MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; whole person impairment (WPI) assessment for psychological injuries; compensation to relatives claim where injuries of claimant below threshold against background of complex pre-existing conditions and other stressors; Held - settlement approved under section 6.23(2)(b); settlement complied with clause 7.392 to clause 7.411 of the Motor Accident Injuries Guidelines; past and future economic losses awarded; insurer upheld settlement amount upon Commission Medical Assessor determining no accident related injuries; contributory negligence of 15% on the part of deceased walking on roadway into path of traffic; reduction of damages due to contributory negligence.

Issued under s 6.23 of the Motor Accident Injuries Act 2017

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.
2. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.

1. [CLW] (the claimant) is the daughter of Kevin Brian Johnson who was a pedestrian killed in a motor vehicle accident on 10 July 2021. The claimant sustained psychological injuries upon learning of the death of her father and brought a common law claim for damages on 26 June 2023.
2. The insurer accepted liability on 11 October 2023 for the common law claim.
3. The insurer in the statutory claim initially considered the deceased contributed to the injuries/accident at 30% in its Liability Notice - Benefits after 26 weeks dated 21 February 2022. Upon review of liability notice at the request of the claimant dated 28 February 2022, the insurer altered its finding to 15% contributory negligence. This was conveyed to the claimant under cover of letter dated 30 March 2022.
4. The insurer has applied for approval of the terms of settlement. As the claimant has not sought legal representation the application comes before me for approval.
5. The insurer relied upon an assessment of Dr Brendan Smith psychiatrist, who opined the claimant sustained 10% whole person impairment against a complex history of pre-existing stressors. His assessment was 15% with a deduction of 5% for pre-existing conditions. Relying on this assessment, the insurer submitted that the claimant was not entitled to non-economic loss.
6. As the determination of Dr Smith was so close to the threshold, in the first preliminary conference held on 9 October 2024, I requested the matter be subject of a medical assessment by an Assessor appointed by the Personal Injury Commission on an urgent basis. This took place on 26 November 2024 and the determination of Assessor Singh issued the very next day with a determination that there was no psychological injury attributable to the motor accident and no assessment was made in relation to whole person impairment.
7. The insurer sought instructions and confirmed that it would honour the terms of settlement and not rely on the findings of Assessor Singh. I applaud the conduct of the insurer in this regard as I held some concerns with the assessment made and likely review of the application necessary.
8. A further preliminary conference was held on 11 December 2024 with the claimant and the insurer to finalise the additional information relating to the insurer's assessment of 15% contributory negligence on the part of the deceased.
9. The settlement reached related to past and future economic loss only. The basis of the settlement reached was $278,978 less $41,846.70 for contributory negligence, amounting to $237,131.30 and rounded up to $250,000. It comprised of the following heads of damage:

(a) Past economic loss $100,000

(b) Past superannuation $11,000

(c) Fox v Wood $728

(d) Future economic loss $150,000

(e) Future superannuation $17,250

1. The settlement was subject to an allegation of contributory negligence on the part of the claimant amounting to 15% on the basis he was not looking out for his own safety in the location or position he was walking on the roadway and that he was wearing all black coloured clothes when it was dark. The accident occurring at 7:30am in the winter month of July.
2. The application before me is for the approval of the settlement.

1. Sections 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Personal Injury Commission Guidelines.
2. Clause 7.38 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 assessments for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and

(b) taking into account any proposed reductions or deductions in the proposed settlement, and

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

1. A preliminary video-conference was held with the claimant and insurer to ascertain the claimant's understanding of the nature and effect of the settlement and to ascertain the status of the claimant's ongoing injuries and disabilities as they impact upon the claimant.
2. During the conference I asked the claimant a number of questions to ascertain the level of ongoing symptoms and treatment currently being received.
3. The claimant advised me that she continues to suffer significant psychological symptoms from the death of her father.
4. I explained to the claimant that my role in determining whether the settlement should be approved looked into whether the sum agreed was just, fair and within the range of damages likely to be assessed by a Member of the Personal Injury Commission (PIC) had the matter been heard before a Member and that this was a safeguard for unrepresented injured persons.
5. The claimant confirmed during this preliminary conference that she did not wish to obtain legal assistance. She reiterated she had been suffering for three years and wanted the matter dealt with so that she could get on with her life.
6. I explained that the assessment of Dr Smith qualified by the insurer, was so close to the statutory threshold that it was necessary to ensure that the assessment of permanent impairment was accurate. In the event a determination exceeded 10% then there was an entitlement to non-economic loss.
7. The claimant reluctantly agreed to an assessment if it could be conducted on an urgent basis. The insurer lodged the application and an assessment was scheduled as soon as possible.
8. Assessor Singh assessed the claimant on 26 November 2024 via video-link and his determination issued the next day.

Preliminary conference held on 27 November 2024

1. The determination came in a few hours before the scheduled conference. The determination of the Assessor was a surprise having regard to the insurer's qualified expert, Dr Smith had opined 10% whole person impairment with the same factual background noting a number of pre-accident life stressors and conditions. Assessor Singh determined no psychological injury and this impacted on the whole claim.
2. I suggested in the circumstances that the claimant seek immediate legal advice as a review of the determination may be necessary. The insurer also requested a 14 day period to seek instructions in relation to the settlement noting that there was now an opinion of no injury and this had an impact on the common law claim.
3. The claimant was visibly upset by the determination of Assessor Singh and could not complete the preliminary conference due to the distress she was in.

1. The insurer confirmed via message through the commission portal on 9 December 2024 that "The matter will remain on foot with the Commission as I am instructed to honour the settlement previously agreed."
2. The requested additional information of the investigation reports of M & A Investigators were uploaded to the commission portal on 10 December 2024 and included 44 pages of investigation, statements and photograph of the scene. The statement of the insured's driver and NSW Police constable involved to address the liability determination made by the insurer.
3. Certain parts of statements I have redacted due to cultural sensitivities and the impact of certain information on the indigenous community members in this matter.

1. The insurer confirmed that the settlement reached with the claimant would not be altered and the agreement reached would be honoured. The claimant was unavailable at first then called in after the insurer left the conference. The claimant confirmed her understanding of the settlement and that she would receive the net sum of $245,307.44 after credit for statutory payments were deducted from the settlement sum. As to the issue of contributory negligence I confirmed that the insurer's assessment of 15% contributory negligence was fair and reasonable in the circumstances. The material produced yesterday confirmed the basis of the insurer's position and upon review of the material I would approve the assessment of contributory negligence.
2. The claimant was aware she was not entitled to non-economic loss and that the settlement of damages was only relating to past and future economic loss. The claimant confirmed her current financial distress and requested the immediate determination of the application to enable her to resettle in Mudgee with rental accommodation before Christmas. The release of the settlement sum would be necessary to secure her accommodation.
3. The claimant and the insurer requested the settlement be approved and confirmed there was no additional material to be relied upon as all requested information had now been produced. The claimant was advised to sign the settlement deed and provide it to the insurer.

1. I have regard to the following relevant documents contained in evidence bundle contained in the application:

(a) application for statutory benefits dated 3 August 2021;

(b) application for common law damages dated 26 June 2023;

(c) liability notice dated 11 October 2023;

(d) submissions of the insurer dated 16 September 2024, and

(e) executed agreement of release dated 29 October 2024.

(a) medico-legal report of Dr Brendan Smith, psychiatrist 5 May 2024;

(b) EML's medico-legal report of Dr Yajuvendra Bisht, psychiatrist;

(c) clinical records of Mudgee Medical Centre;

(d) updated clinical records of Mudgee Medical Centre;

(e) clinical records of Lynette Toms, psychologist;

(f) GP Mental Health Care Plan - Patient Assessment;

(g) clinical records of St John of God Hospital (Richmond);

(h) clinical records of Orange Health Services, Bloomfield Campus;

(i) K10 Assessment dated 6 July 2022;

(a) EML Workers compensation claim records for injury date: 7 April 2015;

(b) Icare Workers Compensation claim records for injury date: 8 March 2021.

(a) NSW Police report dated 10 August 2021;

(b) M & A Investigation reports dats 1 September 2021,13 January 2022 and 9 June 2023.

(a) Individual Tax return - financial year 2019 to 2022;

(b) Tax Income estimates financial year 2023 and 2024;

(c) Pipeclay Pumphouse Pty Limited - payslips.

(a) Settlement Deed of Release after informal settlement conference undertaken on 23 August 2023

1. The claimant's Application for Common Law Damages related to injuries sustained in the subject accident comprising the following:

(a) psychological injuries including shock as a result of the death of her father.

1. She reported ongoing disabilities to medical practitioners as:

(a) difficulty securing and maintaining employment due to poor mental health;

(b) poor mental health resulting in breakdown in relationships;

(c) emotional dysregulation;

(d) frequent anxiety;

(e) hypervigilance;

(f) disorganised sleep patterns;

(g) nightmares;

(h) flashbacks;

(i) feelings of abandonment and emptiness;

(j) intermittent suicidal ideations

1. The claimant had pre-existing psychological conditions which were exacerbated by the death of her father. The numerous clinical records provided in this application supported the previous experiences traumas which were subsequently exacerbated by the impact of the death of her father in the motor accident. The treating practitioners records accord with this history and are confirmed in the records of Lynette Toms the psychologist who has provided long-term care to the claimant. The claimant has had lengthy history of significant pre-existing psychological issues.
2. The claimant injured her right wrist (possible carpal tunnel) whilst working with Fratelli Fresh Pty Limited as a chef on 7 April 2015 and made a workers compensation claim with Employers Mutual Limited (EML).
3. On 8 October 2016, the claimant presented to Bankstown-Lidcombe Hospital following an intentional motor vehicle accident where she intended to end her life.
4. She was hospitalised in the mental health unit and commenced on Mirtzapine. She was discharged approximately 3 weeks later on 27 October 2016.
5. The claimant started seeing a psychologist, Lynette Toms for mixed depression and anxiety since 8 November 2016.
6. The clinical records of psychologist, Lynette Toms confirms the claimant has been treated for anxiety, depression and complex post-traumatic stress disorder (PTSD) for many years prior to her father's death. The claimant had suffered various trauma previously including sexual abuse and violence by her foster brother and workplace bullying incidents.
7. On 6 January 2017, the claimant was admitted at Northside Macarthur mental health clinic for her psychological condition and discharged a month later on 7 February 2017.
8. On 19 January 2017, the claimant even made a NDIS application reporting to have hearing loss, anxiety and depression.
9. When she relocated to Mudgee, the claimant was treated by Peter Watt, psychologist at Mudgee Medical Centre under a GP mental health care plan dated 4 January 2018.
10. In 2018, the claimant again returned to seeing psychologist Lynette Toms.
11. On 18 March 2021, the claimant was involved in a workplace bullying incident and she made a claim for workers compensation. She was certified to have capacity for only 2 hours/day, 3 days a week due to her psychological injuries.
12. On 22 March 2021, the claimant's treating psychologist Lynette Toms reported the claimant to have PTSD, anxiety and depression and her symptoms of anxiety exacerbated following the workplace incident.
13. Sometime in or about 2021, the claimant took police action against her foster brother for sexually abusing her.
14. On 28 April 2021, the claimant was examined by the workers compensation insurer's expert psychiatrist, Dr Yajuvendra Bisht for her workplace incident and diagnosed with adjustment disorder with mixed anxious and depressed mood. Dr Bisht opined the claimant to have suffered an aggravation to a pre-existing condition and recommended she undergo monthly appointments with a psychiatrist to optimise her medications and also fortnightly appointments with a psychologist. The claimant would also need to continue taking medication.
15. Even after her father's death on 10 July 2021, the claimant continued to be treated by psychologist Lynette Toms and GP at Mudgee Medical Centre.
16. On 15 February 2022, the claimant reported to Lynette Toms that she was angry about her work and realised she is still affected by her previous employment.
17. On 9 August 2022, the claimant told her psychologist Lynnette Toms that the detective handling her sexual abuse case had left. She felt like harming herself so decided to go to a local hospital to be admitted to the mental health unit.
18. She was admitted at the psychiatry ward of Bloomfield Hospital on 9 August 2022 with suicidal ideation in the context of increasing social stressors including her father's court case and starting the process regarding her sexual assault case and her frequent job turnover with financial pressure to pay her mortgage. The discharge summary reports the claimant had previous mental health admissions at Bankstown Hospital and Northside Clinic in 2018 after a suicide attempt. She was diagnosed with borderline personality disorder and was followed up with psychological counselling which she had on a fortnightly basis for at least 3.5 years. She was discharged on 29 August 2022.
19. On 22 September 2022, the claimant was admitted at St John of God Hospital at Richmond for worsening depression with background of PTSD. She was discharged on 19 October 2022.
20. On 22 November 2022, the claimant was seen at St John of God Hospital as an outpatient and reported that she has significant childhood trauma where she was sexually assaulted as a teenager.
21. On 16 February 2023, the claimant reported to her psychologist Lynette Toms that she had separated with her partner of 7 years given she was on a self-discovery journey and she was feeling positive about the breakup and her future and wanted to buy a van and travel around Australia.
22. The claimant's treating medical records confirm the claimant had significant pre-existing psychological injuries as early as 2017 which she required several admissions at the mental health unit of hospital and long term treatment with a psychologist.

1. The Insurer relied on the expert report of Dr Brendan Smith, psychiatrist dated 5 May 2024. Dr Smith reported the claimant had suffered and exposed to substantial and significant trauma from an early age including child sex assault, alleged sexual assault in teenage years, witnessing and experiencing significant domestic violence and substance abuse from a young age.
2. Dr Smith opined there to have been an aggravation of her pre-existing conditions as a result of her father's death, however this has been worsened by her more recent reporting of her child sexual assault and rape from her childhood and the claimant's mental health presentation and contributory factors to her poor health and functional state are multiple and complicated in nature.
3. He diagnosed aggravation of complex post-traumatic stress disorder (PTSD). The aggravation in her condition is contributed to by her father's passing however there have been complicating factors of the police investigation into her sexual assault during this period of time also.
4. Dr Smith assessed a total of 10% WPI related to her father's death. This was after an initial assessment of 15% whole person impairment with a deduction of 5% for pre-existing conditions.
5. Assessment of Assessor Singh dated 27 November 2024, did not find any permanent impairment on the basis he did not find any psychological injury attributable to the motor vehicle accident. As the insurer made a determination to honour the settlement reached there was no need to seek a review Dr Singh's assessment.

1. It is the insurer's submission that the proposed settlement figure is an appropriate one and complies with the requirements contained in section 6.23(1) of MAIA and 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."

1. Accordingly, the insurer recommended the proposed settlement figure of $250,000 be approved.
2. The claimant also confirmed her desire that the settlement be approved by me.

1. The medical information provided in this matter consisting of clinical records of treating doctors and the medical records pertaining to prior workers compensation claims accord with the history of pre-existing conditions and previous trauma as well as highlighting vulnerability of the claimant to the impact of her father's death in the subject motor vehicle accident. I find that the claimant sustained psychological injury as a consequence of the death of her father in light of the opinion of Dr Smith and his assessment of pre-existing conditions.
2. I agree the claimant has no entitlement to non-economic loss as she did not exceed the statutory threshold of 10% whole person impairment.
3. As to the contribution of actions by the deceased amounting to 15% contributory negligence, I have reviewed the material provided by the insurer which included the investigations undertaken of the insured's driver and his initial impression of the accident and note that the area where the claimant was walking had been noticed by two other drivers a few moment prior and had been the subject of a call to the local Police as the pedestrian was in danger.
4. I also note that gossip was reported to the investigating officer Detective Senor Inspector Danielle Rogerson of circumstances surrounding where the pedestrian was positioned and likely motivations. Due to the sensitivity of the information, I do not propose to repeat it.
5. The information provided confirms there were no direct witnesses to the accident apart from the insured's driver. The two vehicles driving in front of the insured had slowed in the 60kph zone and were able to avoid contact with the pedestrian.
6. The insured's driver was charged with Negligent Driving Occasioning Death based on the fact the earlier drivers who passed the pedestrian in the minutes before the insured's driver, were able to slow down and swerve to avoid collision with the pedestrian.
7. There were also statements of local residents that claimed the pedestrian had been yelling out as he passed their property, with an assumption he had been affected by alcohol. There is no evidence before me to confirm the blood alcohol level of the pedestrian not a cornoer's report. I note this element has not been relied upon by the insurer in their liability assessment.
8. From the other statements provided and the location of where the claimant was assumed to have been walking and the location of impact, it is clear that the pedestrian was not walking on the adjacent footpath available to him. I am satisfied that the pedestrian walking onto the roadway where the collision occurred was conduct of the pedestrian that contributed to the accident. It is clear he was on the road at the point of impact. This was also confirmed by the earlier drivers. It was also confirmed that the area was dark with the sun not having risen as yet. It was also confirmed the pedestrian was in black trackpants and hoodie.
9. I conclude that the pedestrian's conduct contributed to the accident and that the assessment of 15% contributory negligence agreed to between the claimant and insurer is within the range likely to be assessed had the matter been the subject of assessment by a member of the PIC. As a result the reduction of damages by 15% is appropriate.

1. The claim for impairment to earning capacity the subject of economic loss is made for both past and future economic loss.
2. The claimant was working as a full-time chef with Trustee for A&L Crestani Family Trust t/as Pipeclay Pumphouse prior to her father's death but the shop subsequently closed down.
3. The claimant was on workers compensation benefits at the time of her father's death due to workplace bullying incident.
4. Nevertheless, the insurer calculated the claimants PAWE to be $1,115.38 gross per week based on her payslips and made 4 weeks of statutory wage payments.
5. The parties have agreed to a sum of $100,000.00 for past economic loss (being a loss of say $617 net per week since her father's death from 10 July 2021 to date of the informal settlement conference held on 23 August 2024) and loss of superannuation at 11%, being $11,000.00.
6. The assessment is undertaken on the following basis:

(a) Although the claimant's payslips from Pipeclay Pumphouse as at 28 June 2021 (being just prior to her father's death) confirmed the claimant's annual salary to have been $57,999.24 (which is $1,115.38 gross per week or $913.38 net per week) and confirmed she was in receipt of superannuation from her employer, the insurer submitted that the claimant had significant pre-existing psychological injury history and this needed to be taken into consideration when assessing her loss of work capacity and damages for past economic loss.

(b) Based on the insurer's expert psychiatrist Dr Smith, the insurer accepted the claimant has suffered some economic loss as a result of her father's death however it is submitted that it is not the sole cause of her loss of earning capacity.

(c) The insurer submitted that there needs to be an apportionment of the claimant's psychological impairment solely as a result of her father's death and that I (the Member) will be satisfied that this has been established beyond the evidentiary burden.

1. Therefore, the insurer submitted that an allowance of $111,728.00 (being past economic loss of $100,000, past loss of superannuation at 11% of $11,000 and $728.00 for Fox v Wood damages) is fair, just and reasonable in the circumstances and is likely the amount would be assessed by a Member if the matter proceeded to claims assessment in the Personal Injury Commission.
2. The insurer has paid $4,692.56 gross for statutory wage benefits. A credit was sought to the amount of past economic loss damages awarded for the statutory wage benefits paid to date.

1. As the claimant continues to suffer psychological symptoms which impacts upon her ability to undertake employment an allowance was made for future loss of earning capacity for the remainder of her working life.
2. The claimant is currently 35 years of age (DOB: 8 September 1989) and has 32 years left to retirement age of 67.
3. It was the insurer's position, that the claimant's father's death has contributed to the claimant's loss of work capacity, however it is not the sole reason.
4. This is supported by the expert opinion of Dr Smith who opined that one third of the claimant's work capacity restrictions were related to her father's death and the rest to other pre-existing traumatic experiences.
5. The insurer submitted that the claimant had pre-accident occupational impairment due to her significant pre-existing psychological injuries, and this must be factored into any assessment of future earning capacity and damages for future economic loss.
6. The claimant was also assessed by the workers compensation insurer's expert psychiatrist, Dr Bisht on 28 April 2021 (prior to father's death) and was diagnosed with adjustment disorder.
7. In addition, the claimant does not have a total loss of work capacity and this is substantiated by the claimant's ability to obtain and maintain her recent employment with Slims Quality Burgers, where she is working on a casual basis.
8. The insurer accepted the claimant may experience temporary exacerbations of her psychological symptoms which is likely to inhibit her ability to engage with employers and colleagues and may cause intermittent periods of absences and a loss of superannuation in the future.
9. It is therefore submitted that the proposed settlement of a buffer of $150,000 for future economic loss and $17,250 for future loss of superannuation is fair, just and reasonable in the circumstances and is reflective of the impact her father's death is likely to have on her future earning capacity.
10. The insurer is mindful that there may be further deductions applied for Centrelink repayments. The Claimant has advised she has not been in receipt of Centrelink benefits as a result of her injuries from her father's death. Nevertheless, the insurer invited the claimant to enquire directly with Centrelink as to whether there is any amount to be repaid as a result of this settlement. Centrelink will make its determination prior to the payment being made to the claimant.
11. The provided financial records including payslips and tax returns accord with the insurer's estimates of loss. I am satisfied that the information before me is sufficient for me to determine the application before me.

1. Section 6.23 of the MAI Act provides the following restrictions on settling claims for damages:

(a) the settlement must be approved by a Member of the Commission and I am not to approve the settlement unless I am satisfied there is complaince with any of the requirements of the MAI Act or the Motor Accident Guidelines.

I am satisfied that there has been compliance with the Act and the Guidelines.

(b) Clause 7.389 of the Guidelines requires the insurer to include in its application details of the following:

(i) sub-clause 7.389.1 requires the amount of the proposed settlement and a breakdown of the amount allowed for each head of damage.

The settlement sum is $250,000. The sum comprised past economic loss of $111,728 representing past loss of $100,000, superannuatioon loss at 11% in the sum of $11,000 and $728.00 for past tax paid (Fox v Wood).

The amount allowed for future economic loss was a buffer of $150,000 plus a further $17,250 representing 11.5% loss of superannuation. Thos totalled $278,978 then contributory negligence was deducted at 15% amounting to $41,846.70 = $237,131.30 and rounded up to $250,000.

(ii) Sub-clause 7.389.2 requires the amount of any deductions in the proposed settlement.

The insurer has made statutory weekly payments in the sum of $4,692.56 gross which it seeks a credit. This sum will be deducted from settlement proceeds and the claimant will receive net proceeds of $245,307.44.

(iii) Sub-clause 7.389.3 requires the amount of any advanced payments made be specified.

(iv) Sub-clause 7.389.4 requires the evidence, documents and materials relevant to an assessment of the proposed settlement figure.

I have reviewed the evidence relied upon by the insurer which included a bundel of 1228 pages of medical and other records. The clinical records, the medico-legal reports and the information contained in the previous workers compensation files was sufficient for me to consider the claimant pre-existing conditions and prior trauma as well as the impact of the death of the claimant's father upon herpast and future earning capacity. With the exception of Assessor Singh, the medical evdience before me supports the position that the claimant suffered psychological injury from the death of her father and this has impacted on her earning capacity past and will do so into the future.

The information available to me has been sufficient for me to determine the application before me, with sufficient knowledge of the long-term affects of the death of the claimant's father on her psychological wellbeing against a background of other life stressors. The position taken by the insurer of a loss of one-third earning capacity against a background of pre-existing stressors is appropriate. The provision of buffers accords with the most likely circumstances but for the accident (death of her father).

(c) Clause 7.399 of the Guidelines, requires me to consider the following:

(i) sub-clause 7.399.2: appropriateness - 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 a claims assessor, taking into account the nature and extent of the claim and injuries, disabilities impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.

Having reviewed the evidence produced in this matter, I am satisfied that the claimant was not entitled to damages for non-econoic loss. That the allowances made for past economic loss accords with the facts and the basis of loss into the future accords with the lost likely circumstances but for the accident.The settlement sum is just, fair and reasonable and within the likely range of damages were it to have been assessed by a Member of the Commission having regard to the psychological injuries sustained, the extent of treatment to date, as well as the impact of ongoing symptoms, the age of the claimant, and the unrelated conditions which continue to impact on the claimant. The quantification of economic losses agreed to accord with the most likely circumstances but for the accident and the impact of the injuries on the claimant's earning capacity both past and in the future.

The agreement to deduct 15% for contributory negligence was agreed to by the claimant and I was requested to accept the concession even if I did not necessarily agree that the conduct of wearing black clothes and not watching out for traffic was the basis of the deduction. Noting the concessions made by the insurer upon the determination of Assessor Singh as to injury, I find the allegation of contributory negligence and the deductions of 15% within the range had the matter been assessed by a Member of the commission and that the settlement should be approved.

(ii) Sub-clause 7.399.3: understanding - the claimant understands the nature and effect of the proposed settlement is the finality of her claim for damages and is willing to accept the proposed settlement.

The claimant was made aware in the video preliminary conferences that in the event she accepted the settlement, she could not seek any further damages. She was still entitled to treatment expenses into the future if the insurer deemed the treatment reasonable and necessary.

I am satisfied that the claimant was aware of her rights and had freely agreed to the terms of settlement with an understanding of the settlement and its implications upon her.

1. I am satisfied the proposed settlement of $250,000 is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment by a Member of the Commission taking into account the nature and extent of the claim and losses sustained by the claimant.
2. I am satisfied the claimant was aware she could seek legal advice and chose not to retain legal representation.
3. I am satisfied the claimant understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the subject accident.
4. I am satisfied the claimant was willing to accept the proposed settlement and her decision to accept it was of her own volition.
5. I am satisfied the claimant is aware that $4,692.56 will be deducted from the proceeds of settlement and that she will receive the net sum of $245,307.44.
6. Accordingly, pursuant to s 6.23(2(b) of the MAI Act, I approve the settlement of the claimant's claim for damages in the sum of $250,000.
7. The proposed settlement complies with cl 7.392 to cl 7.411 of the Motor Accident Injuries Guidelines.

1. In making my decision I have considered the following legislation and guidelines:
   • MAI Act;
   • Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020;
   • Motor Accident Guidelines 2017/Personal Injury Commission Rules 2021, and
   • Compensation to Relatives Act 1897.

1. Due to the sensitive nature of the claimant's pre-existing conditions and trauma sustained by other events in her life, I direct that the determination be de-identified in accordance with r 132(4) of the Personal Injury Commission Rules 2020, to protect the claimant's privacy.