Allianz Australia Insurance Limited v Movahed
[2025] NSWPIC 37
•5 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Movahed [2025] NSWPIC 37 |
| CLAIMANT: | Haleh Movahed |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 5 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement of $130,000 under section 6.23; claimant self-represented; claimant sustained injury as a result of the motor vehicle accident; liability admitted by insurer; past and future damages for economic loss awarded; Held – settlement of $130,000 approved as just, fair and reasonable, and within the range of likely outcomes. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 The proposed settlement in the sum of $130,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.1. |
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STATEMENT OF REASONS
INTRODUCTION
Haled Movahed (the claimant) was born in 1970 and is in her 54th year.
At the time of the accident, she was working as a dental assistant.
On 24 May 2021, the claimant was the front seat passenger in the vehicle which hit a telegraph pole after the driver lost control. The claimant and the driver were coming home from work at night and the visibility was poor. There had been some construction on the side of the road and there was some gravel.
When the driver and the claimant were about 5-10 minutes from home, the driver lost control of the vehicle on the gravel and hit a pole on the passenger side.
The claimant was taken from the scene of the accident to hospital by ambulance and was found to have had multiple injuries including a small left pneumothorax, a displaced left scapula fracture, fractures of the L3-7 and L10 ribs and fractures in R2 and R4 ribs.
The claimant lodged a common law claim form, i.e., a claim for damages, on 15 December 2022.
The insurer admitted liability on 1 March 2023.
The claimant alleges she sustained the following injuries as a result of the accident:
(a) multiple rib fractures;
(b) small left sided pneumothorax;
(c) mildly displaced fracture of the scapular fracture;
(d) neck pain, and
(e) psychological symptoms.
On 1 March 2023, the insurer admitted liability for the payment of common law damages.
Medical expert opinion
The claimant was examined by medical practitioner Dr Sandra McBurnie, described as a Consultant Occupational Physician who reported to the insurer on 16 April 2024.
Dr McBurnie reported that [5] there was an incapacity with respect to earning ability and to continue the employment. It had been almost three years since the accident and although there had been some improvement, symptoms had plateaued over the preceding 12 months. The claimant had not returned to her pre-injury hours or duties and her capacity to work had fluctuated. She was (at the time of the report) fit to work two days per week. The incapacity was due to the chronic pain secondary to the fractures and the whiplash injury affecting her neck, upper back and chest and limiting her capacity to stand with her neck flexed and to lift and carry.
Dr McBurnie opined further that the claimant would remain restricted with a reduction in her income-earning capacity long term. She was likely to need a permanent change in her duties and employment and her hours were likely to be reduced two to three days per week in a role without significant lifting and potential for regular change in posture.
The claimant was examined by Dr Ingles Howe Synnott, psychiatrist, at the request of the insurer on 13 June 2024. He was of the opinion that the claimant was experiencing sufficient symptoms as a result of the accident to meet the diagnostic criteria of a major depressive disorder with prominent anxiety. She met the criteria for both Diagnostic and Statistical Manual of Mental Disorders, Fourth and Fifth Editions (DSM-IV and V). Some clinicians might prefer a diagnosis of general anxiety disorder and he would accept that diagnosis.
He considered that as a result of the accident she had a whole person impairment on psychiatric grounds of 6%.
Insurer’s offer
The insurer has now made an offer (“revised offer”) of $130,000 subject to the deduction of wage payment of $24,398.56. The offer of $130,000 does not include any entitlement for non-economic loss.
The offer includes an amount of $60,000 for past economic loss calculated as follows:
The claimant’s net pre-accident weekly earnings were determined in the Statutory Benefits claim as $639 net per week. The insurer has allowed loss in line with the certificates of fitness:
-14 weeks full loss – $8946;
-4 weeks loss of approximately $360 net – $1,440;
-4 weeks loss of approximately $450 per week – $1,800;
-8 weeks loss of approximately $500 per week – $4,000;
-4 weeks loss of approximately $300 per week – $1,200;
-20 weeks loss of $84 per week – $1,680;
-8 weeks loss of $190 per week - $1,520;
-No loss for 4 weeks – $0;
-8 weeks loss of $190 per week – $1,520;
-28 weeks loss of $84 per week – $2,352;
-Loss of $100 per week for 11 weeks – $1,100;
-claimant certified for three days per week but only able to work two – loss of 1 day per week for 104 weeks – $19,102.72;
-subtotal – $44,660.72 ;
-plus superannuation – new total – $49,573.39;
-plus Fox v Wood (1981) 148 CLR 438 – $1,517;
-total – $51,090.40;
-please note an error in the number of weeks used to calculate loss in the offer (152 weeks was used for a two-year time frame instead of 104 weeks). This will be honoured in good faith, and
-total $60,000.
The insurer has offered an amount of $70,000 for future economic loss. The claimant is certified for two days clinical and one day administrative, however the claimant has only been managing to work two days per week. Dr McBurnie opines the claimant would be able to work two to three days per week with light tasks. Dr Synnott opines she is able to work 20 hours per week with current duties from a psychiatric perspective. The insurer has allowed an ongoing loss of $145 per week for the remainder of the claimant’s working life.
If approved, the claimant would be left with an amount of approximately a little over $100,000 net after the deduction of the payback of $24,398.56.
The claimant advised me at the preliminary conference on 29 January 2025 that she does wish me to approve the offer.
Previous offer
I previously considered the application for approval at a preliminary conference on 12 December 2024 and reported the next day.
I note that the application for approval was originally with Medical Assessor David Ford the member. I further note that the original offer was $80,000.
In considering the offer I have now had an opportunity to carefully read all the material on Pathways in relation to this claim and I am of the view that the claimant will not recover non-economic loss damages for the physical injuries that she sustained and I note that I have no reason to disagree with the whole person impairment assessment of Dr Synnott.
Legislation and legal principles
The Personal Injury Commission (Commission) was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal lnjury Commission Act 2020.
As a member of the Motor Accidents Division of the Commission, cl 14A(1) of the Personal Injury Commission Regulation 2020 and clause 14D empowers me to determine those proceedings.
Cl 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.
In making my decision I have considered the following legislation and guidelines:
(a) the Personal lnjury Commission Act 2020;
(b) the Personal Injury Commission Rules 2021;
(c) the Personal lnjury Commission Regulation 2020;
(d) the MAI Act, and
(e) the Guidelines.
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."
Regulation 95 of the Personal Injury Commission Rules states:
“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).”
Clause 7.37 of the Guidelines states:
“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."
Clause 10 of the Commission's Procedural Direction MA3 provides that the application must include:
(a) a deed of release;
(b) 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;
(c) 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;
(d) 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 advance payments were made, and
(e) the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
Deed of release
The insurer produced the ‘Agreement for Release and Indemnity’ on 19 September 2024.
This agreement was made between Haleh Movahed and Allianz Australia Insurance Limited (ABN 15 000 122 850) of Carrington Street, Sydney NSW 2000 (the insurer).
The agreement was made prior to the final settlement offer.
In the agreement of 19 September 2024, the insurer was entitled to deduct from the payment:
“(a) All amounts paid or payable by the insurer to Centrelink; and
(b) Any amounts payable or payable by you or the insurer to your employer or the employer’s Workers Compensation Insurer pursuant to s 251Z of the Workers Compensation Act 1987 (NSW); and
(c) Any weekly statutory benefits previously paid to you by the Insurer, pursuant to s 3.4O(1)(b) of The Act; and
(d) Any fees incurred in respect of non-attendance at medical examinations.”
No further deductions were made from the final settlement amount of $130,000.
I am satisfied that the application complied with cl 10 of the Commission's Procedural Direction MA3.
Preliminary conference
At the preliminary conference on 29 January 2025, I explained to the claimant that she was not legally represented, the proposed settlement had to be approved by the Commission, the claimant acknowledged that she understood this to be the case.
In the course of the preliminary conference, I asked the claimant whether she wished me to approve the offer, and she did.
Conclusion
I am satisfied that the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim of it were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the losses sustained by the claimant, and also taking into account the deductions to be made from the proposed settlement.
I am satisfied that the claimant understands that she is entitled to be represented in respect of the claim by an Australian legal practitioner but did not wish to do so.
I am satisfied that the claimant understands the binding nature and effect of the proposed settlement and that she will be precluded from making a further claim for damages arising out of the motor accident.
The claimant has accepted the proposed settlement offer by the purchaser.
Accordingly, under s 6.23(2)(b) of the MAI Act, the proposed settlement of Ms Movahed’s claim for damages in the amount of $130,000 is approved.
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