AAI Limited t/as AAMI v Davidson
[2025] NSWPIC 483
•16 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Davidson [2025] NSWPIC 483 |
| CLAIMANT: | June Anne Davidson |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 16 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $180,000; non-economic loss only; 91-year-old pensioner; insurer conceded entitlement to non-economic loss; injuries include multiple fractures (chest and pelvis, right S1 and 2), and a pulmonary embolus; subsequent falls unrelated requiring surgery; background of pre-existing medical conditions and subsequent falls impacting on claimant’s abilities; need to move to nursing home unrelated to injuries sustained in subject motor vehicle accident; settlement complied with clause 7.37 of the Motor Accident Guidelines version 9.3; settlement approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $180,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Injuries Guidelines version 9.3. |
STATEMENT OF REASONS
INTRODUCTION
June Anne Davidson (the claimant) was a rear seat passenger in a vehicle driven by her daughter when the insured ran a red light and collided with them at speed. The impact was significant and the claimant was trapped in the vehicle. Emergency services took over an hour to cut her from the wreckage.
The claimant was taken by ambulance to Liverpool Hospital on 15 January 2024 and was placed into intensive care. She remained an in-patient for three weeks having sustained significant orthopaedic injuries. She was subsequently transferred to Westmead rehabilitation where she remained for a further four weeks.
An Application for Personal Injury Benefits was lodged on 24 January 2024.
The reported injuries sustained were the following:
(a) chest Wall Trauma: rib and sternal fractures, pneumothorax that required insertion of chest tube and admission to Intensive Care for respiratory support for several days;
(b) pelvis: fractures of the super and inferior pubic rami and right S1 and S2 segments;
(c) pulmonary embolus: requiring readmission to Liverpool Hospital on 28 May 2024 for a short period where she had coagulation, and
(d) left humerus: medial epicondyle fracture.
The claimant brought a claim for common law damages on 24 October 2024.
AAMI (the insurer) admitted liability for the common law claim on 24 February 2025.The insurer conceded that the claimant was entitled to damages for non-economic loss on 8 May 2025 on the following basis:
“We’ve assessed your degree of permanent impairment as a result of the injuries caused by the motor accident “(permanent impairment)” Your permanent impairment is greater than 10%.”
The insurer’s submission dated 29 May 2025 confirmed the basis that whole person impairment (WPI) exceeded the statutory threshold related to right superior and inferior pubic rami fracture and fractures to S1 and S2.
An offer of settlement pursuant to s 6.4 offer was made on 15 May 2025 and the claimant agreed to the terms on 21 May 2025 executing an Agreement of Release.
The parties have reached an agreement to settle the claim in the sum of $180,000 for
non-economic loss only. As the claimant was retired at the time of the motor vehicle accident, there is no claim for economic loss past or future.The claimant is currently 91 years of age.
The claimant has a number of pre-existing and subsequent health conditions which continue to impact on her general health and will for the remainder of her life. These comorbidities were taken into consideration when reviewing the amount agreed to for non-economic loss.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (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 Motor Accident Guidelines version 9.3 (Guidelines) commencing 4 December 2024.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“(a) repealed;
(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, and
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Preliminary conference on 24 June 2025
The nature of the settlement proposed in the sum of $180,000 at that stage, was discussed between the parties. During the video conference the claimant confirmed she was living independently also caring for her husband at the time of the accident.
Subsequent to the injuries she sustained in the subject accident she needed to sell her home and move into a nursing home.
As the settlement did not include any provision for accommodation and travel costs and there were addition issues in relation to the costs of nursing care, I advised the claimant she could investigate such matters such as accommodation and travel costs before the application was determined. As to the care cost issues, these were separate to the settlement as it was not part of my jurisdiction but could be reviewed with the insurer and taken up with the case officer. If there were care disputed the matter could be referred to the medical division of the Personal Injury Commission (Commission).
The claimant was informed of her ability to seek legal advice even at this stage of the claim to assist her if she wished.
I requested that the claimant obtain the information relating to the change in her accommodation, medical evidence to support such need as it related to the injuries sustained in the subject motor vehicle accident and details of moving costs to be given to the insurer to enable further discussions as to the impact of this additional information on the settlement that had been reached.
Directions were made for the insurer to assist the commission in obtaining the relevant information as to the need to be accommodated in an aged care facility and the associated costs if relevant,
The parties subsequently requested further time to obtain the requested medical and other information and called for an extension of time.
Preliminary conference on 22 August 2025
Before this preliminary conference I received an extensive volume of medical records as to the additional medical issues suffered by the claimant both pre and post subject motor vehicle accident. The impact of this information confirmed that the claimant’s move into a nursing home was related to a number of falls she had sustained in the intervening period and these incidents were not accident related.
The parties agreed that on the basis that this information suggested the move into nursing home and decision to sell their property in September 2024, was due to advanced age and a number of unrelated falls. As a consequence of this information, there was to be no further adjustment to the settlement amount and no accommodation or travel costs were applicable on the basis the need was not accident related.
The claimant and her daughter were satisfied that the medical records produced supported the insurer’s position that the move to a nursing home and associated costs were unrelated to the injuries sustained and that the amount agreed to for non-economic loss would be the ambit of the claim.
The claimant also advised she was aware of the ability to obtain legal advice and had chosen not to retain legal representation. The claimant requested the matter be approved and proceed to determination.
The insurer confirmed that there were no deductions relating to any statutory payments made and the whole amount would be paid to the claimant.
Both parties confirmed their desire for the settlement to be approved and advised there was no other information to be relied upon.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle in excess of 1234 pages:
Liability:
(a)application for common law damages dated 24 October 2024;
(b)liability notice damages claim dated 24 February 2025;
(c)submissions of the insurer dated 26 May 2025
(d)email to claimant rejected accommodation claim dated 11 August 2025;
(e)permanent impairment decision dated 8 May 2025;
(f)settlement offer dated 15 May 2025, and
(g)agreement of release dated 21 May 2025.
Medical records:
(a)ambulance report dated 15 January 2024;
(b)1008 pages of clinical records Liverpool Hospital under cover of letter dated 29 July 2025;
(c)extracts from discharge summary Liverpool Hospital dated 29 May 2024;
(d)clinical records Dr Connor cardiologist dated 6 June 2024;
(e)clinical records President Private Hospital dated 10 August 2024, and
(f)clinical records Kirrawee Family Medical Practice dated 15 October 2024.
Medico-legal reports
(a)Dr Powell dated 20 February 2025.
Claimant’s information:
(a)provided in person during video-link preliminary conferences, and
(b)histories contained in medical reports, rehabilitation records and clinical records.
Settlement documents:
(a)settlement offer dated 15 May 2025, and
(b)Deed of Release dated 21 May 2025.
Injuries and their impact
The claimant sustained a number of injuries in the accident which included:
(a) Rib fractures
(b) Sternum fracturs
(c) Pneumothorax requiring intubation
(d) Superior and inferior pubic rami fractures
(e) Fractures S1 and S2
(f) Pulmonary embolus
(g) Left medial epicondyle fracture.
Initially the claimant was in intensive care for respiratory support for several days and then extended rehabilitation in hospital. A further admission for the pulmonary embolus took place Fon 28 May 2024 for coagulation treatment.
The progress of her fractures have healed well with the claimant’s ongoing concern is the right hip pain and localised pain to the posterior aspect of her thigh. Whilst there is no groin pain, she reports stiffness in her range of motion and weakness in both lower limbs.
She participates in regular exercise classes three time a week to assist in mobility.
There are no ongoing complaints to her chest wall.
Review of Kirrawee Family Medical practice records
Pre-accident medical history
From review of the significant volume of medical records produced I have noted that the claimant prior to the subject accident suffered a number of conditions which include as follows:
(a) the claimant sustained a fracture to her right femur.
(b) She had a laparotomy in 2021 for perforated bowel.
(c) Surgical history included a series of right shoulder operator.
(d) Rotator cuff repair on 23 June 2011.
(e) Total hip replacement on 29 March 2011.
(f) Osteoporosis, abdominal aortic aneurism 2010.
(g) Multiple fractures to the left foot on 19 November 2015.
(h) Deep vein thrombosis right calf 16 December 2015.
(i) Left wrist and injury to left knee.
(j) Ischemic colon, colostomy and cholycystectomy on 30 June 2021
(k) Crohn’s and Graves disease, diverticulosis in 2023.
(l) Blood pressure issues under management Dr Conner Cardiologist, since 15 December 2020.
Post Accident injuries
Again from review of the medical records the claimant has sustained further injuries post accident:
(a) The claimant post-accident suffered a fall in July 2024 where she struck her head and required a period of medical observation.
(b) In August 2024 she sustained a fracture of her right femur with open reduction and fixation performed by Dr Laird at Liverpool Hospital.
(c) In a recent fall the claimant sustained a further fracture to her right femur and open reduction and fixation by Dr Sunderaj.
(d) In February 2025, two weeks before her consultation with Dr Powell the claimant suffered a further fall and require the continued use of a mobility frame.
As a consequence of the ongoing falls the claimant now continually uses a pick-up frame to assist her mobility. Her fragility with regards to mobility whilst initially accident related has been further impacted by non-accident related trauma.
She ingests Panadol for pain relief for pain and the other medication she ingests on a daily basis are for other health conditions unrelated to the subject accident.
Medico-legal assessment
Dr Powell qualified by the insurer assessed the claimant on 22 November 2024.
He noted the claimant “was most compliant and cooperative patient throughout the taking of the history and examination. There was no suggestion of overreaction or exaggeration. She was observed to be in mild discomfort.”
Examination of the pelvis noted a well healed scar. He reported that “Ms Davidson’s major ongoing concern is in relation to the pelvis and right hip, where she has ongoing lateral hip pain, stiffness and restricted range of motion.”
He opined “Ms Davidson’s current presentation is multifactoral and takes into account contribution from the musculoskeletal injuries sustained in the subject motor vehicle accident as well as subsequent injuries, most notably the right hip, relating to the recurrent falls.” (p184 of application bundle).
Dr Powell concluded “I do not believe Ms Davidson requires any further specific treatment.”
Dr Powell considered the recurrent falls “need to be interpreted in the context of her advanced age and concurrent medical comorbidities.”
When consideration of the injuries for an assessment of permanent impairment was undertaken Dr Powell concluded the following:
(a) Chest wall – no assessable permanent impairment.
(b) Pelvis – due to comorbidities and age, he did not believe there was assessable permanent impairment. The restriction in range of motion which is more marked on the right hand side where she had undergone surgery to address the femoral fracture was a result of a mechanical fall and not accident related.
The opinion of Dr Powell in relation to whole person impairment was subsequently disregarded by the insurer, as the insurer conceded the claimant’s entitlement to
non-economic loss finding that her injuries resulted in whole person impairment exceeding 10%.
Treating specialists
Upon reviewing the medical evidence before me I note the following information:
(a) The claimant had been received treatment with Dr Conner Cardiologist for a number of years before the subject accident.
(b) The report of Dr Connor dated 6 June 2024 confirmed:
“Chest examination
I am confident that the current chest findings can be explained on the basis of the recent pulmonary thromboembolic disease rather that any cardiac failure, at this stage, I think it is just a matter of getting adequate period of effective anti-coagulation for things to gradually resolve.”
Rehabilitation reports
Rehabilitation reports were provided by Dr Jed Cameron, Dr Mark Playford general practitioner (GP) and Dr Annalyse Crane. Rehabilitation management was undertaken with Annabel Wu. Shane at Pathways Cronulla also provided physiotherapy and rehabilitation.
The claimant is no longer undertaking rehabilitation that relates to the injuries sustained in the subject accident.
Records of President Private Hospital were provided and this related to the subsequent fall in August 2024 and the rehabilitation post-surgical management of right neck of femur, whilst informative it is unrelated to the injuries sustained in the subject accident as the reason for hospitalisation was an unrelated fall.
Non-economic loss
The claimant is entitled to damages for non-economic loss as the insurer conceded that WPI exceeds 10%. This concession was made on the basis that the claimant’s permanent impairment from accident-related injuries were significant. The horrific circumstances of the accident and the initial trauma of being involved in such an accident cannot be overstated in a person of such senior years. The ongoing symptoms of stiffness and pain to her pelvis continue to date and will remain with her for life. She did not require surgical intervention for the fractures sustained in the motor vehicle accident and these injuries have in majority resolved.
There was a hospitalisation in 2024 for pulmonary embolus that was accident related and this impacted upon her recovery. This is taken into consideration when ascertaining the appropriateness of the sum agreed for this head of damage.
The additional surgery undertaken associated with subsequent falls is not causally related to the injuries sustained in the subject accident and whilst these incidents have caused further trauma to a lady of senior year, they are not included in the assessment.
The claimant suffered trauma from the accident and pain and suffering resulted from the orthopaedic injuries and vascular injuries post-accident continue to date. When considering the quantification of damages in this matter the advanced aged of the claimant is taken into account as too her life expectancy.
At the time of my determination of the application before me, the claimant’s fractures have in majority healed and she has made some recovery through rehabilitation. To her credit is a highly motivated lady who continues to undertake exercises to assist in her mobility.
The amount agreed to between the parties for non-economic loss is $180,000.
When considering the appropriateness of the sum agreed to between the parties, I take into account the nature and extent of injuries sustained, the pain and suffering the claimant has experience from the date of accident, noting the treatment undertaken and the remarkable recovery that continues to date.
The claimant has sustained significant orthopaedic injury to the chest wall, pelvis and left humerus and suffered a pulmonary embolism, initially. She continues to suffer some pain to her pelvis and ongoing difficulties with mobility. Her fractures have healed and her major concern reported is the pain and stiffness to her pelvis continues but the subsequent events have also impacted on the claimant’s confidence.
The subsequent falls post-accident required surgical interventions on both occasions. On the information available to me the insurer is correct that the subsequent falls are not related to the injuries sustained in the subject accident and whilst the impact has a compounding effect, this does not form part of her claim for damages. The change of the claimant’s residential arrangements were a direct consequence of these latter falls.
Whilst the claimant genuinely believed her move into a nursing facility was a result of the motor vehicle accident it was not been supported by the available medical evidence.
There is no ongoing treatment envisaged for her injuries apart from occasional pain relief such as Panadol.
The claimant now requires assistance with dressing and showering and this is provided in the aged care facility. This care is provided due to her subsequent injuries as well as comorbidities.
The claimant’s ongoing use of a mobility frame is in part due to the further falls she has sustained.
I have regard to the impact of the injuries on the claimant’s ability to participate in pre accident domestic, social and recreational activities. I also take into consideration the
pre-existing conditions the claimant suffered before the accident and their impact on the claimant’s lifestyle. Issues such as life expectancy are appropriate considerations when making an assessment of non-economic loss. Her life expectancy has not been altered by the subject accident.
The claimant is currently aged 91 years and her current symptoms are unlikely to change.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in that it 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.”
Accordingly, the insurer recommended the proposed settlement figure of $180,000 be approved.
REVIEW OF THE EVIDENCE
The clinical records confirmed the claimant sustained significant injury in the motor vehicle accident. The injuries were:
(a) Rib fractures
(b) Sternum fracture
(c) Pneumothorax requiring intubation
(d) Superior and inferior pubic rami fractures
(e) Fractures at S1 and S2
(f) Pulmonary embolus
(g) Left medial epicondyle fracture.
Specialists’ records have given me the details of treatment to date, there being no proposed further surgical intervention anticipated. There is very limited ongoing GP reviews as the claimant’s ongoing medical treatment are for unrelated medical conditions and the complications of her subsequent falls.
The recovery from the pulmonary embolus has been achieved but slow. She remains on
anti-coagulants due to a further episode following surgery in August 2024 for a subsequent fall. This episode in unrelated to the subject accident.The rehabilitation reports provide the history of recovery and the impact of treatment to enable the claimant to regain mobility and ability to participate in activities of daily living.
The claimant has mobility with assistance of a walking frame. Her activities of daily living are now impacted by other conditions unrelated to the subject accident. She required an extensive period of rehabilitation at first instance following initial hospitalisation.
The report of Dr Ing Consultant Respiratory Physician dated 29 August 2024 noted a history of the falls taking place whilst taking a hot shower in one instance, where postural hypotension was induced and another after standing suddenly, from a chair which resulted in the right femur fracture. He opined “they seemed very postural in nature.”(p168 of bundle)
From extensive review of the material provided in this application and the additional information provided by the claimant in person, I am satisfied that I have sufficient information to determine the application.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) the settlement must be approved by a Member of the Personal Injury Commission and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the MAI Act or the Motor Accident Guidelines. I am satisfied that there has been compliance with the Act and the Guidelines;
(b) the insurer to include in its application details of the following:
(i)the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.
The amount for non economic loss is $180,000; there is no economic loss claimed as the claimant is an aged pensioner.
(ii)The amount of any deductions in the proposed settlement.
Therer are no statutory payments to be deducted. The claimant will receive net proceeds of $180,000.
(iii)The amount of any advanced payments made be specified. There had not been any advanced payments made.
(iv)The evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively convering the period of injury and the relevant period to date of assessment. I note the medical records accord with the claimant’s reported symptoms, level of improvement and ongoing incapacity. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.37 of the Guidelines, requires me to consider the following:
(i)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 injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, I am satisfied that the claimant has ongoing symptoms which impact her daily life, she has a level of pelvic and hip pain constant in nature. She takes occasional pain relief. The fractures she sustained have healed. The amount of damages for non-economic loss agreed to between the parties is within the range of of likely range of damages had the matter been assessed by a member of the Commission. An assessment of damages would include factors such as the claimant’s age and her pre-existing conditions as well as the impact of subsequent falls. Her prognosis is reasonable, with no further surgical treatment envisaged.
I find the sum agreed upon in the sum of $180,000 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission.
(ii)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 she took the settlement, she could not seek any further damages for non-economic losses and economic losses. She was advised that the insurer would still provide ongoing medical treatment and care needs for the period of 5 years from the date of accident, if required and approved by the insurer based upon medical need. She was also made aware of the treatment and care she will received post 5 years with icare CTP Care Scheme.
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 Health Insurance Commission separately, if appropriate.
(iii)I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
I am satisfied the proposed settlement of $180,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the claimant, the age of the claimant – 91 years of age, her pre-existing conditions and subsequent injuries of an unrelated nature.
I am satisfied the claimant was aware she could seek legal advice but chose not to retain legal representation.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that there are no deductions from the proceeds of settlement and that she will receive $180,000 in final settlement of her claim.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the sum of $180,000.
The proposed settlement complies with cl 7.37 of the Guidelines version 9.3.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Motor Accident Guidelines version 9.3 Personal Injury Commission Rules 2021.
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