AAI Limited t/as GIO v Sharpe
[2025] NSWPIC 246
•3 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Sharpe [2025] NSWPIC 246 |
| CLAIMANT: | Rebecca Sharpe |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 3 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval pursuant to section 6.23(2)(b); Held –proposed sum of $81,270 approved; injuries to left calf, ankle and knee; pre-existing condition; whole person impairment (WPI) assessed at 7% for physical injuries; no entitlement to non-economic loss; closed period past economic loss and small buffer for future economic loss. |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $81,270 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
Rebecca Sharpe (the claimant) was riding her motorcycle in a roundabout at Banks Drive and Cook Parade, St Clair when the insured failed to give way. The 4WD hit her left leg and she fell to the ground.
The claimant taken by ambulance to Nepean Hospital on 16 February 2021 and was discharged on 19 February 2021 with the use of crutches as she was unable to weight bear.
The claimant sustained injuries to her left leg which included a crush injury and large haematoma to her calf, meniscal injury to the left knee and ligament injury to her left ankle in the motor vehicle accident.
The claimant brought a claim for common law damages on 31 October 2024 alleging she sustained injuries to her left leg.
She reported that she has ongoing pain and restriction of movement in her left leg and difficulties with numerous tasks.
GIO (the insurer) admitted liability for the common law claim.
The insurer initially relied upon the opinion of Dr Machart dated 1 August 2023 who opined the injuries sustained were assessed at 6% whole person impairment. He assessed the following whole person impairments:
Left knee:
· patellofemoral crepitus evident on act as extension 2%, and
· medical meniscectomy 1%.
Left ankle:
· lack of extension at plantargrade 3%.
The claimant sought a medical assessment at the Personal Injury Commission (Commission). Her injuries were subsequently assessed at the Commission by Medical Assessor Assem who determined in his certificate dated 18 February 2025 the following:
(a) Injuries assessed:
(i)left ankle – soft-tissue, stiffness;
(i)left knee – soft tissue injury, meniscal tear, pre-accident arthroscopies, and ACL reconstructions, and
(i)left leg possible neuroma.
(b) Whole person impairment was assessed at 7%.
The claimant is not entitled to non-economic loss as her assessment of whole person impairment as it related to physical injuries is beneath the threshold prescribed “exceeding 10%”, the required qualification to receive damages.
Whilst the initial application related to a settlement in the sum of $60,000, the parties have reached a further agreement to settle the claim in the sum of $81,270. This represents the sum of $46,270 for past economic loss and $35,000 for future economic loss.
The claimant is currently 53 years of age and 14 years to anticipated retirement.
At the time of the accident the claimant was riding her motorcycle to work. She held down a number of positions:
(a) a bus driver with Little by Little, and
(b) a support worker at Southern Cross Community Healthcare.
As a consequence of the injuries sustained, the claimant remained off work for a number of weeks. She was forced to reduce her hours of work due to the physical demands of her positions. She made claim for both past and future economic loss.
This settlement relates to damages for 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 18 April 2024
The nature of the settlement proposed in the sum of $60,000 at that stage, was discussed between the parties. During the video-conference the claimant confirmed her ongoing problems and her desire to further investigate the prognosis of her injuries and assessment of whole person impairment. The matter was adjourned to enable the parties to investigate.
I requested copies of medical records from treating specialist and her general practitioner.
The matter was subsequently held over pending the assessment of whole person impairment.
Preliminary conference on 8 April 2025
The determination of Medical Assessor Assem was confirmed and the claimant was informed of her inability to qualify for non-economic loss as her impairment did not exceed 10% whole person impairment.
The claimant was then seeking clarification of past economic loss as she held down two positions and considered the amount allowed $25,000 did not accord with the losses she suffered. The insurer expressed its willingness to revisit the amount.
The claimant was requested to quantify her losses and particularise the amount claimed. This was done by handwritten submissions dated 13 May 2025. The insurer subsequently amended its offer for past economic loss.
Directions were made for the material to be uploaded and details of the new settlement particularised.
The nature and effect of a settlement was discussed with the claimant as well as the claimant confirming the current status of her injuries and disabilities. She reported that Dr Nasser had recommended further injections as pain management and so far this treatment was producing some benefit to the reduction of symptoms in her left ankle.
She reported at this time ongoing pain to her left knee, calf and ankle and some limited movement. She still had a lump where the car struck her calf muscle.
She also confirmed she had returned to work and had not taken any injury related leave for a considerable period of time.
The claimant confirmed she was aware she could 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 the sum of $19,393.75 would be deducted from the settlement sum as the claimant had received weekly statutory payment in this sum.
The net amount the claimant would receive is $61,876.25.
The insurer was requested to upload a signed copy of the amended settlement agreement. This was uploaded to the portal as requested.
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 200 pages:
Liability:
(a) application for common law damages dated 31 October 2024;
(b) liability notice damages claim dated 28 March 2023;
(c) submissions of the insurer dated 6 December 2024 and 19 May 2025;
(d) permanent impairment decision dated 27 November 2024, and
(e) settlement offer and agreement of release dated 28 March 2025.
Medical records:
(a) ambulance report - document A6;
(b) extracts from clinical records Nepean Hospital – documents A4 and A5;
(c) extracts from clinical records of Greystanes Family Medical Practice dated
17 March 2023 and 2 May 2024;(d) report of Dr Graham Roberts – document A8;
(e) various certificates of capacity – document A3;
(f) physiotherapy report of AHRR - document A7, and
(g) Altius vocational Assessment report dated 16 May 2022.
Claimant’s information:
(a) provided in and telephone video-link preliminary conferences, and
(b) particulars dated 13 May 2025.
Settlement documents:
(a) settlement offer dated 13 February 2024;
(b) amended offer dated 12 May 2025, and
(c) Deed of Release dated 12 May 2025.
Injuries and their impact
The claimant sustained a left calf muscle injury, injury to her left knee and left ankle.
She was on crutches for six weeks post-accident. She sustained a large haematoma of her left calf and this required drainage. She experienced swelling and pain. The claimant continues to report some pain to her left ankle and knee. There is also residual disfiguration of her left calf muscle.
As a consequence of her injuries the claimant underwent a number of physiotherapy sessions to assist in her recovery.
Since the accident some household duties are difficult to perform. She can no longer clean around her toilet and mow the lawn. Her son now performs these tasks for her.
She attended upon Dr Graham for left knee problems and he conducted an arthroscopy in December 2021. This produced significant improvement to her symptoms. She was in a moon boot for a period.
She returned to work after about two months and continued with her bus driving. The role as support worker also continues.
The claimant particularised this in the history given to Dr Machart in August 2023.
The claimant’s further statement of 12 May 2025 provided details of times she worked and the economic loss suffered due to the injuries sustained in the accident. The insurer relied upon this information to increase its offer of 12 May 2025 in relation to past economic loss.
Scan and imaging
Review of the various reports indicated the following:
(a) Ultrasound of left lower leg – 24 February 2021;
no venous thrombosis detected and large haematoma confirmed.
(b) MRI of Left Knee – 3 March 2021;
medial meniscal tear identified; pre-existing ACL reconstruction noted and
mild chondropathy present.
(c) MRI of left knee – 5 August 2021;
Persistent pain and intermittent locking, and mild chondropathy in the medial talar dome.
No joint effusion or ligamentous rupture detected.
(d) MRI of left lower leg – 9 November 2021;
soft tissue scarring in the medial subcutaneous tissues; no active haematoma or focal lesions and no significant bone oedema or fractures.
Prior injuries
Prior to the motor vehicle accident on 16 February 2021, she had a documented history of left knee injuries, including an anterior cruciate ligament (ACL) reconstruction in 1994, which she sustained while playing in a state soccer tournament. In 1995–1996, she experienced a back strain after tripping on a kitchen mat at work, which was treated by Dr Gupta. In 1998, she was involved in a motorcycle accident in Strathfield, resulting in a left knee injury that required ACL reconstruction, performed by Dr James Sullivan. In 2000, she was involved in a motorbike accident while delivering mail for Australia Post in Strathfield, leading to neck and back injuries.
Treating specialists
I note the following information:
(a) On 24 September 2021, Dr Graham, orthopaedic surgeon, noted pain along the medial joint line of the left knee and a range of motion restriction from 0 to 100 degrees. The knee was found to be stable, and a recent MRI confirmed a meniscal tear. Subsequently, Ms Sharpe underwent a medial meniscectomy on 10 December 2021. A follow-up report on 3 February 2022, noted that her knee range of motion had improved from 0 to 110 degrees and that there was no instability at that time. On 26 June 2024, Dr Graham reviewed an MRI scan that revealed that her ACL graft is intact but there was significant chondral wear with full thickness cartilage loss in the anterior third of the lateral femoral condyle. There is also some partial damage to the patella. He suspected that the main reason her ongoing pain in her knee is from the arthritis and gave her a cortisone injection.
(b) On 10 September 2024, Dr Nazah, pain physician, noted that she was wearing compression socks and was able to walk 1 to 1.5km but without significant pain. She reported numbness, tenderness, and sharp pain, along with hypersensitivity in the medial aspect of the distal ankle, corresponding to the site of the original haematoma. She had a good response to cortisone injections. As a result,
Dr Nazah recommended a series of platelet-rich plasma (PRP) injections, viscosupplementation, and topical application of compound analgesic cream.
Rehabilitation reports
A Physiotherapy Recovery Report (Allied Health Recovery Request #1) documented pain, weakness, and swelling in the left lower leg, accompanied by large bruises around the medial shin and swelling of the left ankle, which significantly restricted ankle range of motion. Similarly, knee range of motion was also noted to be limited.
Commission’s assessments
Medical Assessor Assem conducted an assessment of the claimant for the purposes of assessment of whole person impairment as it relates to physical injuries on
18 February 2025. The current symptoms reported to Medical Assessor Assem by the claimant at this time were:
“Ms Sharpe continues to experience persistent weakness in her left leg, which affects her overall mobility. She has intermittent left knee discomfort primarily located in the popliteal fossa and anterior knee region. These symptoms become more pronounced after standing or walking for long periods. She reports residual discomfort in her left calf at the site of the haematoma, describing sharp, localized pain lasting approximately two seconds, which recurs every couple of hours. She notes that this pain was previously more intense but has gradually improved over time.
She describes a burning sensation along the outer aspect of her left lower leg, radiating down to her foot, which she likens to standing on hot sand. Following treatment from Dr. Nazah, the pain in the medial aspect of her left ankle has significantly reduced, and she is now able to touch the area without triggering severe discomfort.” (page 4)
She has mild difficulty negotiating steps, particularly when descending stairs, and she is no longer able to go bushwalking, which was an activity she previously enjoyed. In December 2024, she attempted kayaking for the first time post-accident, experiencing some discomfort afterward but no major worsening of symptoms.
His diagnosis, causation and reasons in his determination dated 19 February 2025 was the following:
“Ms Sharpe is a 52-year-old lady who had a pre-existing history of left knee injuries, including arthroscopic surgeries and ACL reconstruction. On 16 February 2021, she was involved in a motorcycle accident when she was struck by a car at a roundabout, sustaining a crush injury to her left lower leg with a large haematoma and a meniscal tear in the left knee.
She was transported to Nepean Hospital, where an ultrasound confirmed the haematoma, requiring surgical drainage. An MRI in March 2021 revealed knee ligament damage. In December 2021, she underwent arthroscopic knee surgery and medial meniscectomy, followed by percutaneous pulsed radiofrequency ablation for neuropathic pain.
The mechanism of injury and MRI findings in March 2021 strongly support a causal link between the accident and the meniscal tear, though pre-existing knee degeneration may have influenced its severity. While her ankle symptoms were not documented immediately, it is plausible that they developed as a result of the accident.” (page 9.)
He assessed whole person impairment at 7%.
Vocational assessment
Altius Vocational assessment report dated 16 May 2022 recorded that Ms Sharpe experienced pain rated at 2/10 at rest, which increased to 8/10 with activity. She also reported swelling of the left leg following physical exertion and throbbing discomfort in the medial aspect of the left knee. At this stage, she was having difficulty sleeping and was working seven hours per day, five days a week, with a restriction on lifting more than 10kg.
Non-economic loss
The claimant is not entitled to damages for non-economic loss as her assessment of whole person impairment by Medical Assessor Assem was 7%. This did not exceed the statutory threshold of exceeding 10%. This assessment is binding.
Past economic loss
The claimant was employed on a casual basis with two employers at the time of the accident. As a bus driver driving a community bus with Little by Little earning approximately $374.56 net weekly and as a support worker with Southern Cross Community Healthcare earning approximately $600 net weekly.
The parties relied upon payslips to ascertain the weekly earning capacity.
The insurer allowed the period the claimant was unable to work in both capacities.
The parties reviewed payslips and taxation records and particularised past losses as $46,270;
(a) Pre-accident earnings:
·Little by Little (L) -$600 net per week, and
·Southern Cross (S)- $374.56 per week.
(b) Period of loss
·(L) 16 February 2021 to 20 May 2021 =13 Weeks $600 x 13.2 = $7,920;
·(L) 31 May 2021 to 12 July 2021 = 6 weeks $320.63 x 6 = $1,924, and
·(S) 16 February 2021 to 1 September 2022 = 80 weeks x $374.56 = $29,965.
(c) Past loss in total amounted to $39,8098.
(d) Superannuation on the abovementioned sum amounted to $4,379.
(e) Tax paid amounted to $2,082.
Future economic loss
At the time of the accident the claimant was in casual employment driving a community bus and also held a second job with a role as support worker. She had returned to these positions and not taken any further time off since her return to work with Southern Cross on
1 September 2022.
The insurer conceded that due to the claimant’s ongoing pain, there could be some intermittent periods where she required a day off and against this scenario made an offer of $35,000 for future economic loss as a buffer for the occasional day off work into the future where such inability to work would be productive of economic loss.
It relied on the closed period of past economic loss to justify the buffer and the opinion of
Dr Machart that she was fit for pre-injury employment with certain restrictions on heavier type cleaning.
It relied on the vocational capacity report of Altius that the claimant had found suitable work as a disability services officer and continued in that role to date.
The claimant’s evidence was that she was currently working her pre-injury hours and had occasional issues of increased pain but this had not resulted in any time off for a while. She was able to perform the work required of her.
Against this background, the most likely circumstances but for the accident is that the claimant may suffer intermittent loss over the remaining period of her working life and it is appropriate that the parties have made an allowance by way of a small buffer in the sum of $35,000.
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 $81,270 be approved.
REVIEW OF THE EVIDENCE
The clinical records confirmed the claimant sustained injury to her left calf, ankle and knee.
Specialists’ records have given me the details of treatment to date and the likely ongoing conservative treatment necessary for the remainder of the claimant’s life.
The rehabilitation reports evidence the claimant has been able to return to work and has little ongoing restrictions.
From the material provided in the insurer’s application and the additional information provided by the claimant in person, I am satisfied that I have sufficient information to make a determination on 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 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 past economic loss is $46,270; and the amount for future economic loss is $35,000;
(ii)the amount of any deductions in the proposed settlement.
The sum of $19,393.75 for paid weekly statutory benefits under Division 3.3 of the Act. The claimant will receive net proceeds of $ 61,896.25;
(iii)the amount of any advanced payments made be specified. There had not been any advanced payments made, and
(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. The losses calculated for economic loss past and future accord with the primary evidence of payslips and the claimant’s histories.
(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 some ongoing stiffness and occasional pain in her left ankle and knee. She continues to undertake treatment for pain management on an occasional basis. She remains under the care of her treating general practitioner. The amount of damages for past and future 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. The sums agreed to accords with the losses to the claimant’s earning capacity but for the accident.
I find the sum agreed upon in the sum of $81,270 is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission, and
(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 preliminary conferences that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses.
The claimant is aware she will receive net proceeds of $61,896.25.
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 $81,270 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 is 53, she has a further 14 years working life ahead of her.
I am satisfied the claimant was aware she could seek legal advice, she undertook some investigations with a legal practitioner and 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 the deductions from the proceeds of settlement and that she will receive $61,896.25 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 $81,270.
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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