Korzenioswskiv v Allianz Australia Insurance Limited
[2025] NSWPIC 348
•23 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Korzenioswskiv v Allianz Australia Insurance Limited [2025] NSWPIC 348 |
| CLAIMANT: | Ryszard Korzenioswskiv |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 23 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of damages; liability wholly admitted; 25% alleged contributory negligence; 82-year-old in receipt of the aged pension; whole person impairment (WPI) assessed by the Commission not greater than 10%; claimant self-represented at the assessment conference; claimant expressed his disagreement with the Medical Assessor’s certificate assessing WPI of 5%; insurer submitted claim should be dismissed; a member’s role is to assess damages; Held – no damages for non-economic loss unless permanent impairment greater than impairment threshold; section 4.11; damages assessed in the sum of $0 pursuant to section 7.34. |
| DETERMINATIONS MADE: | CERTIFICATE 1. Issued under s 7.36 of the Motor Accident Injuries Act 2017. 2. Damages assessed in the sum of $0. 3. Costs and disbursements assessed in the sum of $0. |
STATEMENT OF REASONS
INTRODUCTION
On 12 June 2019, the claimant, Mr Ryszard Korzenioswskiv was walking from Ashfield Train Station along Brown Street towards Liverpool Road. He crossed Brown Street when he was hit from behind by the insurer’s vehicle, knocking him to the roadway.
Mr Korzenioswskiv was transported to Canterbury Hospital by ambulance where he was admitted and remained for over a month.
He has made a claim for common law damages against the insurer, Allianz Australia Insurance Limited (insurer). The insurer admitted liability for the accident and alleges a 25% contributory negligence.
At the time of the accident, Mr Korzenioswskiv was in receipt of an aged pension.
Mr Korzenioswskiv was assessed in a joint medico-legal examination which resulted in a whole person impairment (WPI) of not greater than 10%.
Mr Korzenioswskiv was assessed by a medical assessor at the Personal Injury Commission (Commission). WPI was assessed as not being greater than 10%.
TELEPHONE CONFERENCES
Mr Korzenioswskiv’s claim was referred to the Stood Over List when an application was made to the Commission to have his WPI assessed.
When claim was restored from this list, it was referred to me to case manage and list the matter for the assessment of damages.
The preliminary conference was held on 2 August 2023. Mr Adam Yuen appeared on behalf of Mr Korzenioswskiv. He advised me Mr Korzenioswskiv has recently undergone surgery. Neither party appearing had knowledge as to whether this treatment was accident related. Mr John Cooper, the insurer’s legal representative confirmed the insurer had not paid for any treatment. Mr Yuen further confirmed he was experiencing difficulties contacting Mr Korzenioswskiv.
I issued directions to the claimant which included answering particulars; executing authorities; and listed the claim for a further telephone conference on 4 September 2023.
Mr Yuen appeared for Mr Korzenioswskiv at the second telephone conference. I was advised Mr Korzenioswskiv had fallen, due to aggravated accident-related injuries. The cause of the fall needed to be reviewed by a medical practitioner. It was agreed this would be arranged. There was a need for a further telephone conference which was held on 13 February 2024.
In the third telephone conference Mr Yeun appeared for the claimant. I was informed that a joint report had resulted in WPI assessed not greater than 10%. As the claimant was an aged pensioner at the time of the accident, I asked Mr Yeun if there were any damages to assess. He advised a barrister’s appointment had been arranged with his client and asked for time for this conference to take place.
Rather than listing a further telephone conference, I requested Mr Yuen message me with the outcome of the appointment with the barrister.
A message was posted on the portal which confirmed Mr Korzenioswskiv did not accept the WPI assessment and that he intended to file an application for the assessment of WPI with the Commission.
A fourth telephone conference was held on 14 November 2024. I was advised that Mr Korzenioswskiv had contacted Mr Yuen and withdrawn instructions. Mr Nassir Bechara confirmed he had accepted instructions from Mr Korzenioswskiv and had recently lodged an application with the Commission for the assessment of WPI which had been rejected. He was uncertain of the reason but asked for time to have this relodged and to enable the assessment process to proceed.
The fifth telephone conference was listed on 12 December 2024 which was adjourned until 27 May 2025. It was confirmed the medical certificate issued by the Commission resulted in a not greater WPI than 10%. Both parties agreed Mr Korzenioswskiv did not have a claim for non-economic loss. Mr Bechara confirmed Mr Korzenioswskiv refused to accept he had no claim for damages. He indicated he did not have instructions but as a courtesy, was prepared to communicate with Mr Korzenioswskiv to advise him of the Commission’s directions.
As was apparent to me and both legal representatives, the only avenue to bring this matter to a conclusion was to hold a face-to-face assessment conference with Mr Korzenioswskiv.
A date for assessment at the Commission on 10 July 2025, at 10.30am was agreed. I advised, the Commission would follow up with Mr Korzenioswskiv the week before the assessment conference date to remind him of the date and time for the hearing of his claim. The Commission was also directed to arrange for a Polish interpreter to be present.
The Disputes Officer advised me Mr Korzenioswskiv confirmed he would attend on the day of the assessment conference and that a polish interpreter, Ms Hania Geras, was booked.
ASSESSMENT
As a gesture of courtesy, Mr Bechara appeared and offered Mr Korzenioswskiv assistance which he declined. I thanked Mr Bechara for his involvement in the matter. He left the assessment conference before it began around 10.20am.
I advised Mr Korzenioswskiv the assessment conference was being recorded. He told me he was happy there was a record. He also gave his consent to link the insurer’s claims officer, Ms Jodi Dow via MS Teams to the assessment conference. Mr Korzenioswskiv’s English is very good. The interpreter was only relied on for a couple of words which was helpful to ensure Mr Korzenioswskiv was clearly understood and that he understood every word spoken by me and Mr Cooper.
The assessment conference officially commenced at 10.26am. Mr Cooper asked for leave to provide to Mr Korzenioswskiv and to me, a small bundle of documents. These documents, contained in a grey folder were handed to Mr Korzenioswskiv. I took him to each document under Tabs 1-4. He said he understood each document but told me he did not agree with the contents contained in the documents. He gave his consent to the documents being relied on in the assessment of his claim.
ISSUE IN DISPUTE
The following issue is in disputes: -
(a) Is Mr Korzenioswskiv entitled to damages for his accident-related injuries?
Is Mr Korzenioswskiv entitled to damages for his accident-related injuries?
I asked Mr Korzenioswskiv if he wanted to tell me anything. He gave me a history of the injury to his right foot. He sought to hand to me X-rays of what appeared to be a foot which he told me revealed a ‘crack’. I declined the X-ray and explained to Mr Korzenioswskiv that I was not a doctor.
He told me he did not agree with Dr Wallace’s findings and certificate. He told me the doctor did not see him walking downstairs which he said he cannot do because he drags his leg. He said the doctor did not accept his problems with his foot. He said Dr Wallace explained to him these problems had occurred well before the accident. Mr Korzenioswskiv expressed his disgust at Dr Wallace and his conclusions. He said the doctor never discussed the X-ray with him of his right foot.
He told me since the accident six years ago, he has never fully recovered all his movement. He says he now relies on a walker when mobile. He said otherwise, he is healthy. Two weeks ago, he said he contracted a viral infection. He told me he has made a full recovery from the virus.
He said his leg does not follow his mind. His leg is stiff, and his foot is paralysed. He said the last six years he has lived in hell living with his disability. He said his life is finished.
Before the accident, he told me he went hiking and could visit friends in Poland unassisted. He told me he needed compensation so he could access assistance which would help him. He said with proper compensation his life would improve. He told me money would make his life easier.
I asked him exactly what help he thought would improve his life. He said money would mean it would be easier for him to live. He did not provide any details of exactly what help he needed.
He said it had been 20,000 days since the accident. Every day he suffered. He said he lives in a misery. He said without proper money he would continue to suffer for another 20,000 days. He started to quote from the Bible and told me he did not trust man, only God.
He was critical of the insured’s driver after the accident. He mentioned he had not been treated ethically or with morality. He said he had lost trust in man.
He told me a barrister had told him all his problems had occurred before the accident. He said this was not true and he did not agree with the barrister.
He suggested Mr Cooper was the enemy. I reminded Mr Korzenioswskiv Mr Cooper represented the insurer and was just doing his job. He agreed not to continue with any further disparaging remarks.
At the time of the accident, Mr Korzenioswskiv was in receipt of the aged pension. I asked him at the date of the accident if he was working. He replied “No”.
There is no claim for past or future economic loss.
According to s 4.11 of the Act, no damages for non-economic loss may be awarded in respect of injury unless the degree permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
On 30 November 2023, the insurer and Mr Korzenioswskiv agreed to attend a joint medico-legal examination and report which was conducted by orthopaedic surgeon Dr John Bentivoglio. The doctor took a detailed history of the accident from Mr Korzenioswskiv. He also recorded his past medical history and current medications.
Dr Bentivoglio asked Mr Korzenioswskiv about his social and educational history before carrying out a thorough physical examination. He also reviewed investigations which included a CT scan of Mr Korzenioswskiv’s right foot from August 2019. He also reviewed a CT scan of Mr Korzenioswskiv’s cervical spine. The doctor details his treatment to date and the outcome of this treatment.
Dr Bentivoglio recorded Mr Korzenioswskiv’s current status and diagnosed the development of neck pain with no evidence of nerve root irritation or compression. He noted multiple fractures of all metatarsals with his left foot with an undisplaced fracture of the medial malleolus. The doctor reported Mr Korzenioswskiv presented with significant pes planus in both feet and he has become symptomatic in this region as a result of this injury.
When answering questions posed, Dr Bentivoglio accepted Mr Korzenioswskiv aggravated previously asymptomatic degenerative changes present in his cervical spine that became symptomatic following the accident. He accepted all of Mr Korzenioswskiv’s ongoing complaints in his right foot which relate to the injuries from the accident.
The doctor was asked to assess Mr Korzenioswskiv’s WPI in accordance with the Guides to the Evaluation of Permanent Impairment 4th Edition. He assessed a WPI of 5%.
Mr Korzenioswskiv instructed his legal representative to lodge an application with the Commission seeking an independent assessment of WPI. Medical Assessor Raymond Wallace assessed Mr Korzenioswskiv on 18 March 2025. He issued a certificate on 3 April 2025 with detailed reasons. The Assessor accepted Mr Korzenioswskiv injured his cervical spine and right foot caused by the accident. He assessed the degree of permanent impairment caused by the motor accident 5% WPI.
I am bound by the medical assessment pursuant to s 4.11 which deals with no damages for non-economic loss unless permanent impairment greater than the impairment threshold which is greater than 10%.
Accordingly, Mr Korzenioswskiv is not entitled to damages for non-economic loss. He makes no claim for economic loss. I therefore conclude Mr Korzenioswskiv is not entitled to damages for his accident-related injuries.
The Commission may at any stage dismiss proceedings before it if satisfied that the proceedings are lacking in substance or for any other ground specified in the Commission rules, see s 54 of the Personal Injury Commission Act 2020 (PIC Act).
The insurer has submitted the claim should be dismissed.
I disagree. My role is to assess damages.
I assess damages in the sum of $0. There is no claim for costs and disbursements.
CONCLUSION
Pursuant to s 7.36 of the Motor Accident Injuries Act 2017 damages are assessed as $0.
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