CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Allianz Australia Insurance Limited v Coleman [2024] NSWPIC 373	
		
Claimant:	Madeline Coleman	
		
insurer:	Allianz Australia Insurance Limited	
		
Member:	Bridie Nolan	
		
DATE OF DECISION:	10 July 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; approval of settlement agreement for self-represented litigant under section 6.23; consideration of settlement agreement; Held – satisfied that the settlement agreement should be given effect to because it is just, fair, and reasonable and within the likely assessment of damages were it to be assessed by the Commission.
	
determinations made:	CERTIFICATE
Issued under s 7.36(1) of the Motor Accident Injuries Act 2017
Assessment of Claim for Damages made in accordance with s 7.36 of the Act 
1.	The claimant and the insurer have agreed to settle the damages claim in the amount of $127,078.25.
2.	The proposed settlement is approved for the purposes of s 6.23 of the Motor Accident Injuries Act 2017. 

STATEMENT OF REASONS
INTRODUCTION
1.	This is an application for approval of the settlement agreement as required under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (the Act). 
2.	Madeline Coleman (the claimant) is a 30-year-old female and Registered Nurse who alleges sustaining personal injury as the result of a motor accident which occurred on 3 February 2022, for which she lodged a claim for both statutory benefits and common law damages under the Act.
3.	The claimant is not legally represented in respect of her claims.
4.	On 18 March 2024, the claimant agreed to resolve her common law damages claim for the sum of $127,078.25 inclusive of costs, less statutory benefits already paid, being $27,078.25 (the settlement agreement). The Claimant has advised the insurer that she spoke with Centrelink and was advised that there were to be no deductions.
5.	The settlement agreement proposed for approval is broken down as follows:
Head of Damage 	Amount	
Non-Economic Loss 	Nil	
Past Economic Loss inclusive of
superannuation
(subject to deduction of $27,078.25)
(inclusive of Fox v Wood allowance of $7,222.00)	$43,078.25
	
Future Economic Loss inclusive of
superannuation	$84,000
	
Total 	$127,078.25	
6.	I am satisfied that the settlement agreement should be given effect to because it is just, fair, and reasonable and within the likely assessment of damages were it to be assessed by the Personal Injury Commission (Commission). The following are my brief reasons for my decision. 

BACKGROUND
7.	On 3 February 2022, the claimant was involved in a motor vehicle collision when the insured driver, exiting his driveway with his visibility obstructed by parked cars, collided with the claimant who was travelling on the road. The insurer accepted liability for statutory benefits post-26 weeks in a liability notice dated 16 May 2022. As the claimant did not receive weekly benefits beyond 26-weeks, no discount for contributory negligence has been applied to weekly benefits.
8.	The insurer accepted liability for the damages claim in a liability notice dated 16 March 2023, again assessing the claimant’s contributory negligence at 20%.
9.	On 21 March 2023, the claimant lodged a miscellaneous claims assessment application, together with a claims assessment application, disputing the contributory negligence decision.
10.	At the teleconference on 8 May 2023 before me, the claimant withdrew her dispute to the statutory benefits decision, deferring the assessment of contributory negligence to her claim for common law damages. 
11.	Following the accident the claimant presented to hospital with deformity to the right arm, pain to the left shoulder, and pain on the left side of the chest. An X-ray of the right wrist confirmed fractures involving the metaphysis of the distal radius and ulna with significant radial displacement. A CT scan of the claimant’s right wrist indicated the following:
(a)	intra-articular, minimally displaced fractures of the distal radius, and minimally displaced comminuted fracture of the distal ulna;
(b)	small undisplaced fractures of the capitate and triquetral, and
(c)	evidence of longstanding background intercarpal arthropathy – to be correlated with any prior known medical history.
12.	The claimant underwent an Open Reduction Internal Fixation for fractures to the distal radius and the distal ulna, with exploration of the ulna nerve, performed by Dr Wayne Viglione. A post-operative CT scan show that the claimant had a minimally displaced fracture of the distal radius and distal ulnar, and small displaced fractures of the capitate and triquetral. On 7 February 2022, the claimant underwent a closure and washout of right wrist wounds.
13.	The claimant was discharged from hospital on 8 February 2022. She followed up with Dr Wayne Viglione on 17 February 2022 who noted that she had fractured her right distal radius and ulna in the subject accident, on a background of juvenile rheumatoid arthritis. An ulna nerve disturbance was also reported by the claimant before the surgery and found in surgery to be “a little compressed”. It was opined that there was a “very satisfactory” reduction of the distal radius fracture, but the ulna remains displaced without want of intervention.
14.	The claimant was further referred to Dr Jai Sungaran (orthopaedic surgeon) and was seen on 28 February 2022. Dr Sungaran recommended that the claimant be managed non-surgically and kept in a cast to allow her ulna to start to unite.
15.	An Activities of Daily Living and Return to Work assessment conducted on 1 March 2022, recorded the claimant’s physical symptoms of intermittent wrist pain increased with movement, occasional rib pain, fatigue, no movement of the wrist, pins and needs in the 5th finger and restriction of movement in the 4th digit. Psychologically, the claimant reported low mood and anxiety and that she was seeing a psychologist for issues unrelated to the subject accident.
16.	A further report of Dr Sungaran dated 21 March 2022 noted that the claimant’s ulna and radius were in good positions with no further change and that the claimant was to remain in a cast for a few more weeks until bony union.
17.	On 28 April 2022, the claimant attended her general practitioner (GP), Dr Ranjan at Miranda Family Practice, where she reported that she was out of the brace, had pain and mobility improvement, but that lifting was still below 2kg, and her physiotherapist had requested nil work capacity for two weeks followed by a return to work in the following two to three weeks.
18.	In the final available physiotherapy session consultation record on 10 June 2023, it was reported that the claimant has returned to work with no impact in her right wrist pain but with stiffness in the morning (which was stated as likely also attributable to the claimant’s juvenile rheumatoid arthritis). There is no regular ongoing treatment with respect to the claimant’s right upper extremity injury sustained in the subject accident. The insurer does not dispute that the subject accident was the cause of the injuries to the right wrist but contends that the claimant’s juvenile rheumatoid arthritis would have remained symptomatic despite subject accident. It relies on the fact that open synovectomy surgery performed by Dr Sungaran to the claimant’s left wrist in October 2023 unrelated to the subject accident.
19.	I directed the insurer to arrange a joint medico-legal examination with Dr Yiu-Key Ho who jointly assessed the claimant’s injuries in an independent examination on 16 November 2023, issuing a report dated 27 November 2023. 
20.	Dr Ho opined that the claimant sustained distal radial and ulna fractures. The radial was fixed anatomically. The ulna was not fixed as the nerve had been explored, and it was treated conservatively with some degree of malunion, and the claimant is suffering residual stiffness and has ulnar wrist pain. The subject accident caused the right wrist fractures. He opined that there is a possibility that juvenile rheumatoid arthritis was a causative factor, but according to the claimant, the joints that were affected by this was both knees and the left wrist. Dr Ho was not satisfied that the right wrist is related to the pre-existing problem. The claimant would have experienced an incapacity for work of 12-months. There is minimal functional incapacity to the right wrist, which is more of a problem due to the left wrist. It is causing some problems in the right wrist with residual stiffness and ulnar-sided pain. It is not expected that the injury from the right wrist will deteriorate. The claimant has reached maximum medical improvement and sustained 3% upper extremity impairment to the right elbow, 10% upper extremity impairment to the right wrist, with a combined whole person impairment of 8%.
REASONS
21.	Under the Motor Accident Guidelines as enabled by s 6.23(3) of the Act, the Commission must be satisfied of the following prior to a settlement being approved:
(a)	the proposed settlement satisfies the timing requirements in s 6.23(1) of the Act (which is now obsolete following repeal of s 6.23(1));
(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.
22.	 The claimant has been made aware that she can seek legal advice but has chosen not to, and that she understands the binding nature of the settlement agreement.
23.	No deduction has been made for contributory negligence in the settlement agreement nor has the claimant received any advance payments from the insurer.
Non-economic loss
24.	Dr Ho’s report being a joint report agreed between the parties is binding on them. On the basis of Dr Ho’s findings the claimant is not entitled to non-economic loss as she does not meet the statutory threshold. 
Past economic loss
25.	At the time of the subject accident, the claimant was a registered nurse working for Ramsay Healthcare at Wollongong Private Hospital. The claimant’s pre-accident weekly earnings (PAWE) for the 12-month period prior to the accident were calculated by the insurer at $1,606.06 based on the 52 weeks prior to the subject accident. This is higher than the fortnightly amount of $2,200 as claimed in the claimant’s particulars. 
26.	The Certificates of Capacity provide the following certified occupational capacities after the accident:
(a)	3 February 2022 to 12 May 2022 (14 weeks): no capacity;
(b)	12 May 2022 to 25 May 2022 (2 weeks): pre-injury hours restricted to 10kg lifting, pushing/pulling with care, and
(c)	26 May 2022 to present: pre-injury duties, nil restrictions.
27.	Payslips indicate that the claimant returned to work in the fortnight from 16 June 2022 – 29 June 2022. The insurer’s list of payments demonstrates full-time equivalent weekly benefits until 9 June 2022 until a full cessation of payments on 26 June 2022. Accordingly, the claimant was incapacitated from her employment for a period of 16-weeks followed by a brief graded return to full-time hours. This accords with the claimant’s particulars that she incurred a loss of 8 fortnightly pay periods.
28.	Payslips demonstrate that between 30 June 2023 to 27 July 2022, the claimant worked 73.15 hours over two fortnights. The claimant’s hours thereafter fluctuated, but the claimant demonstrated the capacity to work up to 80 hours per fortnight. 
29.	In or around late November 2022, the Claimant ceased working for Ramsay Healthcare and commenced employment with Upper GI Services at the Gynaecology Centre in Hurstville. The Claimant has stated in her particulars that this was due to the injury to her wrist and elbow injury which caused her to change to a job less physically demanding and the inability perform job requirements. It is further stated that she commenced part-time work and reduced her hours from 80 to 60 (understood to be fortnightly).
30.	The claimant recommenced her role as a casual Registered Nurse for NSW Health and started receiving income from this role in around January 2023. Payslips indicate that the claimant’s income was somewhat affected after the accident compared to her PAWE, until late January 2023. Following that time, it is submitted that the claimant’s income had, on average, returned to her PAWE level, save for apparent time off work for the unrelated surgery to her left wrist in October – November 2023.
31.	The initial loss of 16 weeks is equivalent to $28,523.63 (being 16 weeks x 1,606.06 x 1.11 superannuation). For an intermittent and partial reduction until January 2023, the settlement agreement allows for an additional small buffer in addition to the time off work (with the inclusion of Fox v Wood).
32.	I am satisfied therefore, that past-economic loss of $43,078.25 (inclusive superannuation, Fox v Wood, and subject to a deduction for weekly benefits) properly accounts for the loss sustained by the claimant to date and is well within the likely range of any assessment by the Commission.
Future economic loss
33.	The available evidence indicates that while the claimant has experienced a change in employers since the subject accident, she has been cleared for return to duties as a registered nurse and there has otherwise been an apparent return to pre-accident hours and the capacity to earn, or exceed, pre-accident income. In her requested note to me on the settlement agreement she said that she was hesitant to accept that her income has returned to her PAWE level and would exceed this pre-accident earning capacity. She insists that her capacity has been negatively impacted and will continue to be so as her work opportunities as a nurse have decreased which she finds devastating. 
34.	The settlement agreement allows for a buffer figure for future loss of earning capacity to account for intermittent absences from work and possible periods of respite or treatment based on the reasoning in Dunbar v Brown [2004] NSWCA 103 at [30]-[31]. I also am satisfied that the buffer for future-economic loss in the amount of $84,000 properly accounts for the claimant’s apprehended loss of earning potential and is well within the likely range of a proper assessment by the Commission.
Conclusion
35.	I am satisfied that the proposed settlement agreement ought to be approved under s 6.23(2)(b) of the Act because it is just, fair, reasonable, and within the range of likely damages assessment were it to be assessed by the Commission.