QBE Insurance (Australia) Limited v Rix - [2023] NSWPIC 574

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 Issued under s 6.23 of the Motor Accident Injuries Act 2017 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 9^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 574
Decision Date: 1 November 2023

CaseChat Overview and Summary

QBE Insurance (Australia) Limited brought an application before the Supreme Court of Victoria to seek approval for a proposed settlement amount for an insured party, a 61-year-old female who sustained injuries in a motor accident. The respondent, Rix, had suffered an internal injury to her spleen and liver, which had since healed. The parties agreed that the woman was entitled to past and future economic loss only, with no entitlement to non-economic loss, and that she had suffered 0% whole person impairment. The woman also suffered intermittent ongoing future loss. QBE proposed a settlement of $16,544, including a buffer of $1000 pursuant to section 6.23 of the Motor Accident Injuries Act 2017. The court had to decide whether the proposed settlement was just, fair and reasonable under the Act.

The court considered the nature of the woman’s injuries and the proposed settlement amount. It was noted that the woman had suffered an internal injury to her spleen and liver, which had since healed, and that there was no entitlement to non-economic loss. The court also considered that the woman had suffered intermittent ongoing future loss. The court found that the proposed settlement amount of $16,544, including a buffer of $1000, was just, fair and reasonable. The court was satisfied that the settlement amount took into account all relevant factors, including the woman’s age, the nature and extent of her injuries, and the fact that there was no entitlement to non-economic loss.

The court approved the proposed settlement amount of $16,544, including a buffer of $1000. The court found that the settlement amount was just, fair and reasonable, and that it took into account all relevant factors. The court noted that the woman had suffered an internal injury to her spleen and liver, which had since healed, and that there was no entitlement to non-economic loss. The court also considered that the woman had suffered intermittent ongoing future loss. The court was satisfied that the proposed settlement amount was appropriate and approved it.

Orders