QBE Insurance (Australia) Limited v Willey
[2022] NSWPIC 542
•26 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | QBE Insurance (Australia) Limited v Willey [2022] NSWPIC 542 |
| Claimant: | Ian Gilbert Willey |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Shana Radnan |
| DATE OF DECISION: | 26 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Settlement approval; 70-year-old male; motorbike accident; injuries; left shoulder acromioclavicular joint; residual separation; compound fracture left mid tibia/fibula; surgical intervention rib fracture and multiple abrasions left elbow; 13% whole person impairment entitlement to non-economic loss; section 6.23 of the Motor Accident Injuries Act 2017; Held – proposed settlement is just, fair and reasonable; settlement approved. |
| determinations made: | 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines |
Legislative background
The Personal Injury Commission (the PIC) was established on 1 March 2021. I am a Member of the Motor Accidents Division of the PIC and I empowered to determine these proceedings.
Background
QBE (the Insurer) referred the proposed settlement to the Personal Injury Commission (the Commission) on 12 April 2022 for approval. The application was allocated to me for consideration and I have held three teleconferences in the matter as follows:-
(a) 10 May 2022 with Ian Gilbert Willey (the claimant) and insurer a lengthy teleconference of one hour obtaining particulars and discussing the process of how the matter would be determined. At this teleconference I requested an impact statement from the claimant and this was uploaded on 12 May 2022.
(b) 27 June 2022 with the claimant and insurer seeking additional information relating to likely surgery and clinical records of the treating specialist, This information was required to assist in the assessment of damages.
(c) 13 September with the claimant and insurer following clinical records being provided and a further review of the insurer in relation to the non-economic loss component. At this teleconference noting the additional information, the insurer proposed to increase the non-economic loss damages to $225,000. An advanced payment of $20,000 was also agreed to by the insurer as the claimant was suffering financial hardship.
(d) By amended offer dated 14 September 2022 and acceptance of the claimant of same date, the matter is referred to me for approval of the updated terms of settlement in total of $295,176.
(e) The breakdown as follows:
i.Non-economic Loss $225,000.
ii.Past economic Loss $17,675.
iii.Fox v Wood component $2,501.
iv.Future economic loss $50,000.
The claimant was riding his motorcycle, when the insured struck him causing significant injuries. He was conveyed to hospital sustaining injuries which required surgical intervention. The claimant was 66 at the time of the accident and is now aged 70. He was taken by ambulance to St George Hospital suffering extensive injuries.
Dr Home qualified by the insurer, on 26 October 2021, determined that the injuries sustained by the claimant exceeded 10% whole person impairment. This entitles the claimant to non-economic loss.
The claimant is not represented by an Australian legal practitioner. He was given the opportunity to obtain legal advice and has chosen not to.
The claimant, by the end of the third teleconference informed me that he proposed to accept the amended offer.
The claimant requests that the Commission approve the proposed settlement.
Information considered
I have considered the documents provided in the matter by the insurer and the additional information provided by the claimant and the further information provided by the insurer which consisted of updated medical records.
I received an impact statement of the claimant dated 12 May 2022 which particularised the injuries and ongoing disabilities suffered by the claimant.
The claimant confirmed he suffered a compound fracture of his left lower leg with both fibula and tibia protruding through his skin. At hospital surgical intervention was required to insert screw and pins. A second attempt to unite the fracture took place to assist the fusion of the bone.
The claimant suffered eight broken ribs and described excruciating pain.
The claimant’s acromioclavicular joint separated and cannot be united.
The multiple abrasions to his left arm were serious with damage to the ulnar nerve requiring surgery.
He reported the ongoing symptoms currently suffered as follows:
a. limited movement to his big toe;
b. floppy left foot making a cracking sound and impacting on his gait;
c. skin graft on his lower left leg taken from his thigh is discoloured and numb;
d. his tibia and fibula bang together when walking;
e. sensation of pins and needle to his left ankle;
f. scar formation over the left shin fracture site;
g. disfiguration wo this left shoulder causing embarrassment;
h. inability to lift left arm above shoulder height;
i. inability to perform daily fitness routine;
j. inability to ride motorcycle to the level pre-accident;
k. inability to walk fast or participate in strenuous activities undertaken pre-accident;
l. decline in strength;
m. reduced socialisation, and
n. psychological injuries – loss of confidence, depression, frustration.
Injuries sustained
I have reviewed the available medical evidence before me and find there has been significant recovery since the accident, however there are some ongoing limitations which require specialised footwear, domestic assistance and ongoing conservative modalities of treatment, such as massage therapy from time to time.
Damages for non-economic losses is agreed in the sum of $225,000. These damages are to compensate for pain and suffering as a consequence of the injuries sustained, the loss of amenities in life and the likely impact of any ongoing problems for the remainder of the claimant’s life expectancy. Noting the claimant will turn 71 in December, he has (relying on the medium life expectancy table for Australia 2020) a life expectancy of 15.75 years. His injuries were significant. His recovery has also been good but he continues with some restrictions, ongoing pain and suffering that will continue for the remainder of his life.
I am to determine whether the proposed settlement complies with any applicable requirements of the Act or cl 7.392 to cl 7.411 of the Motor Accident Guidelines.
The claim
The insurer accepted liability for the claim ongoing post 26 weeks.
The insurer, has accepted that the claimant’s injuries are non-minor in nature and that the claimant is entitled to treatment and care relating to the accident caused injuries for the rest of the claimant’s life pursuant to Divisions 3.4 of the Act.
“Treatment” is widely defined and includes medical treatment (including reviews by the claimant’s general practitioner, specialist), and allied health treatment (including physiotherapy and exercise physiology). Medication (over the counter as well as prescribed) and extends to therapies helping recovery and management of injuries. There has also been provision for a certain amount of ongoing domestic assistance to help the claimant as he has difficulty performing those tasks and upon the expiry of five years then Icare will take over his ongoing needs.
The claim is confined to non-economic loss, past economic loss and future economic loss.
Further investigation
I advised the claimant and insurer in the first teleconference, that I required additional information to establish the extent of ongoing injuries and disabilities, the likelihood of further surgery and the ongoing impact of the injuries to the claimant. I considered the material filed with the application was insufficient for me to be satisfied that the settlement was fair and reasonable.
I issued directions on 10 May 2022 that the claimant provide to me the following:-
(a) Impact statements - detailing the impact of his injuries upon his and the ongoing impact of such injuries as it effects his daily life, onoing disbaiities, details of pain and suffering, loss of amenities and disfigurement.
(b) Opinion from treating general practitioner or specialist as to the the impact of his injuires and the likely ongoing treatment or future surgery,
(c) Clinical records of the general practitioner.
(d) The insurer was requested to produce all medical report it had obtaned in the matter.
A report was requested from the claimant’s treating specialist Dr Jones and he produced a further report dated 8 September 2022. He reported the following:
“I am writing regarding Mr. Ian Willey, a 66 year old male who presented to St George Hospital on 3/12/2018. This gentleman was bought directly to the Emergency Department at St George Hospital on 3/12/2018 after his motorbike was T-boned by a car. He sustained the following injuries:
Left sided rib fractures, AC joint injury and chest /lung contusion Grade III Castillo open fractures of his left proximal tibia and fibular.
Following initial antibiotic and splinting treatment in the ED and overall assessment he was taken to the operating theatre on 4/12/2018 where he underwent open reduction and minimally invasive plating of his tibial fracture. His other injuries, i.e. left sided rib injuries and a grade III AC joint dislocation were managed non-operatively. Unfortunately his left tibial fracture did not proceed to union and internal fixation failed. This required further treatment with revision of internal fixation to a locked intra-medullary nail performed on 9/4/2019. He subsequently made a satisfactory recovery following this and his left tibial fracture progressed to union.
I have continued to see Ian because of ongoing issues with pain and discomfort in his left lower leg, involving his left side and his left shoulder particularly with overhead activity and some issues with left mid-foot pain. Following these injuries the cumulative effect of these is such that he has been unable to work in his previous capacity of employment and the sequelae of his injuries impact his enjoyment of activities of daily living. It is noted that he had a prior left total knee replacement and this was functioning well prior to his injury and I do not believe that this significantly impacted upon his injury or contributed to his disability following his MV A. The prognosis is guarded in the long-term and is not likely to be able to return to previous levels of function due to the significant injuries sustained in his motor vehicle accident.”
Non economic loss
The claimant has suffered extensive pain as a result of his injuries, it has impacted on hiswell-being. He continues to suffer from pain and restriction of movement associated with his orthopaedic injuries. He lost his 50 year hobby of motorcycle riding and each day is managing his embarrasment due to disfiguration. I agree with the insurer’s increase in non economic loss as it adjusts for the ongoing psychological problems. I am satisfied the damages are within the range of compensation had the claim been assessed, noting the claimant’s age and life expectancy.
Past economic loss
The claimant was working at the time of the accident. He was participating as a maintenance man for motorhome renovator in Botany.
I am satisfied that the assessment of past economic loss in the sum of $17,675 and Fox v Wood sum of $2,501 is an accurate reflection of losses based upon the payslips provided and tax returns submitted.
Future economic loss
The basis of future economic losses was a buffer to account for part-time exployment into the future noting that the claimant will be 71 years of age this December and there was acceptance that the claimant intended to continue in some form of work beyond the normal retirement age. Noting his ongoing restriction and the opinion of Dr Jones that he was unable to continue with employment. I am satisfied that this buffer accords with the claimant’s most likely circumstances but for the accident.
Approval of settlement
Section 6.23 of the Act provides the following restrictions on settling claims for damages:
(a) Unless a claimant has a whole person impairment of greater than 10%, the claim cannot be settled within two years.
The accident took place in 2018 and the settlement complies with the provision of the Act.
(b) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the Act or the MA Guidelines.
I am satisfied that there has been compliance with the Act and guidelines.
(c) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:-
(i)Sub-cl 1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount has been broken down as $225,000 for non-economic loss, $17,675 for past economic loss, $2,501 for Fox v Wood and $50,000 for future economic loss.
(ii)Sub-cl 2 requires the amount of any deductions in the proposed settlement.
The offer made excluded any Medicare reimbursement. It is subject to Centrelink Clearance and the sum of $17,675 past economic loss
(iii)Sub-cl 3 requires the amount of any advanced payments made.
The sum of $20,000 will be deducted as an advanced payment was made for financial hardship in september 2022.
(iv)Sub-cl 4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have received as much information as the insurer and the claimant have been able to provide to establish the nature and extent of the claimant’s injuries and current ongoing diasabilities. I received an up to date report of treating specialist Dr Jones on 8 september 2022.
(d) Clause 7.399 of the MA Guidelines, requires me to consider the following:-
(i)Sub-cl 1 Timeliness – the proposed settlement satisfies the timing requirements in the Act.
The timing requirements have been satisfied.
(ii)Sub-cl 2 Appropriateness – 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 injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed of the medical evidence produced in this matter, having spoken to the claimant, I am satified that the nature of the claimant’s injuries and the ongoing disabilities are known and have stabilised, the extent of past and future treatment is known as it related to ongoing pain and suffering and there is no evidence before me to suggest the claimant is likely to undertake any further surgical intervention. Whilst it is possible, the claimant informed me he would not seek further operative intervention. I find that having regard to the information made available I consider that the agreed sum of $297,591 is just, fair and reasonable and within the range of likely potential damages assessments had the matter been assessed by a claims assessor taking into account the considerable recovery, the claimant’s age and limited ongoing symptoms.
The claimant was advised by me, at the first teleconference that should he wish to, he was at liberty to seek independent legal advice and that in the event that further medical evidence was provided to establish any deterioration, since the Insurer’s medical investigation were undertaken, that such information could impact on the non-economic losses. The claimant confirmed he was aware of his rights and did not intend to seek representation or advice, as he had decided he was happy to take the settlement offered by the Insurer.
(iii)Sub-cl 3 Understanding – the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware in the teleconferences that in the event he took the settlement, he could not seek any further damages for non-economic losses and economic losses. He was advised that the insurer would still provide ongoing medical treatment, if required and approved by the Insurer and the ongoing care.The claimant was also made aware that the Insurer would continue to meet any charge issued by Medicare and that the Insurer has agreed to reimburse HIC separately.
I am satisfied that the claimant was aware of his rights and had freely agreed to the terms of settlement with an understanding of the settlement and its finality to his claim for damages.The claimant was informed that the final payment to him could be subject to a claim by Centrelink and that any charge would be deducted from his proceeds of settlement. He was aware that the exact sum if any was not able to be calculated at this time.
30.I note that the letter of offer dated 13 september 2022 has an incorrect date of accident and that the insurer has agreed to amend the date of accident from 3 December 2022 to 3 December 2018.
Determination
The proposed settlement is approved under s 6.23(2)(b) of the Act.
The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.
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