QBE Insurance (Australia) Limited v MacFarlane
[2023] NSWPIC 459
•11 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v MacFarlane [2023] NSWPIC 459 |
| CLAIMANT: | Wendy MacFarlane |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 11 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages for mental harm; claimant’s son fatally injured in a motor vehicle accident; claimant suffers from post-traumatic stress disorder and major depressive disorder; claimant is a 60-year-old pensioner entitled to damages for non-economic loss only; insurer conceded claimant entitled to damages for non-economic loss; Held – the proposed settlement is just, fair and reasonable; settlement approved section 6.23 (2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 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. |
STATEMENT OF REASONS
INTRODUCTION
This application is a claim for damages for mental harm sustained by Wendy MacFarlane (the claimant) arising from a motor vehicle accident on 11 July 2020, which resulted in the death of her son. The claimant has made a claim for damages for non-economic loss only.
The insurer made arrangements for her to be examined Dr Frank Chow, psychiatrist, and
I refer to his report dated 8 June 2023 he assessed the claimant by video conference on
15 May 2023. He refers to some of her pre-existing medical conditions, which I will not refer to in my Reasons, as they are not relevant to the approval of this settlement.
At the time of her son's accident, she was in receipt of a disability support pension for pre-existing depression and anxiety. After the accident, it was necessary for her to identify her son's body with the police, which she found very hard to witness and cannot forget the scene as a consequence, she suffers from nightmares, flashbacks recurrently, especially with her needing to identify her son’s body. She has been traumatised and depressed since the accident and many things triggered her psychological difficulty, especially with any reminders of her son. She avoids looking at his photographs, avoids talking about her son. She is still not able to sort out his belongings and it is too stressful and too much for her too confront.
She has poor sleep, she is anxious easily. She has lost faith in God. She has no interest to do to do things or see people. She has poor motivation.She was feeling helpless that she could not help and save her son. She was teary easily. She has been suicidal a few times but is not currently suicidal. She was seeing her psychologist early on, weekly and now, every three to four weeks. The last three years she has continued engaging with her psychologist through telehealth and telephone sessions. Dr Chow stated the prognosis of her condition is likely to remain ongoing and chronic. He is of the opinion she suffers from an aggravation of her pre-existing psychiatric conditions as a result of her son’s death. She suffers from post-traumatic stress disorder and major depressive disorder. He assessed her whole person impairment at 17%.
The claimant was born in 1963 and is presently 60 years of age. I accept the death of her son has had a significant and lasting effect upon her mental health. She has had two previous marriages, her last marriage ended 22 years ago. She has had three sons from the two marriages. She lost her second son in 2010 from suicide, and in 2013, she lost her elder son from a heart attack.
The insurer conceded the claimant is entitled to damages. The claimant has a claim for non-economic loss only. The insurer has proposed a settlement offer of $225,000.
The claimant advised me she wishes to accept the proposed settlement.
I consider this settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
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 clause 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 she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
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.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she 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 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 28 AUGUST 2023
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 28 August 2023. The claimant participated in person and the insurer was represented by Elveen Lal.
The proposed deed of release was lodged on the portal together with the application for approval of the settlement.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages in the sum of $225,000.
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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