AAI Limited t/as GIO v Russell
[2025] NSWPIC 386
•7 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Russell [2025] NSWPIC 386 |
| CLAIMANT: | Brenda Russell |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Philip Carr |
| DATE OF DECISION: | 7 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant was injured on 22 September 2023; claimant was not working at the time of the accident; claimant is aware no entitlement to future statutory benefits once settlement is approved; Held – settlement complies with clause 7.37 of the Motor Accident Injuries Guidelines (version 9.3); settlement approved in the amount of $40,000.00; consisting of nil non-economic loss and past economic loss; future economic loss of $40,000.00 by way of a buffer. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement of $40,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
Introduction
The motor accident the subject of this claim occurred on 11 March 2023 (the accident).
On 29 January 2024 the claimant made an application for common law damages [page 10].
On 25 March 2025 the insurer wholly admitted liability for the common law claim [A 17].
The insurer assessed the claimant as having non-threshold injuries of:
(a) an un-displaced fracture of the lateral process of the left talus (the insurer’s decision), which was assessed at 0% whole person impairment (WPI) after reviewing Dr Stephen Rimmer’s report dated 31 October 2024 [A 14], and
(b) an adjustment disorder with anxiety, which was assessed at 1% WPI after reviewing Dr Juan D’Abrera’s report dated 4 February 2025 [A 15].
The claimant has not sought to dispute the insurer’s decision.
On 13 May 2025 the insurer made an offer of settlement to the claimant in the amount of $20,000 by way of a buffer for future economic loss (the initial settlement offer) [A 18 – page 311].
On 22 May 2025 the claimant accepted the initial settlement offer and executed the agreement for release and indemnity [A 19].
On 23 June 2025 there was a preliminary conference with the parties on the first return date for the settlement approval, when it was noted there was a misleading statement in the executed deed about the claimant’s legal representation (see the deed dated 22 May 2025) [page 313]. The insurer was given an opportunity to file an amended executed deed and to reconsider the initial settlement offer.
On 21 July 2025 the insurer filed a revised bundle, which included an amended settlement deed dated 4 July 2025, corrected and with an increased settlement offer of $40,000 (the revised settlement) and a revised submissions document identifying the revised settlement offer [A 21].
The claimant has executed the amended settlement agreement dated 4 July 2025 [page 317].
The claimant is not represented by an Australian legal practitioner.
The claimant requests the Personal Injury Commission (Commission) to approve the revised settlement offer.
There is no claim for contributory negligence for the purposes of a deduction in respect of the settlement.
THE ACCIDENT
The accident occurred at 6.26pm on 11 March 2023 at Great Western Highway, Mount Victoria, NSW at the Ampol Service Centre, when a Nissan Navarra (the car) with the registration number CGL94P entered the Great Western Highway and collided with a 2010 Holden Captiva, which was traveling in an eastward direction. The collision caused the air bags to be deployed in the car in which the claimant was travelling.
The claimant was travelling as a front seat passenger in the Holden and wearing a seatbelt.
The car was owned and driven by Ray Rahme [A 5].
The accident caused several injuries to the claimant, which are identified below.
The claimant’s personal circumstances
The claimant was 55 years of age at the time of the accident, she is currently 57 years of age.
At the time of the accident the claimant was not employed and had been in receipt of a disability support pension for several years.
The claimant had a medical background of asthma, osteoporosis, depression and cholesterol.
The claimant obtained employment as a cleaner at Woolworths Town Hall store in October 2024 and has been working three days a week for five hours a day (no more than twenty hours a week) (identified at the TC on 23 June 2025). This position involves a lot of standing and she enjoys the work.
The claimant’s injuries
The claimant sustained the following injuries in the accident:
(a) a fracture of the lateral process of the left talus, and
(b) an adjustment disorder with anxiety (largely in remission).
THE MEDICAL EVIDENCE
Ambulance records
Following the accident the claimant was transported by ambulance to Blue Mountains District Hospital (BMDH). The claimant was complaining of pain to her left ankle [page 42].
Blue Mountains District Hospital
The claimant was reviewed at the ED Department at the BMDH and presented with discomfort in the sternum and was tender in her left ankle and achilles. X- Rays taken showed no fracture of her ankle. The claimant was discharged the same day with analgesia, crutches and a tubigrip for her ankle.
MRI – left ankle – 25 July 2023
On 25 July 2023 the claimant underwent an MRI scan of her left ankle, which revealed an oedema in the lateral process of talus, a longitudinal split tear of the peroneus brevis tendon at the inframalleolar level and a trabecular fracture (osteochondral injury) [pages 90 - 93].
The claimant was referred for physiotherapy.
The claimant subsequently sought specialist treatment from Dr David Lunz (orthopaedic surgeon).
CT – left ankle – 24 November 2023
The CT revealed the fracture of the lateral process of the talus had achieved bony union [page 276].
Dr Lunz
On 23 August 2023 Dr Lunz wrote a report to the claimant’s general practitioner (GP) and noted:
“… she has had ongoing pain around the lateral aspect of her ankle … the pain occurs mostly with walking but she has some pain at rest particularly in cold weather. She reports occasional night pain. She uses ibuprofren. The ankle does not feel right and her effort tolerance is reduced. She has a background history of asthma, osteoporosis, depression and cholesterol …” [A10]
Dr Lunz considered the claimant had sustained an undisplaced fracture through the lateral process of her left talus [A10].
On 24 November 2023 Dr Lunz saw the claimant for the last time and noted:
“… She still reports ongoing pain in her foot particularly with excessive walking. She prefers not to take analgesics. She is very active.
Clinically she is tender in the sinus tarsi.
The CT scan of her foot today shows that there is one fracture line is still visible in the lateral
process of talus. This could also represent a very small osteochondral injury. There is no
obvious arthritis in the subtalar joint at this stage.
Brenda has sustained a fracture of the lateral process of talus and maybe developing some subtalar joint arthritis. At this stage there is nothing much that can be done for her. I'm hopeful that her pain will settle. If the arthritis progresses, she may need a cortisone injection or even surgery. I think that this is many years away. I return her to your care but would be happy to review her at anytime.” [A 10]
Rehabilitation and medico legal reports
Psychology
On 27 June 2023 the claimant was referred by her GP to a psychologist at Uplift Psychology at Redfern (Voula Kougelos), to treat negativity flash backs, insomnia and intrusive memories following the accident [pages 237, 254 and 255]. Ten sessions with the psychologist were approved by the insurer [pages 258 and 261]. This treatment commenced on 6 July 2023 and finished on 19 February 2024 [page 268].
This treatment appears to have been subsequently extended for a further eight sessions, recommencing on 1 May 2024 and ending on 31 December 2024 [page 261ff].
Dr Juan D’Abrera, appointed by the insurer to assess the claimant’s WPI, noted in his report dated 4 February 2025 to the insurer, that he had “reviewed the psychological notes provided by Voula Kougelos. Ms Kougelos provided anxiety and depression management for Ms Russell with good effect.” [page 287].
Rehabilitation report (Benchmark Rehab)– closure report – 22 September 2023
The abovementioned closure report has not been provided, however it is referred to in the materials forwarded to Dr D’Abrera and the GIO recovery plan letter dated 24 August 2023 [pages 293 and 258].
Physiotherapy
In March 2023 the claimant was referred for physiotherapy (Redfern Physiotherapy and Sports Medicine [the clinic] – Tara Guest) by her GP. It was noted that the claimant had a standing tolerance of 30 mins + [page 76].
The claimant was provided with an exercise program by the clinic and treated over several months until 23 March 2024, when she attended her last consultation at the clinic.
On 23 March 2024 the claimant presented at the clinic with nil complaints [page 57].
Dr Stephen Rimmer
The claimant was examined by Dr Stephen Rimmer (orthopaedic surgeon), at the request of the insurer, [A 14] who provided a report dated 31 October 2025, which amongst other things assessed her WPI [pages 273 – 278].
The claimant reported by way of current symptoms, as having an occasional throbbing sensation in her ankle/foot [pages 275 and 277]. Dr Rimmer noted there did not appear to be any associated disabilities [page 277]. On examination he opined the left and ankle were totally normal [page 277].
Dr Rimmer noted the claimant’s physiotherapy had ceased, she was no longer talking oral analgesics or anti-inflammatories and had not had a cortisone injection [page 275].
Dr Rimmer opined there were no disabilities, and she did not require any further treatment [page 278].
Dr Rimmer assessed the claimant had no permanent impairment, had fully recovered from her injuries to the left foot and ankle and had 0% WPI [page 278].
Dr Juan D’Arbrera
The claimant was examined by Dr D’Abrera (psychiatrist), at the request of the insurer [A 15].
The claimant reported she had sustained a left ankle injury and reported psychological symptoms after the accident, including low mood and anxiety, beliefs that the accident was racially motivated, flashbacks of the accident, avoidant behaviour and poor sleep [page 283]. He noted she had been seeing a psychologist, but this had ceased and she appeared to have addressed some of the issues relating to her anxiety and breathing [page 283]. He noted the claimant had recently started to work at Woolworths, working three nights a week undertaking night shifts which finished at 3.00am [page 284].
Dr D’Abrera noted the claimant was no longer consulting a psychologist or taking psychiatric medications [page 285]. He did not consider there was any need for further psychological treatment [page 288]. He opined that following the accident she developed an adjustment anxiety disorder (in remission – [page 288]), which improved such that she is now able to be a passenger in a car and that there has been minimal impact to her life [pages 285 and 287]. Dr D’Arbrera assessed her WPI at 1% [page 292].
The claimant's observations
On 23 June 2025, at the initial settlement approval conference, the claimant indicated she had not fully recovered from her injuries as she was continuing to “feel aches and pains” in her left ankle “when the weather changes”.
On 28 July 2025, at the further settlement telephone conference, the claimant indicated she was still experiencing occasional pain in her left ankle and that Dr Lunz had informed her that she will develop arthritis. This observation is consistent with Dr Lunz’s final report.
ECONOMIC LOSS CLAIM
Past loss
At the time of the accident the claimant was not employed and was in receipt of the disability pension.
The claimant obtained casual work with Woolworths as a cleaner in October 2024. It is self evident that no past economic loss was suffered by the claimant.
Future loss
The insurer initially assessed the claimant’s future economic loss by way of a buffer of $20,000, noting that Dr Bentivoglio opined there were no ongoing symptoms or earning incapacity.
On 4 July 2025 the insurer increased its initial settlement offer from $20,000 to $40,000, which the claimant accepted [page 317]. This revised offer reflects an increased buffer as the claimant obtained casual employment with Woolworths in October 2024 and is now working on a casual basis.
THE STATUTORY FRAMEWORK
Clause 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (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 PIC 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 PIC 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 revised settlement offer, 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 [pages 310 – 311, 317 and 318], and
(b) an executed settlement deed dated 4 July 2025, which identifies the total amount provided for the settlement and deductions sought to be made from the settlement [page 317].
THE SETTLEMENT APPROVAL CONFERENCES
23 June 2025
On 23 June 2025 the claimant appeared at the initial settlement approval conference by MS Teams.
The claimant indicated that she had not consulted Dr Lunz since 24 November 2023 and that she had finished her physiotherapy treatment.
Following the conference the insurer immediately increased the settlement offer to the claimant to $40,000, as indicated earlier. The insurer subsequently filed an amended settlement deed and submissions [page 318].
28 July 2025
Following the revised offer of settlement and the execution of a revised settlement deed on
4 July 2025 referred to in paragraph [62] above, the insurer filed an application to lodge additional documents at the Commission with a revised bundle on 21 July 2025.
On 28 July 2025 the claimant appeared at the further conference conducted by MS Teams.
As identified earlier in the introduction the claimant is not represented by an Australian legal practitioner. She is aware that she can instruct an Australian Legal Practitioner to act, however does not want to do this and has declined to do so.
During the conference the claimant was questioned about her understanding of the settlement and her rights under the relevant legislation, that it resolves her rights arising from the accident i.e. its finality and whether she was entering the settlement without coercion. I am satisfied by her responses, that she is entering into the settlement of her own free will, with the relevant understanding of its finality.
Further, the claimant is aware there will be no deductions from the settlement monies except those deductions permitted by law including the Social Security Act 1991.
The claimant is making her own enquiries with Centrelink in respect of the impact the settlement may have, if any, on her disability pension.
I indicated to the parties that I was satisfied that the amended settlement offer was appropriate and would approve the filing of the additional documents filed on 21 July 2025.
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 $40,000 by way of a buffer for future economic loss.
I am satisfied that the amount of $40,000 is a just, fair and reasonable settlement of the claimant's common law claim considering all the legislation, circumstances and materials.
The claimant’s understanding
I am also satisfied the claimant understands this settlement will be a final resolution of her claim and that she can make no further claim for damages for economic or non-economic loss arising out of the accident and wants to accept the revised settlement offer made by the insurer.
I approve the settlement.
DETERMINATION
The settlement of $40,000 is approved pursuant to sub-s 6.23(2)(b) of the MAI Act.
0
1
0