Allianz Australia Insurance Limited v Knapton
[2025] NSWPIC 446
•29 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Knapton [2025] NSWPIC 446 |
| CLAIMANT: | Bronte Knapton |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Philip Carr |
| DATE OF DECISION: | 29 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; claimant was injured; claimant was 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 $53,000.00; settlement consisting of nil non-economic loss, past economic loss of $20,000.00, and future economic loss of $33,000.00 by way of a buffer; less $11,984.77 for statutory benefits paid by the insurer. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement sum of $53,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act2017 (the MAI Act). 2. Pursuant to s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $11,984.77 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3. |
STATEMENT OF REASONS
Introduction
The motor accident the subject of this claim occurred on 13 November 2022 (the accident).
The claimant suffered, amongst other injuries, a right knee laceration extending into the knee joint, partial disruption of the vastus lateralis and an ankle wound over the medial malleolus.
The claimant underwent surgery which included wound washout and a debridement of the infected right knee wound on 28 November 2022, and she subsequently received physiotherapy. She continues to suffer from a dull aching pain when sitting too long.
The claimant has consulted Drs Brandon Chung and Lucy France (general practitioners (GPs)), Dr Michael Goldberg (orthopaedic surgeon – treating specialist) and Professor Anand Deva (plastic surgeon) in respect of her injuries.
The insurer retained Dr Richard Powell to obtain an independent medio-legal report to assess the claimant’s whole person impairment (WPI). Dr Powell provided a report dated
19 March 2025 and noted the claimant was able to complete her pre-injury duties and all activities of daily living, has an excellent prognosis and expects continued symptomatic and functional improvement in relation to the claimant’s injuries. Based on the right knee, right ankle and scarring, Dr Powell assessed the claimant’s total WPI at 2% [pages 132 – 140].
On 30 April 2024 the claimant made an application for common law damages [pages 12 - 14].
On 25 May 2025 the insurer partially admitted liability for the common law damages claim, stating there was an entitlement to reduce the damages payable for contributory negligence. [pages 15 - 19].
The insurer made a settlement offer to the claimant to settle her application for common law damages in the amount of $53,000 for past and economic loss and sought a deduction of 20% from the settlement sum for contributory damages (the initial offer of settlement).
On 18 July 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 28 May 2025) [pages 332 - 334]. The insurer was also given an opportunity to reconsider the initial settlement offer and to file an amended deed of settlement, if appropriate.
On 21 July 2025 the insurer filed a revised bundle (the supplementary bundle), which included an amended settlement deed dated 18 July 2025, with a settlement offer of $53,000 without any deduction for contributory negligence (the revised settlement) and a revised submissions document identifying the revised settlement offer [supplementary bundle - pages 1 - 9].
The revised settlement signed by the parties also now correctly identifies the claimant is not represented by a legal practitioner [supplementary bundle, pages 7 – 9].
The claimant has accepted the revised offer of settlement.
The claimant has executed the amended settlement agreement dated 18 July 2025 [supplementary bundle, pages 7 – 9].
The claimant is not represented by an Australian legal practitioner.
The claimant requests the Persona Injury Commission (Commission) to approve the revised offer of settlement.
The accident
The accident occurred on 13 November 2022 at 7.00pm involved a motor vehicle accident when the claimant was riding as a pillion passenger on a white coloured KYMOC scooter/motorcycle owned and driven by Pierce McConnell, collided with another vehicle (an Audi Q5 station wagon, registration number CLC13A, driven by Sharmaine Slough) that had failed to stop, when making a right hand turn, at a red light at the T-intersection at Elouera Road and the Kingsway, Cronulla, NSW, 2230. The police attended the accident [pages 20 – 26 and 105 - 118].
The claimant was travelling as a pillion passenger on the scooter and wearing a helmet, there was significant damage to the right-hand side of the scooter/motor [pages 46 – 52].
The scooter/motorcycle was owned and driven by Mr McConnell, the claimant’s partner [page 33].
The accident caused several injuries to the claimant, which are identified below.
The claimant’s personal circumstances
The claimant was 23 years of age at the time of the accident [page 142] and is currently 25 years of age.
At the time of the accident the claimant was employed as a personal assistant and office manager at Zimmermann Wear Pty Limited [pages 335 - 337].
The claimant was certified as having no work capacity from 13 November 2022 to
15 January 2023 [pages 301 – 307]. Subsequently, she was certified with a reduced capacity, allowing her to work five days per week, eight hours per day, from 16 January 2023 to 17 October 2024 [pages 308 – 325].
The claimant’s injuries
The claimant sustained the following injuries in the accident:
(a) right knee laceration extending into the knee joint and partial disruption of the vastus lateralis;
(b) bruising to the lumbar spine, and
(c) right ankle wound over the medial malleolus.
The claimant did not experience any loss of consciousness.
The claimant was admitted under the care of Dr Goldberg, who on 14 November 2022 explored the wound and debrided [page 160]. A partial disruption of the quadriceps mechanism through vastus lateralis was also identified and repaired. Post-operatively the claimant was in a non-weight bearing brace and in a wheelchair.
On 28 November 2022 the claimant underwent further surgery at the Kareena Private Hospital following a significant discharge from her right knee wound, which included a wound washout and debridement of the infected knee [page 133]. The wound healed satisfactorily though there was a minor complication with presumed stitch abscesses [page 149].
THE MEDICAL EVIDENCE
St George Hospital
Following the accident the claimant was transported by ambulance to St George Hospital, where she was examined.
It was determined the claimant had sustained a right knee laceration extending into the knee joint, partial disruption of the vastus lateralis and an ankle wound over the medial malleolus. No additional injuries were identified through the CT Trauma series or tertiary survey.
On 14 November 2022, the claimant underwent a wound washout and debridement of the infected right knee wound [pages 143 - 144].
The claimant’s treatment
The claimant has received treatment from her GPs (Drs Lucy France and Brandon Chung) and Dr Michael Goldberg (orthopaedic surgeon) and obtained an opinion from Professor Anand Deva (plastic surgeon).
The claimant was also referred for physiotherapy, which commenced in January 2023.
A report from Dr Michael Goldberg (the claimant’s treating orthopaedic surgeon), dated
12 January 2023, notes that upon examination, the claimant had nearly full range of motion in her knee. He observed that the scar on her right knee appeared to be healing in a keloid fashion and noted that the ankle wound had similarly healed in a keloid manner [page 145].
The claimant subsequently sought an opinion from Professor Anand Deva, who provided a report dated 30 January 2024 [page 150]. Professor Deva noted that the claimant was highly conscious of the visible scar. Examination revealed a stretched hypertrophic scar to the right knee. Professor Anand suggested that the claimant might benefit from a scar revision. However, the claimant apparently elected not to proceed with this recommendation [page 134].
Dr Richard Powell
The claimant was examined by Dr Richard Powell, an orthopaedic surgeon, on
14 March 2025.
Dr Powell provided a report dated 19 March 2025.
Dr Powell noted her ongoing complaints in relation to her knee:
(a) she localises some discomfort to the anterior and superolateral aspect of her right knee;
(b) this discomfort is aching in character;
(c) this discomfort occurs intermittently and is precipitated by activity;
(d) she experiences hypersensitivity when touching the lateral aspect of her scar;
(e) she is aware of intermittent swelling and the occasional clicking in the knee;
(f) she kneels with difficulty, but can perform a squat, and
(g) she cannot run and describes subjective instability though there is no locking.
Regarding the claimant's scars, Dr Powell observed that the scars on the right knee and ankle exhibit variable areas of altered pigmentation and some contour irregularities. The scars also show areas of hypersensitivity and discomfort upon palpation. There was no significant tethering and the underlying joints maintain a normal range of motion. Minor trophic changes are noted in the knee scar, along with some residual suture marks visible on both scars [pages 135 and 138].
Dr Powell observed/noted the claimant was undertaking treatment as follows:
(a) she was undertaking a home exercise program, which utilised motion exercise, squats and Therabands;
(b) she was attending Pilates three to four times a week, and
(c) she was walking on a regular basis [page 134].
Dr Powell opined that he did not consider the claimant required any further specific treatment [page 137].
Dr Powell, observed/noted when assessing her activities of daily living the following:
(a) she is independent in all elements of personal hygiene and grooming;
(b) she can perform all domestic tasks;
(c) she can drive, though with some discomfort, and
(d) she has not returned to running, regular gym or snowboarding [page 135].
Dr Powell acknowledged that the claimant had previously sought a plastic surgeon's opinion and discussed the possibility of scar revision, though she chose not to proceed with it.
Dr Powell opined that the claimant’s prognosis was excellent and that he expected “continued symptomatic functional improvement in relation to her” right knee and right knee regions [page 136]. Furthermore, he did not consider that any persistent symptoms or minor functional limitations would impact on her earning capacity or ability to secure employment [page 138].
In assessing the claimant's WPI, Dr Powell found no evidence of assessable impairment concerning the right knee or ankle. However, he assessed a 2% WPI related to the scarring, in accordance with the TEMSKI scale.
The claimant's observations at two preliminary conferences
On 18 July 2025, at the initial settlement approval conference, the claimant indicated she had not fully recovered from her injuries as she “can’t sit for too long and needs to stretch” and it is “very uncomfortable when sitting”. Further, she has stopped attending physiotherapy “some time ago” as she didn’t find “it helpful and didn’t change anything despite there being a constant dull ache.”
On 8 August 2025, at the further settlement telephone conference, the claimant indicated she was still experiencing the same issues as identified at the previous settlement approval conference.
ECONOMIC LOSS CLAIM
Past loss
At the time of the accident the claimant was employed as an office co-ordinator with Zimmerman, a position she had been in for six months. As a result of the accident the claimant was certified as has having no work capacity from 13 November 2022 to
15 January 2023. Her work capacity increased to full time work from 16 January 2024.
The claimant subsequently resigned from Zimmerman in April 2023 and obtained employment at Charter Hall as a personal assistant in a full-time position.
The claimant’s payroll summary for the period 13 November 2021 to 19 November 2022 identified the claimant was earning a gross income of $2,692.31 per fortnight, a weekly income of $1,092.54 [page 337].
The claimant received from the insurer her full loss of weekly income in the sum of $1,092.54, totalling $10,051.37. In addition to these payments’ superannuation of 11% and Fox v Wood were paid, in the total amount of $2,331. The total sum paid by the insurer for this head of damage was $13,488.02.
As the recent certificates of fitness indicated there were ongoing restrictions, which possibly indicated the need for further periods of time off work, the insurer has rounded this head of damage to $20,000.
Future loss
The insurer has assessed the claimant’s future economic loss by way of a buffer as she still reports ongoing pain and discomfort as identified above, but noting Dr Powell’s opinion that the claimant will not require further time off work due to her injuries.
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 Personal Injury Commission Rules2021
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 Commission’s Procedural Directions
Clause 10 of the Commission's Procedural Direction MA3 provides the Application must include:
· a deed of release;
· 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;
· 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;
· 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
· 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 [supplementary bundle - page 5], and
(b) an executed settlement deed dated 18 July 2025, which identifies the total amount provided for the settlement and the deductions sought to be made from the settlement in the sum of 11,984.77 [supplementary bundle - page 7].
THE SETTLEMENT APPROVAL CONFERENCES
18 July 2025
On 18 July 2025 the claimant appeared at the initial settlement approval conference by MS Teams.
Following the conference the insurer indicated it did not seek a deduction from the settlement offer for the alleged contributory negligence. The insurer subsequently filed an amended settlement deed and submissions [supplementary bundle - pages 1 – 9].
8 August 2025
Following the revised offer of settlement and the execution of a revised settlement deed on 22 July 2025 referred to in [62] above, the insurer filed a further bundle on 29 July 2025.
On 8 August 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.
I indicated to the parties that I was satisfied that the amended settlement offer was appropriate and would approve the settlement.
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 $33,000 by way of a buffer for future economic loss.
I am satisfied that the amount of $53,000 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 $53,000 is approved pursuant to sub-s 6.23(2)(b) of the MAI Act.
Pursuant to s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $11,984.77 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3.
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