QBE Insurance (Australia) Limited v Rix
[2023] NSWPIC 574
•1 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Rix [2023] NSWPIC 574 |
| CLAIMANT: | Robyn Rix |
| INSURER: | QBE |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 1 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval in the sum of $16,544; 61-year-old female; past and future economic only; no entitlement to non-economic loss; 0% whole person impairment; internal injury to spleen and liver now healed; intermittent ongoing future loss; buffer awarded; section 6.23; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement approval 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 7.37 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
On 27 December 2021, Robyn Rix (the claimant) was a passenger in a vehicle driven by her son when he failed to give way at the intersection at Codong in New South Wales and collided with a vehicle where the car flipped onto its roof.
The impact was significant. The claimant was aged 58 at the time.
Police and ambulance were called.
The claimant was then conveyed by ambulance to Tweed Heads Hospital (document A11) where she remained until 3 January 2022. No surgical intervention was required.
Police attended the scene and an event report E73802324 was created.
The claimant remained in the care of her general practitioner Dr Anna Bartlett and Professor Hugh (document A12) thereafter for review and management.
The claimant has made a claim against QBE (the insurer) of the at fault vehicle, for lump sum damages in an application for common law damages dated 26 January 2023 (document A3). By liability Notice (document A13) dated 24 April 2023, the insurer wholly admitted liability for the common law damages claim.
The claimant claimed that she sustained injury in the accident to the following areas of her body:
(a) right sided rib fractures to 7, 8 and 9th ribs;
(b) 1.5cm laceration to spleen;
(c) 8.7cm laceration to liver;
(d) Pneumothorax;
(e) lung base, and
(f) soft tissue injury to chest wall.
The insurer has accepted that the claimant had sustained 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 if required.
The insurer relied upon the medico-legal assessment undertaken by Dr Wallace and his report dated 3 January 2023 to assess the nature of injuries. By letter dated
28 September 2023 (document A6) the insurer advised the claimant that it had formed the view her injuries did not exceed 10% whole person impairment. The claimant did not challenge this finding and conceded most of the injuries sustained had now fully resolved.The claimant and the insurer have agreed to settle the claim for lump sum damages in the sum of $16,544. The initial application referred to a settlement offer made by the insurer on 26 May 2023 in the sum of $10,000. The insurer increased its offer to $16,544 after further negotiations between the parties which were addressed at the preliminary conference on
26 October 2023. The basis of this latter offer was as follows:(a) past economic loss $6,000 which included statutory weekly payments to date of $2,358.77;
(b) future economic loss $10,000, and
(c) tax paid on statutory benefits $544.
As the claimant is not represented by a lawyer, the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act) and relevant Guidelines.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (Commission) was established on 1 March 2021.
I am a 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 these proceedings.
Because of the date of the accident cl 14(D)(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) apply to this matter.
THE RELEVANT LAW
Under ss 6.23(2) and (3) of the MAI Act before the Commission may approve the settlement of a claim for damages, it must be satisfied that:
“The proposed settlement complies with any of the requirements of the MAI Act or the Motor Accident Guidelines.”
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) Timeframe requirements – now obsolete
(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 the Commission, 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;
(c) the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Preliminary conference on 26 October 2023
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I held a preliminary conference on 26 October 2023. The claimant participated in person and the insurer was represented by Elveen Lal.
A discussion as to the claimant’s ongoing symptoms confirmed that most of the injuries sustained in the motor vehicle accident had resolved. The ongoing impact of any residual chest wall pain was minimal and at best intermittently impacted on the claimant’s ability to perform casual Pilates classes. She had performed 15 weekly before the accident.
The claimant confirmed that she had been unable to undertake Pilates classes for four weeks after the accident and for a period of six months thereafter lost one class weekly estimated to be $90 loss each week. She confirmed that she remained undertaking classes with lighter duties and from time to time lost a class due to the impact of her injuries preventing her to do an additional class here and there.
She acknowledged that the ongoing symptoms “did not impact that much on her ability to undertake household tasks and social activities”. She confirmed that whilst Dr Wallace reported her inability to return to sailing, that she in fact had returned to sailing since January 2023 undertaking this activity a few times since then.
The insurer relied upon the opinion of Dr Wallace that her injuries had not produced permanent impairment and the injuries sustained had resolved. The claimant also confirmed her attendance upon Professor Hugh on 4 March 2022 that her internal injuries to her spleen and liver had resolved as he had opined by mid 2022.
I asked the claimant as to the current status of any injuries and I was informed that apart from a slight right sided pain to her chest when she over exerted herself she was “fine most of the time”.
There was no further treatment being undertaken and no ongoing use of any medication.
The claimant was advised in this conference that if she had any concerns about the ongoing consequences of her injuries that she could request a further period to seek medical advice and also had an opportunity to seek legal advice if she wished.
I was informed that the claimant did not wish to seek and further investigations medical or legal.
I asked if the updated settlement as proposed which now included past losses and tax paid was accepted and the claimant informed me of the following:
“I wish to accept the new offer as put to me today.”
I asked the claimant if she understood the nature of the amended settlement terms and its finality and if it was being undertaken of her own free will. She responded to me:
“I understand the nature of this settlement, its finality and I accept it without any pressure, it is of my own free will.”
I asked if she understood that that from the settlement a sum of $2,358.77 would be deducted as the insurer had paid this sum as statutory weekly payments to date. I was informed;
“I know the sum will be deducted from the settlement moneys I now agree to.”
The insurer was also asked if any further information or statement was to be made and
Mr Lal said “No”.The preliminary conference concluded with me advising the parties that I would upon the receipt of the updated settlement offer, executed acceptance and further submissions determine the matter.
Directions were issued on this occasion that the parties were to upload the fresh settlement documents by 2 November 2023.
The insurer uploaded the amended documents the following day.
Amended terms of settlement dated 26 October 2023
The claimant confirmed she and the insurer had come to an agreement that settlement was reached in the sum of $16,544. The sum represented past economic loss in the sum of $6,544 and future economic loss of $10,000 with a deduction of $2,358.77 leaving the claimant a net balance of $14,185.23.
The parties requested that I approve the amended terms of settlement.
DOCUMENTS CONSIDERED
I had regard to the following relevant documents contained in evidence bundle which included the following:
· Liability:
application for statutory benefits dated 20 February 2020;
application for common law damages dated 26 January 2023;
liability notice dated 24 April 2023;
police report E88201486, and
whole person impairment letter dated 8 September 2023.
· Treating medical records:
NSW Ambulance record case ID 40535;
clinical records of Tweed Heads Hospital;
clinical records (document A11), and
report Professor Hugh dated 4 March 2022cords of Medicare (document A12).
· Medico-legal opinion
report Dr Raymond Wallace medico-legal dated 3 January 2023 (document A8)
· Economic loss material:
claimant’s Notices of Assessment for years ending:
30 June 2019;
30 June 2020;
30 June 2021, and
30 June 2022 (document A10 at pages 29-42);
Certificates of capacity (document A11), and
statutory payments made (document A3).
· Settlement documents:
Initial settlement agreement (document A5);
Amended settlement agreement dated 26 October 2023, and
Executed deed of agreement dated 31 October 2023.
REVIEW OF THE EVIDENCE
Statement of the claimant
The claimant confirmed during the first preliminary conference her injuries included rib fractures which have now healed, internal injuries to spleen and liver which have also now fully healed. Bruising has resolved and that she has returned to pre-injury household and social tasks and part-time Pilates.
Where initially she noted discomfort at the right lower ribs aggravated by lying on her right side and occasional shortness of breath, these symptoms occur rarely now.
Her part-time Pilates classes are now performed without restriction at pre-accident levels apart from a lost session on a very intermittent basis. She estimated a loss of one session weekly at best incurring a loss of $90 from time to time.
The claimant confirmed that there was no ongoing treatment envisaged. She advised me that she had not required treatment for any of the injuries sustained in the motor accident for quite some time.
INJURIES
The clinical records produced in the matter confirm that the claimant initially sustained the following injuries:
· fractures at 7th ,8th and 9th rib;
· 1.5cm spleen laceration;
· 8.7cm laceration to liver;
· small stable pneumothorax;
· bruising to base of lungs, and
· bruising to right forearm.
The claimant was release from Tweed Heads Hospital on 3 January 2022 and required bed rest and analgesia. Home exercise was prescribed. She received ongoing care from Dr Anna Bartlett her general practitioner.
Such treatment was undertaken and the claimant was subsequently review by Professor Hugh who opined no further treatment was necessary at his assessment on 4 March 2022.
Dr Wallace opined that the claimant’s injuries had resolved when he assessed her on
3 January 2023. There was no ongoing injury and no permanent impairment. He opined 0% whole person impairment.Having reviewed the medical evidence I am satisfied that the claimant’s injuries would not exceed the statutory threshold of 10% whole person impairment. I am satisfied that the claimant had no entitlement to damages for non-economic loss.
I accept that the claimant suffers a very occasional flare up of chest wall pain and this is likely to impact on her ability to teach Pilates classes when this occurs. In majority her injuries have fully resolved.
ECONOMIC LOSS
Past economic loss
The claimant was certified as totally unfit to work post-accident for a period of four weeks. She then returned to her part-time Pilates teaching with lighter duties for a further six months. Thereafter she returned to performing pre-injury level of classes.
During the period she was deemed unfit the insurer made statutory payments. The amount paid in statutory payments was $2,358.77 for the period 28 December 2021 to
26 January 2022. Pursuant to s 3.40 of the Act the insurer is entitled to seek credit for this sum.The past losses were based upon the claimant’s loss of $1,000 for a period of four weeks and a further loss of $90 weekly to date.
Tax paid on the statutory sum amounted to $544.
Total past losses were agreed in the sum of $6,544.
Future economic loss
The claimant advised she was now performing her pre-accident levels of classes and did not intend to increase the number of classes she attended. She is currently aged 61.
She confirmed when her symptoms flared it was likely she could not perform one of her classes and this loss was calculated as a loss of $90 from time to time.
The insurer accepted that likely future losses should be subject to a buffer for such future economic loss and the sum of $10,000 was agreed.
The claimant is currently aged 61 and has indicated she would like to continue with her part-time classes for the next couple of years. She has no intention to increase the hours performed as she receives income from other sources as disclosed in her tax returns for the period 2019 to 2022.
After review of the likely future circumstances but for the accident, the parties agreed a small allowance for the occasional day off where symptoms flared up could result in future economic loss being suffered by the claimant.
A buffer of $10,000 was agreed to with no claim for superannuation as this business venture operated by the claimant did not pay her superannuation prior to the accident. The claimant confirmed to me she did not make superannuation payments to herself before the motor vehicle accident during the initial teleconference.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that the amounts allocated in the settlement for past and future economic losses accord with the evidence provided by the claimant and the insurer in this matter and are just fair and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member of the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant.
The injuries sustained in the subject accident have in majority healed and any ongoing impact is now minimal. The claimant has no ongoing treatment needs. This is supported by the clinical records before me. The only ongoing symptom reported is very minimal chest wall pain aggravated from time to time by over exertion or positional sleeping pattern.
The past economic losses were supported by medical certificates for the period immediately post-accident and the claimant received statutory benefits at the time. A further allowance was made for a period of six months where there was occasional loss.
The claimant is aware that from her settlement the insurer will deduct the already paid statutory benefits in the sum of $2,358.77 and that she will receive the balance in sum of $14,185.23.
In assessing future economic loss, I must have regard to the provisions of s 4.7 of the MAI Act which states no allowance may be made for future loss of earning capacity unless the claimant establishes that the accident has caused a change in her most likely future circumstances.
In cases such as Medlin v State Government Insurance Commission (1995) 185 CLR and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the fundamental questions to be determined in a case such as this, are whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss. The circumstances in this matter accord with the most likely circumstances but for the accident.
Further, it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine, as per Penrith City Council v Parks [2004] NSWCA 201. I agree that this is an appropriate matter for the award of a buffer as the claimant’s impairment to future earning capacity is variable.
I consider the agreed buffer in the sum of $10,000 is just fair and reasonable and within the range of likely damages had the matter been assessed by a Member of the Commission.
CONCLUSION
I am satisfied the proposed settlement of $16,544. is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant.
I am satisfied the claimant was aware she could seek legal advice but chose not to avail herself of legal representation.
I am satisfied the claimant 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 the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that from the proceeds a sum of $2,358.77 will be deducted as prepaid statutory benefits.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the amount of $16,544.
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, and
· Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021.
0
3
0