Allianz Australia Insurance Limited v Burke
[2025] NSWPIC 375
•5 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Burke [2025] NSWPIC 375 |
| CLAIMANT: | Michael Burke |
| INSURER: | Allianz Insurance (Australia) Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 5 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; 60-year-old man driving along busy road when the insured attempted to make a right hand turn into a cross street causing a collision; claimant self-employed structural and tunnelling engineer; partial incapacity for limited weeks; claimant made reasonable recovery from his accident-related injuries; proposed settlement agreement limited to past and future economic loss assessed as a buffer; Held – settlement approved under section 6.23(2)(b) in the sum of $45,000; no statutory benefit paid. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $45,000. |
STATEMENT OF REASONS
INTRODUCTION
On 19 December 2023, Mr Michael Burke (the claimant) was injured in a motor vehicle crash. He was travelling along King Georges Road at Penshurst when the insured driver crossed into his path in an attempt to make a right hand turn into George Street. His airbags deployed, an indication this was not a minor collision.
Mr Burke made a claim against Allianz Insurance (Australia) Limited (insurer) the insurer of the at fault vehicle for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
The insurer has accepted, pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the Act), Mr Burke is entitled to payment of reasonable treatment and care for the rest of his life for his accident caused injuries.
Mr Burke and the insurer have reached agreement as to settlement of the claim for damages.
Because Mr Burke is not represented by a lawyer, the settlement must be approved in accordance with the Act.
The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer and Mr Burke have agreed his entitlement to damages is limited to past economic loss and future economic loss.
THE RELEVANT LAW
Approval of the settlement is required under s 6.23(2) and (3) of the Act and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by Mr Burke, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) Mr Burke understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS
I have considered the documents provided with the insurer’s application including, but not limited to, insurer’s submissions, settlement communications, photographs, medical report by Associate Professor Craig Waller, medical investigations, certificates of capacity and financial records.
REVIEW OF THE EVIDENCE
Mr Burke is 60 years old.
Following the crash, Mr Burke presented to St George Hospital. According to the clinical notes from the hospital, he presented with difficulty breathing, reporting a crushed chest on the right although a chest X-ray was normal. He suffered fractured ribs and a whiplash injury. After assessment, he was discharged with analgesics.
He followed up with a general practitioner at a centre at Moorebank. X-rays showed fractures of his right 8th and 9th ribs. He was referred to a chiropractor for treatment which he told me assisted in his recovery.
Mr Burke has made a satisfactory recovery. He reports some ongoing stiffness in his neck region and mid spine. His rib injuries have settled.
Mr Burke qualified as an engineer at the University of Technology in Broadway. He is a self-employed structural and tunnelling engineer.
The insurer arranged for Mr Burke to be assessed by A/Prof Waller on 24 March 2025. After consultation and examination, the Associate Professor diagnosed Mr Burke’s injuries sustained in the accident included factures right 8th and 9th ribs, soft tissues injuries to his cervical and lumber spine. He found Mr Burke had a partial incapacity for work for around eight weeks following the accident. He is fit for full-time pre-injury duties as an engineer at the date of his assessment with the Associate Professor.
PRELIMINARY CONFERENCE AND PROPOSED OFFER
On receipt of the application of the proposed settlement agreement, I reviewed the documentation.
Mr Burke failed to appear at the preliminary conference arranged on 1 July 2025. A further teleconference was held on 31 July 2025. Mr Burke appeared via telephone.
During the telephone conference, Mr Burke advised me he understood he was entitled to legal representation but chose not to engage a lawyer.
He confirmed he understood his entitlement to ongoing reasonable treatment expenses for his injuries. He advised me chiropractic sessions would greatly assist him in the future. I advised him he needs to have his doctor refer him as reasonable and necessary treatment for his accident-related injuries.
Mr Burke confirmed he understood, if approved, the settlement was final.
A/Prof Waller assessed whole person impairment of 0% which does not entitle Mr Burke to damages for non-economic loss.
The insurer proposed that the past assessment of economic loss be calculated for approximately eight weeks due to a partial incapacity amounting to $33,000.
Even though Mr Burke has now returned to full-time employment, the insurer has assessed a future economic loss to compensate for any incapacity he may experience noting he has ongoing neck stiffness. The proposed sum for this loss is $12,000.
The total amount proposed by the insurer for approval is $45,000. The insurer has not paid statutory benefits.
SHOULD I APPROVE THE SETTLEMENT
Mr Burke told me he was happy with the proposed settlement. He advised me since the crash, although he has ongoing restrictions, he is determined to remain fit and preserve his fitness as much as possible.
He understood he is entitled to legal representation but did not wish to engage a lawyer.
He confirmed he understood his entitlement to past economic loss which can only be submitted as a buffer because he is self-employed.
I am satisfied Mr Burke is aware the settlement finalises his entitlements to further common law damages under the Act.
I am satisfied Mr Burke is happy with the amount of $45,000 clear to him.
I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Mr Burke.
I am satisfied Mr Burke understands the binding nature of the settlement and that he is precluded from making a further claim for damages arising from the accident. I am satisfied Mr Burke is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of
Mr Burke’s claim for damages in the sum of $45,000.
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