QBE Insurance (Australia) Limited v Sultana
[2023] NSWPIC 548
•17 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Sultana [2023] NSWPIC 548 |
| CLAIMANT: | Ghazala Sultana |
| INSURER: | QBE |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of proposed settlement of a claim for damages under section 6.23(3); claimant unrepresented and accepted proposed offer of $109,000 for past and future economic loss; no entitlement to non-economic loss; claimant a full time nursing student at the time of the motor accident; studies, including practical placement delayed due to recovery from accident related injuries; injury involving a fracture of the base of the 2nd metacarpal; symptoms largely resolved, claimant advised unlikely that injury will give her ongoing problems in to the future but she could not be sure; Held – settlement approved; $39,000 for past economic loss on basis of delay to entry into occupation due to delayed studies; buffer of $70,000 for future economic loss. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act The claimant and the insurer have agreed to settle the damages claim in the amount of $109,000. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. Attached to this certificate are reasons for my assessment. |
Reasons for Decision
Issued under s 7.36(1) of the Motor Accident Injuries Act 2017
BACKGROUND
Ms Ghazala Sultana (the claimant) is a 29-year-old female who suffered injuries as a result of a motor vehicle accident which occurred on 6 July 2022.
The claimant was driving a vehicle approaching a roundabout in Blacktown, when the insured vehicle travelling in an oncoming direction crossed to the wrong side of the road and collided with the front driver’s side of the claimant’s vehicle.
The claimant subsequently lodged an application for personal injury benefits with the insurer. I understand that liability was admitted and the claimant has been in receipt of statutory benefits. Those statutory benefits continued beyond 26 weeks with the insurer accepting that the claimant had suffered a non-threshold injury and the claimant was not at fault for the accident.
On or about 20 November 2020, the claimant lodged an application for common law damages with the insurer. I understand that liability was subsequently admitted by the insurer.
The claimant is self-represented.
After gathering evidence, including requesting particulars from the claimant, the insurer made an offer of settlement via email on 7 September 2023 in the amount of $109,000. The breakdown of such offer being:
(a) past economic loss: $39,000
(b) future economic loss: $70,000.
It is apparent that the offer was discussed with the claimant over the phone before the emailed offer of settlement was made.
The claimant accepted the offer on 7 September and thereafter a deed of release was signed.
The insurer subsequently lodged an application with the Personal Injury Commission (Commission) seeking approval of the settlement.
The matter has been allocated to me as a Member of the Commission.
I held a teleconferences with the claimant and the insurer om 19 September 2023.
At that teleconference the claimant confirmed that she was aware of her right to obtain legal representation, however, does not wish to engage a lawyer.
She also indicated that she was aware that the settlement does not affect her entitlement to ongoing statutory benefits for treatment and care.
The claimant confirmed that she understood the terms of the settlement and felt that the proposed settlement was fair and reasonable.
LEGISLATIVE FRAMEWORK
Section 6.23 of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“(1) (repealed)
(2) A claim for damages cannot be settled unless—
(a) the claimant is represented in respect of the claim by an Australian legal practitioner, or
(b) the proposed settlement is approved by the Commission.
(3) The Commission is not to approve the settlement of a claim unless satisfied that the settlement complies with any applicable requirements of or made under this Act or the Motor Accident Guidelines.”
Clause 7.37 of the Motor Accident Guidelines (the Guidelines) provides:
“Under section 6.23(3) of the Act, before the Personal Injury Commission may approve the settlement of a claim for damages, it must be satisfied that:
(a)the proposed settlement satisfied the timing requirements in section 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 the Commission, 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.
(c)the claimant understands that they are entitled to be represented in respect of the claim by an Australian legal practitioner.
(d)the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application. No reply has been received. The application includes sufficient information for me to proceed with the settlement approval.
SUMMARY OF EVIDENCE
At the time of the motor accident the claimant was a full-time student studying nursing at the Australian Catholic University. She had been in such situation since 2021.
The claimant has advised that at the time of the accident she was on a clinical placement as part of her studies, being the second such placement as part of her degree. The claimant would have been eligible to start work following her second placement, however, due to the accident this was delayed and she was not able to commence working until 2023.
The claimant is currently working with a nursing agency and working paid shift work, three to four days a week, along with full time study.
The claimant has indicated that after she has completed her theory studies she will mostly likely start working as a registered nurse. This is likely to be from February 2024.
The claimant is married with two children, with the family residing in Plumpton NSW.
Medical evidence
The claimant was transported to Westmead Hospital from the scene of the accident via ambulance. She was admitted overnight, complaining of pain in her left hand. An X-ray demonstrated a fracture involving the base of the 2nd metacarpal.
The claimant was discharged on 7 July 2022, however, was re-admitted the next day and underwent an open reduction and internal fixation of the fracture, carried out by orthopaedic surgeon, Dr Chan.
Following her discharge from hospital, the claimant underwent approximately 10 weeks of physiotherapy. She is not undergoing any active treatment at the present time.
Before me are various reports of Dr Chan. On 10 August 2022, Dr Chan noted the claimant’s scar was already quite light and she was undergoing strengthening exercises and scar massage.
A full range of motion of the index finger was noted on review on 7 September 2022.
The hardware was removed by Dr Chan on 30 March 2023. Upon review on 3 May 2023, Dr Chan noted the claimant was doing very well. Normal sensation was reported, and there was a 40 degree active joint hyperextension and full composite finger flexion. Dr Chan stated that the claimant did not need to see him unless there were ongoing concerns.
The insurer had the claimant examined by orthopaedic surgeon, Dr Wallace on 8 August 2023. He provided a report to the insurer dated 14 August 2023.
Dr Wallace reported the claimant having no complaints of pain in her left hand. She had previously suffered from intermittent aching pain at the dorsum of the let 2nd metacarpal on rare occasions in cold weather. There was no paraesthesia or numbness and no weakness of grip at the left hand. No other symptoms related to the accident were reported.
The report states the claimant reported having no difficulties with her self care and her sleep was not disturbed by pain. She was able to continue with housework and home maintenance tasks including mowing and gardening.
It was also noted that prior to the motor accident the claimant enjoyed playing basketball, and she has returned to such pursuit.
Dr Wallace confirmed the diagnosis of a fracture of the 2nd metacarpal of the left, non-dominant, hand as a result of the subject motor accident.
Dr Wallace did not consider the claimant required any further treatment or medical review and noted that her symptoms had now resolved. He considered her fit for full time pre-injury duties as a student nurse without restriction. He assessed a 1% whole person impairment related to the claimant’s scar.
DAMAGES
Non-economic loss
Based upon the assessment of Dr Wallace, the insurer has made no allowance for non-economic loss. The claimant was made aware of her right to have her whole person impairment assessed by the Commission. The claimant declined to take such step and has indicated that she accepts the assessment of Dr Wallace.
Past economic loss
The allowance of $39,000 has been calculated on the basis that the claimant’s commencement of paid employment was delayed owing to the accident occurring during her second clinical placement.
Utilising the claimant’s current earnings, the insurer has allowed a net amount of $623.68 per week for 56 weeks in addition to 11% superannuation. This gives a total of just under $39,000.00.
Future economic loss
The insurer explains that the allowance of $70,000 for future economic loss is made on a buffer allowance. Alternatively, $125 per week for 38 years (deferred for 10 years) and includes a 15% deduction for vicissitudes.
At the teleconference the claimant indicated to me that she does not consider it likely that she will have ongoing difficulties with her left hand in the future, however it was a little unknown. She did not anticipate that she would likely be precluded in her hoped future employment as a registered nurse.
OTHER CONSIDERATIONS
At the teleconferences, I raised with the claimant that she was not represented by a legal practitioner. I made it clear to the claimant that she was entitled to engage a suitably qualified legal practitioner to represent her in her claim. The claimant indicated that she had seen a local lawyer in Yass initially, however, was advised that it would not be a cost effective to the claimant to engage a lawyer. I formed the impression that the claimant was cognisant of the issues in her case.
I am satisfied that the claimant understood her entitlement to legal representation and after considering such option, did not wish to take up such entitlement.
I have been provided with a copy of the settlement agreement in respect of the proposed settlement. I find it appropriately protects the rights of the claimant.
REASONS
I find the settlement amount to be fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
The allowance for past economic loss has been appropriately calculated utilising the cliamant’s current earnings.
I also consider that the buffer for future economic loss appropriately reflects the possibility of any future issues that may arise with the claimant’s left hand. However, noting the content of the medical evidence, any future issues are not likely to arise in any significant way.
On the basis of the above, I approve the proposed settlement in the amount of $109,000 pursuant to s 6.23(3) of the MAI Act.
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