QBE Insurance (Australia) Limited v Manfre
[2022] NSWPIC 266
•3 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Manfre [2022] NSWPIC 266 |
| CLAIMANT: | Josephine Manfre |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
DATE OF DECISION: | 3 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant now 62 years of age; serious accident; non-economic loss only; fracture of C2 (hangman’s fracture); fracture right transverse process C7; fracture right transverse process T1; fractured ribs; strain lumbar spine; fracture transfers process at L2/3 and L4; right haemothorax; subcutaneous emphysema right chest wall; right knee pain; psychological symptoms (largely resolved); constant pain neck, back and both legs; easily tired; no longer able to care for grandchildren 5 days a week; Held– settlement of claim for damages for non-economic loss approved in the sum of $200,000. |
| DETERMINATIONS MADE: | 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. |
Introduction
On 27 April 2019 Josephine Manfre (the claimant) sustained serious injury in a motor vehicle accident (the accident).
Ms Manfre has made a claim against QBE Insurance (Australia) Limited (the insurer) of the at fault vehicle, for lump sum damages.
On 29 March 2022 the insurer accepted liability for the claim for common law claim for damages.
The insurer has accepted that Ms Manfre had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Ms Manfre sustained the following injuries in the accident:
· fracture of the C2 vertebral body;
· fracture right transverse process C7;
· fracture right transverse process T1;
· multiple fractured ribs bilaterally;
· musculoligamentous strain lumbar spine;
· fractures involving the right transverse process at L2/3 and 4;
· small right haemothorax with contusion;
· subcutaneous emphysema right chest wall;
· right knee pain;
· seatbelt bruising; and
· musculoligamentous strain cervical spine.
The insurer has conceded Ms Manfre has sustained a whole person impairment (WPI) of greater than 10%. This means Ms Manfre is entitled to recover damages for non-economic loss.
Ms Manfre and the insurer have agreed to settle the claim for lump sum damages for the sum of $200,000. Because Ms Manfre is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
I held a teleconference on 3 June 2022 at 9 am. Ms Manfre appeared accompanied by her daughter Louisa Manfre and the insurer was represented by Mr Martin Cope.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the 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 Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
The relevant law
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%.
Section 6.23(2) and (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 7.37 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement satisfies the timing requirements in s 6.23(1) of the
MAI 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 account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the Ms Manfre, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) Ms Manfre understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
The following documents were considered:
· clinical notes of Royal North Shore Hospital;
· Application for Personal Injury Benefits dated 7 May 2019;
· Application for damages under common law dated 27 March 2022;
· liability notice dated 29 March 2022, and
· email from Martin Cope to Ms Manfre dated 18 March 2022 conveying offer of settlement.
Review of the evidence
The pre-accident medical history
Ms Manfre is now 62 years of age. She was 59 years of age at the date of the accident and lived with her husband and daughter.
Ms Manfre was born in Italy and came to Australia in 1965.
Ms Manfre disclosed she had suffered from a sore rigid shoulder on and off for about 10 years. She also suffers from type II diabetes and has undergone previous operations for cholecystectomy and excision of renal cysts.
The accident
The accident occurred on 27 April 2019 at about 5 or 5.30 pm. In her application for personal injury benefits Ms Manfre described the accident as follows:
“I was driving along Prince Edward Street, Gladesville when a black Mercedes driven by Frank Van Der Berg was driving at speed in a southerly direction. I was driving in the opposite direction and the Mercedes collided head on into my vehicle, pushing my vehicle onto the kerb and guttering. The driver of the Mercedes was drunk, as advised to me by the Police.”
Treatment and post-accident sequalae
Ms Manfre was transported by ambulance to Royal North Shore Hospital where she was treated as an inpatient until 17 May 2019 when she was transferred to Royal Ryde Rehabilitation Hospital where she remained until discharge on 31 May 2019. She was treated with physiotherapy.
The clinical notes of Royal North Shore Hospital disclose psychological trauma experienced by Ms Manfre including flashbacks/nightmares of the accident. Ms Manfre informed me she had two of three counselling sessions with a psychologist at Gladesville which helped her with those symptoms.
Thereafter she attended Ryde Rehabilitation Hospital for two weeks as an outpatient undergoing physiotherapy.
She underwent x-rays which revealed a Hangman’s fracture at C2 and a transverse process fracture on the right at C7. She also suffered multiple rib fractures, a small right haemothorax and fractures involving the right transverse at L2/3 and L4. Her cervical spine was immobilised in a Miami J collar, and she was treated with bedrest and analgesic medication.
Dr Raymond Wallace
Ms Manfre was assessed by Dr Raymond Wallace on 8 March 2022 who provided a report dated 14 March 2022.
At that time Ms Manfre was attending physiotherapy every three weeks and was taking Nurofen and Nuromol.
Dr Wallace reported Ms Manfre had constant aching pain at the right paracervical region at C5/6 radiating to the right scapular spine, right shoulder and intermittently to the right hand. The pain was described as worse on chopping, vacuuming, or hanging clothes on the line. She also reported intermittent paraesthesia at the right hand, weakness of the right arm and stiffness of the cervical spine. Dr Wallace also reported constant pain at the lower back and intermittent paraesthesia globally involving both legs.
Dr Wallace reported Ms Manfre’s sleep is disturbed occasionally, and she has been unable to resume her pre-injury level of exercise.
Dr Wallace concluded Ms Manfre suffered injuries at her cervical spine, chest wall and lumbar spine as a result of the accident including a significant fracture at C2.
Dr Wallace concluded Ms Manfre had a poor prognosis for any further recovery of her cervical or lumbar spine. Dr Wallace assessed a 23% WPI arising out of the accident.
Currently
Ms Manfre informed me that she continues to experience constant pain in her neck, lower back and both legs. She said her leg sometimes twist and she has had a few falls. She said she now tires easily and cannot walk as well. She is no longer able to do as much housework.
Ms Manfre informed me she continues to have physiotherapy treatment every four or five weeks and also takes painkillers. She has been informed that no further treatment is available.
Even though she was not in paid employment at the time of the accident Ms Manfre helped her daughter by caring for her grandchildren five days a week but now she is only able to care for them for two days a week at the most.
I asked Ms Manfre about seeking legal advice. She said she did not have the energy to do so and did not wish to obtain legal advice. She wished to proceed with the settlement.
Should I approve the settlement
Section 1.4 of the MAI Act defines non-economic loss as:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $595,000.
The medical evidence suggests there is only likely to be an inexorable increase in
Ms Manfre’s pain and disability.I am satisfied that Ms Manfre 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 expenses.
I am satisfied Ms Manfre understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Ms Manfre understood there will be no repayment to Centrelink or any impact on her ongoing entitlements.
Mr Cope advised the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. He advised in the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum.
Taking into account Ms Manfre’s age, the day-to-day impact of her injury on her life and the likely deleterious impact on her life as she ages, I am of the view that the sum of $200,000 is an appropriate award of damages for non-economic loss.
Conclusion
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is agreed Ms Manfre has sustained a permanent impairment greater than 10% and where it is now two years since the date of accident.
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, impairments and losses sustained by Ms Manfre.
I am satisfied Ms Manfre is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Manfre understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Ms Manfre is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the MAI Act I approve the settlement of Ms Manfre’s claim for damages in the sum of $200,000.
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