QBE Insurance (Australia) Limited v Costa

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	QBE Insurance (Australia) Limited v Costa [2025] NSWPIC 435
CLAIMANT:	Sebastiano Costa
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Bianca Montgomery-Hribar
DATE OF DECISION:	27 August 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; liability admitted; claimant unrepresented; section 6.23; settlement approval by Commission; non-threshold psychological injury and non-threshold physical injuries; claim for economic loss; threshold for non-economic loss not met; whether proposed settlement appropriate; whether proposed settlement understood by the claimant; Held – claimant wishes to return to work and does not intend on retiring; claimant unlikely to require future invasive or surgical treatment necessitating time off work; settlement within the range of likely potential damages assessment; settlement otherwise appropriate; settlement understood by claimant; settlement approved in the sum of $45,000.
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 Personal Injury Commission’s reasons is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 25 March 2023, Sebastiano Costa (claimant) was involved in a motor vehicle accident on Windsor Road NSW when a vehicle turned into the driver side door of his vehicle (accident).
Mr Costa lodged a claim for damages under the Motor Accident Injuries Act 2017 (NSW) (MAI Act) on QBE Insurance (Australia) Limited (insurer). On 8 May 2025, the insurer admitted liability in respect of his claim for damages. The insurer has conceded that Mr Costa 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 Mr Costa’s claim for damages. Mr Costa had legal representation at the first preliminary conference in this matter on 18 June 2025. However, a Notice of Ceasing to Act was lodged by his former solicitors on 9 July 2025 and Mr Costa is no longer legally represented.
As Mr Costa 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

Initially this matter was before me for an assessment of damages.
On 18 June 2025, I held a preliminary conference at which both parties were legally represented. At that preliminary conference, Mr Costa’s solicitor informed me that the parties had been in productive settlement discussions and were “not too far apart”. The parties had been trying to keep costs down to see if the matter could resolve, which is why the claimant had not lodged any documents with the Commission. The claimant’s solicitor also confirmed that he had no instructions to rely on any medico-legal reports and both parties confirmed that they did not wish to rely on expert evidence. Accordingly, I made directions for the filing of submissions and evidence by the parties should the matter not settle, and stood the matter over for a further teleconference.
As noted above, on 9 July 2025, Mr Costa’s solicitors filed a Notice of Ceasing to Act.
On 28 July 2025, Mr Costa provided written submissions and medical evidence in accordance with my directions.
On 28 July 2025, a further preliminary conference was held in this matter. Mr Costa appeared in person. He confirmed that he did not wish to be legally represented.
At that preliminary conference, I explained to Mr Costa the type of evidence he could provide in order to establish economic loss. I also explained to him that, based on the current medical evidence and medical assessments by the Commission, that he was not entitled to damages for non-economic loss. I explained how he could seek review of these decisions if he wished.
The insurer confirmed that, following the preliminary conference on 18 June 2025, the parties had continued settlement discussions and were close to a resolution. However, the insurer had subsequently received a lien over the file by Mr Costa’s former solicitors in respect of unpaid legal costs.
Mr Costa confirmed that he had not been provided with the insurer’s most recent settlement offer. Accordingly, the insurer undertook to provide a copy of this offer to Mr Costa. It was explained to Mr Costa that the Commission was unable to assist with disputes in respect of costs or discharging the lien, and that no funds can be paid to him from the insurer while the solicitor’s lien remains in place.
On 21 August 2025, the insurer confirmed that an in-principle settlement had been agreed and lodged the required documents for the purposes of approval of a damages settlement.
On 21 August 2025, I held a further preliminary conference with the parties for the purposes of determining whether to approve the proposed settlement. Mr Costa participated in person.

REVIEW OF THE EVIDENCE

As required by r 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. This was done by way of an Application to Lodge Additional Documents registered 21 August 2025.
I note that the bundle does not contain the liability notices, but find that Procedural Direction MA3(12)(e) is satisfied based on the documents contained in the bundle lodged by the insurer on 21 May 2025 as part of the original damages application.

Application for personal injury benefits

Mr Costa completed an application for personal benefits dated 13 April 2023. He describes the accident as follows:
“The other car tried to enter car wash. He was not looking. I was adjacent and drove into my vehicle”.
The description also includes a drawing by Mr Costa.
In respect of his injuries resulting from the accident, Mr Costa stated:
“Hit my hands on dash, shoulder-hip-head on side of drivers side of my vehicle at impact. Neck back and head very painful” [sic].
Mr Costa lists his usual occupation as a self-employed driver.

2016 accident

Mr Costa was involved in a prior motor vehicle accident on 1 May 2016. Mr Costa lodged a compulsory third party (CTP) insurance claim on the insurer in relation to that accident (the 2016 accident).
In respect of the 2016 accident, Dr Hampshire, the claimant’s medico-legal psychiatrist, assessed Mr Costa’s permanent impairment as 19% in relation to his psychological injuries.
Dr Conrad, Mr Costa’s medico-legal general surgeon for the 2016 accident, opined:
(a)    2% WPI of the cervical spine as a result of pre-existing degenerative changes;
(b)    3% WPI of the cervical spine as a result of the motor accident on 1 May 2016;
(c)    2% WPI of the lumbar spine as a result of pre-existing degenerative changes;
(d)    3% WPI of the lumbar spine as a result of the motor accident on 1 May 2016;
(e)    2% WPI of the right shoulder as a result of pre-existing degenerative changes
(f)    2% WPI of the right shoulder as a result of the motor accident on 1 May 2016, and
(g)    4% WPI of the left shoulder as a result of the motor accident on 1 May 2016.
Medical Assessor Synnott assessed Mr Costa on 7 November 2017 and issued a certificate dated 10 November 2017. Medical Assessor Synnott certified that Mr Costa’s WPI was 16% in relation to psychological injuries caused by the 2016 accident, being post-traumatic stress disorder and adjustment disorder with anxiety and depressed mood.

Certificates of capacity

The certificates of capacity / certificates of fitness have been considered. These certify that Mr Costa had no capacity to work from 13 April 2023 to 1 May 2025, then as having some capacity for work for three hours per day, five days per week from 2 May 2023. This increased to four hours per day, five days per week on 15 February 2024.

Clinical notes

MyHealth Castle Towers

The records of MyHealth Castle Towers as at 11 March 2024 have been considered.
These records include the notes of consultations with Dr Kiran Sidhu, clinical psychologist. I have also considered the letter of Dr Sidhu dated 25 July 2025, which was separately provided to me via Mr Costa’s Application to Lodge Additional Documents.
I have also considered the letter from Dr Tanveer Ahmed dated 4 August 2025 addressed to Mr Costa’s GP.

Commission Medical Assessments

Medical Assessor Ian Cameron

Medical Assessor Cameron assessed Mr Costa on 18 July 2024 and issued a certificate dated 31 July 2025.
He assessed 2% WPI in relation to Mr Costa’s physical injuries caused by the accident, being a right shoulder and arm soft tissue injury, which he certified was not a threshold injury for the purposes of the MAI Act.
Medical Assessor Cameron certified that the following injuries were threshold injuries for the purposes of the MAI Act: Head – soft tissue injury; Cervical spine – soft tissue injury; Lumbar spine – soft tissue injury; Left hand – soft tissue injury; Right hand – soft tissue injury, and Right hip – soft tissue injury.
Medical Assessor Cameron certified that the claimant’s right knee, pain radiating into the right thigh and knee as a result of injury to the lower back and right hip was not caused by the accident.

Medical Assessor Atsumi Fukui

Medical Assessor Fukui assessed Mr Costa on 14 November 2024 and issued a certificate dated 29 November 2024.
He assessed 6% WPI in relation to Mr Costa’s psychological injuries caused by the accident, being post-traumatic stress disorder, which he found was not a threshold injury for the purposes of the MAI Act.

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 Mr Costa’s understanding, including that he is entitled to be represented in respect of the claim, that he understands the nature and effect of the proposed settlement, and that he 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. I am satisfied that that the bundles of supporting documents provided by the insurer complies with the directions provided in Procedural Direction MA3, noting the absence of certificates of fitness / certificates of capacity.
I note that the proposed settlement deed is dated 20 August 2025. The application for approval was lodged on 21 August 2025. Accordingly, I find that the insurer lodged the application for approval within seven days of reaching the agreement as required by r 95 of the PIC Rules.
I find that the proposed settlement complies with the applicable legislative requirements.

Is the proposed settlement appropriate?

The proposed settlement is in the amount of $45,000. This comprises:
(a)    past economic loss - $10,000,
(b)    future economic loss - $26,000, and
(c)    regulated legal costs of $8,953.34
(rounded up).
No allowance is made for non-economic loss and no amount is allowed for loss of superannuation.
Based on the medical evidence provided, I am satisfied that Mr Costa is not entitled to damages for non-economic loss as his permanent impairment in respect of both his physical and psychological injuries has been assessed as not greater than 10%. Accordingly, he does not meet the impairment threshold in the MAI Act.
Mr Costa has put on a statement outlining the impact he says the accident has had on his life. While I have read this statement and can sympathise with Mr Costa, I explained to him that I could not make any allowance for non-economic loss given the findings of the Medical Assessors. At the preliminary conference on 28 July 2025, I explained to Mr Costa that, if he wished to seek damages for non-economic loss, then he could apply to the Commission for review of those assessments or a further medical assessment. Mr Costa noted that, while he disagreed with some of the medical assessment determinations, he did not wish to seek review of those decisions, nor did he wish to apply for a further medical assessment.
On 12 August 2025, Mr Costa completed an Application to Admit Additional Documents attaching a letter from his clinical psychologist, Dr Kiran Sidhu, to his general practitioner, Dr Victor Gong, dated 23 July 2025, and a letter from Dr Tanveer Ahmed, consultant psychiatrist, to Dr Gong dated 4 August 2025. He titled this application “Medical Assessment (Mental)”.
Accordingly, at the damages assessment conference on 21 August 2025, I again raised with Mr Costa whether he wished to seek a review of any of the medical assessments or lodge an application for a further medical assessment. Mr Costa was adamant that he wanted the dispute “finished now” and repeatedly asked me to “please end it”. He confirmed that he was content to proceed on the basis that he was not entitled to non-economic loss and did not want to pursue any further medical assessments.
Given Mr Costa’s repeated requests for me to finalise this matter and noting he wants to avoid any further stress on himself and his family, I have proceeded accordingly.
The insurer has conceded that Mr Costa has suffered a non-threshold injury as a result of the accident. Accordingly, I am satisfied that he is entitled to damages for economic loss.
In respect of his past economic loss, an amount of $10,000 is proposed. This amount is a buffer and based on Mr Costa’s tax returns for the financial years 2020 to 2024 (inclusive), which are before me.
I note that, at face value, Mr Costa’s tax returns demonstrate his earnings to be considerably in excess of the proposed buffer amount. However, on examination, a substantive portion of his income is realised capital gains.
Mr Costa’s past financial loss is to be based on pre-accident weekly earnings (PAWE) calculated by reference to his income for the 12 months prior to the accident, being 24 March 2022 to 24 March 2023.[1] The insurer has calculated Mr Costa’s PAWE as $153 per week. This equates to $12,875 for this period. However, Mr Costa disclosed income of $17,126 during this period. Accordingly, the insurer has proposed a buffer of $10,000.
[1] Sch 1, clause 4 of the MAI Act.
Mr Costa informed me that, he would have likely earned more during the pre-accident period, however he had a number of operations and related illnesses in the years leading up to the accident. This included radiotherapy for tumours. However, he confirmed that the proposed buffer was acceptable to him.
While I do not have sufficient details to calculate Mr Costa’s PAWE with precision, I note that he reported a loss in the 2022 financial year, and gross profit of $3,918 in the 2023 financial year. There is nothing to suggest that Mr Costa’s PAWE should be calculated otherwise than based on Sch 1 cl 4(1) of the MAI Act. Accordingly, and based on his reported income of $17,126, I find the buffer of $10,000 appropriate.
In respect of Mr Costa’s future economic loss, a buffer of $26,000 is proposed. This is based on a weekly loss of $105 until Mr Costa is 75 years of age.
I note that Mr Costa has not retired and does not intend to retire. He informs me that he will continue to work for the foreseeable future. He insisted that no discussion be made in respect of his age, and I will respect Mr Costa’s wishes in that regard.
In assessing what is appropriate, I have had regard to the letters of Dr Ahmed and Dr Sidhu, in addition to the medical records before me. I note that the letters of Dr Sidhu and Dr Ahmed are somewhat contradictory in their view of Mr Costa’s future work capacity.
I note that Dr Ahmed confirms that Mr Costa has recently purchased a new car and has resumed driving. Dr Ahmed noted that Mr Costa demonstrates motivation to remain active and return to work in some capacity. The strains on his family relationships due to recent legal stressors are also noted.
The views of Dr Ahmed are reflected in the position advocated by Mr Costa in the conferences before me. Mr Costa’s positive outlook and strong desire to continue working should be commended.
While I find Mr Costa’s stoic nature to be admirable and believe that he will continue working for as long as he desires, I also consider it appropriate to provide him with compensation for future economic loss, in the event he is restricted in his working capacity due to his injuries caused by the accident.
In the circumstances where Mr Costa is self-employed and provided me with detailed oral submissions on how his business income fluctuates, and as he is seeking to increase his current working hours, I consider a buffer to be appropriate.
My review of Mr Costa’s financial records and the medical evidence regarding his injuries suggests that the buffer provided for any future loss of earnings is appropriate.
I note that there is no allowance for Fox v Wood, nor any allowance for superannuation.
The insurer noted that no allowance was made for superannuation as Mr Costa was self-employed and there was no evidence that Mr Costa has a superannuation fund. Mr Costa confirmed that, while he has a self-managed superannuation account, he had not been contributing to it “for a while”. Mr Costa again reiterated that he did not wish to talk about his age or retirement. Accordingly, I did not press Mr Costa for any further details on this point. I am satisfied that the buffer allowed for future economic loss would be sufficient to cover superannuation contributions.

Mr Costa confirmed that there have been no Centrelink benefits paid, nor has there been any payments made to date.
There is no suggestion that Mr Costa will require surgery in the future to alleviate his pain or symptoms, nor is any invasive treatment proposed.
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 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 Mr Costa understand the proposed settlement?

At the preliminary conference, Mr Costa confirmed that he understood the proposed settlement and is willing to accept it.
While I understand Mr Costa may disagree with the medical assessments regarding his injuries, he has confirmed that he does not want to proceed with any review or further medical assessments.
I am respectful of Mr Costa’s wishes that he would like to finalise this matter as soon as possible to avoid any future stress on himself and his family.
I am satisfied, based on my discussions with Mr Costa during the two preliminary conferences in which he appeared in person, that he is aware that the settlement is intended to compensate him 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 he understands an injured person cannot usually make a claim for further damages once a claim has been settled.
I am satisfied that Mr Costa understands that he is not entitled to any damages for non-economic loss.
I am satisfied that Mr Costa understands the effect of s 3.40 of the MAI Act and that he will not be entitled to statutory benefits or other compensation for any future time taken off work due to his injuries, including if it impacts his earnings in the future.
I am satisfied that Mr Costa understands that the insurer will deduct the amount of $8,953.34 from the settlement amount paid to him and will pay this amount directly to his former solicitors. I note the email from Santone Lawyers dated 20 August 2025 addressed to Mr Costa and the insurer which confirms that this payment will be in full and final payment of their costs in this matter.
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 Mr Costa, and I am satisfied that he understands, that the proposed settlement does not impact his entitlement to recover reasonable and necessary accident-related treatment and care, such as psychological treatment.
Mr Costa confirmed that he understood he could seek to obtain alternative legal representation, including on the proposed settlement amount, and that he did not wish to do so.
I note that Mr Costa repeated on numerous occasions that he was adamant that he wanted “this to be over” and to “please just end it”. Accordingly, while I would have liked to have discussed the settlement in more detail with Mr Costa, this was not possible due to his repeated protests. However, I am satisfied that he understands the proposed settlement and its nature and effect, and that he is willing to enter into it.

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 Mr Costa is aware he can seek legal advice but does not wish to do so.
I am satisfied that Mr Costa understands the binding nature of the settlement and that he will be precluded from making a further claim for damages arising out of the accident.
I am satisfied that Mr Costa is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of $45,000 in respect of Mr Costa’s claim for damages.

[2025] NSWPIC 435

27 August 2025