1. The proposed settlement of $465,000 all inclusive is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

1. At approximately 3.20pm on 13 January 2023, the claimant was driving his car when the insured driver failed to give way when making a right turn into a driveway. The accident injured Mr Ellery's right shoulder and the disabilities from that accident continue.
2. The claimant was working as a self-employed roof plumber operating a business trading as Ellery Roofing when the accident happened. The claimant is now aged 58 years old.
3. After the accident the claimant could not work for about nine months and later in 2023 he could only work reduced hours in 2023. Since May 2024 he has been able to work with restrictions on lifting above shoulder height. He sometimes feels depressed depressed about his reduced capacity.
4. Mr Ellery manages by accepting easier jobs and accepting assistance from head contractor's staff to perform tasks he can no longer manage. He has made a strong effort to rehabilitate his work capacity despite the effects of the accident.
5. Mr Ellery applied for common law damages against the insurer ('the claim') on

16 July 2024. 6. The insurer admitted fault on 5 September 2024. The claimant sustained non-threshold injuries. The insurer has accepted ongoing liability for treatment expenses. The insurer Mr Ellery have agreed to settle his claim for damages. 7. The insurer commenced these proceedings in the Personal Injury Commission (Commission) seeking approval of the settlement of the claim. 8. Mr Ellery attended with the insurer's representative at the preliminary conference on

2 February 2026. Mr Ellery still has problems with his right shoulder, but these are reduced and he is able to manage. 9. The parties appeared on video. I could see and hear the parties clearly. 10. The documentary evidence and submissions in support of the approval are contained in the insurer's application. 11. Because the claimant is not currently legally represented, the Commission as to approve the proposed settlement by Commission following s 6.23(2)(b) of the Motor Accident Injuries Act 2017 (MAI Act). 12. Mr Ellery was aware he was entitled to be legally represented. He confirmed that he did not wish to have legal representation. He told me that he had sought advice from his accountant. 13. On 18 December 2025 the parties signed a deed where the insurer agreed to the claimant's offer to settle his claim for damages for $465,000. 14. The offer only included past economic loss at $109,000 and $356,000 for future economic loss. 15. Weekly payments of statutory benefits will be deducted from the offer at $97,939.29. There are no Centrelink benefits to repay. The claimant will receive approximately $367,000. 16. I was satisfied by the claimant's demeanour, his commercial background as a self-employed businessman and the quality of his contributions that he was in a position to competently resolve the claim with the insurer.

1. Section 6.23 of the MAI Act imposes restrictions on the settlement of a claim for damages. That provision is, relevantly, in the following terms:

"6.23 Restrictions on settlement of claim for damages

(a) ...

(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."

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

"7.37 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) (Omitted)

(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

(d) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement."

1. Procedural Direction MA3 deals with the approval of a damages settlement and describes the process.

1. Mr Ellery attended the John Hunter Hospital emergency department with persistent right shoulder pain and limited range of movement. The hospital diagnosed right shoulder pain. He also had some left knee pain. He was taking analgesics and attending physiotherapy. He was referred to shoulder surgeon Dr Ben East, as an MRI had demonstrated a full thickness tear in the right shoulder's supraspinatus muscle. Dr East performed a right rotator cuff surgical repair on 15 June 2023.
2. After that he was unable to work at all as a roof plumber for over nine months.
3. After the operation he attended physiotherapist for a lengthy treatment regime. Regent Street Physiotherapy treated him over many months and gradually increased his work to eight hours, five days per week but he has limited lifting capacity. It was suspected that he had a brachial plexus injury or atrophy following the traumatic tear.
4. He pursued exercise physiology diligently and this improved his muscle mass. He also had psychological care.
5. He reports that he has improved and he has an improved range of movement of the right shoulder but he has pain after activity and he remains limited in his lifting and this worries him about his future in the roofing business. He also developed pain in the left posterior shoulder girdle due to using this to compensate for numbness of the right.
6. He is unable to carry heavy items that he needs in the roofing game and worried about his future in his self-employed business.
7. Based on the most recent Certificate of Capacity dated 27 May 2025, the claimant continues to have restrictions on lifting, carrying, pushing, and pulling that would interfere with his pre-accident work. He gave evidence during the preliminary conference that situation continues, but he has formulated strategies so he could keep working, although this lifting capacity is markedly reduced.
8. He has continued treatment. The accident has been hard on Mr Ellery.
9. Mr Ellery is managing full pre-injury hours. He remains on a chronic disease care plan because he has various chronic disease including alcohol dependence. He is worried he will re-injure himself.
10. Orthopaedic specialist Dr Eddie Price examined the claimant to produce a report dated

5 December 2024. At that time the claimant had been assessed as fit to return to work at eight hours daily for five days a week. 11. At the time of the examination the claimant told the specialist that his symptoms from the right shoulder pain restricting his lifting capacity continued and prevents him from carrying out all the work that he could manage before the accident. 12. The specialist noted the right shoulder had a full range of motion in the right shoulder. He also opined that the claimant would return to full fitness after the accident. The specialist accepted that despite the claimant having premorbid illnesses and orthopaedic problems the accident was the primary cause of his right shoulder condition.

1. The claimant's accountant provided financial records for his business trading as Ellery Roofing.
2. The claimant stated that he was earning $1,250 per week.
3. Vincents Chartered Accountants ('Vincents') assessed the claimant's average pre-accident earnings for the years ended 30 June 2018 to 30 June 2022 to be $79,000 gross per annum, say $1,180 net per week.
4. Vincents assessed a past loss of $43,222, including loss of superannuation, from the date of accident to 30 June 2024.
5. The insurer's representative confirmed that the claimant's entitlement to treatment continues, subject to the insurer accepting that future right shoulder problems are related to the accident.
6. The claimant presented in the conference as someone who appeared reasonably confident that he understood the compensation process, although he struggled with understanding that he was not entitled to damages for non-economic loss, i.e. his pain and suffering and loss of enjoyment of life such as not being able to play golf anymore. I discussed with him my agreement that it is complex for even the lawyers who work in the area to understand. I highlighted that shoulders and lower leg injuries do not rate highly, despite being very disabling for manual workers like himself.
7. He told me that he needs to contract some aspects of his work out to unrestricted workers and looks for work where the head contractor provide scaffolding and other assistance.
8. He says he understands that this is a final amount and that the reasons his body is not able to handle roofing as he could before was due to the accident and non-accident related medical conditions, which had been present for a long time.
9. He thinks the offer is just, fair and reasonable. He understood that he could seek legal advice, but that the insurer had provided detailed information about his entitlements, which he told me he read and understood. He is satisfied that the accountant's report accurately stated his income and what his loss would be.
10. The insurer provided submissions explaining its offer to settle the claimant's past economic loss.
11. The settlement of $109,000 is based on a past buffer of $85,000 noting any loss is likely to be ongoing and the claimant's earnings were difficult to assess with precision due to fluctuations based on the availability of work.
12. In addition, the settlement includes:

(a) past loss of superannuation at a rate of 12%, $10,200, and

(b) refundable tax payments of $13,067.

1. In respect of future economic loss the claimant has another nine years of work before he reaches retirement at age 67.
2. Vincents Forensic Accountants assessed an ongoing future loss based on a weekly rate of $149.86 to $299.73 net per week.
3. The settlement offer assumes that the claimant will continue to operate Ellery Roofing for another two years but at a loss of $350 net per week. Thereafter, the settlement guards against the need to retire early by providing for a total loss of earning capacity for seven years.
4. The insurer applied the conventional 15% discount for vicissitudes despite the potential to argue that a higher discount may be warranted due to the claimant's non accident-related conditions: see Commonwealth of Australia v Elliott [2004] NSWCA 360 per Giles JA (with whom Hodgson and Tobias JJA agreed) at [81]; Tomes v Adams [2003] NSWCA 269.
5. I did not say so in the conference, but considering the short period it could be argued that no future vicissitudes were applicable, because these had already happened. However, it is reasonable to discount for the existing conditions.
6. Looking at the evidence it appears reasonable that if the accident had not occurred he still might have had to retire from work early, and I am satisfied that he would not have been able to work past the statutory retirement age.
7. The amount allowed for future economic loss is calculated on a loss of $350 net per week for two years (multiplier 99.4) less 15% for vicissitudes produces $29,571.50.
8. The claimant is compensated for the remaining five years at $281,467.68 plus superannuation lost at $45,100.68.
9. He confirmed that he understands he will receive approximately $367,000 for future economic loss, which is meant to cover time away from work including surgery if it is related to the accident.
10. He understands that if his condition deteriorates then once this offer is approved it is not possible to seek further compensation for the time away from work or pain and suffering damages.
11. I told him that the offer was within a possible range of damages and that it was an amount that would not be out of place resolving an informal settlement conference with his own legal representation. He said he understood that, and he was satisfied with the offer.

1. I accepted that the final settlement figure was within the range of possible settlement. It was just, because the claimant had been given the opportunity to seek legal advice, he is a commercially minded man and he has agency to choose not to have legal representation, consider the insurer's offer and judge if it will adequately compensate him.
2. It is fair, because it is within the range and he does have agency.
3. It is reasonable because medical advice from Dr Price in his report dated 5 December 2024 is that he has a full range of motion. The claimant also told me that he intends to remain at work for the foreseeable future, using strategies described above will help him manage the future trajectory of his right shoulder condition.
4. The proposed settlement of $465,000 all-inclusive is approved under s 6.23(2)(b) of the MAI Act.