Cic Allianz Insurance Limited v Kader
[2025] NSWPIC 412
•15 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | CIC Allianz Insurance Limited v Kader [2025] NSWPIC 412 |
| CLAIMANT: | Gunesa Kader |
| INSURER: | Allianz Insurance Australia Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 15 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; $115,200; past and future economic loss only; fixed period past; buffer for future intermittent periods of aggravation of symptoms; injuries to left elbow, hip, arm and knee determined by Medical Assessor as resolved; Held – settlement complied with clause 7.37 of the Motor Accident Injuries Guidelines version 9.3. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement in the sum of $115,200 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The proposed settlement complies with cl 7.37 of the Motor Accident Injuries Guidelines version 9.3. |
STATEMENT OF REASONS
INTRODUCTION
On 5 June 2019 Gunesa Kader (the claimant), was a passenger travelling on a private bus owned by Premier Motor Services Pty Ltd along route 34 in Wollongong. The bus driver suddenly broke heavily to avoid a collision with a vehicle which was illegally parked causing the claimant to fall.
The claimant was taken by ambulance to Wollongong Hospital and was diagnosed with injuries to her left arm, left shoulder, pain in her left hip and neck. She was discharged the same day into the care of her general practitioner with a recommendation to use simple analgesia.
The claimant brought a claim for common law damages on 26 August 2021.
Allianz Australia Insurance Limited (the insurer) admitted liability for the common law claim on 23 November 2021. There was no allegation of contributory negligence.
The insurer relied on the opinion of Dr Andrew Keller who diagnosed soft-tissue injury to the left upper limb and left hip with 0% whole person impairment. The claimant’s left knee injury was considered unrelated to the subject accident.
An assessment was undertaken at the Personal Injury Commission (Commission) by Medical Assessor Home who accepted that the claimant sustained an epicondylitis /extensor tear of the left elbow, soft tissue injury/ contusion of the left hip, contusion of the left arm and left knee and these injuries had resolved by the time of his assessment.
Medical Assessor Home did not accept the continuing complaints to the left knee and lumbar spine were caused by the subject accident. The determination of Medical Assessor Home dated 20 June 2023 found:
“As the injuries by the accident have resolved, an assessment of whole person impairment is not required”
The determination of Medical Assessor Home confirms that the claimant has no entitlement to non-economic loss.
The claimant sought economic loss for past and future earning capacity. The claimant at the time of the subject accident was employed as a cleaner with Facilities First Australia Pty Ltd. She continued with the same employer after the accident until she changed employment.
The claimant is now 51 years of age and has a further 16 years to retirement age. She may well not work to statutory age of 67 due to other unrelated conditions in her left knee and lumbar spine.
The parties initially brought a settlement application in the sum of $90,000 broken down as $6,500 for past economic loss and $83,500 for future economic loss.
The settlement was subsequently amended after a number of preliminary conferences to address the concerns of the claimant in particular as it related to past economic loss. The parties reached further agreement of an increased settlement sum of $115,200 representing $25,200 for past economic loss and buffer of $90,000 for future economic loss.
There are no deductions for any statutory payments.
The settlement is made in respect of economic losses only as there is no entitlement to non-economic loss.
THE RELEVANT LAW
Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Motor Accident Guidelines version 9.3 (Guidelines) commencing 4 December 2024.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
“(a) 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.”
Preliminary conference on 18 September 2024
The application was deferred pending the outcome of the appeal relating to the decision of Chang v McTye 2024NSWDC218 expected to be heard in October 2024.
Preliminary conference on 21 February 2025
The insurer was requested to produce clinical records.
The claimant was informed that she is to provide additional particulars of her claim, if she considered she sustained psychological injuries.
The claimant was also advised it was in her interests to obtain the relevant information to assist me in the assessment of the application for settlement approval. Also in light of the additional information, the insurer would be then able to make further submissions or offers relevant to the additional heads of damage which include treatment, care and economic losses.
A timetable for the gathering of this additional information was set, with the claimant being advised it is in her best interests to attend any further medical assessments arranged by the insurer as a consequence of the additional information required to determine the application.
The claimant had the benefit of the interpreter present to translate the information between the parties during the preliminary conference.
Particulars were requested to assist in quantification of past economic loss claimed.
Preliminary conference on 10 April 2025
When questioning the claimant as to ongoing impact of injuries on her earning capacity it became apparent that the information relating to past economic loss is insufficient. The insurer has allowed the sum of $6,500 for losses to 30 June 2019.
Future economic loss has been allowed by way of a buffer of $83,500.
I informed the parties without the additional information I could not approve the settlement as the current information was insufficient for me to ascertain the past impairment of earning capacity.
The insurer agreed to assist me in obtaining primary records of employment and earning capacity as the claimant is having difficulty in providing the information.
Until this day, the insurer was unaware that the claimant was allegedly “dismissed” due to her inability to perform pre-injury duties and the claimant needs to provide details of her employment history including period on any Centrelink benefits during the intervening period.
The basis for obtaining Centrelink is also relevant as the compensation received may be the subject of a charge from Centrelink and this could impact on the amount received by the claimant.
The claimant was to attend Centrelink to obtain the records of periods and reasons she was in receipt of Centrelink ie. Newstart.
The insurer was to issue a request for further and better particulars in both English and Macedonian to assist the claimant provide the proper responses.
The claimant is stressed by the delay in the process and this is unfortunate. It has been explained to her through the interpreter the reasons I required the additional information. I need sufficient information before me to consider the following:
“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”
This is the protection provided by the legislation to unrepresented claimants.
Once the requested information is on hand the insurer can also check the appropriateness of the allowance for past economic loss contained in the settlement sum.
Preliminary conference on 29 May 2025
The insurer confirmed it had received a very large bundle of clinical records from Wahroonga Medical Centre and this would be uploaded to the portal within seven days.
The claimant provided an accountant’s summary of tax returns and this information was given to the insurer. When discussing the contents, it became apparent that the claimant did not understand what was required of her to provide her details of past economic loss. The brother of the claimant who had was fluent in English was requested to join the conference. He was contacted on his mobile telephone and confirmed he was able to assist with his sister’s claim and provide the additional information in support of past economic loss.
It was explained to him that I had requested details of the claimant’s past economic loss suffered on the basis that the insurer has made an allowance of a period of 5 June 2019 to 30 June 2019 only. The insurer has allowed the sum of $6,500 representing the following:
(a) 5 June 2019 to 30 June 2019 - a loss of 20 hours each week for four weeks immediately after the accident amounting to $2,420;
(b) 1 July 2019 to 17 September 2019 – 50% loss of capacity for 11.1 weeks plus $3,357.75, and
(c) superannuation of 11% = $635.55.
The period we were reviewing was from the date of accident to the present covering a period from 18 September 2019 to 29 May 2025.
Particulars requested from the claimant was:
(a) any further time taken off during the period 18 September 2019 to 29 May 2025 which directly relates to an inability to work due to the injuries she sustained in the subject accident;
(b) details of any work offered during this period, that she declined due to the impact of injuries sustained in the accident;
(c) any loss of overtime or shifts due to the accident since 18 September 2019;
(d) any sick days taken due to accident-related injuries between 18 September 2019 to 29 May 2025;
(e) she could approach her employers for details of sick leave taken in the intervening period;
(f) she was working approximately 20 hours weekly at the time of the accident. Was she intending to work only 20 hours weekly for the remaining period of her working life? Was there any intention to work more hours and if so when? and
(g) do the current impact of her injuries prevent her from working the hours she intended for the remaining working life.
The insurer agreed that this material had not been provided and was willing to review the past economic losses allowed in the settlement sum upon receipt of the claimant’s additional information.
June Kader, the claimant’s brother requested he be emailed a copy of what information is needed and he will review the claimant’s records and provide the necessary information.
The insurer upon receipt of this information would review the allowance for past-economic loss and will confirm if the terms are altered in any way.
The claimant was assisted during the conference by a Macedonian interpreter. Even though this was provided her understanding of what was required was lacking. I was greatly assisted by the claimant’s brother providing me with the additional information.
Preliminary conference on 28 May 2025
The insurer’s amended offer was conveyed to the claimant and her brother during the preliminary conference. The claimant’s brother assisted during the conference and advised that the sum of $115,200 was insufficient as the claimant suffered significantly because of the injuries.
It was explained to the claimant’s brother June during the video-conference, that the claimant has been assessed by Dr Keller as having 0% whole person impairment and that Medical Assessor Home providing his determination for the medical dispute at the Commission considered her injuries had resolved and had no assessable impairment.
The statutory threshold was discussed and an attempt to explain the statutory barriers to non-economic loss was provided with a suggestion that the claimant seek legal advice to obtain a detailed explanation of the MAI Act.
The claimant, communicating through her brother was unhappy with the sum offered and it was then decided that the claimant be given an opportunity to seek advice and consider the offers to date. It was explained that I could not prosecute the claimant’s claim as my position is neutral to both parties. Also, if there was disagreement on the settlement then the application should be withdrawn.
A further adjournment was then provided to ascertain whether the current application for a settlement in the sum of $115,200 was accepted or withdrawn. The claimant was advised not to rush the decision as she had to be certain if accepting the settlement it would conclude the damages claim. Again she was advised she could seek legal advice in the interim.
The conference concluded with an explanation of the nature of entering into a settlement with the insurer and their understanding was confirmed with the claimant and her brother acknowledging that in the event they accepted the settlement at a future point in time, it would bring the claim to a close. The impact of its finality was also discussed at this stage. The claimant’s understanding of the terms of the proposed settlement were also considered at this stage. I was satisfied she understood the nature of the settlement and if it was accepted in due course, she did so of her own accord.
Post preliminary conference communication
The claimant made contact with the case officer through the Commission’s portal and via an extended telephonic conversation that confirmed that she accepted the terms of settlement and wanted the application determined.
Directions were issued through the portal that the parties execute the settlement agreement and a copy of the Deed of Release be uploaded to the portal. The insurer provided a copy of executed terms of settlement dated 22 April 2025.
The insurer also provided submissions on the adequacy of the amounts allowed for economic loss with reference to the primary materials received and a breakdown of how each category was calculated.
The claimant confirmed she did not wish to hold a further preliminary conference and that the matter should proceed to determination.
DOCUMENTS CONSIDERED
I have regard to the following relevant documents contained in evidence bundle dated
19 August 2024 and the subsequent materials produced subject to my directions.Liability:
(a) application for personal injury benefits dated 1 July 2019;
(b) application for common law damages dated 26 August 2021;
(c) liability notice dated 23 November 2021;
(d) liability notice dated 25 February 2025 – bus owner search;
(e) submissions of the insurer dated 2 August 2024, and
(f) further submissions of insurer dated 15 July 2025.
Medical records:
(a) ambulance report dated 17 July 2019;
(b) Wollongong Hospital – discharged summary 2 August 2019;
(c) clinical records of Dr Markham;
(d) clinical records of Warrawong Medical Centre Orthopaedic dated
6 November 2023;(e) clinical records of Warrawong Medical Centre dated 23 June 2025, and
(f) clinical records of Dr Maxwell Cater dated 6 January 2021.
Medico-legal:
(a) report of Dr Andrew Keller dated 9 March 2022.
(b) Assessor Home dated 29 June 2023.left
Claimant’s information:
(a) provided in video-link preliminary conferences, and
(b) submissions and annexures dated 12 March 2025.
Settlement documents:
(a) Agreement and deed of release dated 19 July 2024, and
(b) Agreement and Release of Indemnity dated 22 July 2025.
The accident
The claimant was injured when the bus she was travelling in stopped suddenly to avoid a parked vehicle in the wrong location on the roadway.
She sustained injury and was taken to hospital for assessment.
The claimant described the mechanism of the accident to her physiotherapist as:
“Ms Kader indicated that she fell forward off her chair, she hit her head and upper body on the seat in front of her. Ms Kader advised it was a heavy impact as she was playing on her phone at the time and did not have time to put her arms out to stop herself hitting the chair in front. Ms Kader indicated she was sitting on her own four seats back from the driver. Ms Kader indicated that her phone was damaged in the incident. She reported feeling immediate pain in her left arm, shoulder and low back.” (page A418)
Treating medical evidence
The discharge summary of Wollongong Hospital confirmed the claimant sustained the following injuries:
“● Nil hi/c-spine pain
· Pain left shoulder/elbow limited movement.
· Left hip pain
· Looks generally well
· Obs btf
· Paracetamol/methoxy with cda
· Impression: probable soft tissue injury to left arm exclude # fracture”
Clinical records also reveal the claimant has regularly attended her general practitioner in the interim. She has a number of sessions of physiotherapy which in a case conference undertaken with Dr Jalota on 18 September 2019 she was advised that her left knee indicated no abnormalities. Physiotherapy was no longer needed for her elbow as “the pain had subsided”.
Dr Jalota also noted:
“her psychological health was no longer affected and did not need any psychological assistance.”
Clinical records progress notes of Dr Jalota record a number of attendances relating to her left knee which has included surgical intervention in December 2022. This was found to be a pre-existing condition and has been determined as unrelated to the subject accident by
Dr Keller and Medical Assessor Home. I am satisfied these attendances are unrelated to the subject accident. They do not form part of the claimant’s compensable injuries.Rehabilitation records confirmed the claimant’s pre-accident working hours were 20 hours weekly. At the time of referral she could work approximately 14 hours and this increased pre-accident level by their closure report on 24 July 2019.
Medico-legal opinion
The insurer has obtained a report from Dr Andrew Keller dated 3 March 2022. He assessed the claimant’s injuries and opined 0% whole person impairment.
The assessment undertaken by Medical Assessor Home for the Commission medical took place on 16 June 2023.
Summary of injuries and their impact
Physical
The claimant sustained injuries as noted in the assessment of Medical Assessor Home which have now resolved. They include:
· left elbow – epicondylitis/extensor tear;
· left hip – soft-tissue;
· left arm – contusion, and
· left knee – contusion.
The claimant suffers from continuing pain in the left knee and this is associated with osteoarthrosis symptomatic from 2014 and unrelated to the subject accident.
Whilst the claimant reported to Dr Jalota symptoms of post-traumatic stress disorder and anxiety, this entry was a single entry and by September 2019 no further treatment was needed. There has been no referral or further treatment was undertaken or prescribed since the entry of 18 September 2019.
At the determination of this application the claimant’s only ongoing pain relief is over the counter Panadol as required.
Claimant’s impact statement
Psychological
Whilst the claimant reported psychological symptoms, the opportunity to obtain further medical treatment and opinion on this issue was declined by the claimant. I rely on the general practitioner’s clinical records that confirm by September 2019 she did not consider the claimant in need of any treatment.
Non-economic loss
As the claimant’s injuries have resolved, the determination of Medical Assessor Home is a binding decision on me. She had no whole person impairment and no entitlement to non-economic loss.
Past economic loss
At the date of the subject accident the claimant worked as a cleaner in aged care facilities. She worked approximately 14 - 20 hours each week.
She was unable to undertake work for a short period of time and based on her pre-injury payslip the parties were able to determine her pre-injury earning capacity.
Her net weekly earning capacity was $605. This was based on a calculation as follows:
· Saturday - 7 hours x $34.35 = $240.45
· Sunday- 7 hours x $44.76 = $313.32
· Weekdays - 6 hours x $20.82 = $124.92
· Tax paid $74
The claimant was off work for four weeks between 5 June 2019 and 30 June 2019.
The claimant was certified fit to return to graduate pre-injury duties on 17 September 2019 according to the rehabilitation report the Rehab Co activities of daily living report dated
17 July 2019.
From 1 July 2019 to 17 September 2019 an allowance of 50% loss of earning capacity amounted to a loss of $3,357.75. She was exercising some earning capacity during this period of time.
Certificates of fitness were issued:
· 14 June 2019 to 23 July 2019 – 7 hours /2 days;
· 23 July 2019 to 23 August 2019 – 4 hours /2 days;
· 28 August 2019 to 24 August 2019 – 6 hours /4 days;
· 18 August 2023 to 25 August 2023 - 8 hours / 5 days standing 30 min allowance;
· 15 September 2023 to 8 December 2023 – 8 hours/5 days lifting restricted to 5kg, and
· 11 January 2024 to 7 March 2024 – 8 hours/5 days.
Sick leave records were produced by the claimant’s employer. Review of these records confirmed that leave was taken for unrelated issues. Whilst a number of days off were taken for treatment and an operation to her left knee, this was due to the degenerative changes which were present in 2014. Medical Assessor Home determined the left knee problems unrelated to the subject accident and that it was a pre-existing degenerative condition.
A further allowance was made for the period from 2020 to 2025 at the rate of $901 less 30% for an unrelated shoulder condition in the sum of $13,515. This was using the leave records and clinical records to ascertain the relationship to time off with accident-related injuries.
In total for the three periods $3,604 plus $5,000.55 plus $13,515 amounted to a total of $22,119.55. Superannuation of 13.5% on the total amounted to $2,986.13. The sum total of $25,105.69 was further rounded up to $25,200.
The basis of the quantification was easily reconciled with the primary records and a genuine basis for estimated loss.
Future economic loss
The taxation records of the claimant reveal the taxable income of the claimant both pre and post-accident.
The primary records of the claimant’s taxable income evidence the following taxable income before and after the subject accident: (tax years ending 30 June)
· 2017 - $32,983
· 2018 – $35,659
· 2019 -$60,287 ($921.37 net)
· 2020 - $61,526 ($937.19 net)
· 2021 - $57,061 ($901.33 net)
· 2022 - $57,788 ($911.31 net)
· 2023 - $54,064 ($864.69 net)
· 2024 - $57,974 ($913.88 net)
The claimant has subsequently changed employment after the accident but remains in the same role as a cleaner. She reported an increase in her earning capacity with the change of employer. It is noted that she continues working in her role as a cleaner and currently has no restrictions which are accident related.
The claimant’s physical injuries have been determined by Medical Assessor Home and
Dr Keller qualified by the insurer both consider her injuries have resolved. On one view with the resolution of the injuries there is no basis for future economic loss.
The insurer has accepted that the claimant may suffer an occasional flare up of symptoms unrelated to her pre-existing left knee condition which would likely impact on her earning capacity from time to time and has made an allowance by way of buffer for the remaining working life to age 67 years in the sum of $90,000.
The claimant has accepted this sum and does not offer any other information on future economic loss.
Noting the claimant’s pre-existing left knee degenerative condition which has resulted in surgery in 2022, it is also probable that she may not work to retirement age in any event. She is currently aged 51 years and has an establish left knee (osteoarthrosis) and lumbar conditions are likely to impact on her ability to work in heavier roles such as cleaning in the long term as she ages, because of the degenerative nature of these conditions.
Having regard to the sick leave taken to date by the claimant for family reasons and for other reasons unrelated to accident-related injury, the use of a buffer to compensate for future economic loss is appropriate in the circumstances.
I am satisfied that the amount allocated for future economic loss is a reasonable sum having regard to reduction in earning capacity to date and in line with an assessment had the matter been determined by a member.
Insurer’s submission
It is the insurer’s submission that the proposed settlement figure is an appropriate one and complies with the requirements of cl 7.37 of the Guidelines, in 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.”
Accordingly, the insurer recommended the proposed settlement figure of $115,200 be approved.
Claimant’s submission
The settlement sum is accepted by the claimant and the claimant seeks it be approved.
SHOULD I APPROVE THE SETTLEMENT
Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:
(a) The settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is compliance with any of the requirements of the MAI Act or the Guidelines.
I am satisfied that there has been compliance with the Act and the Guidelines.
(b) The insurer to include in its application details of the following:
(i)the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage. The amount for past economic loss is $25,200 and future economic loss is $90,000;
(ii)the amount of any deductions in the proposed settlement;
There are no deductions. The claimant will received full proceeds of settlement;
(iii)the amount of any advanced payments made be specified. There had not been any advanced payments made, and
(iv)the evidence, documents and materials relevant to an assessment of the proposed settlement figure.
I have reviewed the clinical and medical records effectively convering the period of injury and the relevant period to date of assessment. I note the medical records accord with the claimant’s reported symptoms, level of improvement and minimal ongoing incapacity. The information produced by the insurer has given me a good indication of the injuries, treatment and prognosis.
(c) Clause 7.37 of the Guidelines, requires me to consider the following:
(i)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 injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.
Having reviewed the medical evidence produced in this matter, and the evidence of the claimant during the videolink conferences, I am satisfied that the claimant has intermittent minor ongoing symptoms which may from time to time, impact on her future earning capacity. The allowances for past and future economic loss has been based on primary records establishing pre-injury earning capacity and losses accord with the most likely circumstances but for the accident.
I find the proposed settlement in the sum of $115,200 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.
(ii)the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.
The claimant was made aware during the many preliminary conferences that in the event she took the settlement, she could not seek any further damages for non-economic losses and economic losses.
The claimant is aware she will receive net proceeds of $115,200 with no deduction.
I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications.
CONCLUSION
The proposed settlement in the sum of $115,200 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.
I am satisfied the claimant was aware she could seek legal advice, and that she declined seeking legal advice.
I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
I am satisfied the claimant is aware that there are no deductions from the proceeds of settlement and that she will receive $115,200 in final settlement of her claim.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act I approve the settlement of the claimant’s claim for damages in the sum of $115,200.
The proposed settlement complies with cl 7.37 of the Guidelines version 9.3.
Legislation
In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020, and
· Guidelines version 9.3 / Personal Injury Commission Rules 2021.
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