QBE Insurance (Australia) Limited v Spence
[2022] NSWPIC 273
•8 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Spence [2022] NSWPIC 273 |
| CLAIMANT: | Catherine Spence |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
DATE OF DECISION: | 8 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act 2017; non-economic loss; claimant now 69 years of age; serious accident; passenger; non-economic loss only; fracture of T12, L1 and L2; psychological injury; can drive for 2.5 hours; adjustments made to do household chores; Held– settlement of claim for damages for non-economic loss in the sum of $220,000 just, fair and reasonable and within the range of likely potential damages assessments; settlement approved. |
| DETERMINATIONS MADE: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
Settlement Approval
Issued under section 6.23 of the Motor Accident Injuries Act 2017
Introduction
On 10 June 2018 Catherine Spence (the claimant) sustained serious injury in a motor vehicle accident whilst a passenger in a car driven by her husband on the Princes Highway at Lake Tabourie. Unfortunately, the road was wet, and the car hit a guard rail shortly before a bridge, went over the guard rail and down an embankment and into the water (the accident).
Mrs Spence 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 Spence 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 conceded Mrs Spence has sustained a whole person impairment (WPI) of greater than 10%. This means Mrs Spence is entitled to recover damages for non-economic loss.
Mrs Spence and the insurer have agreed to settle the claim for lump sum damages for the sum of $220,000. Because Mrs Spence 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 7 June 2022 at 1.30 pm. Mrs Spence appeared in person and the insurer was represented by Ms Nicole Hurcum.
Jurisdiction of the Personal Injury Commission
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 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
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.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement satisfies the timing requirements in s 6.23(1) of the 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 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 Spence, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) Mrs Spence 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:
(a) Application for personal injury benefits dated 14 June 2018;
(b) Allied health recovery request of Hugh Buxton dated 18 August 2018;
(c) clinical notes of Eurobodalla Exercise Physiology (115 pages), and
(d) report of Dr Yiu-Key Ho dated 3 December 2021.
Review of the evidence
Mrs Spence is now 69 years of age. She was 65 years of age at the date of the accident. At that time Mrs Spence was retired and living with her husband at Denhams Beach.
Following the accident Mrs Spence was conveyed by ambulance to Milton Ulladulla Hospital. She was discharged the following day.
Mrs Spence sustained three fractured vertebrae, namely T12, L1 and L2 and suffered psychological trauma.
Eurobodalla Exercise Physiology
On 18 August 2018 Mrs Spence commenced treatment with Hugh Buxton, and subsequently Aden Reynolds, exercise physiologist to improve her strength and functional conditioning.
Following a review on 11 August 2020 Mr Reynolds reported Mrs Spence was managing her lower back rehabilitation well through walking and strength exercises at the gym. She reported right forearm tingling/pins and needles, during exercise, mainly elbow flexion movements. She also reported feeling light-headed in the morning and had experienced two falls in the preceding two months. He recommended a continuation of the exercise program to build and maintain strength and endurance.
Dr Yiu-Key Ho
Mrs Spence was assessed by Dr Yiu-Key Ho, orthopaedic surgeon at the request of the insurer on 22 November 2021. He provided a report dated 3 December 2021.
Dr Ho reported investigations confirmed Mrs Spence had suffered a fracture of T12, L1 and L2. He noted that a CT scan on 18 December 2018 showed a 50% to 70% loss of anterior height of L1 and 40% to 50% loss of anterior height of L2.
She underwent conservative treatment, namely physiotherapy and or exercise physiology. He noted at the time of his examination she was still undertaking an exercise program and attending the gym from Monday to Friday. Mrs Spence was taking painkillers as required.
Dr Ho reported Mrs Spence had pain and stiffness in the low back, more on the right side around the sacroiliac joint. Dr Ho also noted Mrs Spence can drive for more than two hours and that walking was not a problem.
On examination Dr Ho reported:
“Mrs Spence was not in pain. She could sit very well. Her walking gait is normal. Back movement is only mildly restricted. On forward flexion her fingertips nearly touched the ankle joint. It seems to be a bit restricted with extension, but side flexion and rotation are quite good. Straight leg raising is 90° and there is no neurological deficit. There is some tenderness on palpation in the right paraspinal region in the lower lumbar and sacroiliac joint area. I could feel a small kyphotic area around the thoracolumbar area corresponding to the initial fracture in the L1/2 area. She did not complain of pain.”
Dr Ho concluded Mrs Spence was performing quite well despite two reasonable lumbar fractures, with residual back pain and mild stiffness. He assessed a 20% WPI.
Information provided by Mrs Spence
Mrs Spence informed me she attends the gym five days a week and has physiotherapy as needed. She said she had a recent exacerbation and found it necessary to undergo further physiotherapy treatment. She also takes painkillers every day and will take something stronger if needed. She also takes sleeping tablets if required to sleep.
In her activities of day to day living Mrs Spence has managed but has made adjustments. Mrs Spence informed me that in the complex of 13 units where she lives with her husband, she and her husband Alex look after the garden. She can no longer weed or bend for prolong periods and finds she generally needs additional painkillers on the days she gardens.
Mrs Spence said before the accident she was able to drive to Melbourne without difficulty. She now finds it difficult to drive for more than two and a half hours without stopping.
In relation to household chores Mrs Spence stated she lives with her husband in a unit which is relatively easy to care for. She can still vacuum although she cannot lift or carry the vacuum. She struggles to clean the bath but can manage the on suite. She finds it difficult to carry washing and to hang it on the line, so she generally uses the dryer. She can no longer reach into high cupboards and has to be vigilant in her daily activities. For instance, she can no longer jump up on a chair to reach high objects.
Mrs Spence stated currently her psychological problems are minimal and she is not having any treatment other than the use of sleeping tablets. However, previously
Mrs Spence thought she had recovered from her psychological illness, but the bushfires triggered her symptoms and she required further psychological treatment. Whilst her symptoms may be quiescent now it seems there is a risk that exposure to further trauma will act as a trigger. Hopefully, this will not occur.Mrs Spence said she did not wish to obtain legal representation; she felt the insurer had dealt with her fairly and she just wished to finalise this settlement.
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 $595,000.
Mrs Spence has a life expectancy of 19 years. She is clearly stoic and has made a good recovery from the serious injury she sustained in the accident.
However, the nature of the fractures suffered by Mrs Spence means that it is likely there will be an inexorable increase in her pain and disability as she ages.
Taking into account Mrs Spence’s age and the impact of the accident on her activities of daily living I am of the view that the sum of $220,000 is an appropriate award of damages for non-economic loss.
I am satisfied that Mrs Spence 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 Spence understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied Mrs Spence understood there will be no repayment to Centrelink or any impact on her ongoing entitlements.
Ms Harcum advised the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. She advised 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 find the timing requirements of section 6.23(1) of the Act satisfied where it is agreed Mrs Spence has sustained a permanent impairment greater than 10% and where it is now two years since the date of accident.
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 Spence.
I am satisfied Mrs Spence is aware she can seek legal advice but does not wish to do so.
I am satisfied Mrs Spence 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 Spence is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the Act I approve the settlement of Mrs Spence’s claim for damages.
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