1. The proposed settlement in the sum of $250,000 is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

1. [CXA], the claimant, aged 80 years was involved in a motor accident which occurred on 22 September 2020.
2. The claimant was a front-seat passenger in a vehicle which was impacted head-on, when the insured driver's vehicle lost control and veered onto the incorrect side of the road. The accident involved a fatality, being the rear seat passenger of the vehicle the claimant was travelling in at the time.
3. As a result of the accident, the claimant sustained multiple injuries including: a pulmonary laceration, right pneumothorax - resolved; displaced manubrium fracture; rib fractures 1-9; intraabdominal free fluid, small bowel injury; left comminuted displaced olecranon fracture; left displaced humeral fracture; left proximal phalanx fracture first toe; T12/L1 fracture; grade 1 splenic laceration and atrial flutter.
4. Liability was admitted in the damages claim on 11 October 2022.
5. As the claimant was retired, this is a claim for non-economic loss only.

1. The claimant was conveyed by a helicopter from the accident scene to Liverpool Hospital where she remained as an inpatient for approximately 37 days, before she was later transferred to Waratah Hospital for rehabilitation.
2. Whilst an inpatient at Liverpool Hospital, the claimant underwent surgical repair in the form of internal fixation to the left olecranon fracture, repair of left humeral fracture as well as laparotomy.
3. After a period of rehabilitation in Waratah Hospital, the claimant was discharged home.
4. On 8 January 2022, the claimant underwent surgery in the form of hernia repair at the hand of Dr Wong.
5. The claimant has otherwise remained under the care of her general practitioner (GP) at "Your Doctors at Randwick."

1. Restrictions on the settlement of a claim for damages are found in s 6.23 of the Motor Accident Injuries Act 2017 (MAI Act), which is in the following terms:

"6.23 Restrictions on Settlement of Claim for Damages

(a) The claim is represented in respect of the claim by an Australian legal practitioner; and/or

(b) The proposed settlement is approved by the Commission.

(3) The Commission is not to improve 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."

1. Clause 7.37 of the Motor Accident Guidelines states as follows:

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 and assessments for the claim were the matter 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."

1. Procedural Direction MA3 concerns the requirement for the Commission to approve the settlement of a claim for damages in circumstances where the claimant is not represented by an Australian legal practitioner.

1. The claimant was examined by Prof Cameron on behalf of the insurer on 2 May 2023. In his report dated 8 May 2023, Prof Cameron outlined the circumstances of the accident and the injuries sustained by the claimant. The claimant apparently informed Prof Cameron that she was retired at the time of the accident, in good health and enjoyed playing golf. As a result of the accident, the claimant reported residual arm pain, with some reduced function and abdominal pain. While she thinks often about the accident, she reported she was psychologically okay. All treatment had ceased at the time of Dr Cameron's assessment. The claimant reported she had been able to return to her pastime of playing golf, however, now used a cart. Prof Cameron examined the claimant's injuries and recorded a reduced range of motion at both the claimant's left shoulder and elbow to be a combined 7% whole person impairment (WPI), along with a 2% WPI in respect of resultant scarring, assessing the claimant with a total of 9% WPI.
2. Following receipt of Prof Cameron's report, the insurer became aware that the claimant may have sustained a fracture to her T12/L1 as a result of the accident. This was not an injury commented upon by Prof Cameron in his earlier report.
3. Noting there was no radiology in the Liverpool Hospital clinical notes confirming this fracture, but other mention was made of this injury (for example: the report of Pamela Wu from Liverpool Hospital, as well as a post-accident CT of the claimant's abdomen and pelvis dated 8 January 2021 confirming "anterior wedge fractures of the T12 and L1 vertebral bodies with up to 30% loss of disc height". The insurer determined to investigate the fracture further.
4. Apparently, despite the number of requests, Liverpool Hospital were unable to produce any radiological reports relating to the claimant's lumbar spine.
5. The insurer obtained a supplementary report from Prof Cameron in which report he opined:

"MRI of the lumbar spine on June 2018 states there were degenerative changes present."

1. The post-hospital imaging is reported as showing fractures of T12 and L1. Based on the information available, it is not possible to definitively state when these occurred.
2. On balance, it would likely, in my opinion, that in the event that the matter proceeded to assessment, a Member of the Commission would be likely to determine that the fractures were, on the balance of probability, the result of the accident.
3. In these circumstances, the insurer fairly determined not to have the claimant's WPI assessed by a Medical Assessor appointed by the Personal Injury Commission (Commission) and conceded that the claimant's injuries exceeded 10% WPI.

1. In the conference, the claimant confirmed that she was not currently undergoing any treatment apart from the ingestion of occasional Panadol if her pain levels became unmanageable. She continued to suffer or to experience pain in and around the abdominal area most of the time. Although her left arm was not painful all the time, there was a constant dull type of ache.
2. She told me that she understood that any further treatment and/or care required would continue to be provided by the insurer (on the basis that it was reasonable and necessary, irrespective of the settlement of her damages claim).
3. I found the claimant to be a somewhat stoic lady who was doing the best to get on with the remainder of her life and cope with her injuries and consequent disabilities. I note her life expectancy to be of the order of 10 years in accordance with the life expectancy tables.
4. The claimant also confirmed that she had not been in receipt of Centrelink payments.

1. The insurer noted the claimant's age and whilst acknowledging the severity of the injuries that she had sustained in the motor accident, as well as the ongoing pain, she continues to endure, it was noted that the claimant has been able to return to her love of playing golf, although requiring the use of a golfing cart. I note here that the claimant did tell me that she was not playing golf as frequently as she had been in the past.
2. It was further submitted that whilst the claimant is left with permanent ongoing restriction of movement in her left arm, she continues to have full unrestricted use of her right dominant arm.
3. Furthermore, the claimant is not currently undergoing any treatment apart from the occasional use of Panadol when pain levels become unmanageable. The insurer acknowledged the accident circumstances were very traumatic in nature. The insurer noted that from a psychological perspective, the claimant had not required professional assistance, having the benefit of many close family friends with whom she was able to speak with, if and when required. The insurer noted that this was consistent with the recall of Prof Cameron that "while she thinks often about the accident, she reported she was psychologically okay".
4. Finally, as is the case, the insurer noted that it had offered the claimant an amount of $250,000 for non-economic loss, which the claimant had indicated she was willing to accept.

1. I am satisfied that the proposed settlement is within the range of the potential award for non-economic loss.
2. Accordingly, I am satisfied that 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.
3. I am satisfied that the claimant understands that she was entitled to be represented in respect of the claim by an Australian legal practitioner and does not wish to be represented. I am also satisfied that the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement sum.
4. Having considered all the material available, I am satisfied that the proposed settlement should be approved.