QBE Insurance (Australia) Limited v Scott
[2022] NSWPIC 659
•29 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Scott [2022] NSWPIC 659 |
CLAIMANT: | Michael Scott |
INSURER: | QBE |
MEMBER: | Michael Inglis |
DATE OF DECISION: | 29 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017, settlement approval; on the morning 28 June 2018, the claimant was riding his motorcycle when a car merged into the right side of the lane in which he was travelling, crushing his right foot between the motorcycle and his cast; the insurer accepted liability; at the time of assessment, the claimant suffered from pain in the foot which he described as an ache, exacerbated by activity and prolonged standing; he could not run or dance, was required to wear orthotics and had poor balance; on a good day, he could walk for two hours before pain prevented him from continuing; he enjoyed bushwalking and walking his dog which were restricted; he had recurrent swelling in the foot and was unable to ride either a motorbike or a pushbike; he was able to do a little gardening and mow his lawn; domestic activities were assisted by his wife and daughter; he took over-the-counter medication to relieve the pain; he was psychologically frustrated and needed assistance with pill cleaning, gardening, painting and pruning; Associate Professor Shatwel considered any improvement unlikely without surgical treatment such as an arthrodesis; at the time of assessment, the claimant continued to work as a business manager with the NSW Police Force, having returned after three and a half months following the accident; the proposed settlement made up of non-economic loss $250,000.00, past economic loss $31,132.54, future economic loss $70,000.00, rounded up to $352,000.00; Held – having regard to the injuries, disabilities, impairments and losses sustained by the claimant, it was determined that the proposed settlement was just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment; the proposed settlement was approved. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. This 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 7.38 of the Motor Accident Guidelines. |
STATEMENT OF REASONS
INTRODUCTION
The morning of the 28 June 2018, Michel Scott (the claimant) was riding his motorcycle along Epping Road Lane Cove West in the city of Sydney. The claimant was travelling proceeding at a speed of approximately 50 km/h when a car slowly merged into the right side of the lane in which he was travelling crushing the claimant’s right foot between his motorcycle and the car.
Mr Scott has made a claim against QBE Insurance Ltd, the compulsory third party (CTP) insurer of the at- fault vehicle, for lump sum damages.
The insurer accepted liability for Mr Scott’s claim for statutory benefits and has paid treatment benefits to or on behalf of Mr Scott.
The insurance has accepted that Mr Scott had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act), he is entitled to payment of reasonable treatment and care for the rest of his life for accident-caused injuries.
Mr Scott and the insurer have agreed to settle the claim for lump sum damages for the sum of $352,000. As Mr Scott is not represented by a lawyer, his settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration. I conducted an assessment conference by way of video link.
JURISDICTION
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 2D Schedule 1 to the Personal Injury Commission Act 2020. I am a Member of the Motor Accidents Division and the Workers’ Compensation 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, continues to apply.
Documents reviewed are:
(a) insurer’s submissions dated 1 June 2022;
(b) ambulance records;
(c) records of the Royal North Shore Hospital Certificate of Capacity dated 9 July 2018;
(d) medical assessment of Peter Blakely;
(e) report of Dr Anthony Duffin, podiatrist dated 14 November 2018;
(f) joint medical report of A/Prof Michael Shadwell dated
16 June 2021;
(g) further report of A/Prof Michael Shadwell dated 2 August 2021;
(h) list of treatment expenses, and
(i) various email communications between the claimant and the insurer.
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%.
Section 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.
Cluse 7.38 of the Guidelines states I must be satisfied of the following:
(a) the proposed settlement satisfies the timing requirements in s 6.23 (1) of the MAI Act;
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter be assessed by a claims assessor 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.
REVIEW OF EVIDENCE
The claimant is currently 56 years of age and is employed as a business manager by the New South Wales Public Service.
In the accident, the claimant says that when his motorcycle was struck by the at- fault vehicle, his right foot was crushed between the vehicle and his motorcycle.
The claimant managed to keep his bike upright but he experienced the brunt of the collision on his right foot and had severe pain in the foot when he brought his bike to rest a little further up the road. He was wearing full protective motorcycle equipment including heavy motorcycle boots.
In spite of the protection, the claimant suffered a severe crush injury to the foot and could not walk at the scene of the accident.
An ambulance was called and the claimant was taken by ambulance to Royal North Shore Hospital.
Preliminary X-rays of the right foot showed dorsal dislocations of the second, third, fourth and fifth toes at the metatarsophalangeal joints. There was also a comminuted but un-displaced fracture of the cuboid with extension into the fifth tarsometatarsal joint. There was poor circulation to the toes due to stretching of the vascular supply as a result of the dislocations. An attempt was made to reduce them under sedation in the Emergency Department, however, this failed and open reductions were performed on the day of the accident in the operating theatre via two small incisions made between the second and third, and third and fourth metatarsophalangeal joints on the dorsal aspect of the foot.
Peripheral circulation was satisfactory, and the wounds healed though there was gross swelling of the foot for many days and weeks in spite of elevation and rest of the foot at home.
The claimant was looked after during this period by his wife and he was unable to walk without crutches because of pain and swelling.
The claimant found it difficult to climb stairs to the bedrooms in his house for three months after the accident.
He slept downstairs during this period and was looked after by his wife and two daughters. He kept in touch with his office via email and phone during this period but was not able to travel to his headquarters for about four to six weeks. He returned to work by a gradual process during short shifts for increasing days during the week. He was fully fit for his preinjury duties after three and a half months had expired.
When he examined the claimant on 4 June 2021 in a joint medical examination, A/Prof Michael Shatwell took the following history:
“History
Mr Scott is a 54-year-old right-handed business manager who has worked in the New South Wales Public Service for the last 30 years. He used to commute to work on his motorbike on a regular basis, a journey of approximately 30 minutes from home to HQ. A/Prof Michael Shatwell recorded the following ongoing symptoms.
“Present Situation
At the present time, Mr Scott has great trouble walking comfortably for any distance. He still has pain in the foot which he describes as an ache, exacerbated by activity and prolonged standing. He rates his pain around 8 our of 10 to 9 out of 10 when it is at its worst. On this scale, zero represents no pain and 10 represents the most severe pain imaginable.
Mr Scott cannot push off with his toes comfortably on the right side which leads to less agility generally. He cannot run or even dance because of an inability to rise comfortably onto his toes. He has poor balance and difficulty climbing up and down stairs. He has 20 stairs at home and takes them very cautiously, always using a hand rail.
Mr Scott has had some benefit from wearing firm orthotics to correct his foot posture. He is currently attending Dr Duffin, a podiatrist for provision of his orthotics.
Mr Scott cannot wear shoes without the orthotics. He is limited to wide fitting lace up shoes for work. He can wear thick soled sport sandals for recreation and can walk at a slow pace on an even level track for about half an hour a day on average. On a very good day, he has managed two hours before his pain prevents him travelling further. This is an exceptional occurrence.
Mr Scott used to enjoy bushwalking and walking his dog at least once a day. He manages only one walk a day which is a disappointment for both parties.
Mr Scott still experiences swelling of his foot and has to elevate it regularly for comfort. Mr Scott does not now enjoy motorbike riding and has given up on both motorbikes and pushbikes to the present time.
Mr Scott is able to do a little gardening and mow his lawn. He helps his wife with light household duties and maintains the family’s cars. He has a 25-year-old daughter at home who was a great help with fetching and carrying when his foot is extremely sore and tender.
I note Mr Scott has not been seen by a foot and ankle specialist since he was discharged from the Outpatient Clinic at Royal North Shore Hospital. He is currently managing on paracetamol, ibuprofen and occasional codeine when the foot aches severely at night.
Mr Scott is able to drive for about three hours in a comfortable car but still has swelling at this point and has to get out to stretch and ease his foot.
He finds the foot is hypersensitive over the dorsal region close to the toe webs and he has intermittent shooting pains for no reason. These occasionally “pull him up” when walking but fortunately have not caused any falls.”
I note that Mr Scott was born in Dubbo and educated in Dubbo, Melbourne and Sydney. He completed year 12 and studied Catering and Hospitality at TAFE. After two or three years, he moved to the public service and has been in clerical and managerial positions for the last 30 years.
Mr Scott is married. His wife works full-time in information technology. The couple have two grown-up daughters. The younger daughter helps at home and Mr Scott’s elder daughter lives away from home.
At the assessment conference, the claimant informed me that the issues described by A/Prof Shatwell in his report are ongoing.
He confirmed the issues that he has with mobility. He cannot stand on one foot, he is unable to kick a ball, he cannot garden, he has deformity in the toes, he has difficulty with uneven ground and is restricted in his leisure time activities including bushwalking.
The claimant has some days which are better than others but on a bad day, he will have to elevate his foot particularly after work and he will limp after work.
As to his prognosis, he believes that his current condition is as good as it gets and that he may have a fusion of the ankle but will soldier on as long as he can as there is no guarantee that the surgery will be successful in alleviating his symptoms. Certainly, if his condition worsens, he will need to look to having the further surgery.
Not surprisingly, the claimant is psychologically frustrated. He needs assistance with pool cleaning and activities such as gardening, painting and pruning. All these complaints seem totally reasonable.
Mr Scott presented as a stoic person who was doing his best to live with and manage his undoubted significant pain and restriction.
The claimant did also tell me that he expects to be able to continue with his employment in his managerial capacity.
An opinion as to the claimant’s ongoing condition and prognosis is contained in the medical reports of A/Prof Shatwell to which I have already referred. In his report of 16 June 2021, A/Prof Shatwell opines relevantly:
“Mr Scott may benefit from referral to a Foot and Ankle Specialist. I am unaware of the costs of consultations for such specialists.
Mr Scott may benefit from referral to a Foot and Ankle Specialist. I am aware of the costs of the consultations with such specialist.
Mr Scott may benefit from operative treatment for his foot in the future.
This will be at the discretion of the treating surgeon.
Mr Scott will benefit from the provision of orthotics which will be necessary for the rest of his life to enable him to walk more comfortably.
His foot shape is altered since the accident and require support from a custommade orthotic.
He has been provided with excellent orthotics by Dr Duffin, podiatrist.
The costs of these orthotics is unknown to me.”
As to the prognosis for Mr Scott, A/Prof Shatwell noted:
“There is unlikely to be any improvement without surgical treatment. Whether this proceeds depends on Mr Scott’s decision to undergo an operation or persist with his current problems.”
A/Prof Shatwell’s second report relates principally to clarifying his WPI assessment of 11%. That assessment of course entitles the claimant to an award for non-economic loss.
SHOULD I APPROVE THE SETTLEMENT
The insurer constructed its offer in the following manner:
“Non-Economic Loss
Associate Professor Michael Shatwell report dated 16 June 2021 assesses your level of Whole Person Impairment 11%. This means you are entitled to damages for non-economic loss (pain and suffering). We have allowed $250,000.00.
Past Economic Loss
At the time of the accident, you were full-time employed as a business manager with NSW Police Force and were off work for approximately six weeks after the accident. You reported to Associate Professor Shatwell that you returned to work by a gradual process doing short shifts and increasing days during the week, returning to pre-injury employment three and a half months after the accident. QBE paid weekly benefits in the amount of $20,661.68. This amount of $20,661.68 will be deducted from the gross settlement amount for payments previously paid. Additionally, I have allowed 5% scale up $1,033.08 and 11% superannuation $2,272.78 to this figure, plus the Tax withheld amount of $7,165.00.
Past weekly benefits previously paid – $20,661.68
5% scale up – $1,033.08
Superannuation – $2,272.78
Tax withheld – $7,165.00
TOTAL – $31,132.54
Future Economic Loss
In relation to future economic loss, we have taken into account that you are working full-time as a business manager with NSW Police Force after returning to pre-injury employment three and a half months after the accident.
We have also considered all the medical evidence, including the report of Associate Professor Michael Shatwell, who is of the opinion that you are fit to work.
Associate Professor Shatwell has expressed the opinion that you may benefit from referral to a Foot and Ankle Specialist and may benefit from operative treatment for your right foot in the future. In the event that you require operative treatment, this may reduce your employment capacity for a period of time. Accordingly, we have made an allowance of $70,000.00 for future economic loss which recognises that your employment capacity is reduced.
We have chosen to offer you a buffer of $70,000.00 because we do not consider it possible to precisely quantify your future loss to a weekly figure or predict with any certainty whether you will require further surgery.
Alternatively;
We can allow $820.00 per week for a period of two years. Multiply for two years is 99.4 less vicissitudes.
$820.00 x 99.4 x 0.85 – $69,704.25 round up to $70,000.00.
Summary of Offer
Non-economic loss $250,000.00
Past economic loss $31,132.54
Future economic loss $70,000.00
TOTAL $351,132.54 round up to $352,000.00.”
The claimant indicated to the insurer that he wished to accept the settlement offer. He confirmed this position at the assessment conference.
I am satisfied that the allowance for non-economic loss is appropriate.
With regard to future economic loss, I am required to assess the claimant’s most likely circumstances had he not been injured. It is apparent from the evidence that he was likely to continue for the remainder of his working life in his current position which he manages, albeit with significant pain and discomfort.
It cannot be said that the insurers approach to assessing future economic loss is not appropriate. I had some reservations about the proposed sum of $70,000 under this head of damage. The claimant has a long way to go in terms of his working life. However, the assessment by the insurer is clearly not unreasonable. I am not confident that the claimant would be awarded a sum in excess of the $70,000 allowed by the insurer on assessment by a Member of the Commission. In these circumstances I decided to approve the proposed settlement.
CONCLUSION
I find the timing requirements of s 6.23(1) has been satisfied in that the accident occurred on 28 June 2018. Whereas, I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments 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 Mr Scott.
I am satisfied that Mr Scott understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident. I am satisfied that Mr Scott is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of Mr Scott’s claim for damages in the sum of $352,000 and I authorise the insurer to deduct the amount of $20,661.68 from the gross settlement to be refunded to the relevant workers compensation insurer.
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