QBE Insurance (Australia) Limited v Khullar
[2023] NSWPIC 172
•18 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Khullar [2023] NSWPIC 172 |
| Claimant: | Abhinav Khullar |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | David R Ford |
| DATE OF DECISION: | 18 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 41-year-old driver involved in a head-on collision; sustained multiple fractures of the left hand and bruising to chest and abdomen; eventually returned to full unrestricted duties; employed as a chef in a hotel restaurant; claimant is left-handed; some residual pain after continuous use of left hand; entitled to damages for past and future economic loss only; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23 (2)(b). |
| determinations made: | CERTIFICATE OF DETERMINATION DETERMINATIONS MADE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was driving his motor vehicle on 11 March 2020, when he was involved in a head on collision with the insured vehicle. He sustained injuries to his left wrist, left ankle and abdomen. He was taken by ambulance to Gosford Hospital, where he was admitted and remained as an inpatient for several days. He was diagnosed with fractures in the left hand, second third and 4th metacarpals and the left radial styloid. He also suffered bruising to the chest and abdomen.
He is a chef by profession and was unfit for work for several months after the accident and eventually, he returned to work but with some difficulties. He was referred to a specialist, Dr Morton who noted in July 2020, the fractures in the left wrist had healed however, there was advanced arthritis in the left ankle. He received a cortisone injection into the left wrist with temporary benefit and two cortisone injections in the left ankle, also with temporary benefit. He took some time off work due to COVID-19 closures and later, took unpaid leave to look after his new child.
On 20 October 2021, he had an MRI of the left wrist confirming De Quervain’s tendinopathy and a partial tear of the scapholunate ligament. In September 2022, he underwent left wrist surgery, performing a left carpal tunnel release, left De Quervain’s tendon release and arthroscopy cleaning out the left carpal joints. Following the surgery, he was unfit for work for a period of five months. He occasionally takes Panadol for pain relief. Since 10 January 2023, he has been working full time as a chef at the Woolwich Pier hotel. He works 9 1/2 hours a day, five days a week with constant standing.
He was born in 1982 and is presently 41 years of age. He is left-handed and he does suffer from pain and aching in the left wrist after a day's work but manages to cope with this pain by taking Panadol medication. He informed me he can carry out all the tasks required of him by his employer as a chef, but on occasions does need to pause while working and allow a short period to rest his left hand. Dr Keller was of the opinion this persisting pain would slowly improve over the next few years with ongoing activity.
The claimant advised me he wishes to accept the proposed settlement.
The insurer conceded the claimant is entitled to damages. The claimant only has a claim for past and future economic loss and Fox v Wood.
I consider the settlement is appropriate in all the circumstances of this case.
The claimant is not represented by a lawyer and accordingly, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act). I have decided to approve the proposed settlement as submitted in this application.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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 General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed he can carry out the day-to-day employment tasks required by him.
The claimant confirmed he had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
I am satisfied the claimant is aware of his right to have reasonable treatment expenses paid for the remainder of his life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter, the claimant may be transferred to ICARE who will be liable for ongoing reasonable treatment expenses.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, taking into account the nature and extent of the claim, the injuries, disabilities and impairments sustained by the claimant.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (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 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, taking into the 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
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 14 APRIL 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a first preliminary teleconference on 14 April 2023. The claimant participated in person in the insurer was represented by Meena Singh.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss in the sum of $46,290. Future economic loss, $41,990, Fox v Wood $6278. Total settlement rounded up to $101,864.60 less payments to date of $46,290.60 results in a nett payment to the claimant of $55,574.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
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