based on this reasoning, the court approved the settlement amount of $48,661.

The final orders of the court were that the settlement amount of $48,661 was just, fair and reasonable and should be approved. The court directed that the settlement be paid to Ms Jackson, and the proceedings were concluded.

Orders