QBE Insurance (Australia) Limited v Silcocks
[2023] NSWPIC 24
•20 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Silcocks [2023] NSWPIC 24 |
| Claimant: | Jean Silcocks |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Susan McTegg |
| DATE OF DECISION: | 20 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; claim for non-economic loss; claimant now 88 years of age; injured as passenger; degloving injury requiring debridement (x4) and skin graft to left lower leg; Weber A fracture of left ankle; scarring left lower leg and thigh; assessments of whole person impairment 9%; notwithstanding, no entitlement non-economic loss offer of settlement by insurer; Held – claimant sustained serious injury; accident has adversely impacted the claimant’s quality of life with no likelihood of improvement; appropriate compromise having regard to serious injury sustained and where no legal obligation on insurer to make any allowance for non-economic loss; settlement approved. |
| determinations made: | Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 |
INTRODUCTION
On 2 June 2021 Jean Silcocks (the claimant) sustained injury in a motor vehicle accident (the accident).
Mrs Silcocks has made a claim against QBE Insurance (Australia) Limited (the insurer) of the at fault vehicle, for lump sum damages.
On 29 March 2022 the insurer accepted liability for the claim for common law damages.
The insurer has accepted that Mrs Silcocks had 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 and care for the rest of her life for her accident caused injuries.
The insurer has not conceded Mrs Silcocks has sustained a whole person impairment (WPI) of greater than 10%. Whilst there is no entitlement to recover damages for non-economic loss where Mrs Silcocks cannot establish a WPI greater than 10% the insurer has agreed to pay Mrs Silcocks damages for non-economic loss in the sum of $120,000.
Because Mrs Silcocks is not represented by a lawyer, her 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 held a teleconference on 20 January 2023. Mrs Silcocks appeared in person together with her husband Raymond Haydn Silcocks and the insurer was represented by Ms Gabi Anderson.
THE RELEVANT LAW
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.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(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 claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the Mrs Silcocks, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) Mrs Silcocks understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS CONSIDERED
I have considered the following documents:
· application for personal injury benefits dated 19 July 2021;
· ambulance report;
· Gosford Hospital Discharge Summary;
· clinical records of Waratah Medical Services Kanwal;
· Certificate of fitness dated 22 July 2021;
· report of Pinnacle Rehab following activities of daily living (ADL) assessment dated 2 September 2021;
· report of Dr Raymond Wallace dated 18 August 2022;
· report of Associate Professor Peter Haertsch dated 27 October 2022;
· letter from the insurer to Mrs Silcocks dated 13 December 2022 conveying offer of settlement, and
· email from Mrs Silcocks dated 14 December 2022 accepting offer of settlement.
REVIEW OF THE EVIDENCE
Mrs Silcocks is now 88 years of age.
Mrs Silcocks has a history of hypertension, diabetes, osteoporosis, sleep apnoea, atrial fibrillation, pulmonary oedema and glaucoma. She lived with her husband Ray and received two hours of domestic assistance before the accident.
The accident occurred on 2 June 2021. In the Application for Personal Injury Benefits Mrs Silcocks provided the following description of the accident:
“We pulled up in the driveway of our home, my husband the driver got out of the car to disable the alarm and open the garage door.
I started to get out and my left leg was outside the car, my husband noticed the car was creeping forward and he jumped back in and instead of putting his foot on the brake he jammed it on the accelerator, the car speed forward throughr [sic] the garage door crashed into the back of the garage.
my leg was trapped between the car door and the garage wall.”
Mrs Silcocks sustained a large degloved area to the left lower leg/shin area with visible fat tissue and muscle. Mrs Silcocks was transported by ambulance to Gosford Public Hospital.
Mrs Silcocks sustained a soft tissue injury to her left leg requiring debridement on four separate occasions and a split thickness skin graft taken from the left upper thigh. Her recovery was impeded by poor wound healing secondary to CCF (congestive cardiac failure) and venous disease. She also sustained a Weber A fracture at the left ankle. Input was sought from cardiology and the vascular surgery team. She became deconditioned over her prolonged hospital stay and required rehabilitation to return to her usual baseline functioning.
Mrs Silcocks was an inpatient at Gosford Hospital until 11 August 2021 when she was transferred to Berkeley Vale Private Hospital for rehabilitation including physiotherapy and a gym program. Mrs Silcocks was discharged on 1 September 2021 with a home care package including nursing, domestic cleaning and social support. Mrs Silcocks continued physiotherapy until the end of 2021.
Pinnacle Rehab undertook an ADL assessment on 26 August 2021. Mrs Silcocks identified transportation needs due to a sense of anxiety relating to transportation by her husband having regard to the circumstances of the accident. It was also noted she would require nursing assistance to provide wound care and that domestic services were provided by her husband or the Homecare Package Level 3.
CT scan of the left ankle and foot of 7 June 2021
The scan showed an oblique comminuted fracture of the distal fibula with a tiny avulsed bone fragment at the tip of the medial malleolus.
Report of Dr Raymond Wallace, 18 August 2022
Mrs Silcocks was assessed by Dr Raymond Wallace, orthopaedic specialist on 18 August 2022. Dr Wallace reported intermittent aching pain inferior to the lateral malleolus at the left ankle accompanied by intermittent clicking at the joint. The pain worsens on stair climbing, walking long distances, weather changes and prolonged standing and is relieved by rest or elevation. Mrs Silcocks complained about swelling and intermittent stiffness at the left ankle.
Mrs Silcocks is able to do light housework. She has the benefit of a housekeeper two hours once a week although most of the housework is done by her husband. Mrs Silcocks has been unable to resume her pre-injury level of walking for exercise.
Dr Wallace diagnosed a soft tissue injury to the left lower leg and a Weber A fracture of the left ankle due to the crush injury to her left lower leg. He suggested she might benefit from an unsupervised home exercise program and intermittent use of analgesic medication. He found she had a guarded prognosis for further recovery of function of her left leg.
Dr Wallace assessed a 5% WPI as a result of loss of range of movement at the left ankle.
Report of Associate Professor Peter Haertsch, 27 October 2022
Associate Professor Haertsch, plastic surgeon assessed Mrs Silcocks on 27 October 2022. He reported scarring of the left lower leg and of the left thigh. He reported pain and clicking in the ankle, with stiffness and swelling.
Associate Professor Haertsch reported an area of soft tissue loss over the anterior aspect of the lower third of the left leg. It was depressed, non-tender to palpation, but sensitive. The graft was noted to be adherent to the underlying musculature. There was no loss of sensation in the distribution of the perineal nerve. He reported the split skin graft donor site on the left thigh was soft, flat, and mildly depigmented.
Associate Professor Haertsch assessed a 4% WPI. Utilising the Table for the evaluation of minor skin impairment (TEMSKI) scale he reported Mrs Silcocks had some scarring of which she was self-conscious, and noticeable colour contrast between the grafted area and the surrounding skin. The scar is easily locatable with minor changes present. There are no staple or suture marks. The scarring is visible with usual clothing, a contour defect is easily visible. He reported minor limitation in the performance of ADL, in relation to wearing high heels and noted no treatment was required other than the application of daily creams.
SHOULD I APPROVE THE SETTLEMENT
Section 1.4 of the MAI Act defines non-economic loss as:
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $605,000.
Having regard to her age Mrs Silcocks has a limited life expectancy. The accident has adversely impacted her quality of life with no likelihood of improvement. Indeed, it is likely there will be an inexorable increase in her pain and disability as she ages.
Further, I note Mrs Silcocks has been unable to establish she has an entitlement to non-economic loss where she cannot demonstrate a WPI greater than 10%. In these circumstances I am of the view that the sum of $120,000 is an appropriate compromise settlement having regard to the serious nature of the injury sustained by Mrs Silcocks during the latter years of her life but also taking into account that there is no legal obligation for the insurer to make any allowance for non-economic loss.
I am satisfied that Mrs Silcocks is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
I am satisfied Mrs Silcocks understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Mrs Silcocks understood there will be no repayment to Centrelink or any impact on her ongoing entitlements, although she may need to consider how the additional funds impact the assets test for her pension.
The insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum.
CONCLUSION
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 Mrs Silcocks.
I am satisfied Mrs Silcocks is aware she can seek legal advice but does not wish to do so.
I am satisfied Mrs Silcocks 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 Mrs Silcocks is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of Mrs Silcocks’ claim for damages.
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