QBE Insurance (Australia) Limited v Yao
[2024] NSWPIC 635
•13 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Yao [2024] NSWPIC 635 |
| CLAIMANT: | Le Yao |
| INSURER: | QBE |
| MEMBER: | David Ford |
| DATE OF DECISION: | 13 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 38-year-old driver of a motor vehicle involved in a head-on collision with the insured vehicle, claimant sustained soft tissue injuries to neck and back, and also suffered a psychological injury; claimant met the criteria for adjustment disorder with mixed anxiety and depressed mood; insurer wholly admitted liability and conceded non-threshold injury; insurer conceded entitlement to past and future economic loss, claimant is an accountant by profession, was absent for work for a period of 3 months post-accident and thereafter returned to work on a full time basis; total amount of damages proposed is $89,092.97 less statutory payments; Held – the proposed settlement is just, fair and reasonable; settlement approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.38 of the Motor Accident Guidelines 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 10 November 2021 Le Yao (the claimant) was driving her motor vehicle along the Pacific Highway near the intersection with Stanhope Road at Killara, when she was involved in a head on collision with the insured motor vehicle, which was approaching from the opposite direction. Police and ambulance attended the scene of the accident; however, she did not require ambulance transport. She returned to her home after the accident, and subsequently developed general aches and pains and after two days consulted her general practitioner.
She underwent physiotherapy treatment for approximately one year before the insurer ceased funding. She improved with physiotherapy but did continue to have low back pain and occasional neck pain. She also consulted a psychologist, as she suffered from psychological injuries following the accident.
The claimant was born in 1986 and is presently 38 years of age. At the time of the accident and up until the present time, she is employed as an accountant. Because of the injuries and ongoing disabilities sustained in the subject accident, she was absent from work for a period of three months and then returned to her normal duties.
The insurer admitted liability by letter dated 20 June 2023, and because of her psychological injuries, the insurer has conceded a non-threshold injury and has also conceded she is entitled to damages for both past and future economic loss.
The insurer arranged for the claimant to be examined on a medico legal basis by Dr Thomas Rosenthal, occupational physician, and I refer to his reports dated 9 March 2023,
11 May 2023 and 27 February 2024. In his initial report, dated 9 March 2023 Dr Rosenthal was of the opinion the claimant’s injuries were not considered medically stabilised. He expected a full recovery, however, suggested a review in 12 months time. In his supplementary report dated 11 May 2023, he recommended further physiotherapy, self-managed exercise, and again considered her injuries not medically stabilised.In his final report dated 27 February 2024, he provided a more comprehensive report, and I note the following on page 3 where he stated as follows,
“As noted she continues to work full time as an accountant as most of her work is done from home, there is limited driving. She can sit and stand as required, she reports no impact from her motor vehicle accident injuries on her work.”
On Page 6 of his report Dr Rosenthal opined she is fully fit for her pre accident employment without restriction, and she can continue working as an accountant full time.
The claimant lodged a statement on the portal dated 24 August 2024 where she stated the following:
“Even now I have stopped the treatment, I still have lower back pain so I cannot walk or stand for longer than one hour.”
The insurer arranged for the claimant to be examined on a medico legal basis by
Dr Ashwinder Anand, psychiatrist, and I refer to his report dated 7 June 2023. He obtained a detailed history from the claimant. He was of the opinion the claimant has full work capacity for her pre-injury work doing pre-injury hours. He opined the claimant met the criteria for adjustment disorder with mixed anxiety and depressed mood, which he stated appears to be resolving.I had preliminary conferences in this matter, initially on 25 October 2024 and then on
6 November 2024. Initially, the insurer proposed to resolve the claim for the sum of $81,365.84 less statutory payments made. At that time, the proposed settlement would have resulted the claimant receiving a net settlement of $57,272.87. As stated in my preliminary conference report dated 25 October 2024, after discussing the matter with both parties, I was advised both parties wished to continue settlement negotiations in the matter.I then allowed the parties a further period to continue settlement negotiations and at the preliminary conference on 6 November 2024, I was advised the insurer had now proposed to settle the claim for sum of $89,092.97 resulting in a net settlement to the claimant in the sum of $65,000.
The calculation of the proposed settlement money is as follows:
· past economic loss $30,129.84
· future economic loss $52,727.13
· Tax Instalment reimbursement $6,236
Total $89,092.97 less statutory benefits
The claimant advised me she wishes to accept the proposed settlement. I consider the settlement is appropriate in all the circumstances of this case and I have decided to approve the proposed settlement as submitted in this application.
The claimant is not represented by a lawyer and accordingly the settlement must be approved in accordance with the Motor Accident Injuries Act 2017 (MAI Act).
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (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 General Sessional Member of the Motor Accidents Division of the Commission. Clause 14 (A) (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and cl 14 (D) empowers me to determine those proceedings.
Because of the date of the accident cl 14 D (3) (b) provides the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
The claimant confirmed she had read the application documentation lodged on the portal by the insurer. These documents had been forwarded to the claimant by email.
The solicitor for the insurer advised the insurer will not deduct and pay monies to Medicare under the Health and Other Services (Compensation Act 1995 Commonwealth) from the settlement sum. If any charges are raised, the insurer will pay the charges of treatment expense 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 assessment if the claim was to proceed to assessment, considering the nature and extent of the claim.
I am satisfied the claimant is aware she can seek legal advice but does not wish to do so.
I am satisfied the claimant understands the binding nature of the settlement and she will be precluded from making a further claim for damages arising out of the accident.
I am satisfied the claimant is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
RELEVANT LAW
Section 6.23 (2) (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 7.38 of the Guidelines states I must be satisfied as to the following:
(a) 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, taking into the account the nature and extent of the claim, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of proposed settlement and was willing to accept the proposed settlement.
PRELIMINARY CONFERENCE ON 6 NOVEMBER 2024
The insurer lodged an application for approval of the settlement, and it was referred to me for consideration. I held a final preliminary conference on 6 November 2024. The claimant participated in person and the insurer was represented by Elveen Lal.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied it is appropriate in this matter to assess total damages in the sum of $89,092.97 less statutory payments made to the claimant.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of the claimant’s claim for damages.
The parties can agree, if they wish, to have my Reasons and Certificate to be de-identified.
David Ford
Sessional General Member
Personal Injury Commission
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