QBE Insurance (Australia) Limited v Jackson
[2024] NSWPIC 178
•10 April 2024
| 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 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 elected not to pursue any alternate opinion and I am satisfied that the injuries suffered have not resulted in whole person impairment exceeding 10% that would entitle the claimant to an award for damages for non-economic loss.
The injuries sustained in the accident have impacted on the claimant’s earning capacity as she was unable to attend her workplace for a closed period. At the time of her accident she worked as a cleaner with Halenvy Pty Ltd at Lakeside aged care on a part-time basis.
She was off work between 28 November 2022 and 17 January 2023. The claimed losses were the loss of earning capacity for that period.
Due to the impact of psychological injury – anxiety driving, the claimant also seeks future economic losses.
The claim is limited to past and future economic losses.
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 and has the jurisdiction to determine the application.
I am a Member of the Motor Accidents Division of the Commission authorised to determine the application.
THE RELEVANT LAW
Pursuant to 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 8 April 2024
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 8 April 2024. The claimant appeared by video-link. The claimant participated in person and the insurer was represented by Elveen Lal.
The settlement sum agreed between the parties is $48,661 broken down as:
· past economic loss – $8,661, and
· future economic loss – $40,000.
The claimant was asked to confirm her injuries and treatment received to date. It accorded with the submissions and medical evidence before me. Dr Han certified the claimant as fully fit to return to pre-injury duties on 17 January 2023 and the claimant confirmed she had not received any further treatment but continues with anti-depressant medication at the same regime as before the accident. She reported occasional discomfort at the anterior aspect of her chest wall and she presses the region to “crack” This resolves the discomfort. Occasionally a sneeze will cause discomfort as well.
The claimant reported she has recently changed her position to a full-time role with Woolworths now as an assistant manager on much the same pay scale as before the accident. She anticipated a nett weekly income of $1,100 weekly when she commenced the new role in a few weeks time.
I asked her about her study of nursing as reported to Dr Bentivoglio and was informed that she had ceased this course for the time being.
I questioned whether the injuries sustained in the motor vehicle accident had impacted on her decision to cease studying? I was informed “No, I decided to stop for a while based on other factors in my life which had nothing to do with the accident”.
The claimant confirmed her physical injuries had healed and she was back to pre-accident capacity. There were no ongoing symptoms apart from occasional anxiety about travelling in a car and an occasion sensation of pain upon sneezing. I asked her, “Does this impact on your employment and the new position at Woolworths?” and she responded “Not at all, I am working close to home and it is not far from home.”
The claimant confirmed she had no real ongoing problems from the accident and stated “I am happy with the settlement thank you”.
I checked with her whether she wished to seek legal advice before the matter concluded and she said “No thank you I am happy to proceed without seeing a solicitor.”
The terms of the settlement including how the sum had been reached were then discussed with the parties. Past economic loss was broken down to $8,000 with $661 for tax paid. Future economic loss was a buffer of $40,000 based on a sum of $100 weekly for 10 years.
I asked the claimant “Do you understand the nature and effect of the settlement?” and she responded “Yes, I know it brings the claim to an end and I am happy to settle the claim”.
The claimant also confirmed she was aware any medical treatment was outside the scope of the settlement.
The claimant confirmed she had received Centrelink payments whilst off work and that there was a likely charge but the amount was unknown to the claimant or the insurer. She was aware that whatever sum Centrelink eventually claimed would be in excess of the statutory payments made to date which amounted to $5,548.83.
I asked the claimant:
“Are you aware from the total sum to be received of $48,661 that a deduction of $5,548.83 would be made and the unknown Centrelink sum.?”
She responded “Yes and I know they both come out of the $48,661”.
I was informed that the claimant did not wish to seek any further investigations medical or legal. She was happy with the settlement and requested that I proceed to the determination.
The insurer was also asked if any further information or statement was to be made and
Mr Lal confirmed he had no further submissions to make and relied on those contained in the application.The preliminary conference concluded with me advising the I would determine the matter.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
Liability:
· application for statutory benefits dated 5 December 2022;
· application for common law damages dated 15 March 2023;
· liability notice dated 8 June 2023;
· police report dated 9 December 2022, and
· particulars dated 15 august 2023.
Treating medical records:
· ambulance report dated 20 February 2023;
· Port Macquarie discharge summary;
· Certificates of Fitness – various, and
· Clinical records
Medico-legal reports:
·Dr Bentivoglio dated 13 June 2023;
·Dr Bisht dated 5 December 2023;
Economic loss material:
· list of statutory payments dated 27 February 2024.
Settlement documents:
· offer of settlement dated 27 February 2024, and
· executed settlement agreement and release – dated 16 February 2024.
REVIEW OF THE EVIDENCE
Oral information from the claimant
The claimant confirmed the status of her health at the first preliminary conference. The resolution of physical symptoms and the return to work. She was asked if there were any ongoing problems from the injuries sustained in the accident and she reported no ongoing symptoms apart from occasional pain when sneezing.
The claimant confirmed she was back to work with a change in her position to full time duties. There was no impact on her ability to undertake work related tasks.
She reported that doctors had told her her fracture has “united”.
Apart from an occasional bout of anxiety when driving she had no further issues.
INJURIES
The claimant was conveyed to Port Macquarie Base Hospital and admitted with chest pain. Investigations revealed a fractured sterum.
She remained in hospital until 2 December 2022 and discharged into the care of her general practitioner Dr Han.
The clinical records produced in the matter confirm that the claimant initially sustained a fractured sternum.
The physical assessment conducted by Dr Bentivoglio “no abnormal physical findings”.
Treatment of pain relief and anti-inflammatory medication had ceased.
She reported a return to work with no ongoing complications.
Having reviewed the medical evidence, I am satisfied that the claimant’s injuries have now healed and she is does not qualify for non-economic loss.
ECONOMIC LOSS
Past economic loss
The claimant was working on a part-time basis as a cleaner in aged care at the time of the accident earning $1000 nett per week.
She was off work for approximately 7 weeks. The insurer allowed $1,100 and rounded past loss up to $8,000.
In addition an allowance was made for tax in the sum of $661 in accordance with the principles of Fox v Wood (1981)148 CLR 438.
The total for past economic loss equated to $8661.
I am satisfied that the losses have been calculated based upon primary records of the claimant to establish the losses claimed.
I was advised that statutory payments made to date amounted to $5,548.83 and that this sum was to be deducted. In addition, any sum claimed as a charge by Centrelink would also be deducted. The claimant was made aware of this.
Upon review of economic loss material and the certificates of capacity, I am satisfied that the losses have been incurred.
Future economic loss
Whilst the claimant has now returned to her pre-injury employment and has recently confirmed a full-time position in a new role as assistance manager, there may be occasions where there is a flare up of chest wall pain where she is required to take time off work and it is anticipated this will be intermittent at best.
A buffer of $40,000 has been made for such ongoing loss to her earning capacity into the future. She is currently aged 43 and has a remaining working life of a further 24 years.
Noting the recovery to date and the limited time taken off work, the buffer is made to account for loss of future earning capacity where her symptom flare, be they occasional chest pain or travel anxiety.
Having regard to the opinion of Dr Bentivoglio and Dr Bisht that there has been full recovery and there is no present ongoing impact to her earning capacity. The allowance for future economic loss appears 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 injuries, disabilities, impairments and losses sustained by the claimant as a consequence of the accident.
The claimant’s sternum has united, she has confirmed recovered and returned to full pre-injury capacity. The claimant confirmed there has been no time off since 17 January 2023.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past economic loss accord with the evidence provided by the claimant as to her earning capacity from her employer’s payslips. I am satisfied that the amount allowed for future economic loss accords with the most likely circumstances but for the accident. The amount agreed by way of a buffer for future economic loss 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 sustained have resolved. There is currently no ongoing treatment and recovery has been confirmed by her general practitioner.
The past economic losses were supported by medical certificates for the period immediately post-accident to 17 January 2023.
The claimant is aware that from her settlement the insurer will deduct the already paid statutory benefits in the sum $5548.83 and Centrelink charge.
I consider the agreed settlement in the sum of $48,661 for past economic loss and future economic loss 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 $48,661 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.
I am satisfied the claimant is aware that from the proceeds a sum of $5,548.83 will be deducted as prepaid statutory benefits and Centrelink charge is to follow.
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 $48,661.
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.
0