QBE Insurance (Australia) Limited v Presz
[2023] NSWPIC 120
•24 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Presz [2023] NSWPIC 120 |
| Claimant: | Henryk Presz |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 24 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval $160,000; 66-year-old male; periprosthetic fracture of the left femur; recovery from surgical fixation, flexion deformity of left knee, aggravation of pre-existing low back pain; non-economic loss only; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | Settlement Approval 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. 3. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was a pedestrian crossing with the pedestrian signal green. He was hit by the insured’s driver sustaining a fracture to his left hip/femur and cut to left elbow. He is currently aged 66 years. He was in receipt of a disability support pension at the date of the accident and had not worked for many years.
A claim for personal injury benefits was made on 6 March 2019 and for common law damages on 21 January 2022.
QBE (the insurer) accepted liability for statutory benefits beyond 26 weeks. Common law damages claim was accepted on 30 May 2022.
The claimant’s hip injuries were fixed surgically with open reduction and internal fixation on 2 February 2019 performed by Dr Ellis at Royal North Shore Hospital.
He continued with extensive rehabilitation at Arcadia Pittwater Private Hospital between 12 March 2019 and 2 April 2019.
The claimant under the care of his treating surgeon Dr Ellis has reported absence of pain and union of his fracture as at 9 June 2020 and no significant leg length inequality.
By December 2020 the claimant considers he recovered from the injuries sustained and has not sought or required any further medical treatment.
The claimant and the insurer have agreed to settle the claim for lump sum damages for the sum of $160,000 for non-economic loss. There is no claim made for past and future economic loss as he was not working at the time and had no intention to return to work as he was in receipt of a disability support pension for many years.
Because the claimant is not represented by a lawyer, his settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (the MAI Act).
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 (the 2020 Act).
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 2017 (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%.
Sections 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) I note the repeal of s 6.23(1) of the Act; the timing is no longer an issue to be taken into consideration;
(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 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
(c) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Teleconference on 24 November 2022
The insurer lodged the application for assessment of damages at first instance, and it was referred to me for consideration. I held a teleconference on 24 November 2022. The claimant was unavailable and the insurer was represented by Robert Chatfield in place of Meena Singh.
I requested the insurer provide further and better particulars of the matter to include details of injuries, treatment and clinical records updated from the treating general practitioner as well as a statement from the claimant as to the impact of his injuries and disabilities on him to ensure I had sufficient information to enable me to properly determine the application before me.
Teleconference on 2 February 2023
The claimant was present and I clarified the nature of the settlement and the finality of the proceedings, should the application be approved. The parties discussed the details of the terms of settlement.
Noting some of the information requested in the earlier teleconference had not been received further directions were made for the insurer to produce the relevant information and to assist the claimant with provision of his statement.
Further teleconference on 22 March 2023
The claimant and Meena Singh attended. I had by this stage received the additional information requested and the claimant had had provided an impact statement.
The claimant confirmed he wished for the application to be approved. He was aware he could retain legal representation but did not wish to seek legal advice. He was happy with the compensation, had accepted the amount without any interference and wished the matter be determined.
We went through the information as to his injuries and the medical information before me.
The teleconference concluded with me advising I would make my decision and reduce it to writing.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents:
(a) Liability and quantum:
(i)A2 Application for Personal Injury Benefits dated 7 June 2018;
(ii)A3 Application for Common Law Damages dated 9 April 2018, and
(iii)A4 Offer of settlement.
(b) The insurer relied upon the following medical records uploaded to the Commission’s portal:
A5
Royal North Shore Hospital records
7 March 2019
A6,8 & 17-20
Dee Why Medical Centre Clinical Records
22 May 2020
A8 and 18
Physiology report
10 December 2020
A10
A11
A12/13
A14/15/16
AD4
CT Lumbosacral Spine
Ambulance Report
Manly Waters Hospital Records
Reports Dr Ellis
Updated GP records 2020-2022
8 October 2020
13 March 2019
14 July 2020
9 June 2020
19 October 2022
(c) Settlement documents:
(a)A4 offer of settlement dated 19 September 2022, and
(b)signed agreement for release.
REVIEW OF THE EVIDENCE
The medical records provided the claimant’s initial injuries as:
(a)left femur fracture;
(b)open reduction and fixation undertaken on 26 February 2019, minor grade strain of lateral ligament to right knee;
(c)non weight bearing for six weeks, and
(d)as it was unsafe to live alone required ongoing treatment at private hospital.
I was able to ascertain the extent of injuries relevant to the claim as contained in the various records pertaining to the treatment of the claimant that he has the following ongoing issues:
(a) his mobility is impacted by a persisting fixed flexion deformity of the left knee;
(b) he has not required any ongoing treatment since 2020, and
(c) Dr Ellis was happy with the result of surgery and opined “I don’t need to see him on a regular basis” as at June 2020.
The clinical records produced by his general practitioner records as at August 2020 he “still has to rest often when walking to the shops”.
By 15 November 2020 Dr Besley recorded “Has frame now, walking to the beach sometimes and coles every second day now..feels mobility is back to baseline now”.
Back pain was reported and appears to be getting worse, but this condition appears unrelated as the entry on 26 March 2020 “today henryk is complaining of lower back pain had had lower back pain for the last 8 years”.
At a consultation on 3 June 2022 Dr Besley records “Hip and Back Pain – unchanged and significant….has become significantly worse since the accident 3 years ago.. still declining surgery, recommended cortisone injection around right L5, possibly S1 nerve root”.
The balance of the medical records indicate attendances for non-related medical conditions.
The medical information confirms that the claimant has recovered from his surgery, continues to have a slight mobility issue against a background of significant spinal degeneration in the lower back unrelated to the injuries sustained in the accident.
I find that there is impairment to his mobility and an aggravation of his pre-existing lower back pain which according to Dr Besley has sustained further deterioration since the motor vehicle accident.
Statement of the claimant
The claimant’s statement was short and at paragraph 1.6 and 1.7:
“I advise I have recovered from the injuries sustained for the subject accident and do not have any ongoing problems. I confirm have not sought or received any accident-related treatment since 1 December 2020.
Currently I am not receiving any treatment as a result of my accident -related injuries, and I do not expect to require any treatment in the future. It has been explained to me that I am able to obtain treatment in the future if it is required…”
NON-ECONOMIC LOSS
Whilst the insurer did not concede that the injuries sustained resulted in a whole person impairment exceeding 10% whole person impairment the settlement made allowance for non-economic loss.
From review of the hospital and surgery records as well as general practitioner notes, it is appropriate for the claimant to received non-economic loss for the pain and suffering he endured, his ongoing mobility restrictions and what appears to be an exacerbation of lower back pain.
Injuries at current time
The claimant has some restriction in his mobility requiring the use of a frame.
He suffers ongoing back pain and sciatica which in majority is pre-existing but has been exacerbated by the subject accident.
He has recovered from the fracture and Dr Ellis is supportive of this conclusion.
THE SETTLEMENT
The amount of damages agreed in the sum of $160,000 for non-economic loss is just, fair and reasonable and within the likely range of damages had the matter proceeded to an assessment.
Should I approve the settlement
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:-
(i)sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount is $160,000 for non-economic loss;
(ii)sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement or other payments made on behalf of the claimant by the insurer. There are no deductions to the settlement sum. This was confirmed in the teleconference;
(iii)sub-clause 7.389.3 requires the amount of any advanced payments made.
There have been no advanced payments in this matter apart from medical expenses and these do not form part of the settlement, and
(iv)sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received clinical and medical records effectively convering the period of injury and the relevant period to date. I have also received a written statement as well as oral information directly from the claimant.
(c) Clause 7.399 of the Guidelines, requires me to consider the following:
(i)sub-clause 7.399.1 : Timeliness – the proposed settlement satisfies the timing requirements in the Act. This has been satisfied;
(ii)sub-clause 7.399.2: Appropriateness – 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 Member, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satified that the nature of the ongoing injuries have been identified and that the sum agreed upon is is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.
(iii)sub-clause 7.399.3: Understanding – the claimant understands the nature and effect of the proposed settlement is the finality of his claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconference that in the event he took the settlement, he could not seek any further damages for non-economic losses and economic losses. He was advised that the insurer would still provide ongoing medical treatment, if required and approved by the insurer.
The claimant was also made aware that the insurer would continue to meet any charge issued by Medicare and that the insurer has agreed to reimburse Health Insurance Commission separately.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
DETERMINATION
This settlement is approved.
The proposed settlement is approved under s 6.23(2)(b) of the MAI Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Guidelines.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017;
· Personal Injury Commission Regulation 2020;
· Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020;
· the Guidelines, and
· Personal Injury Commission Rules 2021.
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