Transport Accident Commission v Jantschulev - [2025] NSWPIC 240

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Transport Accident Commission v Jantschulev [2025] NSWPIC 240
CLAIMANT:	Jana Jantschulev
INSURER:	Transport Accident Commission
MEMBER:	Maurice Castagnet
DATE OF DECISION:	2 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages; where settlement approval by the Commission is required; claimant is legally unrepresented; section 6.23; high speed head on collision; whiplash injury; mild to moderate traumatic brain injury with post-injury confusion lasting at least five to seven days; soft tissue injuries to right hip and right shoulder; post-traumatic stress disorder; where claimant refuses to submit herself to medical assessments by the Commission; no entitlement to damages for non-economic loss; approval sought for proposed settlement in the sum of $200,000 for damages for past and future economic loss; Held – proposed settlement approved under section 6.23(2)(b); there are no deductions to be made by the insurer from the proposed settlement for any other matters.
DETERMINATIONS MADE:	CERTIFICATE Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 1. The proposed settlement sum of $200,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. The Personal Injury Commission notes that there are no deductions to be made by the insurer from the settlement sum for any other matters. A statement setting out my reasons for the determination is attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 26 December 2020, the claimant, Jana Jantschulev, suffered injuries in a motor accident when the vehicle in which she was travelling as a front seat passenger was hit by the insured vehicle that was travelling in the opposite direction and crossing to the wrong side of the road.
The claimant has made a claim with the insurer for common law damages for the injuries she sustained in the accident. The insurer admitted liability for the claim with no allegation of contributory negligence.
The parties have agreed to a settlement of the claim.
The claimant is self-represented. Section 6.23(2) of the Motor Accident Injuries Act 2017 (MAI Act) requires that any settlement of a claim for damages by a claimant who is self-represented, be approved by Personal Injury Commission (Commission). Accordingly, on
20 February 2025, the insurer lodged an application with the Commission to have the settlement approved.
The matter was referred to me to consider the approval.
Following discussions with the parties at a teleconference held on 18 March 2025, the insurer made a revised offer of settlement in the sum of $200,000 which was accepted by the claimant. This is the proposed settlement which is now considered for approval.

SUMMARY OF THE EVIDENCE

The claimant was 50 years old at the time of the motor accident and is now 55.
The claimant was transported by ambulance from the scene of the accident to Lismore Base Hospital.
At the hospital, the claimant complained of pain in the chest wall, sternum, and right ribs, shoulders and right hip. On examination, it was noted she had tenderness at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 240
Decision Date: 2 June 2025

CaseChat Overview and Summary

In the matter of Transport Accident Commission v Jantschulev, the claimant sought damages for injuries sustained in a high-speed head-on collision. The claimant, who was legally unrepresented, suffered from whiplash, a mild to moderate traumatic brain injury with post-injury confusion, soft tissue injuries to the right hip and right shoulder, and post-traumatic stress disorder. The dispute centred on the claimant's refusal to undergo medical assessments mandated by the Commission, and the approval of a proposed settlement of $200,000 for past and future economic loss under the Motor Accident Injuries Act 2017.

The court was required to determine whether the claimant was entitled to damages for non-economic loss, given her refusal to submit to the necessary medical assessments, and whether the proposed settlement amount was appropriate under section 6.23 of the Act. The court had to balance the claimant's refusal to undergo assessments against the evidence provided and decide whether to approve the settlement amount without deductions for other matters.

The court found that the claimant was not entitled to damages for non-economic loss due to her refusal to undergo medical assessments. However, it approved the proposed settlement amount of $200,000 for past and future economic loss under section 6.23(2)(b) of the Act. The court determined that there were no grounds to make any deductions from the proposed settlement for any other matters.

In conclusion, the court approved the proposed settlement amount of $200,000 for past and future economic loss, without any deductions for other matters. The claimant was denied entitlement to damages for non-economic loss due to her refusal to submit to medical assessments.

Orders