QBE Insurance (Australia) Limited v McLean
[2023] NSWPIC 130
•14 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v McLean [2023] NSWPIC 130 |
| Claimant: | Rita Lucia McLean |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Gary Victor Patterson |
| DATE OF DECISION: | 14 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; fatal motor accident; claim under the Compensation To Relatives Act 1897; claimant’s adult son riding motorcycle through intersection when struck by the insured vehicle turning across his path; liability wholly admitted; deceased son working full time; financial contribution and dependency established; settlement amount increased to $150,000 after discussion; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | CERTIFICATE OF DETERMINATION 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 clause 7.38 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
The claim is made under the Compensation to Relatives Act 1897 and arises from the tragic death of the claimant’s son, Jack Anthony McLean (“Jack”) who was 25 years of age at the time of his fatal motor accident.
The motor accident happened about 12.33pm on 9 May 2020 when Jack was riding his motorcycle in a northerly direction along Soldiers Parade at Edmundson Park. At the same time, the insured vehicle was being driven in a southerly direction on Soldiers Parade and turned right at the intersection into an unnamed road leading to Edmundson Park Railway Station. Both vehicles had a green light at the intersection. Jack collided with the front left side of the insured vehicle, occasioning fatal injuries. The insurer wholly admitted liability for the claim.
At the time of the motor accident, Jack was living with his parents, paying them $300 board per week and was undertaking domestic duties for about 8 hours per week.
The claimant is employed full-time as a High School teacher. The claimant currently is 55 years of age and expects that she will be retired by aged 65 years at least.
The claimant’s husband is not employed. He is aged 66 years and is not in receipt of Social Security benefits. There are three other adult siblings living at home. They are engaged in education and training.
The claim is made on behalf of all potential claimants.
Funeral expenses have been paid.
The claimant and the insurer have agreed to settle the claim for a lump sum of $150,000 (exclusive of funeral expenses) calculated as follows:
Description Amount Past financial dependency: 134 weeks x $300 = $40,200 Future financial dependency: (next 5 years) $300 x 331.5 x 85% = $59,032 Past care: 6 hours x $33 per hour x 134 weeks = $26,532 Future care: 2 hours x $45 per hour x 231.5 (5% multiplier for 5 years) = $20,835 TOTAL $146,599
That figure is rounded up to $150,000.
I have decided to approve the settlement.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3)If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Direction PIC 2, the documents that are before me and the parties’ acceptance that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing. It follows this is the appropriate course in the circumstances.
THE RELEVANT LAW
Section 6.23(2) of the MAI Act requires approval of the settlement as the claimant is not legally represented.
Section 6.23(3) of the MAI Act provides that I am not to approve the settlement unless I am satisfied that it complies with any applicable requirements of, or made under, the MAI Act or the Motor Accident Guidelines (“the Guidelines”). I also must have regard to Procedural Direction MA3 – Approval of Damages Settlement.
Cause 7.37 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 assessed for the claim, were the matter to be assessed by me or another Member, taking into 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
(b) the claimant understands the nature and extent of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS CONSIDERED
I had regard to all of the documents listed A1 to A7 in the insurer’s Application for Approval of Settlement and the following additional documents:
(a) Letter dated 14 December 2022 from the insurer to the claimant containing settlement offer.
(b) Email from the claimant sent to the insurer on the same date accepting that offer.
(c) Email received on 22 February 2023 from the insurer increasing its settlement offer.
DETERMINATION
The claimant is aware this is a once and for all settlement brought on behalf of all potential claimants. the claimant is satisfied with the settlement. the claimant does not wish to obtain legal advice.
This application has been determined on the papers with the parties’ consent.
The insurer has increased its offer to $150,000 after discussions at the teleconference held on 22 February last.
Having regard to the claimant age and her personal circumstances, the ages and personal circumstances of the other surviving family members, the extent and nature of the financial and other support provided by Jack to his mother and the household, I am satisfied that the proposed settlement is appropriate and that it complies with the requirements of clause 7.38 of the Guidelines, in that it is relevantly:
“……. just, fair and reasonable and within the range of likely potential damages to be assessed for the claim, were the matter to be assessed by me, or another Member, taking into account the nature and extent of the claim…..”Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, the proposed settlement is approved.
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