QBE Insurance (Australia) Limited v Kerlin
[2024] NSWPIC 294
•3 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Kerlin [2024] NSWPIC 294 |
| CLAIMANT: | Nathan Kerlin |
| INSURER: | QBE |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 3 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; section 6.23; dental injuries; time off for treatment; future economic loss; assumption as to most likely future circumstances; consideration of medical material; Held – settlement approval; past economic loss; future economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under section 6.23 of the Motor Accident Injuries Act 2017 The amount of the claim for damages is approved in the total amount of $66,217.00 |
STATEMENT OF REASONS
INTRODUCTION
Nathan Kerlin (the claimant) is a 32 year old man who lives on the south coast of New South Wales with his partner and her mother. On 4 April 2022 he was riding his scooter when the insured’s vehicle pulled out in front of him, giving him no time to stop and he came in contact with the insured’s vehicle, his scooter and his face. He suffered broken and cracked teeth, lacerations to his upper and lower lip, bruising to his chin and mouth, hand, knee and broken nose.
He has made a relatively good recovery although he still requires significant treatment. The parties have agreed that his injuries, whilst non threshold, would not exceed 10% whole person impairment and accordingly the claimant only has an entitlement to past and future economic loss.
The parties have agreed on a settlement figure of $66,217.00 which is made up by an allowance of future economic loss of $50,000.00, tax payments on pre-accident weekly earnings paid by the insurer of $3,217.00 and allowance of past economic loss of $13,000.00. From this figure an amount of $10,369.67 is to be deducted leaving the claimant with a figure of $55,847.33. There are no deductions from this figure. Both parties have requested that I approve the proposed settlement.
Documents considered
The bundle of documents included submissions, claim forms, pay slips, deed of release, a statement from the claimant and medical material. I have considered all this material together with the responses from the claimant primarily in respect to his understanding of the settlement of his matter, at the conference.
Injuries sustained
Whilst the claimant acknowledged in addition to the facial injuries he also sustained a bruised knee and a bruised hand. He was off work for about a week and thereafter returned to his employment as an electrician of a Snowy Hydro Scheme where he works two weeks on and one week off effectively a fly in fly out worker.
It is noted that it is his dental injuries which cause him ongoing concern. He has had three root canal treatments one of which did not work which, in turn, required minor day surgery to attend to stabilise the tooth structure.
He has required significant endodontic treatment to three teeth. He continues to need revision of his dental injuries and will, over the course of his life, most likely require a replacement of some of the crowned teeth which were damaged in the accident. This will require trips from his home at the south coast to Sydney for treatment.
It ought to be said that the claimant is a man of great strength and stoicism who downplays pain and trauma associated with very significant dental injuries.
As I advised the parties at the assessment conference I have no hesitation in approving the settlement as it quite fully and comprehensively makes an allowance for all possible loss of earnings consequent on the motor vehicle accident.
Reasons
The claimant and the insurer have confirmed that the allowance for past economic loss, noting the claimant had only identified about one week off post accident and thereafter intermittent periods off work for dental treatment, more than covers any possible loss. That is, it provides an allowance of $2,900.00 for four weeks plus 11% for loss of any employer superannuation contributions and then rounded up to $13,000.00.
This is almost double the pre-accident weekly earnings paid for by the insurer, as is outlined above, an additional sum for payments to the ATO in respect to any pre-accident weekly earnings paid to the claimant. As the claimant has indicated the past loss of earning would, following the first week after the accident, only as a consequence of his treatment requirements, all of which have been paid by the insurer.
In respect to the future economic loss the parties have agreed that a buffer allowance of $50,000.00 has been made.
This is loosely reflective of an allowance of about $100.00 per week net for 10 years plus superannuation less 15% for vicissitudes.
In respect to the calculations I accept this is perhaps an appropriate way to look at it although, quite clearly, at the time in which the claimant is obliged to attend Sydney his loss of earnings may exceed $100.00 in any given week but such future loss of earnings can’t be calculated on a weekly basis but rather calculated on the basis of intermittent trips for ongoing treatment.
The claimant has indicated there are no other impairments to his earning capacity, other than the need for ongoing dental treatment, in my view an allowance of $50,000.00 for future economic loss particularly noting that this is a net calculation, more than adequately provides for any possible losses suffered as a result of the need for dental treatment.
There is no material to support there is any other basis upon which the claimant’s future is likely to incur any future losses. He stated he has made a good recovery. He continues to pursue his pre-injury recreational activities fishing, yoga and surfing. He is managing his employment tasks without restriction. The dental treatment which he has undergone is stable for the time being.
An allowance for $50,000.00 for future economic loss is more than adequate to compensate any loss of earnings consequent on a need for ongoing dental treatment. There is nothing in the material to support there has been any other impairment of earning capacity or vocational opportunity.
I have no hesitation in approving this settlement.
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