QBE Insurance (Australia) Limited v Kendrick
[2022] NSWPIC 365
•7 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Kendrick [2022] NSWPIC 365 |
| CLAIMANT: | Pamela Kendrick |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 7 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 69-year-old female; cycling accident; fracture neck of left femur and left elbow requiring total left hip replacement and wiring of left elbow; 18% whole person impairment so entitlement to non-economic loss; no past and future economic loss; retired; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | 1. The proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
INTRODUCTION
On 12 March 2020 Pamela Kendrick (the claimant) sustained injury in a motor vehicle accident (the accident). She was riding her bicycle along Pine Road at Yennora, wearing a helmet and when she reached a railway line. She noticed a vehicle had stopped at a right angle to the crossing. She proceeded to ride around the stopped vehicle when it suddenly reversed into her knocking her off her bicycle.
The claimant has made a claim against QBE (the insurer) of the at fault vehicle, for lump sum damages having lodged her claim on 19 April 2022.
On 3 May 2022 the insurer conceded that the claimant sustained injury which is not minor and admitted liability. There was no allegation of contributory negligence.
Police and ambulance attended the scene. She was taken to Liverpool Hospital. She had sustained a left subcapital neck of femoral fracture and left open olecranon fracture requiring immediate surgery.
The insurer has accepted that the claimant had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Dr Bentivolglio, orthopaedic surgeon qualified by the insurer, assessed the claimant’s injuries for the insurer with an examination of the claimant in his Sydney rooms on 20 October 2021. The claimant’s whole person impairment was determined to be 18%. Being greater than 10% whole person impairment means the claimant is entitled to recover damages for non-economic loss
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $200,000 for non-economic loss. The settlement offer does not include other economic losses as the claimant is retired.
Because the claimant is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
I have upon review of all the information before me and the detailed information provided by the claimant in the teleconference held on 27 June 2022.
I am to determine whether the proposed settlement complies with any applicable requirements of the MAI Act or cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the 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 Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre- establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
THE RELEVANT LAW
Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23(2) and (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 satisfies the timing requirements in s 6.23(1) of the MAI Act;
(b) 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 claims assessor, 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, and
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
TELECONFERENCE ON 27 JUNE 2022
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 27 June 2022. The claimant participated in person and the insurer was represented by Elveen Lal.
I discussed the details of the terms of settlement with the parties and sought additional particulars from the claimant as to her current condition, the extent of treatment she was undertaking, the effect of any symptoms on her daily activities and discussed the finality of the claim upon a settlement being reached.
The claimant confirmed she sustained injuries when the insured reversed into her causing her to fall from her bicycle. Her injuries were significant. She required surgery for her injuries a hip replacement and wiring of her left elbow.
The claimant reported her impressive recovery indicating that she was no longer on any treatment regime and had now returned to her pre-accident recreational activities which included a weekly 17km walk and regular bicycle riding. She said she “had an odd creak here and there nothing unexpected for a 70 odd year old” and whilst one leg was a millimetre or two longer she did not require orthotics and was “fine”.
She also reported her left arm did not properly straighten but she was right handed and had no arm issues.
She continues to enjoy regular bike riding as she had undertaken pre-accident.
Her recovery was described as “near perfect” she said she is not a hypochondriac and so did not require any ongoing care or treatment.
I asked if any future surgery was likely and she indicated that there was “no need to replace any wire in the elbow or remove it”.
The claimant explained she was “very fit prior to the accident and this assisted her recovery. She is no longer taking any medications and advised she was not suffering from any ongoing pain.” The only appointment she has is with her treating specialist in three years time, if she feels she needs it or “remembers it”.
I requested a copy of the terms of settlement and deed of release. The insurer provided me a copy of the document on 29 June 2022.
I requested details from the claimant as to her understanding of the claim and its finality. She informed me she was entering the agreement of her own volition and was aware she could obtain independent legal advice and considered this was not necessary.
I explained that there would be no additional amounts that could be claimed for economic loss once this amount had been agreed upon and the claimant advised me she was happy with the result. I asked her if she had considered consulting a lawyer.
I was advised she did not want to go down that route and was quite happy with the sum involved. She indicated she was wanting to finalise the matter as soon as possible.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents and information:
· insurer submissions;
· oral evidence of the claimant given during the teleconference;
· application for personal injury benefits dated 7 May 2020;
· police report dated 15 July 2020 ( event number 74445471);
· liability notice dated 3 May 2022;
· various post operative reports of treating surgeon Dr Laird to Dr Gummad general practitioner;
· discharge summary of Liverpool Hospital dated 19 May 2020;
· report of Dr Bentivoglio dated 21 October 2021;
· acceptance of offer by claimant dated 3 May 2022, and
· deed of settlement uploaded post teleconference on 29 June 2022.
REVIEW OF THE EVIDENCE
The claimant is currently 69 years of age.
The claimant’s pre-injury medical history was clear. She was fit and healthy participating in regular physical activities such as walking cycling kayaking.
The claimant was not working at the time of the accident and had no intention to return to the workforce resulting in damages being limited to non-economic loss only.
She was taken by ambulance to Liverpool Hospital and was reviewed in emergency.
Investigation revealed the claimant sustained injury to her left hip and elbow which required surgery. Dr Laird consultant orthopaedic surgeon was appointed to performed the surgery.
Surgery was undertaken on 15 March 2020.
She remained in hospital for nine days according to Liverpool Hospital patient history records. Upon release she had her left arm in a cast. The discharge summary records she was to follow up with her surgeon and review by family doctor. Sutures to be removed in 14 days. No driving until cleared no swimming for four weeks and regular paracetamol as well as Endone if required.
Dr Laird provided regular updated to her general practitioner and on 24 July 2020 he reported the following:-
“Pamela is now four months post op and she is doing very well. Her x rays look great, range of motion in elbow is almost normal and she is quite happy with the result. ...she asked about returning to cycling, kayaking and ice-skating ..”
Dr Bentivoglio qualified by the insurer referred to current symptoms in his report dated 21 October 2021 at page 2.
“Ms Kendrick does not have any significant pain present in her left hip or left elbow. She is able to sleep on her left-hand side. She finds that since the accident she is unable to run or jump on her left-hand side. She does not notice and crepitations present on moving her elbow.
Her recreational activities involve cycling, kayaking and walking, She is now back doing these activities”.
He on clinical examination confirmed the following:
“Left Elbow:
had a well healed scar over her elbow... There was no muscle wasting present at her left forearm, She had a full rotation present in left forearm. ..She lacked 10 degree of full extension ...but had full flexion.”
“Left Hip
She had a well healed scar measuring 22 cm in length over the posterior aspect of her hip. It was not attached to underlying tissue, She had a negative Trendelenburg’s test. There was no obvious leg length discrepancy ..she demonstrated a full range of movement present in her left hip.”
He opined her whole person impairment amounted to 18%. This assessment entitled the claimant to damages for non-economic loss.
I am satisfied that the medical evidence before me that the opinions of Dr Bentivoglio and Dr Laird accord with the assessment of the injuries sustained and the recovery as defined in the medical records and the oral information give directly by the claimant to me.
The reports of Dr Laird confirms the claimant’s evidence of a very successful recovery.
INJURIES
According to the hospital records the claimant sustained the following injuries:
a. fracture of left neck of femur, and
b. fracture of left elbow.
The claimant required open reduction and fixation. She was hospitalized for nine days.
Surgery was performed by Dr Laird and numerous attendances post op assessed recovery.
X-rays revealed well healed fractures and left hip replacement was in appropriate position.Her elbow was in plaster for three to four weeks and she did not require physiotherapy post operation.
The claimant has reported whilst there is a slight loss of extension in her left elbow she has regained full strength in both her elbows and hip.
Whilst the claimant is not currently undergoing any treatment, the insurer noted that any further treatment required will continue to be provided to the claimant (on the basis it is reasonable and necessary) irrespective of settlement of the claimant’s damages claim.
Mr Lal advised the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum.
THE CLAIM
The claimant sought damages for non-economic loss. There was no claim for past and future economic loss as the claimant was retired.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) Unless a claimant has a whole person impairment of greater than 10%, the claim cannot be settled within two years.
Time frames have been complied with.
(b) The settlement must be approved by a Member of the commission and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the MAI Act or the MA Guidelines.
I am satisfied that there has been compliance with the Act and guidelines.
(c) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:
(i)Sub cl 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount has been broken down as $200,000 for non economic loss.
(ii)Sub-cl 7.389.2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There are no deductions to the settlement sum. This was confirmed in the teleconference.
(iii)Sub- clause 7.389.3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement.
(iv)Sub clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received as much information as the insurer and the claimant have been able to provide. Whilst the claimant was given an opportunity to provide an orthopaedic opinion and further medical information, this opportunity was declined as the claimant considered her recovery complete.
(d) Clause 7.399 of the MA Guidelines, requires me to consider the following:-
(i)Sub-cll 7.399.1 Timeliness – the proposed settlement satisfies the timing requirements in the Act.
This has been satisfied.
(ii)Sub-cl 7.399.2 Appropriateness – 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 claims assessor, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed of the medical evidence produced in this matter, I am satified that the nature of the claimant’s injuries and the ongoing disabilities are known and have stabilised, the extent of past and likely future treatment is known as it related to ongoing pain and suffering and there being no further surgical intervention, would enable me to ascertaiin whether the damages agreed to in the sum of $200,000 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.
The claimant was advised at the first teleconference that should she wish to, she was at liberty to seek independent legal advice and that in the event that further medical evidence was provided to establish any deterioration, since the Insurer’s medical investigation were undertaken, that such information could impact on the non-economic losses. The claimant was pleased with the success of her recovery and wanted the matter finalised and did not wish to investigate further any component of her claim.
(iii)Sub-cl 7.399.3 understanding – the claimant understands the nature and effect of the proposed settlement is the finality of his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses, which to date there weer none. She was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse HIC separately. This was confirmed by Ms Cavanna of QBE on 7 July 2022.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
Determination
(a) The proposed settlement is approved.
(b) The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.
(c) The proposed settlement complies with cl 7.392 to cl 7.411 of the MAI Act.
Shana Radnan
Member (Motor Accidents Division)
Personal Injury Commission
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