QBE Insurance (Australia) Limited v Janes

[2023] NSWPIC 212

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

QBE Insurance (Australia) Limited v Janes [2023] NSWPIC 212

Claimant:

Elise Janes

insurer:

QBE Insurance (Australia) Limited

Member:

Hugh Macken

DATE OF DECISION:

24 April 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23; claimant is a 38-year-old teacher; injured in a motor vehicle accident; insurer has admitted breach of duty of care with no allegation of contributory negligence; primary injury suffered by the claimant was a fractured right big toe and whiplash injury; claimant recovered from soft tissues injuries but not as active as prior to injury; Held – the amount of the claim for damages is approved in the total amount of $20,000.

determinations made:

SETTLEMENT APPROVAL

Issued under section 6.23 of the Motor Accident Injuries Act 2017

1.    The amount of the claim for damages is approved in the total amount of $20,000.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant is a 38-year-old teacher with a 3-year-old and a 1-year-old child. Her partner is in full time employment and she is currently off work so that she can spend time with her 2 children, the youngest of whom has had some medical issues.

2. She was injured in a motor vehicle accident which occurred on 6 March 2020. The insurer has admitted breach of duty of care with no allegation of contributory negligence.

3. The matter has settled between the parties by way of a lump sum $20,000 plus the past wage payments made by the insurer in the sum of $11,092.41. In effect then the proposed settlement figure is $31,092.41 which will leave the claimant $20,000 clear.

4. The primary injury suffered by the claimant was a fractured right big toe. She also suffered a whiplash injury.

5. The report of Dr G. Doig notes some calf atrophy and some ongoing impairment consequent of the toe fracture but states:

   “The overall prognosis is good to excellent with respect to her musculoskeletal injury in that Ms Janes has returned to the majority of activities of daily living with minor restrictions.”

6. The claimant has indicated that she has basically recovered from soft tissues injuries and only has very intermittent trouble. She is not receiving any regular ongoing care. Whilst she is not as active as she was prior to the accident she puts this down, primarily, to needing to spend time with her young children and caring for them.

7. I accept the claimant is in a position to make an assessment of her future impairment and I accept a buffer of some $15,000 for future impaired earning capacity will cover any likely contingencies which the claimant may face. I note the past economic loss includes a further $5,000 beyond those payments made by the insurer in respect to periods off work or loss of superannuation benefits or past reduction of earning.

8. In all the circumstances I have no hesitation in approving the proposed settlement figure.

Legislation

1. In making my decision I have considered the following legislation and guidelines:

   ·Motor Accident Injuries Act 2017, Section 6.23 (3)

   ·Motor Accident Injuries Regulation 2017, Section 7.37