QBE Insurance (Australia) Limited v Magtoto

[2022] NSWPIC 619

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

QBE Insurance (Australia) Limited v Magtoto [2022] NSWPIC 619

Claimant:

Jonalee Magtoto

insurer:

QBE Insurance (Australia) Limited

Member:

Hugh Macken

DATE OF DECISION:

7 November 2022

CATCHWORDS:

MOTOR ACCIDENTS - Settlement approval; prior Injuries; loss of vocational opportunities; Held – the amount of the claim for damages is approved in the total amount of $70,000.

determinations made:

SETTLEMENT APPROVAL

Issued under section 6.23 of the Motor Accident Injuries Act 2017

1.    The amount of the claim for damages is approved in the total amount of $70,000.

STATEMENT OF REASONS

introduction

1. The claimant was injured in a motor vehicle accident which occurred on 13 February 2020. The vehicle which she was driving was struck along its side by the insured’s vehicle. The claimant alleges she suffered an injury to her back and right shoulder. The insurer has paid the sum of $24,368.25 for past loss of wages for which it seeks a credit. Accordingly, the amount payable to the claimant, being an allowance for future economic loss only, is agreed in the sum of $45,631.75.

2. The claimant is not represented by an Australian Legal Practitioner.

3. The claimant attended the conference by telephone from Singapore where she is on route to the Philippines to attend a funeral.

DOCUMENTS CONSIDERED

1. I have considered the documents provided in the application and the reply and any further information provided by the parties at the preliminary conference.

REASONS

1. The claimant is a 34-year-old woman who was in fairly good health at the time of the accident. She had previously suffered injuries to similar body parts in a motor accident which occurred in 2015.

2. The claimant agreed that the report of Dr J. Bentivoglio dated 10 October 2022 accurately sets out the totality of her circumstances. That is, that she was advised to continue conservative treatment following her injuries, she has not sought any specialist or rehabilitation treatment. She is a married woman who works as a venue manager, she resides with her working husband and cares for the 2 children aged 16 and 2 years old.

3. The parties agree that the claimant’s injuries do not exceed the 10% threshold. At the time of the accident, she was working in venue management. She suffered past economic loss consequent on time off work and going part time. Whilst she is currently overseas for a further 3 weeks, she anticipates returning to part time and then full time employment with the same employer as she worked for prior to the accident.

4. It is arguable that the claimant’s earning capacity is the same at it was pre-accident as it is today. That said, the insurer has made an allowance for future economic loss, effectively by way of a buffer, to take into account some intermittent periods off work, some periods of losses associated with working part time rather than full time and the possibility of some loss of vocational opportunities.

5. Noting the medical material, which the claimant specifically stated was accurate, and noting a relatively minor nature of the injuries together with the diminishing effects it has had on her employment I agree that the settlement reached between the parties is appropriate and I have no hesitation in approving the proposed resolution of this matter.

Legislation

10.  In making my decision I have considered the following legislation and guidelines:

• Motor Accident Injuries Act 2017 (NSW) (“the Act”)