Allianz Australia Insurance Limited v Godfrey
[2025] NSWPIC 514
•29 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Godfrey [2025] NSWPIC 514 |
| CLAIMANT: | Jordan Godfrey |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 29 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval under section 6.23; self-represented claimant who suffered injury as a pedestrian; walked into the path of a bus at a pedestrian crossing against traffic signal; CCTV footage of accident; contributory negligence; claimant a forklift driver who lost employment due to accident injuries including a broken humerus; subsequent unrelated leg injury; now employed on a labour hire arrangement difficulty obtaining full time employment; claimant currently aged 30-years; initial proposed settlement deemed as not fair and reasonable; Held –revised settlement agreement approved in the amount of $86,731.60 which includes a deduction of 70% for contributory negligence. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 1. The claimant and the insurer have agreed to settle the damages claim in the amount of $86,731.60. 2. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. 3. Attached to this certificate are reasons for my assessment. |
REASONS FOR DECISION
BACKGROUND
The matter involves an application for approval of a proposed settlement pursuant to
s 6.23(2)(b) of the Motor Accident Injuries Act2017 (MAI Act).Mr Jordan Godfrey (the claimant) is a 30-year-old male (born in 1995) who suffered injuries as a result of a motor vehicle accident which occurred on 20 April 2022.
The claimant was injured when as a pedestrian the claimant crossed at an intersection on Sunnyholt Road Blacktown. He walked onto the roadway in front of a passenger bus resulting in the claimant being struck by the vehicle and falling to the ground.
A claim for statutory benefits was lodged by the claimant, with Allianz Australia Insurance Limited (the insurer), the compulsory third party insurer of bus.
The claimant subsequently lodged a claim for damages.
By way of notice dated 18 June 2024 which admitted liability, however, with an assertion of contributory negligence of 80%.
The claimant has been receiving statutory benefits for treatment and care expenses. In addition, payments of weekly statutory benefits have been made totalling $18,628.06.
The claimant is self-represented.
The insurer has lodged an application with the Personal Injury Commission (Commission) seeking approval of a settlement reached with the claimant. As a Member of the Commission I have been tasked with determining the application.
The proposed settlement that was initially referred for approval totalled $25,000 inclusive of weekly benefits paid, to be deducted from the settlement amount. The amount represented an assessment of damages of $125,000, however, reduced by 80% on account of contributory negligence. The claimant accepted the proposed settlement.
I held a preliminary conference with the parties on 27 March 2025. I noted that the material before me did not include a copy of the CCTV footage of the motor accident from the insured vehicle. I also noted that the proposed settlement did not include an allowance for non-economic loss on the basis of an assessment of whole person impairment (WPI) by
Dr Waller of 7%.After considering the material and the description of injuries provided by the claimant at the preliminary conference I directed that the claimant’s injuries be assessed by a Medical Assessor of the Commission.
I also indicated that on the evidence received, I was of the preliminary view that the assessment of 80% for contributory negligence appeared to be outside the likely range that would be assessed.
The claimant was subsequently assessed by Medical Assessor Farhan who certified the claimant as suffering injuries caused by the accident giving rise to a WPI of 9%.
I held a further preliminary conference with the parties on 18 July 2025. I noted that the material did not include evidence of the claimant’s earnings subsequent to the accident and I considered this to be necessary information required. It was also confirmed that the insurer had revised the assessment of contributory negligence to 70%.
Earnings material was thereafter provided, and after some initial difficulties I was able to view the subject CCTV footage.
I held a final preliminary conference with the parties on 17 September 2025. During that conference I noted that after viewing the CCTV footage, I was satisfied that 70% contributory negligence was within the range that would likely be assessed. I however, noted that on the basis of the earnings material provided, the claimant’s young age, and the fact that the claimant was now relying on the precarious nature of labour hire casual work, I considered the allowance for future economic loss to be inadequate.
On 24 September 2025 I was provided with a copy of a revised settlement agreement totalling $86,731.60 made up as follows:
· Past economic loss: $109,105.34
· Future economic loss: $180,000
· Sub total: $289,105.34
· Less 70% for contributory negligence
· TOTAL: $86,731.60
LEGISLATIVE FRAMEWORK
Section 6.23 of the MAI Act provides:
“(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 (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 satisfied 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.”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the further documents provided by the insurer. I have also considered an email from the claimant dated 18 August 2025. I am satisfied that I have sufficient information upon which to determine the application.
SUMMARY OF EVIDENCE
Liability evidence
NSW Police report
The police held the claimant to be responsible for the accident. The crash summary details are as follows:
“at 2.49pm on 4th June 2021 a City Bus was travelling in a northerly direction along the T-Way next to Sunnyholt Road Blacktown at around 30klms. The Bus driver stopped at the first stop and picked up a passenger. The Bus driver continued along the T-WAY and approached a pedestrian crossing located at the intersection of Sunnyhold Road and Third Avenue Blacktown. The Bus driver was driving across the pedestrian crossing and a male commenced to walk across the pedestrian crossing at the same time. The male only heard the beep to walk for the traffic lights, the male did not look up to the side to side if there were any buses travelling on the T-WAY. The front window of the Bus has collided with the right hand side of the male. The male fell to the ground and got up and walked over to the footpath and sat down. The male started to yell out that he was injured…”
Factual investigation of Brooksight Investigations dated 19 November 2021
The investigators obtained a statement from the insured driver on 1 October 2021. The driver recalls approaching the pedestrian crossing with traffic lights. He states that he had a white B letter traffic light meaning that he had right of way to proceed through the intersection.
He approached the intersection at around 30kmph (speed limit of 50kmph) and from the corner of his eye he saw a thin figure of person approaching the walkway. He recall’s not accelerating and covering his brake when all of a sudden and without warning the person walked out in front of the bus. He recalls being shocked and instinctively jumped and slammed on the brakes but there was no time to stop and the claimant hit the front driver’s side of the bus.
The investigators spoke to the relevant police officer and a transcript of interview is provided. The officer confirms having viewed the CCTV footage that shows the insured picking up a coffee and having a few sips and put it down and then a split second later he beeps the horn. The officer states the insured did take his eyes off the road.
The police also spoke to the claimant after the accident. The transcript includes the content of the conversation. The claimant states that he was on his phone replying to his partner via text. He was asked whether he looked at both sides of the road before crossing and he replied: “no, I was an idiot. I heard the beeps to cross the road. I didn’t see the green man.” He also confirms that he did not see the bus when he walked onto the road.
The officer states that he thinks the “beeps” were perhaps from a different set of lights located behind the claimant.
Medical evidence
The claimant attended Westmead Hospital via ambulance. A CT scan revealed fractures of the right acromion, scapula, radius, and ulnar styloid, along with a possible non-displaced fracture of the distal scaphoid and triquetral, and a left parietal scalp haematoma. X-rays showed a comminuted and displaced intra-articular fracture of the distal radius and a minimally displaced fracture of the ulnar styloid process. Lacerations were noted over the right temporal area.
He underwent an open reduction and internal fixation of the fractured distal right radius. Conservative treatment was provided for the acromion and scapular fractures, and he was discharged from hospital on 9 June 2021 with recommendations for physiotherapy and continued use of analgesics.
On 14 July 2021 the claimant was reviewed by the orthopaedic surgeon, Dr Kanawati. He was noted to be doing well, with well controlled pain but some difficulty moving his thumb. The wound was noted to be healing well, and the thumb tendons were functioning well without any neurological deficits in the hand. An X-ray showed anatomical alignment of the radius and satisfactory hardware positioning. Dr Kanawati described the injury as quite severe and that the claimant may experience a poor long-term outcome due to scarring and potential post-traumatic arthritis.
Medico-legal evidence
Report of Dr Waller dated 30 August 2024
Reporting to the insurer, the doctor examined the claimant on 29 August 2024. The claimant reported pain of 6/10 in the right forearm which is aggravated by activity. Pain in the right forearm was noted with clenching the right wrist. Pain of the right scapular was reported as 8/10 aggravated by movement.
The claimant noted a decreased grip strength in the right hand and he had difficulty with hand writing. The claimant was noted to be unable to lift weights or return to previous activity of rock climbing.
The doctor noted that the claimant was restricted from employment activities due to reduction in strength and lifting capacity with the right hand. The doctor considered the claimant to be fit to carry out his occupation as a forklift driver.
In terms of WPI, the doctor assessed an 8% right upper extremity impairment for loss of motion of the right wrist, and a 1% right upper extremity impairment for loss of supination of the right forearm in addition to a 1% right upper extremity impairment for limitation of forward flexion of the right shoulder. This equates to a 6% WPI with an additional 1% for scarring under the TEMSKI classification.
Medical assessment of Medical Assessor Farhan Shahzad dated 23 June 2025
The Medical Assessor examined the claimant on 5 June 2025. The claimant described his pain as being constant, becoming more intense in cold weather and feels overwhelming at times. The claimant finds relief with prescription cannabis. He also takes Panadol and Nurofen.
The Medical Assessor assessed a DRE category II impairment of the thoracic spine giving rise to a 5% WPI. He found a 3% WPI of the right upper limb and a 1% WPI for the scarring. This totals 9% WPI.
DAMAGES and REASONS
Liability
I consider the assertion of 70% contributory negligence to be fair and reasonable and within the range that would be assessed should the matter proceed to assessment. The CCTV footage, confirms the insured driver to take his eyes off the road to drink coffee on approach to a pedestrian crossing. I consider this to be a breach of duty of care on account of the insured driver not keeping a proper lookout in the circumstances.
However, the footage also reveals the claimant walking directly in front of the approaching bus, who had right of way, without looking at all. Indeed, the claimant himself confirms to police that he did not look prior to stepping out, that he did not visualise the traffic signals before walking and he was texting on his phone at the time.
It is clear that the predominant cause of the accident is the claimant’s failure to keep a proper lookout by not visualising the traffic signal before entering the roadway and failure to take any look at all for oncoming vehicles.
Non-economic loss
The settlement includes no allowance for non-economic loss. This is appropriate having regard to the medical assessment of Medical Assessor Shahzad.
Economic loss
At the time of the motor accident the claimant was employed full time with Universal Gaskets as a storeman and forklift driver. He was off work for approximately six months after the accident. The claimant lost his job, being made redundant in March 2022. The claimant alleges that this was due to his inability to carry out his duties due to the accident related injuries.
The claimant did not return to employment until June 2024. The employment obtained is through a labour hire company and the claimant performs forklift duties.
The claim is complicated somewhat due to the claimant suffering a further injury in February 2025 in the form of a broken leg following a motorcycle accident. This saw the claimant ceasing work. However, he tells me that he has now returned to his job as a casual forklift driver. He is able to perform the duties despite his leg injury. He is also able to continue his duties despite his subject injuries to his upper limb. He describes having to rest his arm when operating the forklift.
The pay records from his employer indicate the claimant’s hours vary significantly week to week. The claimant told me that is essentially “wrecked” at the end of an hours heavy work week. He has tried to obtain full time secure employment but has to date been unsuccessful.
Earnings material reveals a pre-injury income of $741.52 net per week.
The proposed settlement includes an allowance for past economic loss of $741.52 for two years plus superannuation totalling $107,001.34. An additional allowance for Fox v Wood[1] is made of $2,104.
[1] (1981) 148 CLR 438.
In terms of future economic loss, the earnings print out provided by the claimant’s current employer is somewhat difficult to decipher. However, on my calculations the earnings up until February 2025, when the claimant went off work for unrelated injuries, the average net weekly earnings are commensurate to the pre accident earnings. However, this does not take into account the fact that the employment is now casual and the claimant does not have the benefit of other benefits such as annual leave, sick leave and the other benefits of full time employment. Perhaps of most significance, the claimant is in a somewhat precarious position when not employed in a permanent full time role like he was prior to the accident.
For these reasons I indicated to the insurer that I considered the original proposed allowance of a $100,000 buffer to not represent a fair and reasonable amount in the circumstances of the claimant, who has approximately 37 years before retirement age. I suggested that the insurer review the allowance as at that stage I was not prepared to approve the settlement.
The revised settlement includes an allowance of $180,000 for future economic loss. It is made on a buffer basis, but I note that it would roughly represent a weekly amount of loss of earnings of approximately $150 plus superannuation.
OTHER CONSIDERATIONS
At the preliminary conferences, I raised with the claimant that he was not represented by a legal practitioner. The claimant was aware of his entitlement to engage legal representation, however, was clear that he did not wish to do so.
I find that the amended signed settlement agreement in respect of the proposed settlement appropriately protects the rights of the claimant.
At the preliminary conference, I explained to the claimant that the settlement only extinguishes his right to damages. I noted that he would have an ongoing right to receive treatment and care expenses, on the basis that such treatment was related to the injuries caused by the accident and that the treatment and care was reasonable and necessary.
I understand the claimant may have been in receipt of Centrelink payments. The claimant is fully aware that that it is likely that Centrelink will issue a notice that requires an amount to be forwarded to them as a payback from the settlement amount. I also explained to the claimant that Centrelink may determine that he may be precluded from receiving payments for a certain period as a result of the settlement.
I explained that neither myself nor the insurer can predict what Centrelink’s determination would be.
The claimant was aware that the payments of weekly statutory benefits would be deducted from the settlement amount, and he has been advised that this amounts to a total deduction of $18,628.06.
CONCLUSION
I am satisfied that the proposed settlement amount is fair and reasonable and within the likely range that would likely be assessed should the matter be assessed by a Member of the Commission or by a Court.
I therefore approve the proposed settlement. A certificate to this effect is included at the beginning of these reasons.
0