QBE Insurance (Australia) Limited v Mathur
[2021] NSWPIC 385
•8 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Mathur [2021] NSWPIC 385 |
| CLAIMANT: | Shashi Mathur |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 8 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; 71 year-old pedestrian at date of accident; left tibial plateau fracture and medial malleolar fracture; significant pre-existing osteoarthritis at date of accident; accident created need for knee replacement surgery; loss of mobility; constant pain and swelling of left leg; difficulty standing, walking and negotiating steps; likely development of post traumatic arthritis; difficulty with domestic tasks; fear of driving; damages limited to non-economic loss; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | 1. The 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 10 May 2018 Shashi Mathur (the claimant) sustained serious injury in a motor vehicle accident (the accident).
Mrs Mathur has made a claim against QBE Insurance (Australia) Limited (the insurer) of the at fault vehicle, for lump sum damages.
The insurer accepted liability for Mrs Mathur’s claim for statutory benefits and has paid treatment benefits to, or on behalf of Mrs Mathur.
The insurer has accepted that Mrs Mathur 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.
In the accident Mrs Mathur suffered a pelvic fracture, a comminuted fracture of the left proximal tibia and a bimalleolar ankle fracture. The insurer has conceded Mrs Mathur sustained a permanent impairment of greater than 10%. This means Mrs Mathur is entitled to recover damages for non-economic loss.
Mrs Mathur and the insurer have agreed to settle the claim for lump sum damages for the sum of $200,000. Because Mrs Mathur 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 8 September 2021. Mrs Mathur participated in the teleconference and the insurer was represented by Ms Viji Mohan.
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the PIC) 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.
I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 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 7.38 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 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 Mrs Mathur, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) Mrs Mathur understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Documents considered
I have considered the following documents:
· Application for personal injury benefits dated 21 May 2018;
· Application for Damages under Common Law dated 19 May 2021;
· Certificate of capacity/certificate of fitness dated 21 May 2018;
· report of Dr Wadhera of St Clair Medical Practice dated 16 July 2021;
· clinical notes of Dr Robert Molnar;
· clinical notes of Westmead Hospital;
· email from Viji Mohan on behalf of the insurer conveying an offer of settlement dated 28 July 2021;
· email from Mrs Mathur to the insurer accepting the offer of settlement dated 30 July 2021, and
· reports of Dr Robert Molnar dated 21 June 2018, 2 August 2018, 22 November 2018, 8 November 2018, 14 February 2019, 26 March 2019, 12 September 2019, 12 March 2020, and 25 August 2020.
Review of the evidence
At the date of the accident Mrs Mathur was 71 years of age. She lived at home with her husband. She mobilised independently, was very active and was still driving. She also completed all personal care and domestic duties independently.
Mrs Mathur is now 75 years of age and is in receipt of the aged pension.
In the Application for personal injury benefits Mrs Mathur provided the following description of the accident:
“The signs into the underground car park are not clear. My husband drove some way into the exit. It was sloping and narrow. I got out of the car to guide him as he was reversing. By mistake, the back left tyre went over my foot, I fell down, 5 or 6 people came for help. An ambulance was called and took me to Westmead Hospital.”
Following the accident Mrs Mathur was conveyed by ambulance to Westmead Hospital where she came under the care of Dr Robert Molnar, orthopaedic surgeon. Mrs Mathur underwent surgical fixation on 11 May 2018 of the left tibial plateau fracture and the medial malleolar fracture. Dr Molnar reported Mrs Mathur had significant osteoarthritis affecting the left knee and for that reason he took a lateral only limited approach, although he noted ultimately, she would require knee replacement as definitive treatment for her injury.
Mrs Mathur was transferred to Westmead Rehabilitation Hospital on 16 May 2018 where she received treatment as an inpatient until 6 July 2019. At the time of discharge Mrs Mathur was attempting to mobilise independently wearing a CAM boot with two Canadian crutches and to be independent in personal care. Following discharge, Mrs Mathur participated in a day rehabilitation program.
On 22 November 2018 Mrs Mathur underwent surgery under general anaesthetic at Westmead Private Hospital to remove the hardware from her left knee and ankle under the care of Dr Molnar.
Mrs Mathur underwent extensive physiotherapy.
On 14 February 2019 Mrs Mathur underwent left total knee replacement surgery at Westmead Hospital.
Mrs Mathur was reviewed by Dr Molnar on 26 March 2019 when he reported the wound was well healed. He noted at that time Mrs Mathur was mobilising with the aid of one crutch. Dr Molnar reviewed Mrs Mathur again on 12 September 2019, six months post left total knee replacement surgery. He reported she was progressing extremely well and was able to mobilise independently. Mrs Mathur underwent a 12-month review with Dr Molnar on 12 March 2020. He again reported the prosthesis was in an excellent position with no periprosthetic complications. Dr Molnar referred Mrs Mathur back to her general practitioner, Dr Wadhera for ongoing care.
Mrs Mathur returned to see Dr Molnar on 25 August 2020 complaining of pain radiating down the lateral aspect of her left leg to the anterior aspect of her knee. The pain was intermittent but worse with activity. Dr Molnar reported Mrs Mathur could walk up to an hour and a half a day, she had no significant swelling of the knee and x-rays demonstrated the prosthesis was in an excellent position with no periprosthetic complications. Dr Molnar suggested Mrs Mathur’s symptoms may have been spine related, having regard to the presence of degenerative change throughout the lumbosacral spine. He suggested that if the symptoms fail to improve Mrs Mathur proceed with a lumbosacral spine MRI.
In her report dated 16 July 2021 Dr Wadhera of St Clair Medical Practice reported Mrs Mathur has been left with weakness and restricted movements in the left leg, knee, and ankle. She reported Mrs Mathur has developed a fear of being in a car, she has flashbacks of the accident and sleep disturbances. Dr Wadhera reported constant pain and swelling of the left leg, difficulty standing, walking on an incline and in negotiating steps and stairs. She reported Mrs Mathur needs help with cleaning, lawns, and gardening. She concluded Mrs Mathur is likely to develop post traumatic arthritis, with muscle wasting and restricted movements in the left leg. She stated Mrs Mathur is likely to experience ongoing issues with her left leg including increased risk of falls and further fractures.
Mrs Mathur informed me she has constant pain, she cannot stand for prolonged periods, she cannot lift heavy things, she cannot bend and can only walk for about 15 to 20 minutes at a time. Mrs Mathur informed me she continues to do the exercises recommended by the physiotherapist. She generally walks unaided but has a crutch available for use if necessary.
Mrs Mathur still has a fear of driving but has returned to driving a few kilometres only, although she generally travels as a passenger.
In relation to care Mrs Mathur informed me she has difficulty with household tasks and her husband has several health conditions including asthma which make it difficult for him to complete those tasks. I explained to Mrs Mathur her rights in relation to ongoing treatment and care. Ms Mohan indicated the insurer was not aware of the need for care but undertook to speak to Ms Mathur following the teleconference to explore further the provision of care.
Ms Mathur agreed she was encouraged by the insurer to pursue this claim, but she confirmed she did not want a solicitor.
Should I approve the settlement
Section 1.4 of the MAI Act defines non-economic loss as
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $590,000.
The medical evidence suggests there is only likely to be an inexorable increase in Mrs Mathur’s pain and disability.
I am satisfied that Mrs Mathur 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 Mrs Mathur understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Mrs Mathur understood there will be no repayment to Centrelink or any impact on her ongoing entitlements.
Ms Livianos 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. She 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 amount.
I advised Mrs Mathur if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, she should ask the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
Taking into account Mrs Mathur’s pre-existing disability, her age and the impact of the injury on her ability to live independently in the latter stage of her life 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 Mrs Mathur 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 Mrs Mathur.
I am satisfied Mrs Mathur is aware she can seek legal advice but does not wish to do so.
I am satisfied Mrs Mathur 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 Mrs Mathur is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the MAI Act I approve the settlement of Mrs Mathur ’s claim for damages in the sum of $200,000.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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