1. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017 in the sum of $100,000.

1. On 6 October 2024, the claimant, Mr Mark Leseberg was riding his bicycle across an intersection when the insured's vehicle failed to give way and collided with Mr Leseberg causing him to hit the roadway.
2. He was transported by ambulance to Lismore Hospital where he was treated conservatively.
3. Mr Leseberg (the deceased) passed away on 24 April 2025 due to unrelated injuries.
4. The executor of his will, Mrs Catherine Leseberg brings a common law claim for damages the deceased sustained in the accident.
5. The insurer, AAI Limited t/as AAMI (insurer) wholly admitted liability
6. Mrs Leseberg and the insurer have reached agreement as to settlement of the claim for damages.
7. Because Mrs Leseberg is not represented by a lawyer, the settlement must be approved in accordance with the Act.
8. The insurer has lodged the application for approval of the settlement, and it was referred to me for consideration.
9. The insurer and Mrs Leseberg have agreed the estate is entitled to damages for non-economic loss only.

1. Approval of the settlement is required under s 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (the Act) and I am not to approve the settlement unless I am satisfied it complies with the requirements of the Act and Motor Accident Guidelines (Guidelines).
2. Clause 7.37 of the Guidelines states I must be satisfied as to the following:

(a) the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the deceased and taking into account any proposed reductions or deductions in the proposed settlement, and

(b) Mrs Leseberg understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.

1. I have considered the documents provided with the insurer's application including, but not limited to, submission, claim forms; medical reports; medical records and communications between Mrs Leseberg and the insurer.

1. The deceased suffered from multiple pre-accident symptoms which according to his medical records include hypertension, chronic bronchitis, insomnia, neuralgia, Stage 3 chronic kidney disease, chronic myelocytic leukaemia, coronary artery disease and GORD.
2. Leading up to the accident, he suffered from severe back pain with weakness in his extremities and bronchiolitis obliterans for which he was under the care of his general practitioner, a specialist neurologist and orthopaedic surgeon.
3. Although the deceased cycled daily, his was unable to walk for more than 100m.
4. The deceased was 74 years old when he passed away due to complications of chronic lung disease and chronic kidney disease.
5. In his claim form, the deceased's injuries are listed as a rotator cuff tear, pelvic fracture, multiple spinal fractures, broken ribs and abrasions to his arms and legs.
6. He was discharged from Lismore Hospital seven days after the accident with a referral to return on 29 October 2024 for review of his fractures.
7. He returned to Lismore Hospital in December 2024 complaining of difficulty mobilising and severe back pain. Dr Chou, a rehabilitation specialist reported the deceased's symptoms had worsened due to the accident and recommended combined caudal epidural and bilateral pulsed radiofrequency denervation of his lower lumber facet joints and cluneal nerves.
8. Dr Chou reported just prior to his death that the deceased was not experiencing improvement with the recommended treatments and referred him for a dynamic XR.
9. The deceased has not worked for many years before the accident.

1. On receipt of the application of the proposed settlement agreement, I reviewed the documentation.
2. The preliminary conference was expedited due to Mrs Leseberg's diagnosed brain tumour.
3. Her daughter and support person Kate, has her Power of Attorney although Mrs Leseberg is independent and manages her finances with minimal assistance from Kate.
4. The insurer's submission includes a helpful summary of the relevant history and proposed settlement.
5. As my role is to be satisfied the proposed settlement agreement is just, fair and reasonable, my focus is on the settlement amount only.
6. I explained to Mrs Leseberg the non-economic loss component in the assessment of damages. She confirmed she understood the meaning of this head of damage.
7. By virtue of s 4.7 of the the Act relevantly:

"No damages for non-economic loss may be awarded in respect of injury unless the degree of impairment of the injured person as a result of injury caused by the motor accident is greater than 10%."

1. Section 4.13(1) and (2) prescribed the maximum amount is indexed each year by the operation of s 4.22 which is currently $691,000.
2. In lay terms, the amount for non-economic loss is up to $691,000 being the maximum sum. The maximum sum is generally reserved for claimants with extreme catastrophic injuries such as brain injuries, spinal paraplegia as examples.
3. Section 1.4 defines non-economic loss to mean:

(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life, and

(d) disfigurement.

1. The question for me becomes what assessment should be made of this deceased's entitlement to general damages having regard to the particular circumstances of this case.
2. Damages are assessed with the application of Common Law Principles up to the maximum amount. This was explained by Heydon JA in Hodgson v Crane (2002) 55NSWLR 199 when he said it is not possible to construe the concept of proportionality out of the language of the Act. When the threshold of 10% WPI was passed, the court was required to assess non-economic loss without statutory restraint except for the maximum amount that may be awarded.
3. According to the authority in Dell v Dalton [1991] NSWCA 76; (1991) 23 NSWLR 528 the court determined that the assessment of non-economic loss involved "...questions of fact and degree, and matters of opinion, impression, speculation and estimations, calling for the exercise of common sense and judgment."
4. Having considered all the material provided with the proposed settlement, I accept the deceased is entitled to damages for non-economic loss only. The amount proposed for this head of damage is $100,000.

1. Mrs Leseberg told me she was happy with the proposed settlement.
2. Mrs Leseberg understood she is entitled to legal representation but did not wish to engage a lawyer for the purpose of the proposed settlement.
3. She further confirmed she understood the estate was only entitled to damages for non-economic loss.
4. I am satisfied Mrs Leseberg is aware that if I approve the proposed settlement, this finalises the estate's entitlement to further common law damages under the Act.
5. I approve the proposed settlement offer in the sum of $100,000 having considered the deceased's injuries, ongoing pain and suffering after the accident.
6. I am satisfied that the proposed settlement is just, fair, and reasonable. The settlement is within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the deceased.
7. I am satisfied Mrs Leseberg understands the binding nature of the settlement and that she is precluded from making a further claim for damages arising from the accident. I am satisfied Mrs Leseberg is willing to accept the proposed settlement.
8. Accordingly, pursuant to s 6.23(2) and (3) of the Act, I approve the settlement of

Mrs Leseberg's claim for damages in the sum of $100,000.