CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Insurance Australia Limited t/as NRMA Insurance v Johnson [2024] NSWPIC 562	
		
Claimant:	Timothy Faray Johnson	
		
insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Member:	Michael Inglis	
		
DATE OF DECISION:	11 October 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; settlement approval; section 6.23 restrictions on settlement of claim for damages; claim by the estate of the deceased who was injured in a motor vehicle accident on 11 April 2023 aged 59 years; deceased in receipt of a disability pension prior to suffering significant orthopaedic injuries in the accident; deceased suffered considerable pain and suffering during the five months which he survived after the accident involving multiple surgical procedures; deceased suffered from significant pre-accident co-morbidities including high cholesterol and high blood pressure; deceased was being managed for ischemic heart disease and suffered from chronic obstructive pulmonary disease as well as lower back pain; insurer conceded that the injuries were non-threshold injuries; satisfied that the proposed settlement of $112,500 was just fair and reasonable and within the range of likely potential damages assessments for the claim were he assessed by the Commission.	
determinations made:	CERTIFICATE
1.	The proposed settlement in the sum of $112,500 is approved under s 6.23 (2) (b) of the Motor Accidents Injuries Act 2017.

STATEMENT OF REASONS
Background
1.	The late Timothy Johnson was born in 1964. At the time of the subject accident, the deceased was unemployed and in receipt of a disability support pension. 
2.	Timothy Johnson was involved in a motor accident on 7 November 2022 whilst riding his motor motorcycle on the Stuart Highway, NSW. By way of Liability Notice dated 
18 July 2023, NRMA admitted liability. 
3.	Timothy Johnson passed away on 11 April 2023 at 59 years of age – five months post-accident. The stated cause of death was acute myocardial infarction. 
4.	The deceased died intestate. The deceased’s daughter, Stacey Johnson, was granted Letters of Administration by the Supreme Court of NSW on 24 May 2024. Neither the deceased nor the estate are legally represented with respect to this claim. 
5.	The insurer conceded that the deceased’s whole person impairment would have exceeded 10% prior to his death. 
6.	The proposed settlement is $112,500, that sum being an allowance only for non-economic loss. 
7.	As the estate is not legally represented, the settlement must be approved by the Personal Injury Commission (Commission) pursuant to s 6.23 of the Motor Accident Injuries Act 2017 (MAI Act).
Statutory provisions
8.	Restrictions on the settlement of a claim for damages are found in s 6.23 of the MAI Act, which is in the following terms:
“6.23 Restrictions on Settlement of Claim for Damages
(1)	(Repealed)
(2)	A claim for damages cannot be settled unless – 
(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 Accidents Guidelines.”
9.	Clause 7.37 of the Motor Accident Guidelines states as follows:
“7.37U 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 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.”
10.	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, and the process for obtaining the Commission’s approval of the settlement of the claim.
Evidence 
11.	The documents lodged by the insurer included a volume of records relating to the pre and post-accident treatment of the deceased. The documents confirmed that the deceased suffered a number of conditions pre and post-accident.
12.	The deceased was in receipt of a disability pension prior to suffering significant orthopaedic injuries in the accident. 
13.	The deceased had risk factors for heart disease prior to the accident. He was a smoker and had been diagnosed with high cholesterol and high blood pressure. He was being managed for ischemic heart disease since 2008. The deceased also suffered from chronic obstructive pulmonary disease affecting his breathing.
14.	The deceased suffered from a low back condition dating back to October 2010 and radiology demonstrated advanced degenerative changes in the lumbar spine. 
15.	He underwent several procedures which were well documented in the medical material with which I was provided. 
16.	There is no doubt that the deceased suffered considerable pain and suffering during the five months following the accident and preceding his passing. 
Preliminary conference 
17.	I conducted a preliminary conference with Ms Stacy Johnson and Ms Jamie Kulcyzki on 29 July 2024.
18.	Ms Johnson confirmed that by way of a Settlement Agreement, she agreed on behalf of the estate to accept the proposed settlement sum. 
19.	I confirmed that the insurer agreed that the deceased’s impairment as a result of the injuries caused by the accident was greater than 10% and that he was entitled to damages for non-economic loss. 
20.	I explained to Ms Johnson that the estate was entitled to be legally represented with respect to the deceased damages claim. She confirmed that the estate did not wish to be legally represented. 
21.	I confirmed that the settlement of the deceased damages claim was on a once and for all basis and would be paid as a lump sum. I also confirmed that, if approved, the settlement would be binding on the estate. Ms Johnson understood this, and confirmed that the estate wished to settle the damages claim in accordance with the proposed settlement. 
22.	I explained to Ms Johnson that I had to be satisfied that the proposed settlement was 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 deceased. 
23.	At the conclusion of the preliminary conference, I indicated that I intended to approve of the proposed settlement but that I would consider the material before me together with that together with what she told me, and provide my reasons in writing.
Submissions in support of approval
24.	The insurer provided a detailed submission which was of great assistance to me. It was the insurer’s submission that the proposed settlement was reasonable and within the likely range of damages that would be awarded by a member of the Commission. 
Determination
25.	I am satisfied as a result of the accident the deceased suffered significant orthopaedic and soft tissue injuries which would have resulted in considerable pain and suffering during the five months that he survived following the accident. 
26.	The proposed settlement reflects an allowance for non-economic loss. In considering the reasonableness of the proposed settlement, I have taken into consideration the deceased pain and suffering and loss of amenities of life arising from his accident caused injury. 
27.	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 deceased. 
28.	I am satisfied that Ms Johnson, on behalf of the estate, understands that the estate is entitled to be represented in respect of the claim by an Australian legal practitioner, and does not wish to be so represented. I am also satisfied that Ms Thomas understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement. 
29.	Having considered the material provided by the insurer and what Ms Johnson has told me at the preliminary conference, the proposed settlement is approved.