1. The proposed settlement of $375,000 is approved under sub-s 6.23(2)(b) of the Motor Accident Injuries Act 2017.

1. The claimant was involved in a head on collision on 4 June 2023 and is now

70 years of age. 2. The claimant suffered several physical injuries as a result of the accident, namely:

(a) fractured sternum;

(b) laceration right elbow;

(c) fracture right ulna;

(d) thoracic fracture transverse processes of T12 to L2;

(e) cervical spine fracture;

(f) laceration left iliac crest;

(g) soft tissue right knee injury;

(h) soft tissue facial injury;

(i) deep vein thrombosis - right leg;

(j) traumatic lumbar hernia, and

(k) abrasions (pp 15 and 50).

1. The claimant also suffered a psychiatric injury, as identified by Dr Peter Whetton (psychiatrist) in his report to the insurer dated 26 March 2025, of a prolonged grief reaction with symptoms of major depression and post-traumatic stress disorder (pp 28 and 29).
2. The claimant has made a claim for common law damages (p 6).
3. The insurer has accepted liability for the claim (p 9).
4. The insurer conceded the claimant's injuries were greater than 10% whole person impairment (WPI) (p 7).

1. The head on collision occurred on Heathcote Road, Liverpool, NSW (the accident). The claimant was a front seat passenger wearing a seatbelt in a Hyundai SUV being driven by her husband. The insured driver was travelling towards the claimant's vehicle when it veered onto the wrong side of the road and collided with the claimant's vehicle. The claimant's husband died in the collision.
2. The claimant was transported via ambulance to the Liverpool Hospital (the hospital), where she remained as an in-patient for five weeks.
3. On 10 July 2023 the claimant was discharged from the hospital and transferred to Campbelltown Private Hospital where she remained an inpatient until 23 August 2023.
4. After her discharge from Campbelltown Private Hospital the claimant was reviewed by her Local Medical Officer and continued treatment including physiotherapy and hydrotherapy and was prescribed medications of Palexia and Lyrica.
5. The claimant benefited from the ongoing hydrotherapy and physiotherapy.

1. The claimant is currently 70 years of age.
2. At the time of the accident the claimant was not working and was in receipt of the invalid pension (pp 4 and 35).
3. Prior to the accident the claimant suffered from significant pre-existing medical conditions, injuries and disability, particularly a traumatic brain injury (p 14).
4. The claimant's traumatic brain injury was secondary to viral encephalitis diagnosed when she was a teenager (pp 26 and 58). This caused several deficits including decreased balance and co-ordination and changes to speech. She required neurosurgery and the insertion of a shunt. The claimant was predisposed to falls and required significant assistance on a daily basis from her late husband and the NDIS prior to the accident.

1. The insurer obtained an activity of daily living (ADL) assessment report from Greenlight who provided a report dated 5 September 2023. Greenlight assessed the claimant's functional capacity to perform activities of ADL.
2. The report noted the claimant had significant pre-existing medical conditions that had impacted on the claimant's ADL prior to the accident, as follows:

"• Traumatic Brain Injury (TBI) of the cerebellum secondary to viral encephalitis diagnosed as a teenager. Resulting in decreased balance/coordination, left hemiparesis and changes to speech.

• Fall resulting left tibial plateau fracture (2020)

At the time of the accident, Ms Miller was supported by the NDIS (primary disability TBI) and received a high level of informal support from her husband to complete her day to day activities.

An ADL assessment was completed to assist in determining the functional implications of the MVA-related physical injuries versus ADL support required secondary to pre-existing disability."

1. The report noted that prior to the accident the claimant reported the following capacity:

(a) she mobilised with nil aid indoors. She reported steadying herself on the furniture or walls and occasionally using a 4WW;

(b) she relied on her husband to provide handheld assistance to mobilise outdoors/in the community. For longer distances her husband assisted her in a wheelchair;

(c) she received standby assistance with an electric bed;

(d) she required assistance when her back was bad. She reported her back pain was unpredictable, when this occurred her husband provided physical assistance;

(e) she had an electric lift recliner. The NDIS support coordinator reported this was purchased due to her pre-injury back issue, where her back would "seize up" when attempting to transfer;

(f) she was independent with toileting with the use of grab rails;

(g) she was independent with showering using grab rails. Her late husband was "usually around ...". She denied needing assistance pre-injury. She was able to set herself up and complete all showering tasks;

(h) she was assisted by the NDIS once a week for two hours for heavy cleaning and her husband completed all other day to day cleaning/domestic duties including general cleaning, cleaning up spills, taking out the rubbish bins, picking up items from the floor, wiping benches, vacuuming, mopping, changing bed linen;

(i) she required assistance from her husband for all laundry tasks;

(j) she was independent with simple meal preparation, e.g. making a cup of tea, using the microwave, making a sandwich. Her husband completed the complex meal preparation with her assisting as able;

(k) she required assistance for all shopping tasks, and all lawn/garden activities and transport, and

(l) she was assisted by her husband for all personal administration (pp 57 - 78).

"NDIS to provide all non-MVA related transport, community access, domestic, laundry, meal preparation, lawn mowing, overnight cares from 11 September 2023."

1. The claimant was informed by the insurer her accident-related permanent impairment was greater than 10% and that she was entitled to compensation for non-economic loss (NEL) (p 7ff).
2. The claimant is not entitled to damages for past economic loss (PEL) and future economic loss (FEL).
3. The claimant has not received Centrelink benefits for this claim (p 543).
4. The claimant has received domestic assistance from the NDIS, both prior to and after the accident.

1. The claimant sustained significant injuries in the accident as identified in paragraphs 2 and 3 above.

1. Following the accident the claimant was transported by ambulance to the hospital.

1. The claimant was admitted under the care of Associate Professor Andrew Gilmore (consultant surgeon). The claimant was also reviewed by various specialist teams, including orthopaedics and allied health (physiotherapy, social work and occupational therapy) (p 50).
2. On 5 June 2023 the claimant was operated on by Dr Chandra Dave (consultant surgeon - knee, shoulder and trauma) who performed the following procedures:

(a) left iliac wound debridement and washout;

(b) right elbow wound debridement, and

(c) right ulna open reduction and internal fixation (p 53).

1. On 9 June 2023 the claimant underwent surgical repairs of the traumatic lumbar hernia and the soft tissue facial laceration (p 52).
2. The claimant was discharged from the hospital on 10 July 2023 and was requested to follow up with her general practitioner (GP).

1. The claimant was admitted to the Campbelltown Private Hospital on 10 July 2023 for rehabilitation and she remained an inpatient until 23 August 2023. After her discharge the claimant was reviewed by her local medical officer (p 50).
2. There were no records available that identified the extent and nature of the rehabilitation treatment provided to the claimant.

1. The claimant first saw her GP, following the accident, on 14 September 2023 (p 44).
2. The claimant's GP has opined that the claimant has mental capacity to enter the settlement under review and has the relevant capacity to manage her financial affairs without assistance (p 2 (ALAD - 22 October 2025)).

Associate Professor Andrew Gilmore (consultant surgeon)

1. On 12 September 2023 Professor Gilmore provided a report and indicated:

"I saw Mrs Miller three months after my contribution to her surgical care for her traumatic flank hernia in which she tore the abdominal wall musculature off the iliac crest. This was repaired with a combination of a deep bio a mesh and bony fixation of the abdominal wall musculature to the iliac crest. She subsequently spent around six weeks in rehabilitation and is now at home. She walks with a forearm support frame around the home. She came with a supporter and a wheelchair.

On examination, the hernia repair looks to be very successful. She has some numbness in the distribution of the lateral femoral cutaneous nerve of the thigh, as expected. She was concerned about some lumps in her abdominal wall. This is clearly palpable areas of fat necrosis/oil cysts as a result of the seatbelt injury to the pannus. I have reassured her accordingly.

I think she is doing very well and I would like to check her hernia repair again in four months." (p 300)

1. On 30 January 2024 Professor Gilmore provided a report to the claimant's GP and indicated:

"I saw Mrs Miller seven months after I repaired her abdominal wall disruption and fractured pelvis the result of the seatbelt injury in a car accident where she lost her husband. She came with a carer and remains unsteady on her feet. However, she is very positive and more comfortable. She is still on a little Lyrica for her nerve pain. She has numbness in the distribution of the lateral femoral cutaneous nerve of the thigh. This is likely to be permanent.

On examination, she was able to climb onto the table. Her abdominal wall is solid and the trauma related scar, well below the iliac crest, has healed very well. I am delighted that there is no sign of recurrent herniation or of an inguinal hernia. The last time I saw her she was concerned about some small subcutaneous lumps. The last of these is a 5 mm oil cyst or piece of fat necrosis about which she has been reassured.

I am very pleased with these long-term results. I am happy to see her in the future when and if required." (p 303)

1. On 8 April 2025 Professor Gilmore provided a report to the claimant's GP and indicated:

"I saw Mrs Miller again after a contemporary CT. As I surmised, clinically, she does not have an incisional hernia to explain the bulge in her left lower abdomen. Rather the muscles are denervated leaving her with bulging and slow stretch of the external oblique aponeurosis and anterior rectus sheath. From my perspective I am very pleased not to see a hernia over the iliac crest, from which her muscles were torn during the accident. That repair is solid.

The bulge may increase over time but there is little practical benefit to attempting to plicate this type of tissue. I am not arranging to see her again ..." (p 299)

1. Dr Dave provided several reports to the claimant's GP, on 27 March 2024 he noted:

"I have seen Rekha Miller with Ms Anhtou rehab consultant. From my perspective, her elbow on the right side has consolidated fully as her pelvic fracture on the left side. I understand she has seen Dr Gilmore who is also happy with the soft tissues. The only issue is the right knee which has some pain, but in all fairness it has improved since her last visit in January. At this stage, we will persist with physiotherapy and strengthening. If she has any residual pain in the course of the next few months, I am happy to review her.

I have advised that her hydrotherapy and strengthening continue." (p 89)

1. The claimant was assessed by Dr Peter Whetton (psychiatrist) on 26 March 2025, he provided a report dated 26 March 2025 and assessed the claimant as having a 17% WPI (pp 22 - 33).
2. The claimant reported to Dr Whetton that at home, she was able to mobilise with a walker, however with any further distances she required a wheelchair (noting that this was the claimant's situation pre-accident). At home, she said she was able to manage her personal care, although she required assistance to avoid any unsteadiness or falls in the shower (noting that the claimant was independent in her showering pre-accident). She required domestic help with cooking and household management and being taken to appointments (noting that the claimant required assistance with all these tasks pre-accident). She added that she is "considered a high-risk fall" (sic) and not steady on her feet (noting that this was the claimant's pre accident situation). Her sleep was variable and at times when she cannot sleep, she is awake with worries going over her grief and loss for the death of her husband and at times has nightmares about the accident. She will no longer go anywhere near where the accident occurred and if she had a choice would not travel in cars at all.
3. On 5 June 2025 Dr Whetton provided a supplementary report to the insurer and noted:

"... Ms Miller is reliant upon the NDIS for all of her household requirements, managing personal and family finances. For practical purposes, she is totally disabled in all of these functions, which she previously completed and it is not possible to see that she would be able to resume these functions within the foreseeable future." (p 35)

1. I note the observation about the claimant's capacity to manage her personal and family finances is at odds with the report from the claimant's treating GP, identified in paragraph 33 above, which indicates the claimant has the capacity to manage her financial affairs without assistance.

1. The claimant was also assessed by Dr Raymond Wallce (orthopaedic surgeon) and provided a report dated 2 December 2024 to the insurer, who assessed the claimant at 7% WPI.
2. Dr Wallace noted the claimant's complaints as follows:

"Her right elbow symptoms have resolved. At her left hip she notes intermittent aching pain at her left groin radiating to the anterior aspect of the left thigh. The pain is worse with prolonged walking. It is relieved by a hot shower, medication or lying down. She notes some paraesthesia and numbness at the left leg. She complains of weakness at the left leg but no stiffness at the left hip.

At the right knee she notes intermittent aching pain at the medial aspect of the joint. The pain is worse with walking. It is relieved by physiotherapy. She notes no swelling or locking at the joint. She complains of intermittent giving way but no stiffness."

1. The claimant reported that at home, she had no difficulty in dressing herself. Her sleep was not disturbed by pain. She was able to do light housework tasks such as putting clothes in the washing machine. At leisure, she noted no change to her activity. She is unable to undertake gardening (noting this was her pre-accident condition). She stated that since the motor vehicle accident she had been using a wheelchair to mobilize (noting that the claimant used a wheelchair for longer distances, pre-accident) (pp 12ff).

1. At the time of the accident the claimant was in receipt of a pension and is not entitled to damages for PEL.

1. The insurer has not allowed a component for FEL.

1. The insurer has offered various sums for NEL to the claimant as follows:

(a) on 25 July 2025 - $300,000 (the first settlement offer) (pp 317 and 320);

(b) on 4 September 2025 - $350,000 (the revised offer of settlement) (p 5 (ALAD - 3 October 2025)), and

(c) on 26 October 2025 - $375,000 (increasing the NEL component from $350,000to $375,000) - (the final settlement offer) (p 10 (ALAD)).

1. The revised offer of settlement was made following a preliminary conference with the parties on 1 September 2025.
2. The final settlement offer was made following a further preliminary conference on

8 October 2025, when I made several observations about the adequacy of the revised offer of settlement (see paragraphs 61 and 62 below). 3. I say more about the final settlement offer below.

1. Clause 14D(3)(b) of the Personal Injury Commission Regulation 2020 provides that the Motor Accident Injuries Act 2017 (MAI Act) and the Motor Accident Guidelines (the Guidelines) apply to this application.
2. I have considered the relevant legislation, guidelines and procedural directions, as identified below, in making my decision.

"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."

"6.23 Restrictions on settlement of claim for damages

(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 Personal Injury Commission Rules 2021

1. Regulation 95 of the Personal Injury Commission Rules provides:

(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.

"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."

1. 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.

1. After reviewing the Application and its supporting documentation including the executed amended deed for the final settlement offer (p 2 (ALAD - 27 October 2025)), 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, and

(b) an executed settlement deed dated 26 October 2025, which identifies the total amount provided for the settlement and deductions sought to be made from the settlement**.**

1. The matter was listed for an MS Teams settlement approval conference on

1 September 2025. The claimant's daughter, Asha Miller, was in attendance to help and assist the claimant during the conference. 2. The claimant provided responses to several questions posed by me as follows:

(a) she received no assistance from the NDIS in relation the management of her financial affairs, and

(b) she identified she manages her financial affairs without assistance (despite the commentary of Dr Whetton that the claimant was relying on the NDIS for the management of her financial affairs), since the passing of her husband.

1. After the matters canvassed above in paragraph 60 with the claimant, I expressed reservations about the first settlement offer (totalling $300,000) and invited the insurer to reconsider that offer.
2. I expressed the view that a NEL component of above $350,000 would be an appropriate amount.
3. In the circumstances, I requested the insurer reconsider its settlement offer.
4. The matter was stood over to permit the parties an opportunity to further consider their settlement position and if appropriate file an updated settlement deed and amended submissions.

1. The matter was relisted for a further MS Teams conference on 7 October 2025, again the claimant was assisted by her daughter Ms Miller.
2. The insurer made the revised settlement offer of $350,000 and filed amended submissions (p 3 (ALAD - 3 October 2025)).
3. I indicated and recorded that:

"I considered a suitable settlement would be in excess of $350,000.00. The Insurer requested further guidance be provided in today's conference report and I consider a settlement in the amount of $375,000.00 would represent a fair and reasonable settlement."

1. The matter was again stood over to permit the parties an opportunity to further consider their settlement position in respect of the NEL component for the settlement and if appropriate file an updated settlement deed and amended submissions.

1. Following the 7 October 2025 telephone conference the insurer made the final settlement offer of $375,000.
2. On 31 October 2025 there was a further telephone conference, again the claimant was assisted by her daughter Ms Miller and also a Mr Ian Hudson (a carer).
3. At this conference I canvassed the final offer of settlement of $375,000 with the claimant and noted the following:

(a) the claimant acknowledged she was aware she could retain a legal practitioner to assist her with his claim but has declined to do so;

(b) the claimant is aware that the settlement is a final resolution of her claim for damages arising from the accident with the insurer, and

(c) the claimant was not being coerced into the settlement.

1. I am satisfied following receipt of Dr Austria's report dated 14 October 2025 that the claimant has the necessary mental capacity to enter the settlement under review and has the relevant capacity to manage her financial affairs without assistance (p 1 (ALAD - 22 October 2025)).
2. The insurer indicated there is no deduction to be made to Centrelink.
3. There was some discussion about repayments to the NDIS, the claimant's daughter indicated this had been resolved and no repayments were required.
4. I indicated to the parties that I was satisfied that the settlement offer was appropriate and would approve the settlement.

1. 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 her claim for damages (the claimant's understanding).

1. 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]."

1. The amount of the offer of settlement that I am asked to approve comprises a sum of $375,000 for NEL.
2. I am satisfied that the amount of $375,000 is a just, fair and reasonable settlement of the claimant's common law claim considering all the legislation, circumstances and materials, particularly the matters I conveyed to the insurer on 7 October 2025 about the revised offer of settlement, which were subsequently reflected in the final settlement offer.

1. I am satisfied the claimant understands this settlement will be a final resolution of her claim and that she can make no further claim for damages for economic or non-economic loss arising out of the accident and that she wants to accept the final settlement offer made by the insurer without coercion or duress.
2. The claimant is also aware and understands that the insurer will not be making any deductions from the settlement amount.
3. I approve the settlement.

1. The settlement of $375,000 is approved pursuant to sub-s 6.23(2)(b) of the MAI Act.