AAI Limited t/as GIO v Jones
[2025] NSWPIC 588
•3 November 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Jones [2025] NSWPIC 588 |
| CLAIMANT: | Jonathon Jones |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Philip Carr |
| DATE OF DECISION: | 3 November 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant was working at the time of the accident; claimant is aware no entitlement to future statutory benefits once settlement is approved; settlement complies with clause 7.37 of the Motor Accident Injuries Guidelines (version 9.3); Held – settlement approved in the amount of $300,000, consisting of nil NEL, past economic loss of $25,000.00, and future economic loss of $275,000.00 by way of a buffer; less $18,238.29 for statutory benefits paid by the insurer. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement of $300,000 is approved under sub s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (MAI Act). 2. Pursuant to s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $18,238.29 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3. |
STATEMENT OF REASONS
INTRODUCTION
The claimant was involved in a motorbike accident on 10 April 2024 and is now
37 years of age.
The claimant suffered fractured injuries to both left and right wrists, namely:
(a) a minimal displaced fracture from the medial aspect of right radius and a fracture through the dorsal aspect of the hamate of the right wrist, and
(b)
a severely comminuted fracture of the left distal radius of the left wrist
(p 144).
The claimant is right hand dominant and continues to experience pain in his left wrist.
The claimant has made a claim for common law damages.
The insurer has accepted liability for the claim (p 15).
THE ACCIDENT
The accident occurred at the roundabout situated at Suttor Street and Bradwardine Road, West Bathurst, NSW (the accident). The claimant was riding his Yamaha motorcycle.
The claimant was travelling east along Suttor Street when he slowed down to enter the roundabout, however the driver of the insured vehicle failed to give way to the claimant. The insured vehicle collided with the nearside of the claimant’s motorcycle and caused him to come off his motorcycle.
The claimant was transported via ambulance to the Bathurst Base Hospital (the Hospital).
The claimant’s personal circumstances
The claimant is currently 37 years of age.
At the time of the accident the claimant was employed as a labourer in a full-time position at Beaver Truss Frames Windows, the claimant having started working with his employer on
30 November 2025 (p 542).
The claimant was assessed by Dr Robyn Mitchell, for the insurer, who assessed the claimant at 2% whole person impairment (WPI).
The claimant was informed by the insurer his accident-related permanent impairment was not greater than 10% and that he was not entitled to compensation for non-economic loss (NEL) (p 534ff).
The claimant is entitled to damages for past-economic loss (PEL) and future economic loss (FEL).
The claimant was certified fit for full time employment on 6 March 2025.
The claimant has not received Centrelink benefits for this claim (p 543).
The claimant’s injuries
The claimant sustained the following injuries in the accident:
(a) a comminuted fracture of left distal radius, and
(b) a fracture of right distal radius.
THE MEDICAL EVIDENCE
Ambulance records
Following the accident the claimant was transported by ambulance to the Hospital.
Bathurst Hospital
The claimant was admitted under the care of Dr Sam Kwa (orthopaedic surgeon).
On 11 April 2024 the claimant underwent emergency surgery, namely, a left wrist open reduction and internal fixation and his right wrist was managed non-operatively with a splint (p 112).
There were no post-operative complications, and the claimant was discharged from the hospital on 12 April 2024 and was requested to follow up the fracture clinic at the Orange Health Service (pp 113 and 191).
Claimant’s General Practitioner - Dr Rafiqur Rahman
The claimant first saw his general practitioner (GP) following the accident on 7 May 2024 (p 301).
The claimant was certified unfit for work from 7 May 2024 to 18 June 2025.
The claimant was certified fit for work for four hours per day four days per week, on
18 June 2024.
On 25 June 2024 the claimant was certified fit for work for five hours per day for four days per week (pp 266 and 303).
On 20 August 2024 the claimant was certified fit for work for six hours per day for four days per week (pp 276 and 305).
On 11 September 2024 the claimant was certified fit for work for six hours per day for five days per week (p 418).
On 1 October 2024 the claimant was certified as having no capacity for any work for two weeks due to the removal of the hardware from his left wrist by Dr Kwa (pp 282 and 443).
On 15 October 2024 the claimant was certified fit for work for six hours per day for four days per week (pp 285 and 307).
The claimant was certified fit for full time employment on 6 March 2025, as indicated above.
Specialist Reports
Dr Samuel Kwa (orthopaedic surgeon)
On 17 September 2024 Dr Kwa provided a report to the claimant’s GP and indicated:
“… John was involved in a motor vehicle accident in April. He was on a motorbike and was T-boned by another vehicle. He suffered fractures to both wrists. The right one did not require surgery and was treated in a splint. The left one was severely comminuted and required a spanning plate. He was reviewed in fracture clinic in Orange initially. However as he was from Windradyne he was also then followed up for further x-rays at Bathurst fracture clinic. The plan was for removal of the spanning plate at 3 months post surgery. A RFA form was filled out but apparently this was done in Bathurst and submitted and no further action occurred. John states that everything is going well. He has no problems of his right hand. The left hand he feels is moving well he can move his fingers the only issue is that he cannot move his wrist. He did have tingling in his index and middle fingers initially on the left hand but this has now settled. I have ordered an x-ray recently that shows the distal radius fracture is fully united in an excellent position. He is currently working light duties. He is making fly screens for windows and doors.
Jonathon requires removal of the spanning plate so he can regain motion of his wrist. This will require day surgery and general anaesthetic. Once removed he will need to start range of movement exercises and mobilisation of the wrist with a hand therapist. I would suggest he sees Bridget Evans in Bathurst. It will still take a few months to regain range of movement. There are also two small K-wires that will also need removal as well. We should proceed as soon as possible for this to occur … (p 144).”
On 25 September 2024 the claimant underwent surgery for the removal of the hardware (including plate, pins, screws and internal fixation) from his left wrist (pp 146 - 147).
On 25 October 2025 Dr Kwa provided a report to the claimant’s GP and indicated:
“Jonathan was seen today now a month post removal of the spanning plate from his left wrist. He feels everything is going well. He has gone back to work on a casual basis 4 days a week 6 hours a day putting some fly screens into doors and is coping with this. He has some ulnar wrist pain first thing in the morning but as the day progresses this disappears. He is attending hand therapy.
Physical examination shows full pronation and supination with no pain. Dorsi flexion is to 30 degrees palmar flexion to 15. He can make a full fist.
He is making good progress. I am happy for him to gradually increase work activities as tolerated and he can progress in his hand therapy and strengthening work as tolerated as well. Will leave him in your care but be happy to review him again as required (p 437).”
On 1 July 2025 Dr Kwa provided a report to the insurer that indicated:
“Thank you for your request for further information in relation to Mr Jonathan Jones. Please note that I have not seen him for 8 months now. In relation to your questions:
1. It is highly likely that he will develop post-traumatic arthritis in relation to his left wrist injury. This was an intra-articular fracture. As to whether this will require further surgical intervention is difficult to predict.
2. It is much less likely he will develop post-traumatic arthritis in relation to his right wrist injury.
3. The long-term prognosis is favourable for the above-mentioned injuries although more so for the right wrist than the left (p 487).”
Bathurst Hand Therapy
The claimant attended at the Bathurst Hand Therapy clinic (the clinic) for treatment of his left wrist following the removal of the hardware. (pp 149 and 443).
On 23 January 2025 the clinic noted the following:
“Pt reports increased use of affected hand at work. Movement much better. Pt notes lifting above shoulder height exacerbates pain. Pt reports being able to tolerate 10kg. Symptoms seem to be on ulnar side of wrist predominately.
…
Pt reports improvement in ROM since last appt. Pt reports new orthosis is effective in reducing pain and improving ROM. Pt reports wearing orthosis for 20 mins every so often, when about. Pt denies any colour changes or numbness in hand whilst wearing orthosis (p 476).”
On 18 February 2025 the clinic certified the claimant as fit to resume regular duties and encouraged him to focus on a strengthening program (p 153).
On 2 April 2025 the clinic noted the following:
“Reports L wrist pain is â “. Describes L wrist as feeling ‘tired’. Reports difficulty with weight bearing through L wrist and altered movement compared to R. Experiences â “ ROM (flex). Reports occasional scar pain dorsum L hand. Pt continues to carry heavy objects and coping with this (p 473).”
Insurer’s IME – Dr Robin Mitchell – dated 15 April 2025
The insurer obtained a report from Dr Mitchell (occupational physician) to review and assess the claimant at his rooms in Syndey on 9 April 2025.
Dr Mitchell made the following observations:
(a) the claimant continues to experience pain in both wrists, the left side is more significant than the right side (p 490);
(b) the claimant’s symptoms are aggravated after arduous or prolonged hand gripping activities or awkward or repeated movements (p 490);
(c) the symptoms have been stable for six months (p 490);
(d) the claimant can manage the following activities within the following time frames:
(i)sitting for four hours;
(ii)standing for eight hours;
(iii)walking for five km;
(iv)lifting up to 35kg, and
(v)driving for up to four hours (p 490).
(e) the claimant’s grip strength was lower in his left wrist compared to the right wrist (p 492);
(f) he opined the claimant has:
“made a good recovery from the fracture injuries sustained to both the left and right wrists in the subject injury of 10 April 2024, which included a minimally displaced fracture from the medial aspect of the right radius and a fracture through the dorsal aspect of the hamate of the right wrist, together with a comminuted fracture of the left distal radius (p 493);”
(g) the claimant’s prognosis was identified as good;
(h) in respect of the claimant’s work capacity he expressed the opinion that he:
“… has, in my opinion, a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, he should be able to manage such work on a full-time basis:
• any sustained arduous hand gripping activity, particularly if awkward
or repeated, should be managed with frequent micro pause breaks during which the forearm and hand muscles should be relaxed or gently stretched out to avoid the development of any cumulative tightness that could otherwise result in avoidable fatigue discomfort (p 494);”
(i) there was no indication that the claimant should require any future treatment of any nature (p 496);
(j) with a full range of movement in both wrists there was 0% WPI, with skin scarring the claimant had 2% WPI using the TEMSKI scale (p 496), and
(k) the claimant “should be able to manage” his pre-injury duties on a full-time basis (p 497).
ECONOMIC LOSS CLAIM
Past-economic loss (PEL)
At the time of the accident the claimant was employed as a full-time labourer receiving weekly income of $879.32.
In June 2024 the claimant returned to light duties undertaking five hours per day for four days per week.
In March 2025 the claimant returned to his pre-injury duties.
The insurer assessed the claimant’s past wage loss, utilising the claimant’s GP certificates of work capacity to assess the claimant’s loss for PEL in the sum of $18,280.60 (pp 2 and 3).
The insurer has also allowed further amounts for past-loss of superannuation and Fox v Wood components of $3,800, rounding up to a total PEL component of $25,000 (p 3).
Future economic loss (FEL)
The insurer allowed a future loss of earning capacity of $250 per week to age 67, with a reduction for vicissitudes of 15%, totalling $200,000 (rounded up from $199,129.50).
The insurer has offered various sums for PEL and FEL to the claimant as follows:
(a) on 19 August 2025 - $165,000 (the first settlement offer);
(b) on 4 September 2025 - $225,000 (the revised offer of settlement) (p 5), and
(c) on 8 October 2025 - $300,000 (increasing the FEL component to $275,000) – (the final settlement offer) (p 557).
The revised offer of settlement was made following discussions with the claimant, undertaken after the first settlement offer was made, about the impact of the accident on his work and his future work intentions in the event his employer closed its business in the short to medium term.
The final settlement offer was made following the preliminary conference on 8 October 2025, after I made several observations about the adequacy of the revised offer of settlement (see paragraphs 60 and 61 below).
I say more about the final settlement offer below.
THE STATUTORY FRAMEWORK
Clause 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) apply to this application.
I have considered the relevant legislation, guidelines and procedural directions, as identified below, in making my decision.
The MAI Act
Section 3.40(1)(b) of the MAI Act provides:
“3.40 Effect of recovery of damages on statutory benefits
(1) If a person (‘the claimant’) recovers damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle then (except to the extent that subsection (2) or (3) covers the case)
(a) …
(b) the amount of any statutory benefits already paid under Division 3.3 in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the statutory benefits.”
Section 6.23 of the MAI Act states:
"6.23 Restrictions on settlement of claim for damages
(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."
The Personal Injury Commission Rules 2021
Regulation 95 of the Personal Injury Commission Rules provides:
"95 Application for approval of Damages settlement
(1) If a claimant, who is not represented by an Australian legal practitioner, and an insurer have agreed to a proposed damages settlement, the insurer must lodge an application for approval of a damages settlement under section 6.23 of the MAI Act, on behalf of both the claimant and the insurer, within 7 days of reaching the agreement.
(2) (Repealed)."
The Guidelines (Version 9.3)
Clause 7.37 of 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 satisfies the timing requirements in section 6.23(1) of the Act [since 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."
The Commission’s Procedural Directions
Clause 10 of the Commission's Procedural Direction MA3 provides the Application must include:
(a) a deed of release;
(b) the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
(c) the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
(d) the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
(e) the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
After reviewing the Application and its supporting documentation including the executed amended deed for the final settlement offer (pp 558-559). I am satisfied it complies with cl 10 of the Commission's Procedural Direction MA3, as the Application includes details:
(a) of the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage (p 557), and
(b) an executed settlement deed dated 20 October 2025, which identifies the total amount provided for the settlement and deductions sought to be made from the settlement (p 557 - 558).
THE SETTLEMENT APPROVAL CONFERENCES
8 October 2025
The matter was listed for an MS Teams settlement approval conference on 8 October 2025.
The claimant provided responses to several questions posed by me as follows:
(a) he has been employed in labouring roles, since leaving high school;
(b) he identified he was considering changing occupations from his current position as a labourer to being a truck driver, when his current employer intends to close its business in the short to medium term;
(c) he uses his left hand to drive and change gears when driving a truck/car (despite being right hand dominant);
(d) his current pain levels, after work each day for his left wrist, he self-rates at seven (on a scale of 0–10);
(e) at the end of a working day he generally uses a compression brace and heat pack on his left wrist, to reduce his pain levels. The pain will generally subside between half an hour and an hour. I noted that he was wearing a hand brace on his left wrist during the conference – which he showed me during the conference when discussing the use of the compression brace after work;
(f) his right wrist is usually pain free at the end of a working day;
(g) he does not experience pain in his wrists when driving a manual car, but when driving his motorbike there is pain in his left wrist;
(h) for work, currently the trips he undertakes are short trips, generally to and from home to work, he usually drives a manual vehicle. The work vehicle is currently a ute, which causes him no challenges;
(i) he does not currently drive a truck for work. However, if in the future he works as a truck driver (which is his stated intention, when his current employer closes in the short to medium term) he has no appreciation of how that type of work may impact on his left wrist e.g. gear changing and the impact this may have, if any, on his pain levels;
(j) his intention if he pursues a truck driving career, as stated, is to drive a local gravel truck. He stated that he wanted to “do a less physical job.” However, the claimant has no appreciation of the impact of working as a truck driver may have on his pain levels or more generally. For instance, he was unable to describe the actions required when opening the tail gates of a gravel truck or his capacity to engage with the mechanical elements such as operating the hydraulic levers for a gravel truck etc, but suspects there would be not much of an impact on his current left wrist pain levels, and
(k) he relies on his left wrist more when carrying heavy weighted items in his current work role, which involves the carrying and installation of door frames with double glazed glass, weighing between 20 and 30kg–“my left wrist carries more weight than my right one.”
After the matters canvassed above in paragraph 59 with the claimant, I expressed reservations about the revised offer of settlement (totalling $225,000) and invited the insurer to reconsider that offer. I made the observation that I was not satisfied on the medical evidence, also noting there was some risk the claimant may need to retire early following the development of post-traumatic arthritis in his left wrist and noting the cautious words adopted by Dr Mitchell that the claimant “should be able to manage full time suitable duties”, that the revised offer of settlement of $225,000 was just, fair and reasonable having regard to the extent of the claimant’s injuries and his current pain levels.
I expressed the view that a FEL component of $275,000 would be an appropriate amount as a buffer for the future risks facing the claimant relating to his left wrist.
In the circumstances, I requested the insurer reconsider its settlement offer.
The matter was stood over to permit the parties an opportunity to further consider their settlement position in respect of the FEL component for the settlement and if appropriate file an updated settlement deed and amended submissions.
22 October 2025
The matter was relisted for a further MS Teams conference on 22 October 2025.
The insurer increased its revised offer of settlement to an amount of $300,000 (increasing the FEL component to $275,000) and has filed amended submissions (p 557) and a revised signed deed of settlement dated 20 October 2025 (pp 558 - 559).
I discussed the final offer of settlement with the claimant, who has accepted it and understands this settlement will resolve his claims dispute with the insurer in respect of his NEL, PEL and FEL.
The claimant acknowledged he was aware he could retain a legal practitioner to assist him with his claim but has declined to do so.
The claimant is aware that the settlement is a final resolution of his claim for damages arising from the accident with the insurer.
The claimant had previously indicated (on 8 October 2025) what level of pain he experiences and the impact the accident has had on his left wrist, which are identified above.
The claimant also understands that the insurer will deduct from the settlement an amount of $18,238.29 for past statutory benefits paid by the insurer.
The insurer has confirmed there is no deduction to be made to Centrelink.
I indicated to the parties that I was satisfied that the settlement offer was appropriate and would approve the settlement.
SHOULD I APPROVE THE SETTLEMENT?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether to approve or not approve the claimant’s settlement, I need to consider whether:
(a) the amount of the settlement is just, fair and reasonable (appropriateness), and
(b) the claimant understands the settlement and its terms and the effect of the settlement in ending her claim for damages (the claimant’s understanding).
Appropriateness
In RACQ Insurance Limited v Motor Accidents Authority of NSW (No 2) [2014] NSW SC 1126, the Court stated, when considering the issue of an appropriate damages award:
"It is a relationship of the award to the injury and its consequences … which is to be proportionate ... It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases … The principle to be followed … is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant … and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing …The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring … to allow for differences between the circumstances of other cases and the circumstances of the case in hand [Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ at paragraph 11].”
The amount of the offer of settlement that I am asked to approve comprises a sum of $300,000 for both PEL and FEL.
I am satisfied that the amount of $300,000 is a just, fair and reasonable settlement of the claimant's common law claim considering all the legislation, circumstances and materials, particularly the matters I conveyed to the insurer on 8 October 2025 about the revised settlement offer, which were subsequently reflected in the final settlement offer.
The claimant’s understanding
I am satisfied the claimant understands this settlement will be a final resolution of his claim and that he can make no further claim for damages for economic or non-economic loss arising out of the accident and that he wants to accept the final settlement offer made by the insurer.
The claimant is also aware and understands that the insurer will deduct from the settlement amount of $18,238.29 for past-statutory benefits paid by the insurer.
I approve the settlement.
DETERMINATION
The settlement of $300,000 is approved pursuant to sub s 6.23(2)(b) of the MAI Act.
Pursuant to s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $18,238.29 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3.
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