Wong v Allianz Australia Insurance Ltd
[2025] NSWPIC 333
•10 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wong v Allianz Australia Insurance Ltd [2025] NSWPIC 333 |
CLAIMANT: | Marcus Wong |
INSURER: | Allianz Australia Insurance Ltd |
MEMBER: | Philip Carr |
DATE OF DECISION: | 10 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; the claimant was injured on 22 September 2023; the claimant was working at the time of the accident; the claimant is aware no entitlement to future statutory benefits once settlement is approved; the settlement complies with clause 7.37 of the Motor Accident Injuries Guidelines; Held – the settlement approved in the amount of $70,000.00 consisting of nil non-economic loss, past economic loss of $40,000.00 and future economic loss of $30,000.00 by way of a buffer less $23,051.97 for statutory benefits paid by the insurer. |
DETERMINATIONS MADE: | CERTIFICATE 1. The proposed settlement of $70,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act 2017. 2. Pursuant to sub-s 3.40(1)(b) of the Motor Accident Injuries Act 2017, the insurer is entitled to deduct the sum of $23,051.97 from the proposed settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3. |
STATEMENT OF REASONS
INTRODUCTION
The motor accident the subject of this claim occurred on 22 September 2023 (the accident).
On 19 October 2023 the claimant made an application for common law damages (page 14).
On 27 September 2024 the insurer wholly admitted liability for the common law claim. The insurer assessed the claimant as having a non-threshold injury of a partial thickness tear of his right shoulder (the insurer’s decision), which was assessed at 0% whole person impairment (WPI) after reviewing Dr Bentivolgio’s report dated 27 March 2023 (pages 62, 153 and 156). The claimant has not sought to dispute the insurer’s decision.
On 9 April 2025 the insurer made an offer of settlement to the claimant in the amount of $70,000 (the settlement) (page 155).
On 14 April 2025 the claimant accepted the settlement and executed the agreement for release and indemnity (pages 158 – 160).
On 24 June 2025 there was a teleconference with the parties on the first return date for the settlement approval, when a few anomalies were noted about the insurer’s original bundle, including misleading information in the insurer’s submissions about the settlement amount and the contents of the executed deed about the claimant’s legal representation (see cls 8 and 9 of the deed dated 14 April 2024) (page 159). The insurer was given an opportunity to file an amended executed deed and amended submissions.
On 1 July 2025 the insurer filed an additional settlement bundle, which included an amended settlement deed dated 24 June 2025 and amended submissions (pages 1 – 7, supplementary bundle). The insurer noted an error in the TC report dated 24 June 2025, which indicated an incorrect deduction sought by the insurer for past wage loss in the sum of $16,948.03, the correct amount is $23,051.97.
The claimant has executed the amended settlement agreement dated 24 June 2025.
The claimant is not represented by an Australian legal practitioner.
The claimant requests the Personal Injury Commission (Commission) to approve the settlement.
There is no claim for contributory negligence for the purposes of a deduction in respect of the settlement.
THE ACCIDENT
The accident occurred at 9.15am on 22 September 2023 at 603 Victoria Road, Ryde, NSW at the intersection of Arras Parade with Victoria Road, when a Toyota Hilux 4 (the car) with the registration number DH75AU entered Victoria Road, causing the claimant to suddenly apply his brakes to his motorcycle (which was traveling at 60kmph– page 53), causing the claimant to loose traction and collide with the merging car. The car was owned and driven by Ahmad Tamir.
The collision caused several injuries to the claimant including an impingement of the claimant’s right shoulder joint, grazing of his right knee and friction burns to his right calf.
THE CLAIMANT’S PERSONAL CIRCUMSTANCES
The claimant was 26 years of age at the time of the accident, he is currently 27 years of age.
At the time of the accident the claimant was employed as a casual project officer with the University of New South Wales and was also completing an undergraduate degree in Bio-medical engineering.
THE CLAIMANT’S INJURIES
The claimant sustained the following injuries:
(a) a partial-thickness tear of the right supraspinatus tendon, and
(b) gravel rash to his right knee and hip.
Ambulance records
Following the accident the claimant was transported by Ambulance to Royal North Shore Hospital (RNSH).
The ambulance report notes indicate:
“… no visible or palpable injury to head or face, nil midline c -spine pain or lateral neck stiffness, CHEST/ABDO nil visual or palpable injurys (sic), PELVIS/LONG bones pelvis stable and intact, all long bones visually intact, R knee ?soft tissue injury or?# …” (page 123).
Royal North Shore Hospital
The claimant was reviewed at the ED Department at RNSH and discharged on the same day. The discharge referral notes indicate the claimant presented with a low speed, low impact motorbike accident. The claimant fell from his bike onto his right side sustaining a grazed right knee and hip, without striking his head. An x-ray of his right knee excluded any fractures or dislocations [page 139]. The claimant was advised to follow up with his general practitioner (GP) (pages 137 – 138).
MRI – 22 November 2023
On 22 November 2023 the claimant underwent an MRI scan on of the right shoulder, which revealed a partial thickness tear of the supraspinatus tendon (page 121).
The claimant was referred for physiotherapy and exercise physiology.
To date the claimant has not seen any specialist for treatment and is not currently having any active treatment (page 66).
Rehabilitation reports
On 22 July 2024 the claimant was certified fit for pre-injury duties (page 3).
On 1 August 2024 the exercise physiologist indicated there were no barriers for the claimant returning to work and had been provided with his final pre-injury duties and hours certificate of capacity (page 120).
The claimant’s observations
On 24 June 2025, at the initial settlement approval conference, the claimant indicated he had fully recovered from his injuries.
THE MEDICAL EVIDENCE
The claimant was examined by Dr John Bentivoglio (orthopaedic surgeon), at the request of the insurer, (page 65) who provided a report dated 27 March 2025 (page 64 – 71). The claimant reported that he had fully recovered and no longer had any pain and feels that he has regained full movement in his right shoulder, however he did note some weakness in the right shoulder and was able to sleep on his shoulder (pages 66 - 67).
Dr Bentivoglio noted the claimant demonstrated a full range of movement of both shoulders, there was no muscle wasting present and no crepitation on moving his right shoulder (pages 66 and 67). He noted the claimant was working full time as a service engineer and was “coping” with his work activities (page 66) and was back doing normal activities of daily living (page 69).
Dr Bentivoglio noted the claimant had returned to the gym and was now engaging in pre-injury gym activities (page 67).
Dr Bentivoglio reviewed MRI results dated 22 November 2023 and observed there was no dislocation of his right shoulder and apart from the partial thickness tear of the anterior fibres of his supraspinatus tendon there was no other abnormality (page 67).
Dr Bentivoglio noted that the claimant was not at risk of developing degenerative osteoarthrosis in his right shoulder (page 67), there was no muscle wasting present around his shoulder girdles and no further treatment was indicated (page 67).
Dr Bentivoglio noted the claimant had undertaken appropriate physiotherapy and exercise physiology and did not require any future treatment (page 68).
Dr Bentivoglio opined the claimant had fully recovered, with no ongoing symptoms and no incapacity in respect of his future earning capacity (pages 66 and 69).
Dr Bentivoglio indicated the claimant would have been disabled for two to three months following the accident, however no longer had any incapacity referable to the accident (page 69).
Dr Bentivoglio assessed the claimant had no permanent impairment and had fully recovered from his injuries (page 70) and did not provide an impairment rating as this could not be assessed (page 70).
ECONOMIC LOSS CLAIM
Past loss
At the time of the accident the claimant was employed on a casual basis as a Project Officer with the UNSW and working as an extra for various acting projects.
The claimant was certified with no capacity from 23 September 2023 to 14 November 2023. From 15 November 2023 to 21 December 2023 the claimant was certified fit for suitable duties for six hours per day four days per week, at that time there were no suitable duties available to the claimant. Between 22 December 2023 and 21 July 2024, the claimant was certified fit for eight hours per day for five days per week (pages 180 and 185).
On 22 July 2024 the claimant was certified fit for per injury duties (issued by Dr P Amaranath - pages 4 and 63).
The claimant provided tax returns and notices of assessment for the FYE 2023, which indicated the claimant’s earnings were $43,783 (gross). No pay slips were provided by the claimant (pages 161 – 169).
At the time of the accident the claimant was completing a master’s degree in Bio-Medical Engineering, which was completed in 2023.
The claimant’s pre-accident weekly earnings (PAWE) was initially assessed at $841.98 gross per week, however with indexation it has increased to $903 gross per week.
On 20 May 2025 the claimant obtained full time employment with Novis Health Care as a Customer Service Representative (pages 4, 174 and 188 - 196).
The insurer calculated the claimant’s past economic loss as follows:
(a) 23 September 2023 – 14 November 2023 - no capacity = seven weeks two days;
(b) 15 November 2023 – 21 December 2023 - six hours a day four days a week - no suitable duties = five weeks one day;
(c)
22 December 2023 – 21 July 2024 – eight hours a day five days a week – on
20 May 2024 the claimant started working with Novis healthcare - 21 weeks 2 days, and
(d) Total Weeks = 33 weeks 5 days – allowing 34 weeks - $903 x 34 weeks = $30,702 plus super of 11% = 34,079.22 plus the Fox v Wood component of $5,634.
Wage payments have been made by the insurer in the amount of $23,051.97.
Future loss
The insurer assessed the claimant’s future economic loss by way of a buffer of $30,000, noting that Dr Bentivoglio opined there were no ongoing symptoms or earning incapacity.
THE STATUTORY FRAMEWORK
Clause 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Guidelines (the Guidelines) apply to this application.
I have considered the relevant legislation, guidelines and procedural directions, as identified below, in making my decision.
The MAI Act
Section 3.40(1)(b) of the MAI Act provides;
“3.40 Effect of recovery of damages on statutory benefits
(1) If a person ("the claimant") recovers damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle then (except to the extent that subsection (2) or (3) covers the case)
(a) …
(b) the amount of any statutory benefits already paid under Division 3.3 in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the statutory benefits.”
Section 6.23 of the MAI Act states:
"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."
The Commission Rules 2021
Regulation 95 of the Personal Injury Commission 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)."
The Guidelines (Version 9.3)
Clause 7.37 of 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 satisfies the timing requirements in section 6.23(1) of the Act [since 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."
The Commission’s Procedural Directions
Clause 10 of the Commission's Procedural Direction MA3 provides the Application must include:
(a) a deed of release;
(b) the amount of the proposed damages settlement, including a breakdown of the amount allowed for each head of damage and how each amount allowed has been calculated;
(c) the amount of any reductions in the proposed damages settlement including for contributory negligence or any other reduction, including brief reasons for that reduction and how any reductions have been calculated;
(d) the amount of any advance payments that the insurer has made in advance of the settlement and the dates of those advance payments, including brief reasons explaining why those advanced payments were made, and
(e) the evidence, documents and materials relevant to an assessment of the damages settlement including liability notices.
After reviewing the Application and its supporting documentation including the executed deed of settlement for the settlement offer, I am satisfied it complies with cl 10 of the Commission's Procedural Direction MA3, as the Application includes details:
(a) of the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage;
(b) a copy of a letter to the claimant identifying a breakdown of the initial offer of settlement, which sets out the amounts for each head of damage and the deductions sought to be made for weekly benefits paid to date,. and
(c) an executed settlement deed dated 24 June 2025, which identifies the total amount provided for the settlement and deductions sought to be made from the settlement (pages 1 – 7 of the supplementary bundle).
THE SETTLEMENT APPROVAL CONFERENCE – 24 June 2025
On 24 June 2025 the claimant appeared at the initial settlement approval conference by Teams.
As identified earlier in the introduction the claimant is not represented by an Australian legal practitioner and is aware he can instruct an Australian Legal Practitioner to act, however does not want to do this and has declined to do so.
The claimant confirmed he had fully recovered and acknowledged there were no restrictions to his future earning capacity.
The insurer confirmed it sought to deduct the amount of $23,051.97 from the settlement amount, representing weekly benefits paid to the claimant.
The parties indicated:
(a) there is no money repayable to Centrelink;
(b) as far as they were aware, there is no payback to Medicare, and
(c) no workers compensation payments have been received by the claimant in respect of his injuries (page 57).
During the conference the claimant was questioned about his understanding of the settlement and his rights under the relevant legislation, that it resolves his rights arising from the accident i.e. its finality and whether he was entering the settlement without coercion. I am satisfied by his responses, that he is entering into the settlement of his own free will, with the relevant understanding of its finality. Further, the claimant is aware that the sum of $23,051.97 will be deducted from the settlement monies for past wage payments made by the insurer.
I indicated to the parties that I was satisfied the settlement offer was appropriate and invited the insurer to amend the settlement deed to reflect the fact the claimant did not have legal representation. The insurer has filed an amended settlement deed and submissions, as identified earlier.
SHOULD I APPROVE THE SETTLEMENT?
When considering the provisions of s 6.23 of the MAI Act and cl 7.38 of the Guidelines along with the rules and practice directions of the Commission, in deciding whether to approve or not approve the claimant’s settlement, I need to consider whether:
(a) the amount of the settlement is just, fair and reasonable (appropriateness), and
(b) the claimant understands the settlement and its terms and the effect of the settlement in ending his claim for damages (the claimant’s understanding).
Appropriateness
In RACQ Insurance Limited v Motor Accidents Authority of NSW (No 2) [2014] NSW SC 1126, the Court stated, when considering the issue of an appropriate damages award:
"It is a relationship of the award to the injury and its consequences … which is to be proportionate ... It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases … The principle to be followed … is that the amount of damages must be fair and reasonable compensation for the injuries received and disabilities caused. It is to be proportionate to the situation of the claimant … and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen. The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing …The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring … to allow for differences between the circumstances of other cases and the circumstances of the case in hand." [Planet Fisheries Pty Ltd V La Rosa (1968) 119 CLR 118 per Barwick CJ, Kitto and Menzies JJ at paragraph 11].
The amount of the offer of settlement that I am asked to approve comprises:
· Non-economic loss Nil
· Past economic loss $ 40,000
· Future economic loss $ 30,00
· Total $ 70,000
I am satisfied that the amount of $70,000 less statutory benefits paid of $23,051.97 is a just, fair and reasonable settlement of the claimant's common law claim considering all the legislation, circumstances and materials.
The claimant’s understanding
I am also satisfied the claimant understands this settlement will be a final resolution of his claim and that he can make no further claim for damages for economic or non-economic loss arising out of the accident and wants to accept the offer made by the insurer.
I approve the settlement.
DETERMINATION
The settlement of $70,000 is approved pursuant to sub-s 6.23(2)(b) of the MAI Act.
Pursuant to sub-s 3.40(1)(b) of the MAI Act, the insurer is entitled to deduct the sum of $23,051.97 from the settlement sum by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3.
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