Allianz Australia Insurance Limited v Narayan
[2025] NSWPIC 464
•8 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Narayan [2025] NSWPIC 464 |
| CLAIMANT: | Mark Narayan |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 8 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; approval of settlement; section 6.23; claim for damages for past and future economic loss; claimant’s bicycle struck by the insured vehicle at an intersection; soft tissue injuries to the right knee and left hip; rotator cuff injury to right shoulder; no requirement for surgery; whole person impairment assessment of 0%; whether a buffer allowance for future economic loss is appropriate in the circumstances; Held – proposed settlement of $294,187.17 is approved. |
| DETERMINATIONS MADE: | CERTIFICATE Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement sum of $294,187.17 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. Pursuant to sub-s 3.40(1)(b) of the Act, the insurer is entitled to deduct the sum of $105,875.90 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3 of the Act. A statement setting out my reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 19 December 2023, the claimant, Mark Narayan, was involved in a motor accident when the bicycle he was riding was struck by the insured vehicle at the intersection of Melbourne Street and Edward Street, Mulwala, NSW.
The claimant made a claim with the insurer for common law damages for the injuries he sustained in the accident. The insurer admitted liability for the claim but alleged contributory negligence on the part of the claimant in the order of 30%.
The parties agreed to settle the claim for a sum of $161,283.50. As the claimant is
self-represented, s 6.23(2) of the Motor Accident Injuries Act 2017 (MAI Act) requires that the settlement of the claim be approved by Personal Injury Commission (Commission). Accordingly, on 15 May 2025, the insurer lodged an application with the Commission to have the settlement approved.The matter was referred to me to consider the approval. Following discussions with the parties at a teleconference held on 25 June 2025, the insurer made a revised offer of settlement in the sum of $295,187.17 based on a full admission of liability and a revised allowance for past economic loss. This offer was subsequently accepted by the claimant. This is the proposed settlement which is now considered for approval.
SUMMARY OF THE EVIDENCE
Following the accident, the claimant was taken by ambulance to Wangaratta District Hospital for treatment. On admission, the claimant complained of a painful right shoulder and a painful left hip.
On examination, bruises and abrasions in the right elbow, the left hip and the right knee were observed. There was complaint of ongoing pain in the right shoulder. The right knee was assessed as suggestive of a Grade 1 anterior cruciate ligament (ACL) injury.
He was discharged the next day with ACL injury advice and analgesics into the care of his general practitioner (GP).
The claimant saw his GP, Dr Jesmitt Dhillon on 2 January 2024 complaining of pain in the right shoulder and the left hip. On examination, there was tenderness noted in the acromioclavicular (AC) joint and the left hip. There was a full range of movement in the right shoulder.
In his application for personal injury benefits dated 5 January 2024, the claimant described his injuries in the following terms:
“Left bruised hip.
Left arm bruised down from wrist to top of bicep.
Right knee, cuts, abrasions and bruising.
Right elbow, cuts and abrasions.
Right shoulder, grazed, bruised and ACJ joint out of alignment.
Right chest bruising.”
The claimant saw his GP again for treatment on 8 January 2024 and 1 February 2024 complaining of right shoulder, right knee and left hip pain. He was referred for an ultrasound of the right shoulder and an MRI of the right knee.
An MRI of the right knee performed on 16 February 2024, showed a subtle fraying undersurface free edge posterior body junction of the lateral meniscus with a small to moderate knee joint effusion.
An ultrasound of the right shoulder performed on 16 February 2024, showed a full thickness partial-width tear of subscapularis, partial tears of anterior insertional fibres of supraspinatus and a medially dislocated long head of biceps tendon.
The claimant was seen by an orthopaedic surgeon, Dr James Churchill a few months after the accident. Dr Churchill’s opinion was that no surgery was required.
The claimant underwent a course of physiotherapy until September 2024.
The claimant was assessed by orthopaedic surgeon, Associate Professor Craig Waller on
28 January 2025. In a report dated 31 January 2025, Associate Professor Waller expressed the opinion that in the accident, the claimant had sustained a rotator cuff injury to the right shoulder and a soft tissue injury to the right knee. He believed that the grazes to the right elbow and hand and bruising to the left hip which the claimant had also sustained in the accident, had now resolved.Associate Professor Waller was of the opinion that the claimant will not require any future treatment. He assessed the degree of permanent impairment at 0%.
CONSIDERATION
In conformity with s 6.23(3) of the MAI Act, before I approve the proposed settlement, I must be satisfied that the settlement complies with the applicable requirements of the MAI Act and the Motor Accident Guidelines (the Guidelines).[i]
The claimant’s understanding of the proposed settlement
According to cls 7.37 (c) and (d) of the Guidelines, I must be satisfied that the claimant understands that the claimant is entitled to be represented in respect of the claim by an Australian legal practitioner and understands the nature and effect of the proposed settlement and is willing to accept it.
On 25 June 2025, I conducted a teleconference with the parties to discuss these matters with the claimant.
I was satisfied that the claimant understood that he is entitled to be represented in respect of the claim by an Australian legal practitioner, but he has chosen not to do so.
I was satisfied that the claimant understood the binding nature and effect of the proposed settlement and that he will be precluded from making any further claim for damages arising from the motor accident.
I explained to the claimant that because he has sustained a non-threshold injury, he is entitled to claim reasonable and necessary treatment and care expenses for life. I informed the claimant that these claims will be managed by the insurer until 19 December 2028 and thereafter, by the Lifetime Care and Support Authority. The treatment and care benefits include costs such as any further medical treatment, medication, home assistance such as lawnmowing and future surgery.
I was satisfied that the claimant understood that following the settlement of his claim for damages, he has ongoing rights to claim future treatment and care.
I was satisfied that the claimant is willing to accept the proposed settlement.
Is the proposed settlement just, fair and reasonable?
According to cl 7.37 (b) of the Guidelines, before I approve the proposed settlement under s 6.23(3) of the MAI Act, I must be satisfied that it 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.
The proposed settlement of $294,187.17 represents damages for the following:
(a) $228,782.17 for past economic loss, and
(b) a buffer of $65,405 for future economic loss.
The insurer did not concede that the claimant’s physical injuries had crossed the permanent impairment threshold which would entitle the claimant to an allowance for non-economic loss damages. Based on the available evidence, I am comfortably satisfied that if I were to refer the claimant’s injuries for a medical assessment by the Commission, it is highly unlikely that the permanent impairment threshold would be crossed.
Section 4.5(1)(a) of the MAI Act provides that damages may be awarded for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity.
In cases such as Medlin v State Government Insurance Commission [1995] HCA 5 and Husher v Husher [1999] HCA 47, the High Court of Australia confirmed that the issue to be determined in the present case is whether the claimant has sustained a loss or diminution of his earning capacity and if so, whether that loss or diminution will result in economic loss.
In calculating any economic loss into the future, I must have regard to the provisions of
s 4.7 of the MAI Act.Section 4.7(1) of the MAI Act provides that damages may not be awarded for future economic loss unless the claimant first satisfies the court or Commission that the assumptions about future earning capacity or other events on which the award is to be based, accord with the claimant’s most likely future circumstances but for the injury.
Section 4.7(2) of the MAI Act provides that the amount of damages for future economic loss that would have been sustained on those assumptions is to be adjusted by reference to the percentage possibility that the events concerned might have occurred but for the injury.
Section 4.7(3) of the MAI Act provides that if an award for future economic loss is made, the Court or Commission is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
Section 4.9(1) of the MAI Act provides that where an award of damages is to include compensation, assessed as a lump sum, in respect of damages for future economic loss which is referrable to deprivation or impairment of earning capacity, the present value of the future economic loss is to be qualified by adopting the prescribed discount rate. Section 4.9(2) of the MAI Act prescribes a discount rate of 5%.
Section 4.7 of the MAI Act does not preclude the awarding of a buffer for future economic loss. The occasion for a buffer in accordance with the principles enunciated in Penrith City Council v Parks [2004] NSWCA 201 is when the impact of the injury on the economic benefit from exercising earning capacity after injury is difficult to determine.
At the time of the accident, the claimant was employed as a Commander with Fire Rescue Victoria, earning an average net weekly wage of $2,288.81. Following the accident, the claimant was off work until 7 January 2024. The claimant returned to work on 8 January 2024 and performed administrative duties only. At the teleconference, the claimant said that he lacked confidence in returning to his pre-injury role as a firefighter and he decided to take long service leave and was still on leave as at the time of the teleconference. He said that his right shoulder was “not yet 100%.”
The insurer’s revised offer of $228,782.17 represents an allowance for the claimant’s loss of wages (at his net weekly rate) and superannuation (at 11% per annum) for the periods
19 December 2023 to 7 January 2024 and 26 January 2024 to the date of the conference and an allowance for income tax paid on statutory benefits.I am satisfied that this is an appropriate allowance for past economic loss in the circumstances.
The insurer has made an allowance of $65,405 by way of a buffer for future economic loss.
The claimant was 59 years old at the time of the motor accident and is now 61 years old.
But for the accident, the claimant said that he would be continuing in his employment with Fire Rescue, performing his normal duties as a firefighter, and that he was planning to retire after 40 years service in about two years time.
At the teleconference, the claimant said that he no longer experienced any pain in his left hip. He does not have any pain in the right knee, but it has restricted strength and flexibility. He said that every time he sleeps on his right side, he wakes up with pain in the right shoulder. The claimant said that because of the injuries, he may have to retire earlier if he does not fully regain his confidence to perform all his duties as a firefighter.
The insurer has made an allowance of $65,405 (including superannuation) by way of a buffer for future economic loss, to cater for the possibility of the claimant’s retirement occurring earlier than expected.
I am satisfied that the buffer is an allowance that is within the range that a member of the Commission would allow if the matter were to be assessed by the Commission in a damages assessment.
CONCLUSION
Having regard to all the above matters, I am satisfied on the available evidence, that 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, the disabilities and the impairments sustained by the claimant.
The proposed settlement of the claimant’s claim for damages in the sum of $294,187.17 is approved under sub-s 6.23(2)(b) of the MAI Act.
Pursuant to sub-s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $105,875.90 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3 of the Act.
[i] The reference is to Version 9.3 which commenced on 6 December 2024.
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