QBE Insurance (Australia) Limited v Lamborn

[2022] NSWPIC 58

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

QBE Insurance (Australia) Limited v Lamborn  [2022] NSWPIC 58

CLAIMANT:

Mary Lamborn

INSURER:

QBE Insurance (Australia) Limited

MEMBER:

David Ford

DATE OF DECISION:

20 January 2022

CATCHWORDS:

DETERMINATIONS MADE:

MOTOR ACCIDENTS – Settlement approval; 75 year old female; passenger in a motor vehicle involved in a head on collision; sustained severe internal injuries which included a serosal transverse Colon tear and approximal jejunal laceration requiring laparotomy and repair, non-operative compression of L3 vertebra significant bruising on right side of the body, left arm and shoulder and cuts and abrasions to the forehead and hands; no allegation of contributory negligence; Insurer conceded claimant entitled to damages for non-economic loss; no claim for past or future economic loss; Held - her proposed settlement is just, fair, and reasonable; settlement approved.

1.        The proposed settlement is approved under section 6.23 (2)(b) of the Motor Accidents Injuries Act 2017 (the MAI Act).

2.        The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines 2017 (the Guidelines).

Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017

1. This proposed settlement is approved.

2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Guidelines 2017

Determinations Made

1. The proposed settlement is approved under section 6.23 (2)(b) of the Motor Accidents Injuries Act 2017 (the MAI Act).
2. The proposed settlement complies with clause 7.38 of the Motor Accident Guidelines 2017 (the Guidelines).

Introduction

3. On 20 October 2018 the claimant was a passenger traveling west along Bilpin Road at Bilpin. It then transpired a motor vehicle travelling in the opposite direction attempted to overtake another vehicle and this said vehicle drove onto the incorrect side of the roadway colliding head on with the motor vehicle in which the claimant was a passenger.
4. The claimant was conveyed by helicopter ambulance to Westmead Hospital where she was admitted. The claimant suffered severe internal injuries which included a serosal transverse colon tear and approximal jejunal laceration requiring laparotomy and repair. The claimant also suffered a non-operative compression of the L-3 vertebra. The claimant also suffered significant bruising on the right side of her body, left arm and shoulder and cuts and bruising to the forehead and hands.
5. The insurer accepted liability for statutory benefits after 26 weeks. The insurer arranged for Rosemary Wu of QBE Insurance to assess the claimant’s whole person impairment and I refer to her detailed assessment dated 30 June 2021. In summary, by letter dated 1 July 2021 the insurer provided an estimate of the claimant’s whole person impairment as being 35%. Details of the assessment are as follows:

(a)    colonic and rectal impairment class 2 10%;

(b)    DRE 1V L3 fracture 20%;

(c)    left shoulder 5%, and

(d)    scarring 2%.

6. The insurer therefore considered the claimant is entitled to damages for non-economic loss.
7. The claimant was born in 1946, and she is currently 75 years of age. The claimant has only sought damages for non-economic loss and has not sought damages for either past or future economic loss.
8. The claimant is not represented by a lawyer and accordingly, her settlement must be approved in accordance with the MAI Act.
9. I have decided to approve the proposed settlement as submitted in this application.

Jurisdiction of the Personal Injury Commission

10. The Personal Injury Commission (the Commission) was established on 1 March 2021 and the dispute resolution service was abolished by clause 3 of part 2, Division 2, Schedule 1, to the Personal Injury Commission Act 2020.
11. 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 clause 14 (D) empowers me to determine those proceedings.
12. Because the date of the accident clause 14 D (3) (b) provides the MAI Act and the Guidelines continue to apply.

The relevant law

13. 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%.
14. 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.
15. Clause 7.38 of the Guidelines states I must be satisfied as to the following:

(a)    the proposed settlement certifies the timing requirements in section 6.23 (1) of the 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 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

(c)    Ms Lamborn understands the nature and effect of proposed settlement and was willing to accept the proposed settlement. 

Teleconference 8 December 2021

16. The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a teleconference on 8 December 2021.
17. Ms Lamborn participated in person and the insurer was represented by Ivan Kasunic.
18. I advised Mr Kasunic the proposed Deed of Release was not included in the documents lodged in the portal. I then arranged for Mr Kasunic to lodge the proposed agreement of release in the portal and also forward the Deed of Release by post to Ms Lamborn. On the morning of 18 January 2022, I received by email a copy of the duly executed Deed of Release signed by both parties and dated 3 January 2022. I have read the said Deed of Release, and I approve the terms and conditions stated therein and I confirm the claimant will be paid the sum of $200,000 by the insurer and there are no deductions to be made from this said sum.  

Should I approve the settlement

19. I am satisfied it is appropriate in this matter to assess damages for non-economic loss in the sum of $200,000 and I consider this amount to be acceptable and within the range likely to be awarded.
20. I am satisfied the claimant is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expense.
21. Mr Kasunic advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act 1995 (CWLTH) from the settlement sum. If any charge is raised, the insurer will pay the charge as a treatment expense in addition to the settlement sum.

CONCLUSION

22. I find the timing requirements of section 6.23 (1) of the MAI Act satisfied where it is now two years since the date of the accident.

23. I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments 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 Ms Lamborn.
24. I am satisfied Ms Lamborn is aware she can seek legal advice but does not wish to do so.
25. I am satisfied Ms Lamborn understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.
26. I am satisfied Ms Lamborn is willing to accept the proposed settlement.
27. Accordingly, pursuant to section 6.23 (2)(b) of the MAI Act, I approve the settlement of Ms Lamborn’s claim for damages.

David Ford

Sessional General Member

Personal Injury Commission