Justin Cook v AAI Ltd t/as AAMI
[2025] NSWPIC 309
•2 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Cook v AAI Ltd t/as AAMI [2025] NSWPIC 309 |
CLAIMANT: | Cook |
INSURER: | AAI Ltd t/as AAMI |
MEMBER: | Elizabeth Medland |
DATE OF DECISION: | 2 July 2025 |
CATCHWORDS: | Motor Accident Injuries Act 2017; settlement approval under section 6.23; claimant unrepresented; injured in a motor vehicle accident when he went to assist a neighbour who had driven into a metal awning; the insured driver reversed her car pinning the claimant between the vehicle and a metal pole; suffered a left knee injury including medial meniscus tear and comminated fracture of fibula; psychological injury and secondary back injury; employed on ad hoc basis as a plant operator; not fit to return to such role; now a self-employed courier driver earning equivalent or more on an average basis; matter referred to medical services for assessment of whole person impairment (WPI) prior to approval pursuant to section 7.20; no entitlement to non-economic loss; settlement of $275,000 approved. |
DETERMINATIONS MADE: | 1. The claimant and the insurer have agreed to settle the damages claim in the amount of $275,000. 2. The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. |
REASONS FOR DECISION
BACKGROUND
Mr Justin Cook (the claimant) is a 41-year-old male (born in 1983) who suffered injuries as a result of a motor vehicle accident which occurred on 13 January 2020.
The claimant was injured when he went to assist the driver of a vehicle who had knocked down a metal awning. In the process of lifting the awning of the vehicle, the driver reversed her car, pinning the claimant between the vehicle and a metal pole.
A claim for statutory benefits was lodged by the claimant on or about 17 January 2020, with AAI Limited t/as AAMI (the insurer), the compulsory third party insurer of the vehicle involved in the accident.
The claimant subsequently lodged a claim for damages that was accepted via notice dated
3 June 2024. However, the insurer advised that contributory negligence was alleged and assessed at 20%.The claim was accepted, and the claimant has been receiving statutory benefits for treatment and care expenses. In addition, payments of weekly statutory benefits have been made totalling $74,658.67.
The claimant is self-represented.
The insurer has made an offer of settlement to the claimant in the amount of $275,000 inclusive of weekly benefits paid, to be deducted from the settlement amount. The claimant accepted the proposed settlement.
The insurer has lodged an application with the Personal Injury Commission (Commission) seeking approval of a settlement reached with the claimant. As a Member of the Commission I have been tasked with determining the application.
I held a preliminary conference with the parties on 21 January 2025, and advised the parties that I would carefully examine the material provided and make a determination on the papers. I also requested the claimant set out in writing the ongoing difficulties he experiences due to the accident.
In the course of considering the material and the information received by the parties, I formed the view that further evidence was required. Specifically, I noted that the information suggested that the claimant suffers from a psychological injury caused by the accident which was not the subject of medical evidence, including an assessment of whole person impairment. I also felt unease that the medical evidence relied upon in respect of whole person impairment for physical injuries.
Accordingly, pursuant to s 7.20(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act) I directed that the claimant’s physical and psychological injuries be assessed by the Medical Services division of the Commission. The insurer’s representatives helpfully prepared the necessary paperwork.
The claimant subsequently underwent assessment, and the medical certificates of Medical Assessor Barrett and Medical Assessor Menogue have now been received.
I held a further preliminary conference on 25 June 2025. After discussing various matters with the claimant, I indicated that I am minded to approve the proposed settlement. At my request, an amended settlement agreement has been prepared and executed by the parties, which appropriately reflects the agreement and the claimant’s rights.
LEGISLATIVE FRAMEWORK
Section 6.23 of the MAI Act provides:
“(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 (the Guidelines) provides:
“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 satisfied 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.”
DOCUMENTS CONSIDERED
I have considered the documents provided in the application, in addition I have considered the short submissions of the claimant sent via email dated 9 February 2025. I have also considered the medical assessments received from Medical Services. I am satisfied that I have sufficient information upon which to determine the application.
SUMMARY OF EVIDENCE
Medical evidence
As a result of the accident, the claimant suffered a left knee injury, including a medial meniscus tear, comminuted fracture proximal left fibula and bony contusions lateral tibial plateau. In addition, the claimant has suffered psychological injury.
The claimant was treated at Liverpool Hospital where an MRI revealed the fibular fracture and medial meniscus tear.
He attended upon his general practitioner (GP), Dr Bokhari, after the accident on
7 February 2020 and was referred to orthopaedic surgeon, Dr Walker.The claimant has undergone two MRI’s of the left knee that confirmed the pathology noted above, in addition to some early degenerative changes.
In his report dated 16 November 2020 Dr Walker recommended the claimant undergo an arthroscopy of the left knee, however, the claimant was reluctant to undergo surgery. The doctor noted the claimant had experienced no real improvement in his symptoms.
Dr Wallace – 22 August 2022
In a report addressed to the insurer, Dr Wallace took a history of the claimant having intermittent aching pain at the medial and posterior aspect of the joint of the left knee. Pain was noted to be worse with driving, stair climbing, standing, walking or with repetitive activity. Intermittent swelling at the left knee was noted along with complaints of intermittent mild stiffness.
Dr Wallace agreed with the recommendation of an arthroscopy.
Dr Rosenthal – 20 March 2024
In a report addressed to the insurer, Dr Rosenthal confirmed that an arthroscopy had not occurred and the reason why was unknown by the claimant. The doctor considered the injuries as being stabilised as the claimant does not intend on having the surgery recommended.
The doctor confirmed that the claimant has reduced ability for standing, walking, kneeling, squatting, stair climbing and walking on uneven ground.
In respect of earning capacity the doctor opined:
“…he could return to some form of suitable duties and in fact has returned to some courier work where he is not lifting greater than 10kg, not walking on uneven ground, is not required to squat or kneel and avoids recurrent stair climbing.
His current capacity is reported to be 10 hours a week but he possibly could do up to 20 hours a week – 4 hours a day, 5 days a week, or courier work. He would require appropriate rest breaks from driving as his driving capacity is restricted. He would need at least 5 minute rest breaks every hour when driving.”
A 4% whole person impairment was assessed.
Commission’s medical assessments
Medical Assessor Menogue in a certificate dated 16 June 2025 certified the claimant as suffering a 4% whole person impairment as a result of his left knee injury. The claimant was also found to be suffering a lumbar spine soft tissue injury as a result of the accident with a 0% whole person impairment.
The claimant gave a history of developing an insidious onset low back pain in the latter part of 2021.
In an assessment dated 11 June 2025, Medical Assessor Barrett certified the claimant as suffering a 7% whole person impairment due to alcohol use disorder, in early remission and adjustment disorder with depressed mood.
The Medical Assessor took a history of the claimant working as a heavy vehicle operator for most of his working life.
The claimant’s physical symptoms were described as ongoing pain at the knee as well as pain in his back. The pain impacts his sleep two or three nights a week.
After the accident it is noted the claimant began drinking alcohol to manage his pain and the intoxication lead to arguments with his wife. The claimant has since taken steps to control his alcohol dependence.
The claimant described performing work since around two and a half years ago as a courier driver, including for Ubereats and Doordash. He would like to increase his hours but is restricted by pain.
An assessment of impairment in accordance with the psychiatric impairment rating scale (PIRS) which results in a 4% whole person impairment. An additional 3% is added for the effects of treatment giving a total of 7%.
The Medical Assessor did not note an impairment for employment due to the psychological injury.
DAMAGES and REASONS
Non-economic loss
On the basis of the Commission’s medical assessments the claimant does not have entitlement to non-economic loss damages. The claimant confirmed to me that he does not have an intention to seek a review of the medical assessments and accepts that he is not entitled to damages for non-economic loss.
Economic loss
At the time of the accident the claimant was unemployed. His employment activities prior to the accident involved labour hire arrangements on short term contracts.
In his claim form the claimant states that his usual occupation is plant operator and his usual earnings are $515.70 per fortnight.
His last employment prior to the accident was as a plant operator with Allmen Industrial Services. The period of employment was August 2019 to 23 November 2019 with the contract ending due to a shortage of work.
The claimant appears to be in receipt of payments of weekly statutory benefits after the accident due to him being a deemed an “earner” on the basis that he had a job lined up but was knocked back due to being unable to pass the medical on account of accident related injuries. The claimant was not able to recall the specifics of the position in an email to the insurer of 28 October 2024, however, the role was loader/operator.
Following the accident, the claimant was certified completely unfit for work until 16 April 2020, and then 20 hours per week and thereafter from 14 May 2020 onwards certified fit for 30 hours per week.
The accident coincided with the COVID-19 pandemic social distancing requirements that had adverse impacts to job availability. The insurer submits that partly due to the pandemic and partly due to the claimant’s injuries he was not able to re-engage with employment until April 2022. The claimant commenced a courier business and has been working in same on a part time basis since. The claimant is to be commended for his efforts to reengage in employment despite his injuries.
In a response to a request for particulars dated 14 November 2024 the claimant states that he has been working as a courier since 7 April 2022 and earning $1,500 weekly. He confirmed to me that his income remains about the same and that he is coping well with the duties and does not see having significant difficulties into the future continuing with the work.
The pre-accident payslips provided demonstrate reasonably high earnings for the periods worked, however, the employment is piecemeal and short term. Over the period
18 February 2019 and 13 January 2020, the payslips reveal earnings of $21,571.24 over 47 weeks giving an average of just under $460 net per week.The 2023 taxation return shows the courier business had business income of $30,236 after expenses. The insurer notes that $23,721 of deductions represent the motor vehicle and rent expenses, which the insurer states are for the claimant’s personal benefit and hence has added those back in the gross business income totals $53,957. I note, however, that due to the nature of the business, at least a significant portion of motor vehicle expenses would be a legitimate business expense.
Past economic loss has been allowed on the following basis:
· $459 net per week x 117 weeks (from 14 January 2020 – 7 April 2022) = $53,703
· $260 net per week x 12 weeks (from 7 April 2020 – 30 June 2022) = $3,120
· Superannuation = $6,600
· Fox v Wood[1] = $3,983
· TOTAL: $70,000.
[1] (1981) 148 CLR 438.
The insurer notes that from June 2022 the claimant began earning the same if not more per week than he did in the 52 weeks prior to his motor accident.
In terms of future economic loss the claimant is currently 41 years of age. As noted above, the claimant continues in his courier business and reports no significant difficulties with same.
Dr Rosenthal thought the employment to be suitable noting there is no heavy lifting over 10kg and not required to squat or kneel and the like. The doctor opined the claimant could do 20 hours a week for such duties.
Whilst the claimant is earning more currently, than he did no average in the past, the insurer has allowed $205,000 for future economic loss on a buffer basis. This roughly represents $275 net per week for 26 years plus superannuation.
I find that whilst the claimant is precluded from plant operator type work, he is now nonetheless able to earn an equivalent, if not increased, income in his current employment. His prior earnings also demonstrate that he was employed in short term contract roles and it is likely that such arrangement would continue into the future if not for the accident.
I also consider it appropriate that the claimant be compensated for future economic loss on a buffer basis, as it is clear that he is at a disadvantage on the open labour market. In addition, the medical evidence would suggest that the claimant has the potential to enjoy an decreased level of disability and pain if he did chose to undergo surgery as recommended by several doctors. It is noted that the insurer would, in all likelihood, be responsible for the payment of any surgery and associated expenses.
In respect of contributory negligence, whilst an allegation of same was advanced by the insurer in the liability notice, a deduction has not been made for the purposes of the settlement agreement. Whilst limited information is available as to the circumstances of the accident, on the material before me, I consider it appropriate that no deduction was made.
I find the settlement amount to be fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
OTHER CONSIDERATIONS
At the preliminary conferences, I raised with the claimant that he was not represented by a legal practitioner. The claimant was aware of his entitlement to engage legal representation, however, was clear that he did not wish to do so.
I find that the amended signed settlement agreement in respect of the proposed settlement appropriately protects the rights of the claimant.
At the preliminary conference, I explained to the claimant that the settlement only extinguishes his right to damages. I noted that he would have an ongoing right to receive treatment and care expenses, on the basis that such treatment was related to the injuries caused by the accident and that the treatment and care was reasonable and necessary.
The claimant has been in receipt of Centrelink payments. The claimant is fully aware that that it is likely that Centrelink will issue a notice that requires an amount to be forwarded to them as a payback from the settlement amount. I also explained to the claimant that Centrelink may determine that he may be precluded from receiving payments for a certain period as a result of the settlement.
I explained that neither myself nor the insurer can predict what Centrelink’s determination would be.
The claimant was aware that the payments of weekly statutory benefits would be deducted from the settlement amount.
CONCLUSION
I find the settlement amount to be fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission.
On the basis of the above, I approve the proposed settlement in the amount of $275,000 pursuant to s 6.23(3) of the MAI Act.
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