QBE Insurance (Australia) Limited v Nguyen
[2023] NSWPIC 623
•22 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Nguyen [2023] NSWPIC 623 |
| CLAIMANT: | Michael Nguyen |
| INSURER: | QBE |
| MEMBER: | David Ford |
| DATE OF DECISION: | 22 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; motor accidents settlement approval; 26-year-old motorist involved in a collision at an intersection controlled by traffic lights with an ambulance; sustained fracture of the right clavicle, sternal fracture with substernal hematoma and a fracture of the right third rib with a small pneumothorax; underwent open reduction and internal fixation of the fracture of the right clavicle subsequently clavicular plate and screws removed and bone grafting; short period of time unable to engage in employment; claimant now works as a banker on full-time normal duties; insurer conceded claimant has sustained a non-threshold injury; liability admitted; no entitlement to non-economic loss; claim for past and future economic loss; Held – the proposed settlement is just, fair and reasonable, settlement approved under section 6.23 (2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 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 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 21 November 2021, the claimant was driving his motor vehicle towards the intersection of Anzac Parade and Moverty Road at Maroubra pursuant to a green traffic light signal. It then transpired, an ambulance drove into the intersection contrary to a red traffic light signal and collided with the claimant’s motor vehicle.
As a consequence of the accident, he sustained a fracture of the right clavicle, sternal fracture with substernal hematoma, and a fracture of the right third rib with a small pneumothorax. He was transported by ambulance to St Vincents Hospital, where he was admitted and discharged on 22 November 2021.
He was subsequently seen by his general practitioner Dr Pham who referred him to Dr Yeoh, orthopaedic surgeon. He saw Dr Yeoh on 1 December 2021, and he advised the claimant he required surgery for the right clavicle fracture. He was then admitted to the Mater Hospital on 11 December 2021 and underwent open reduction and internal fixation of the fracture of the right clavicle. He commenced a course of physiotherapy and was re admitted to hospital in December 2022 for removal of the clavicular plate and screws and bone grafting. There has been no further active treatment since then.
The insurer wholly admitted liability on 15 May 2023 and the insurer has conceded he sustained a non-threshold injury.
The claimant was born in 1997 and is presently 26 years of age. At the time of the accident he was unemployed and a university student. He was unable to undertake employment until late January 2022, when he commenced working for a firm of accountants, undertaking office duties. In October 2022 he commenced working as a banker with Macquarie Bank and since then, has continued full-time normal duties with the bank.
At the preliminary conference, he confirmed he could carry out all the duties required of him by his employer and works without restriction in all of the tasks required to be undertaken by him. The insurer arranged for him to be seen on a medico legal basis by Dr Raymond Wallace, orthopaedic surgeon, and I refer to his report dated 18 July 2023. He noted the claimant has no current pain in the right shoulder, paresthesia, numbness or weakness in his right arm and no stiffness in the right shoulder. He has no other symptoms attributable to the accident. He carried out a physical examination of the claimant, and in relation to fitness for work, he states the following on page 7 of his report:
“Mr Nguyen was unemployed at the time of the accident. He has no current work incapacity as a result of any injuries sustained in the index motor vehicle accident.”
Dr Wallace assessed the claimant as having a 1% whole person impairment in relation to the right shoulder scar.
The insurer has proposed to resolve the matter for $31,200 less payback to Centrelink due receipt of youth allowance payments. The amount for past economic loss is $1,200 less the payback to Centrelink. There is no entitlement to non-economic loss. The insurer has proposed an amount by way of a buffer in the sum of $30,000 for future economic loss. The calculation of the proposed settlement is as follows:
· non-economic loss nil
· past economic loss (incl.super) $1,200
· future economic loss $30,000
The claimant advised me he wishes to accept the proposed settlement. I consider the 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).
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 cl 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 he 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, considering the nature and extent of the claim.
I am satisfied the claimant is aware he can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and he 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 16 NOVEMBER 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 16 November 2023. The claimant participated in person and the insurer was represented by Elveen Lal.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess damages for past economic loss and past superannuation in the sum of $1,200. Damages for future economic loss in the sum of $30,000. The net amount of settlement monies payable to the claimant is $31,200 less payback to Centrelink.
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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