Allianz Australia Insurance Limited v Wakeling
[2025] NSWPIC 179
•30 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Wakeling [2025] NSWPIC 179 |
| CLAIMANT: | Maria Wakeling |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 30 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; rear end collision; aggravation of pre-existing injury; past economic loss; future economic loss; revision of calculation for past economic loss; appropriate basis for resolution of matter; adequate provision for past economic loss; deduction to be made by insurer; medical restrictions are on future work capacity; imprecise calculations requiring buffer; Held – settlement approved. |
| DETERMINATIONS MADE: | CERTIFICATE SETTLEMENT APPROVAL Issued under s 6.23 of the Motor Accident Injuries Act 2017 The amount of the claim for damages is approved in the total amount of 1. $37,000. |
STATEMENT OF REASONS
INTRODUCTION
Maria Wakeling (the claimant) is a 61-year-old woman who was injured in a motor vehicle accident on 30 October 2022. The vehicle she was driving was struck from behind by the insured vehicle and she sustained the injuries. Most troubling for her she sustained an aggravation to a pre-existing left shoulder injury which continues to trouble her today.
Following the accident the claimant lodged an Application for Personal Injury Benefits. Thereafter the insurer conceded that the claimant’s injuries are non-threshold injuries. A Common Law claim was made on 11 December 2023. Liability was wholly admitted on
9 February 2024. Following discussions between the parties at a preliminary conference on 17 April 2025, a revised settlement figure has been agreed between the parties and the matter is before me for settlement approval.
The accident
The claimant was attempting to make a right-hand turn into her driveway when the insured vehicle collided with the rear of her vehicle. Police and ambulance attended the scene and the claimant was taken to Milton Hospital where she was assessed for injuries to her neck, shoulder and elbow. The claimant states, and I accept, that she has made a good recovery other than being troubled by ongoing problems with her left shoulder. She has undergone an ultrasound of her left shoulder which showed a supraspinatus tear and she has been in receipt of physiotherapy treatment and Cortisone injections.
Medical material
The claimant has been under the care of Dr P Jarman. In correspondence dated
13 December 2022 he states that her main issue at the moment is pain. He states that she agrees. She can currently work and is keen to keep working.
In correspondence dated 10 May 2023 Dr Jarman notes that the claimant feels she has made some progress and is happy how she is coming along with physiotherapy treatment. He confirmed that her rotator cuff was not suitable for surgical repair.
The claimant was examined by Dr A Keller who, in a report dated 24 September 2024, stated that her left shoulder rotator cuff was causing symptoms and restrictions before the accident. It is likely that it has predisposed her left shoulder to pain following the accident and is part of her current condition causing intermittent symptoms. He goes onto the state that the claimant has no restriction in earning capacity to date and can work in her role to normal retirement age restriction.
Economic loss
The claimant lives in Milton on the south coast of New South Wales. She is a permanent part-time employee at Ulladulla Ex Services Club. She works as a cafe assistant. Following the accident the claimant returned to work on reduced hours and consequently was paid weekly payments by the insurer which total $29,319.62 for past wage loss.
Following the preliminary conference, the insurer reviewed and revised the settlement offer to take into account the totality of the payments made by the insurer which must be deducted from any settlement figure.
The parties have agreed on a figure for past economic loss of $25,000 from which $21,319.62 be deducted. Further the parties have agreed on an allowance for future economic loss of $12,000 noting that the claimant has some restrictions on the tasks she can perform particularly heavy pushing and pulling of more than 20kg, repetitive work over chest height or the possibility that she may require further time off work should there be a flareup in her symptoms.
The settlement
In my view the proposed figure is an appropriate figure for to resolve this matter. Noting the payments made by the insurer it follows I agree that past economic loss, for which an allowance of $25,000 has now been made, adequately covers the claimant for all times she has lost off work.
The amount of $12,000 for future economic loss is an appropriate allowance noting that the claimant has returned to employment, has confirmed that she continues to work in her pre-accident employment and expressed confidence at the settlement conference that she would be able to continue her work not withstanding intermittent discomfort.
In my view the allowance for past and future economic loss is appropriate. Further the medical material, particularly the report of Dr Keller dated 24 September 2024, does not provide any basis upon which the claim would be entitled to compensation for non-economic loss. The only ongoing disability she appears to have is that to her left shoulder. Both the claimant and the material confirmed this. She had a pre-existing condition to her left shoulder. She had previously undergone a rotator cuff repair to her right shoulder. In 2015, a tear in the supraspinatus of her left shoulder was diagnosed although a surgical repair was not undertaken at that time. In my view there is no possible entitlement for an assessment of whole person impairment in excess of 10% to be made as a consequence of the injuries sustained in the motor vehicle accident. It follows the claim is limited to compensation for past and future economic loss. As I outlined above, I consider the allowance is made by the insurer, and agreed between the parties, to be an appropriate basis for the resolution of this matter.
It should be said that the claimant is stoic woman who lives with her semi-retired husband down the south coast. She continues to enjoy recreational activities although she is still somewhat troubled by the injuries sustained in the motor vehicle accident.
The proposed resolution between the parties is appropriate noting the allowance is now made for past economic loss and satisfactory allowance for any possible interference with her earning capacity in the future.
It would be noted that the insurer has acted expeditiously and attentively and with compassion in this matter. When concerns were raised in respect to the earlier proposed settlement figure the insurer has, appropriately in my view, reviewed its position and come to a resolution which is one which I have no hesitation in approving.
Conclusion
The settlement for damages of $37,000 is approved. I note the insurer is entitled to a deduction of $21,319.62 for payments made on the claimant’s behalf for past wage loss.
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