Allianz Australia Insurance Limited v Crawshaw
[2025] NSWPIC 165
•23 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Crawshaw [2025] NSWPIC 165 |
| CLAIMANT: | Janine Crawshaw |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Bianca Montgomery-Hribar |
| DATE OF DECISION: | 23 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; claimant unrepresented; section 6.23; settlement approval by Commission; ankle injury; claim for economic loss; threshold for non-economic loss not met; liability admitted; whether proposed settlement appropriate; whether proposed settlement understood by the claimant; Held – claimant returned to pre-accident capacity; claimant unlikely to require surgery; settlement within the range of likely potential damages assessment; settlement otherwise appropriate; settlement understood by claimant; settlement approved in the sum of $11,000. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved in accordance with s 6.23(b) of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
On 8 February 2024, Janine Crawshaw was injured while she was exiting a bus travelling along Clara Street, Randwick, NSW (accident). It is agreed by the parties that the bus door closed while she was exiting, causing her to stumble and sustain an injury to her ankle.
On 24 May 2024, Ms Crawshaw made a claim for damages under the Motor Accident Injuries Act 2017 (NSW) (MAI Act) on Allianz Australia Insurance Limited (insurer). On 19 August 2024, liability was wholly admitted by the insurer. The insurer has conceded that Ms Crawshaw sustained a non-threshold injury and is entitled to damages under the MAI Act.
The parties have reached agreement on a proposed settlement in respect of Ms Crawshaw’s claim for damages. As Ms Crawshaw is not legally represented, the proposed settlement must be referred to the Personal Injury Commission (Commission) for approval in accordance with s 6.23 of the MAI Act.
I am required to consider whether the proposed settlement should be approved.
RELEVANT LEGISLATION
Section 6.23 of the MAI Act provides:
“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(1) (Repealed)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.”
Clause 7.37 of the Motor Accident Guidelines (Guidelines) provides:
“7.37 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
(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
(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.”
Part 95 of the Personal Injury Commission Rules 2021 (PIC 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)”
Pursuant to s 21 of the Personal Injury Commission Act 2020 (PIC Act), the President of the Commission has issued Procedural Direction MA3 concerning the approval of damages by the Commission.
PROCEDURAL HISTORY
On 17 April 2025, I held a preliminary conference with the parties for the purposes of determining whether to approve the proposed settlement. Ms Crawshaw participated in person and Ms Wyatt appeared on behalf of the insurer.
REVIEW OF THE EVIDENCE
As required by Procedural Direction MA3, the insurer has provided a bundle of supporting documentation in relation to the proposed settlement approval.
Ms Crawshaw suffered a complete rupture of her anterior tibofibular ligament (ATFL) of the left ankle with no intact fibres caused by the accident. Ms Crawshaw does not allege that she suffered any other injuries as a result of the accident.
The bundle contained CCTV footage provided by the bus company. I have reviewed that footage and observe that it shows the bus doors partly closing as Ms Crawshaw exited the bus, causing her to stumble. The doors subsequently re-open and the claimant is seen to walk with a significant limp to the curb.
Dr David Lunz, foot and ankle surgeon, examined the claimant and provided a report dated 13 June 2024. Dr Lunz noted Ms Crawshaw’s treatment and that she is working with her physiotherapist. Dr Lunz noted that she is feeling much better with only occasional pain, and there is no clicking, catching, grinding, locking or giving way. Ms Crawshaw is reported to walk with a normal gait and her ankle moves freely and feels stable. In Dr Lunz’s opinion, the ATFL is a “common ankle sprain and 90% will resolve without the need for surgery”. As Ms Crawshaw’s ankle was reported to feel stable, Dr Lunz opined that she will remain stable and will not need an operation.
A discharge report from Longevity Personal Training and Exercise Physiology dated 4 September 2024 has been considered. It was noted that Ms Crawshaw’s strength and function has significantly improved, and her capacity is reported to align with that pre-injury. The notes from Longevity Personal Training and Exercise Physiology collated on 28 November 2024 have also been considered.
Ms Crawshaw was examined by Dr Robin Mitchell, occupational physician, on 21 January 2025. Dr Mitchell provided a report dated 29 January 2025 which has been considered. Dr Mitchell noted that Ms Crawshaw had a good symptomatic recovery from her injury, no longer requires treatment and takes analgesic medication when required. Dr Mitchell noted her symptoms have been stable between six and 12 months. Dr Mitchell opined that there was no ongoing incapacity and assessed 0% whole person impairment due to her right ankle injury. Dr Mitchell opined there was no ongoing incapacity for her normal work, and that there will be no impact upon Ms Crawshaw’s future earning capacity as a consequence of the accident.
The undated letter from Yelson Qian, physiotherapist, has been considered. Mr Qian notes that Ms Crawshaw has diligently attended physiotherapy sessions and actively participated in the prescribed rehabilitation program. It is reported that Ms Claimant has been making steady progress in her rehabilitation journey.
The notes from E.S. Physiotherapy and Exercise Physiology Randwick collated on 13 November 2024 have been considered. These notes support that Ms Crawshaw has diligently attended to rehabilitation of her ankle. The notes confirm that, while there can be occasional tightness and discomfort, Ms Crawshaw has been able to return to bootcamp and her functionality is increasing.
The Spectrum Medical Imaging reports have been considered, which confirm the reported injury.
The Certificate of Capacity/Certificate of Fitness dated 20 March 2024 certifies that Ms Crawshaw was fit for pre-injury work from 20 March 2024. The Certificate of Capacity / Certificate of Fitness dated 29 April 2024 certifies that Ms Crawshaw was fit for pre-injury work from 23 March 2024. A Medical Certificate was provided dated 22 March 2024, which certifies that Ms Crawshaw was unfit for work from 20 March 2024 to 22 March 2024, inclusive, which explains the discrepancy between the dates in the two Certificates of Capacity/Certificates of Fitness.
Ms Crawshaw’s payroll activity details have been considered in relation to the proposed settlement figure.
CONSIDERATIONS
In order to approve the proposed settlement, I must be satisfied:
(a) that it complies with the applicable legislative requirements;
(b) that it is appropriate, in that it is just, fair and reasonable and within the range of likely potential damages assessments if the matter was to be assessed by the Commission, and
(c) of the claimant’s understanding, including that she is entitled to be represented in respect of the claim, that she understands the nature and effect of the proposed settlement, and that she is willing to accept the proposed settlement.
Does the proposed settlement comply with the applicable legislative requirements?
At the preliminary conference, the insurer confirmed that there was no allegation of contributory negligence and that no advanced payments had been made. Accordingly, I am satisfied that that the bundle of supporting documents provided by the insurer complies with the directions provided in Procedural Direction MA3.
I note that the application records that the proposed settlement agreement was reached on 23 February 2025. Accordingly, I find that the insurer did not lodge the application for approval within seven days of reaching the agreement as required by rule 95 of the PIC Rules. However, in the circumstances, and noting that the delay was only three weeks and neither party appears to have suffered prejudice as a result, pursuant to rule 6, I find it is appropriate to dispense with the timing requirement provided by rule 95.
I find that the proposed settlement complies with the applicable legislative requirements.
Is the proposed settlement appropriate?
The proposed settlement offer is in the amount of $11,000. The offer is made up of:
(a) an allowance for past loss of earnings of $5,000, being a buffer including superannuation, and
(b) an allowance for future economic loss of $6,000, being a buffer including superannuation.
No allowance is made for non-economic loss.
Based on the medical evidence provided, I am satisfied that Ms Crawshaw is not entitled to damages for non-economic loss as her permanent impairment has been assessed as 0%. Accordingly, she does not meet the impairment threshold in the MAI Act.
As Ms Crawshaw has a non-threshold injury, I am satisfied that she is entitled to damages for economic loss.
The proposed settlement for past loss of earnings provides for a buffer allowance of one day per week for a period of 12 weeks. Loss of wages for attendance at the medical legal appointment in the sum of $297 has been allowed. Superannuation of 11% has been added.
There have been wage payments of $515.12 which are proposed to be deducted from the settlement amount. ‘Fox v Wood’ of $37.00 has been added.
My review of the claimant’s earning information suggests that the buffer provided for the claimant’s past loss of earnings is appropriate.
In respect of future economic loss, a buffer to cover any time off that may be required due to a flare up of symptoms is allowed in the sum of $6,000.
The insurer noted that any deductions for repayment for any Centrelink benefits was yet to be confirmed, and Ms Crawshaw indicated there were no Centrelink benefits paid.
The insurer indicated that there was no Medicare payback and accordingly it will not deduct or pay any monies to Medicare under the Health and Other Services (Compensation) Act 1995 (Cth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses, the insurer confirmed it will pay the charge in addition to the settlement sum.
Ms Crawshaw is 35 years of age and, at the time of the accident, was employed full time as a pre-school educator. Ms Crawshaw confirmed that she had returned to her employment.
Ms Crawshaw reports that her ankle injury has largely resolved. She recently had two sessions of physiotherapy due to a flare up but notes that this is a rare occurrence. Ms Crawshaw noted that the physiotherapist had provided her with exercises to assist with her ankle and she did not appear concerned as to any ongoing issues.
Ms Crawshaw is in her mid-30s and has many years ahead of her before she reaches retirement age. While her ankle injury is reported to have stabilised and largely resolved and she is back to her pre-accident work capacity, the residual effects of her ankle may at some time in the future give rise to a loss of capacity to earn that will be productive of financial loss. I note the medical evidence that Ms Crawshaw is unlikely to require surgery. Accordingly, in the circumstances, I consider the buffer proposed is appropriate.
I am satisfied that the total amount of damages in the proposed settlement is appropriate and within the range that would be assessed by the Commission.
Does Ms Crawshaw understand the proposed settlement?
At the preliminary conference, Ms Crawshaw presented as an articulate and intelligent person. She confirmed that she is willing to accept the proposed settlement.
I am satisfied that Ms Crawshaw is aware that the settlement is intended to compensate her for all past and future economic loss arising from the accident, and the damages are being awarded on a once and for all basis. I am satisfied that she understands that an injured person cannot usually make a claim for further damages once a claim has been settled.
I am satisfied that Ms Crawshaw understands the effect of s 3.40 of the MAI Act and that she will not be entitled to statutory benefits or other compensation for any future time taken off work due to her injury, including any flare ups or required surgery.
I am satisfied that Ms Crawshaw understands that she is not entitled to damages for non-economic loss.
I note s 4.5 of the MAI Act does not allow a claimant to be awarded damages for economic losses related to treatment and care as these continue to be paid under the statutory benefits claim. It was explained to Ms Crawshaw, and I am satisfied that she understands, that the proposed settlement does not impact her entitlement to recover reasonable and necessary accident-related treatment and care such as physiotherapy. Ms Crawshaw continues to remain entitled for the remainder of her life to have her treatment and care expenses paid regarding her injury on the basis that she satisfies the requirements in Division 3.4 of the MAI Act. Whilst the insurer is only liable to pay these expenses for five years, thereafter the claim may be transferred to the Lifetime Care and Support Authority who will be liable for her ongoing reasonable treatment expenses.
Ms Crawshaw confirmed that she understood she could seek legal advice, and that she did not wish to engage the services of a lawyer in relation to the proposed settlement.
I am satisfied that Ms Crawshaw understands the proposed settlement and the nature and effect of the settlement agreement in which she is proposing to enter.
CONCLUSION
I am satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment if the claim was to proceed to assessment, considering the nature and extent of the claim.
I am satisfied that Ms Crawshaw is aware she can seek legal advice but does not wish to do so.
I am satisfied that Ms Crawshaw understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident.
I am satisfied that Ms Crawshaw is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of $11,000 in respect of Ms Crawshaw’s claim for damages.
OutcomeDocumentSignee
OutcomeDocumentSignature
0
0
0