QBE Insurance (Australia) Limited v Rudzis
[2024] NSWPIC 534
•26 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Rudzis [2024] NSWPIC 534 |
| CLAIMANT: | Alda Rudzis |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 26 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; proposed settlement; claimant 72-years-old; involved in a serious head-on crash; liability wholly admitted; claimant trapped before extrication and flown to hospital via helicopter; injuries included loss of consciousness; fractured skull and cervical spine, multiple rib fractures, and pelvic trauma; claimant had been retired for many years; Held – settlement approved; $250,000 is just, fair and reasonable; within the likely potential damages assessments taking into account the nature and extent of the injuries and age of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $250,000. |
STATEMENT OF REASONS
INTRODUCTION
On 14 May 2021, Ms Alda Rudzis (the claimant) was driving from Moruya on the Princes Highway at Falls Creek, south of Nowra on the South Coast of New South Wales.
The insured, travelling in the opposite direction in the 100km zone, veered into the path of Ms Rudzis’ vehicle causing a head-on collision.
Ms Rudzis has made a claim against GIO Insurance (Australia) Limited (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Ms Rudzis is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
Ms Rudzis and the insurer have reached agreement as to settlement of the claim for damages.
Because Ms Rudzis is not represented by a lawyer, her settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Ms Rudzis have agreed she is entitled to damages for non-economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 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 assessment 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 Ms Rudzis, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Ms Rudzis understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, police and ambulance reports, operation reports and clinical notes, medical certificates, reports from Dr Dally and general practitioner Dr Polina Smerdova, a medico-legal report from Dr Raymond Wallace, and communications between the parties.
REVIEW OF THE EVIDENCE
Ms Rudzis is 72-years-old.
The police report described the accident as a major traffic crash. Police were on the scene of the crash almost immediately. They say the insured vehicle suddenly and without warning, veered quickly onto the incorrect side of the highway colliding with the front driver’s corner of Ms Rudzis’ vehicle before continuing on the incorrect side of the highway and colliding with a rigid truck.
Ms Rudzis lost consciousness and has no memory of the crash. She was trapped in her vehicle before being extricated and flown by helicopter to St George Hospital.
On admission to the hospital, she was diagnosed with a fractured skull and cervical spine, multiple rib fractures and pelvic trauma.
Ms Rudzis was discharged from St George Hospital on 2 June 2021 into the care of Dr Rivet at Batemans Bay Hospital to continue medication and rationalise analgesia as appropriate.
Her general practitioner Dr Smerdova reports Ms Rudzis has developed diplopia which has required surgery. She has a pulmonary embolism as a result of the trauma and her lung function has reduced since then. She experiences shortness of breath with physical activity.
As a result of her injuries, her doctor notes since the accident Ms Rudzis has developed chronic pain syndrome in her chest wall and right hip pain. She requires pain medication, and the doctor does not expect that this will reduce.
The crash has impacted on her ability to resume physical exercise and she has developed anxiety. Her sleep has become disrupted with intermittent episodes of panic attacks.
Ms Rudzis retired in 2021 and has received an aged pension since then.
PROPOSED SETTLEMENT AND PRELIMINARY CONFERENCE
On receipt of the application of the proposed settlement agreement, I reviewed the documentation provided in the application. My preliminary view was that the amount proposed in the sum of $180,000 was not within the range of damages for non-economic loss.
During the preliminary conference, I asked Ms Rudzis how she was coping at the present time and how her life had changed since sustaining her injuries.
She reported pain in the ribcage particularly at night and her sleep is interrupted after three hours due to pain. She has been left with a painful scar and she has noticed her pain levels increase with cold weather.
Before the collision, she was a frequent bike rider and yoga participant. Although she still attends yoga sessions, there are a number of poses she can no longer achieve due to her injuries and restrictions.
Again, she still can ride her bike, but will not ride on the roadway with vehicles, but prefers to travel in the car with her bike to designated bike tracks. She told me the injuries have affected her balance which has reduced her riding. In fact, she did admit she has not ridden her bike in a while.
She does drive but is anxious about what other vehicles are doing within her vicinity. She told me, as a passenger, her anxiety is heightened when others are driving.
Ms Rudzis told Dr Wallace she experiences intermittent paraesthesia in both hands with weakness at her bilateral upper limbs. She notes stiffness at her cervical spine.
Although she told Dr Wallace she has no current right shoulder pain, she did note intermittent stiffness at the joint and aching pain at the right lateral chest wall. Her right hip aches with paraesthesia and numbness at bilateral lower limbs due to a previous lumber spine fusion.
On page seven of his report, Dr Wallace lists all Ms Rudzis’ injuries assessed whole person impairment of 15% which entitles her to damages for non-economic loss.
I discussed with the parties the maximum indexed sum for non-economic loss which was about to be reviewed. Since the preliminary conference the maximum amount has increased to $654,000.
Having reviewed the material in the proposed settlement application and considering her age, and hearing Ms Rudzis describe her pain, suffering, restrictions and the impact her injuries have had on her enjoyment of life, I concluded the amount of $180,000 proposed for non-economic loss was not within the range.
I expressed my concern to the insurer’s representative and asked him if he would like the opportunity to seek further instructions as to whether the insurer would consider an increase in the proposed offer of settlement.
He agreed. Subsequently, I have been provided with an amended signed deed by both parties where the amount has increased from $180,000 to $250,000.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied that I should approve the proposed settlement offer.
Ms Rudzis confirmed she wanted her claim to be resolved. I explained to her the meaning of non-economic loss including pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. When considering her age, questions of fact and degree, and matters of opinion, impression, speculation, and estimations and after the exercise of common sense and judgment as discussed in Dell v Dalton (1991) 23 NSWLR 528, I am satisfied the amount proposed of $250,000 is within the range.
I am satisfied Ms Rudzis is aware the settlement finalises her entitlements to further common law damages under the Act.
I am satisfied that Ms Rudzis is aware of her rights to have her reasonable treatment and care expenses paid for the remainder of her life.
I am satisfied Ms Rudzis is happy with the amount she will receive in her hand being the full sum of $250,000.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessment if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Ms Rudzis.
I am satisfied Ms Rudzis understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising from the accident. I am satisfied Ms Rudzis is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Ms Rudzis’ claim for damages in the sum of $250,000.
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