Allianz Australia Insurance Limited v Tan
[2025] NSWPIC 203
•14 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Tan [2025] NSWPIC 203 |
| CLAIMANT: | Bo Tan |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Bianca Montgomery-Hribar |
| DATE OF DECISION: | 14 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; liability admitted; claimant unrepresented; section 6.23; settlement approval; lower back and neck injury; claim for economic loss; threshold for non-economic loss not met; whether proposed settlement appropriate; whether proposed settlement understood by the claimant; Held – claimant has returned to pre-accident capacity; claimant able to perform pre-accident work without restrictions; claimant unlikely to require future invasive or surgical treatment; settlement within the range of likely potential damages assessment; settlement otherwise appropriate; settlement understood by claimant; settlement approved in the sum of $36,000. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement is approved in accordance with s 6.23(b) of the Motor Accident Injuries Act 2017. A statement setting out the Commission’s reasons is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 20 October 2022, Bo Tan (claimant) was involved in a motor vehicle accident on Oakes Road, Carlingford NSW, when a vehicle failed to give way to her and caused a collision (accident).
On 17 October 2023, Ms Tan lodged a claim for damages under the Motor Accident Injuries Act 2017 (NSW) (MAI Act) on Allianz Australia Insurance Limited (insurer). On 20 November 2023, the insurer admitted liability in respect of her claim for damages. The insurer has conceded that Ms Tan has 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 Tan’s claim for damages. As Ms Tan 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(1) (Repealed)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.”
Rule 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 damage settlements by the Commission.
PROCEDURAL HISTORY
On 28 April 2025, I held a preliminary conference with the parties for the purposes of determining whether to approve the proposed settlement. Ms Tan participated in person and Sonya Alechna appeared on behalf of the insurer.
REVIEW OF THE EVIDENCE
As required by rule 95 of the PIC Rules and Procedural Direction MA3, the insurer has lodged an application for approval of the proposed settlement and provided a bundle of supporting documentation.
It is noted that a significant number of the documents included in the bundle are not relevant to the damages settlement. This includes medical records of the claimant which are over a decade old and which are irrelevant to the injuries said to be sustained in the accident. I raised this with the insurer at the preliminary conference and Ms Alechna confirmed that those documents were included in error.
The documents included in error contain sensitive health and personal information of the claimant. In addition to increasing the risk of cyber security and privacy breaches, the inclusion of irrelevant material is contrary to the guiding principle of the Commission to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.
I note that the Commission may refuse to approve a settlement if the application does not comply with Procedural Direction MA1. I expect that the insurer will not repeat this same error in future matters.
Application for personal injury benefits
Ms Tan completed an application for personal benefits dated 15 November 2022. She describes the accident as follows:
“I was driving along the Oakes Road on the slow line towards to North Rocks Road, the other driver was on the opposite direction and making a sudden right turning to Lynette Ave without stopping. The two vehicles collided.”
In respect of her injuries resulting from the accident, Ms Tan stated:
“Pain of lower back and shoulder. Nightmare with screaming”.
Ms Tan lists her usual occupation as a Strata Manager / Trust Accountant.
Police report
I have considered the police report under cover letter dated 17 November 2022. The police report notes the incident type to be a “Actual Minor Traffic Crash”.
Certificates of capacity / certificates of fitness
The certificate of capacity / certificate of fitness dated 15 November 2022 records that Ms Tan was diagnosed with a soft tissue injury to her neck and lower back. It records that she has no capacity for work from 21 October 2022 to 7 November 2022, then has some capacity for work (four hours per day, five days per week) for the period 8 November 2022 to 22 November 2022.
The certificates of capacity / certificates of fitness dated 22 November 2022, 8 December 2022, 14 February 2023 and 27 March 2023 record that Ms Tan has some capacity for work (four hours per day, five days per week) for the periods 23 November 2022 to 6 December 2022, 8 December 2022 to 22 December 2022, 14 February 2023 to 14 March 2023 and 27 March 2023 to 5 May 2023, respectively.
The certificates of capacity / certificates of fitness dated 14 June 2023, 20 October 2023, 13 April 2024[1] and 13 April 2024 record that Ms Tan has some capacity for work (eight hours per day, five days per week) for the periods 14 June 2023 to 18 July 2023, 20 October 2023 to 20 January 2024, 20 January 2024 to 13 April 2024, and 13 April 2024 to 13 July 2024, respectively.
[1] It is assumed, based on the content of the certificate, that this certificate is incorrectly dated and the correct date should be “20 January 2024”.
Clinical notes
As noted above, the bundle consists of a significant number of documents that are irrelevant to the accident and the injuries sustained by Ms Tan. The parties confirmed at the preliminary conference that the only injuries alleged to have resulted from the accident relate to the claimant’s lower back and neck.
Accordingly, only the clinical notes relevant to the injuries caused by the accident have been considered.
Carlingford Court Medical Centre
The records of Carlingford Court Medical Centre dated 11 November 2024 have been considered.
On 24 October 2022, Ms Tan attended Dr Steve Lok and reported the accident on 20 October 2022. It is recorded:
“driver had mva 20/10/22. hit turning car on the side. no impact on body. mild bruising R lower abdo from seat belt. lower back pain, mild tenderness Is spine. mild pain R trapezius from seat belt, 114/80. pr 76. no other injuries [sic]”
On 28 October 2022, Ms Tan attended Dr Lok. It is recorded “still some pain post lower neck and lower back, but improved 50%”.
The claimant continued to attend Dr Lok regularly in respect of her back and neck pain until 27 March 2023. During this period, she received a referral for an X-ray of her lumbosacral spine and an ultrasound of her left knee. She was noted to be improving slowly with physiotherapy.
The claimant’s attendances on Dr Lok after 27 March 2023 do not record any back pain or issues regarding injuries arising from the accident.
On 20 October 2023, the claimant attended upon Dr Dachuan Guo. The notes record:
“to continue CTP cover. MVA last year. Regular GP not available. Still low back pain. State generally she can do normal duty with freq changing posture. Examination: no back tenderness. Normal ROM. Normal gait. SLR -ve bilateral [sic]”.
On 13 April 2024, the claimant attended upon Dr Guo. The notes record “to continue CTP. Back pain persistent. No improvement. Pain mild, not affected walking. No urine/bowel issue. No rest pain. Pain happens mainly on long sitting or driving or lifting”.
On 24 September 2024, the claimant attended upon Dr Guo. The notes record “to continue CTP. Still back pain. Though mild but not improving. Return to work, doing normal duty. Not tolerate long time working or house work. Seeing physio”.
Medicolegal reports
An independent medical examination report dated 30 September 2024 has been prepared by Dr Frank Machart, orthopaedic surgeon.
Dr Machart noted that Ms Tan attended for consultation on 20 September 2024.
In respect of the history of the accident, Dr Machart recorded:
“I assessed her for injury that she suffered at the time of an MVA on 20/10/22. She was the driver. She wore a seatbelt. She was travelling at a speed of less than 50kph. A car from the opposite direction turned across her path. Her vehicle struck the other vehicle. She hurt her back. Ambulance attended. There was no hospitalisation. Her husband picked her up and drove a short distance home. Her vehicle was towed away.
She sought medical attention from her GP within couple of days. She had scans. She was treated conservatively. She had physiotherapy. There was improvement. She is now better. The symptoms have not resolved completely. The symptoms remain located in the lower lumbar spine. There was no other injury.
She was working as an accountant at the time of the MVA. She took one month off work and returned to usual duties gradually, achieved 2 months after the MVA, now doing usual work.
Treatment was physiotherapy.”
Dr Machart recorded Ms Tan’s current symptoms to be intermittent pain in the lower lumbar spine, with a driving tolerance of one hour. She is able to do housework reasonably well.
Dr Machart examined Ms Tan and diagnosed a soft tissue trauma to the lumbar spine, causing axial and not discogenic pain. He noted there are multilevel degenerative changes in the lumbar spine not caused by the injury. Dr Machart opined that, given it has been nearly 24 months since the accident and her symptoms have not resolved, there is probably an element of structural derangement in one of the discs causing the axial back pain.
Dr Machart considered there to be no ongoing incapacity, and there is no indication that
Ms Tan is likely to experience a restriction or reduction in earning capacity in the future. He also opined that her injury is stable and expects that eventually her symptoms will settle.
Dr Machart assessed 5% whole person impairment due to the injuries to her lumbar spine. Dr Machart noted that Ms Tan denied any injury to her cervical spine due to the accident.
I note that Dr Machart’s report refers to “Ali” in the section where he addresses the issues raised in the insurer’s letter of instructions. I assume that this is a typographical error and that all references to “Ali” should be read as “Bo” or “Ms Tan”.
Tan Hands Physiotherapy
The letter of Adrian Cheuk, Tan Hands Physiotherapy, dated 3 July 2023 has been considered. This letter records that Ms Tan had an initial consultation on 14 November 2022 and attended 24 physiotherapy sessions, with her most recent session being on 20 April 2023. It is noted that, at the last session on 20 April 2023, Ms Tan’s neck pain had resolved and she was only complaining of back pain.
Mr Cheuk records that Ms Tan initially attended with neck and low back pain, where both injuries were mechanical in nature. Mr Cheuk’s diagnosis for her neck pain was a whiplash injury.
Mr Cheuk notes that Ms Tan has been discharged from physiotherapy treatment due to a failure to attend subsequent booked sessions.
Radiology reports
The radiology reports contained in the bundle, including the MRI Lumbar Spine dated 7 December 2022 and the X-ray of the Lumbar Spine, have been considered.
CONSIDERATIONS
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 Ms Tan’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?
In addition to the above-mentioned documents, the application bundle includes the deed of release, the amount of the proposed damages settlement, and the liability notices issued by the insurer.
There is no allegation of contributory negligence and no advanced payments have been made. Accordingly, despite the inclusion of several irrelevant medical documents, 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 17 December 2024. The application for approval was lodged on 31 March 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. This delay is over three months.
I note that this delay is arguably significant, and the insurer has not provided a reason to explain the delay. However, I also note that Ms Tan does not appear to have suffered prejudice as a result and did not raise issue with the delay. Accordingly, pursuant to rule 6, I find it is appropriate to dispense with the timing requirement provided by rule 95.
Is the proposed settlement appropriate?
The proposed settlement is in the amount of $36,000. This comprises:
(a) past economic loss - $16,000, and
(b) future economic loss - $20,000, being a buffer inclusive of superannuation.
No allowance is made for non-economic loss.
Based on the medical evidence provided, I am satisfied that Ms Tan is not entitled to damages for non-economic loss as her permanent impairment has been assessed as 5%. Accordingly, she does not meet the impairment threshold in the MAI Act.
The insurer has conceded that Ms Tan has suffered a non-threshold injury as a result of the accident. Accordingly, I am satisfied that she is entitled to damages for economic loss.
In respect of her past economic loss, an amount of $16,000 is proposed. This amount has been calculated based on Ms Tan’s actual loss of earnings for the periods of time she had no capacity to work and the periods of time she had a reduced capacity to work. It also includes Fox v Wood in the amount of $1,062.00 and an allowance of 15% superannuation.
Ms Tan has received weekly payments of statutory benefits under the MAI Act in the amount of $4,770.87. Accordingly, a deduction of this amount is proposed to be made to the settlement amount. Ms Tan confirmed that she understood that the amount of damages she would receive would have this amount deducted.
Ms Tan confirmed that there have been no Centrelink benefits paid.
In respect of future economic loss, $20,000 is proposed as a buffer inclusive of superannuation. This is said to compensate Ms Tan for any future flare ups of her lower back symptoms which may result in her needing occasional time off work.
Ms Tan is 47 years of age and, at the time of the accident and currently, is employed as a State Manger / Trust Accountant. She confirmed that she had returned to her pre-accident employment at her full-time hours. She is able to perform her usual work without restrictions.
The clinical notes of Ms Tan’s treating general practitioners and the medico-legal report of
Dr Machart note that, while she has returned to her pre-accident duties, she still experiences pain in respect of her lower back. I accept that this pain may, on days, be such that she is required to take time off work to rest and recuperate. She may also be required to take time off work to attend injury related appointments such as physiotherapy, if Ms Tan needs or decides to recommence physiotherapy at any time in the future.
There is no suggestion that Ms Tan will require surgery in the future to alleviate her pain or symptoms, nor is any invasive treatment proposed. I note that Ms Tan is currently not undertaking any treatment for her injuries.
Accordingly, while I accept that Ms Tan’s accident caused injuries do not impact her current employment, I am satisfied that the residual effects of her injury may at some time in the future give rise to financial loss. In the circumstances, I consider a buffer to be appropriate.
My review of Ms Tan’s earning information and the medical evidence regarding her injuries suggests that the buffer provided for the claimant’s past loss of earnings is appropriate.
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.
I am satisfied that the total amount of damages for past and future economic loss in the proposed settlement is appropriate and within the range that would be assessed by the Commission.
Does Ms Tan understand the proposed settlement?
At the preliminary conference, Ms Tan confirmed that she understood the proposed settlement and is willing to accept it. She was complementary of the assistance she had received from the insurer and the Commission in relation to her claim.
I am satisfied, based on my discussions with Ms Tan during the preliminary conference, that she is aware that the settlement is intended to compensate her for all past and future economic loss arising from the accident, and that damages are being awarded on a once and for all basis. I am satisfied that she understands an injured person cannot usually make a claim for further damages once a claim has been settled.
I am satisfied that Ms Tan 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 if it impacts her employment in the future.
I am satisfied that Ms Tan understands that she is not entitled to damages for non-economic loss.
I am satisfied that Ms Tan understands that the insurer will deduct the amount she has received in statutory weekly payments from the total settlement figure.
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 Tan, 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 Tan 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 Tan 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 Tan is aware she can seek legal advice but does not wish to do so.
I am satisfied that Ms Tan 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 Tan is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of $36,000 in respect of Ms Tan’s claim for damages.
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