Sparke Helmore MAD (Motor Accidents Division) Weekly - Issue 123

Welcome to the 123rd edition of Sparke Helmore’s MAD Weekly!

The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.

To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Commission, we are publishing weekly the relevant headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see this week’s edition below.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (the MAI Act) unless otherwise noted.

Commentary and analysis of trends will be provided on more substantive decisions by our CTP team  and will be separately published when necessary.

Certificate of Determination

Taylor v QBE Insurance (Australia) Limited [2024] NSWPIC 591 (22 October 2024)

Member: Belinda Cassidy

Claim for damages initially taken to be withdrawn under s 6.26(3) of MAI Act for failure to comply with s 6.26 notice to provide particulars – “full and satisfactory explanation” for delay subsequently provided – claim should be reinstated.

The claimant was involved in a motor accident on 4 August 2021, where he alleged sustaining injuries to his left knee, sternum and a left wrist fracture.

The claimant made a personal injury claim for both statutory benefits and damages against QBE.

The insurer made a request for information and documentation about the damages claim on 12 April 2023. The claimant did not respond to that request.

The request was followed up by the insurer on 24 May, 16 August, 30 October and 11 December 2023 and further on 22 January 2024.

On 13 February 2024, the insurer sent a direction to produce relevant particulars within three months to the claimant’s solicitor in accordance with s 6.26(1) as required by s 6.26(3).

The claimant did not provide the relevant particulars in accordance with the direction. Accordingly, by operation of the MAI Act, the claimant’s claim was taken to have been withdrawn in mid-May 2024 and had to be reinstated.

On 17 July 2024, the insurer’s solicitor informed the claimant’s solicitor that the claimant’s claim for damages was now deemed to have been withdrawn.

On 30 July 2024, the claimant’s solicitor provided a four page response to the insurer’s request for “further and better particulars” dated 12 April 2023.

On 2 August 2024, the claimant lodged an application with the Commission seeking to reinstate the claim.

The claimant’s solicitor, Mr Jokovic, provided a statutory declaration dated 10 October 2024, where he made the following notable statements/points:

1. He was not a personal injury specialist and had accordingly referred the claimant to another firm.
2. He continued to assist the claimant with his other matters and in late 2023 the claimant requested him to resume acting.
3. He received the notice under s 6.26 on 13 February 2024, which he referred to the claimant, and subsequently organised a conference with counsel.
4. He failed to diarise the three month deadline for the provision of particulars once the s 6.26 direction had been issued on the claimant’s solicitor.
5. He wrote to the insurer on 3 June 2024 and requested a copy of Dr Wallace’s report received on 17 July 2024.
6. He conceded that he did not respond to the insurer’s request for particulars as the insurer had the particulars of injuries and disabilities from the claim form, nine authorities signed by the claimant, and the claimant had attended Dr Wallace and the insurer was in receipt of the report.
7. He noted that particulars of past economic loss were partly supplied by the Procare Investigation.
8. He was unable to provide particulars of the impairments as the claimant’s condition was not sufficiently stabilised.

The claimant provided a statutory declaration dated 11 October 2024, where he made the following relevant points/statements:

Mr Jokovic was acting for the claimant in other legal matters and assisted the claimant to make a claim.

In late 2022 or early 2023 when his wrist injury was not improving, Mr Jokovic suggested the claimant should visit a motor accident specialist lawyer and he was referred to another firm.

1. He was dissatisfied with the other firm and in mid to late 2023 returned to Mr Jokovic.
2. He had surgery to his wrist in September 2023 and also underwent treatment for a meniscal tear in the left knee. Both were funded by QBE.
3. He conferred with his barrister, Mr Hanna, on 12 March 2024, and attended a medico legal assessment with Dr Wallace who refused to assess whole person impairment as his wrist was unstable.
4. He still experienced issues with the left wrist and left knee.
5. He had no intention of discontinuing the claim and has co-operated with the insurer and does not understand how the claim can be withdrawn.

On 11 October 2024, the claimant’s solicitor provided the best possible “relevant particulars” available at the time in response to the s 6.26 direction.

Member Cassidy was appointed to determine the dispute.

The essential issue for consideration was whether the claimant had provided a “full and satisfactory explanation” for his failure to provide the relevant particulars by the necessary deadline.

The insurer did not oppose the reinstatement of the claim, however indicated that it was a matter for the Commission to make the appropriate order if it was satisfied the claimant had a “full and satisfactory explanation.”

Member Cassidy determined that the claimant’s explanation was “full”, relying upon the following in her reasoning:

1. The claimant provided an account of his conduct, especially his actions in engaging his current solicitor and briefly consulting another solicitor.
2. The claimant explained that he did not know about particulars and the intricacies of the scheme, and has co-operated with the insurer and followed the advice of his solicitor and barrister.
3. The statutory declaration from Mr Jokovic acknowledged that he failed to diarise a critical date.

Importantly, Member Cassidy also considered that the claimant’s explanation was “satisfactory”, notably referring to the following in her reasoning:

1. The claimant’s solicitor failed to diarise the date by which particulars should have been provided.
2. A reasonable person in the position of the claimant would have been justified in failing to comply with the duty to provide relevant particulars of the claim.
3. In the Member’s experience, the interplay between s 6.24 and 6.25 of the MAI Act was not well understood by injured persons nor the interaction between the statutory benefits claims and damages claims.
4. The claimant’s solicitor has subsequently provided the best particulars he was able to do and investigations were still being undertaken.
5. The claimant was unable to particularise his impairment as he has not been provided with the report of Dr Bodel following his examination and Dr Wallace would soon re-examine him.
6. The claimant was still receiving treatment including surgery more than two years after the motor accident and the end result of that surgery was not yet known.

Held: The claimant’s explanation for not providing the insurer with relevant particulars two years and six months after the motor accident is full and satisfactory, and therefore his claim for damages should be reinstated pursuant to s 6.26(6) of the MAI Act.

View decision

Merit Review

LMB v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 70 (22 October 2024)

Merit Reviewer: Jeremy Lum

Merit review – insurer’s post-earning capacity decision under s 3.16 of MAI Act to decrease amount of weekly payments after 78 weeks on the basis that claimant has capacity to earn in any employment reasonably available to him – decision set aside.

The claimant was involved in a motor accident on 12 February 2023.

On 7 June 2024, the insurer made a post-earning capacity decision under s 3.16 of the MAI Act certifying that the claimant is fit to work in employment as a general clerk, customer service representative, and sports coaches, instructors and officials for 27 hours per week. The insurer’s decision was affirmed on internal review on 31 July 2024.

The impact of the insurer’s decision was that after the second entitlement period (after week 78), there would be a reduction to the amount of weekly payments paid to the claimant effective from
12 August 2024.

The claimant requested a merit review of the insurer’s internal review decision. Merit Reviewer Lum was appointed.

The insurer found that the report of Benchmark Rehabilitation dated 7 December 2023, together with the claimant’s GP, Dr Melo, provided support for the following occupations:

1. General clerk
2. Customer service representative
3. Sports coaches, instructors and officials

The dispute related only to the finding of the insurer that the claimant could “work 27 hours per week as a Customer Service Representative earning an average of $29.83 per hour”.

The claimant argued that he had inadequate English skills to work in any of the positions identified by Benchmark Rehabilitation in its Vocational Assessment Report.

The dispute involved consideration of Sch 1 clause 8(3) of the MAI Act, which provides that:

(3)           A person’s fitness for work after the second entitlement period is to be

determined having regard to the following –

(a)           the nature of the injury and the likely process of recovery,

(b)           treatment provided and rehabilitation undertaken and the potential for further treatment and rehabilitation,

(c)            the person’s training, skills and experience,

(d)           the age of the person.

As to the nature of the claimant’s injuries, Merit Reviewer Lum found that there was no dispute regarding his physical capacity and considered the claimant physically fit to work 27 hours per week.

In terms of the claimant’s age, education, skills and work experience, the following notable facts/points were noted by the Merit Reviewer:

1. The claimant was 34 years of age at the time of the motor accident.
2. The claimant undertook his schooling in Colombia and thereafter studied accounting in Colombia and in Spain prior to working in that industry.
3. The claimant arrived in Australia in October 2022 and studied English whilst he was concurrently performing manual work as a cleaner, solar panel installer, warehouse assistant, packer and set up assistant with an events company.
4. In terms of learning English, the claimant reported studying at the Universal English College and was at an intermediate level about four months prior to his arrival to Australia.
5. The claimant considered that he struggled with English, especially on a conversational level.

In his reasoning, the Merit Reviewer then considered the suitability of the suggested occupations of general clerk, customer service representative, and sports coaches, instructors and officials based on the claimant’s age, education, skills and work experience.

With respect to the occupation of general clerk, Merit Reviewer Lum determined that there was no evidence to indicate that the claimant would be fit to operate the computer systems in a general clerk role in Australia as the claimant’s qualifications were obtained in a non-English speaking country.

In terms of the role of customer service representative, the Merit Reviewer ultimately considered that the claimant would not be suited to work in such an occupation. In his reasoning, Merit Reviewer Lum relied upon the fact that the claimant’s work experience in Australia was condensed to six months from the date of his arrival to the date of the motor accident, and confined to no less than five roles, all of which were physical in nature with little or no evidence to indicate he would be required to speak or write English to the standard required in the role of a customer service representative.

As to the vocation of sports coaches, instructors and officials, Merit Reviewer Lum held that the claimant was not fit for the role. In particular, it was highlighted that the claimant had a standing restriction of
40 minutes and was to avoid repetitive shoulder movements. Further, there was no evidence that the claimant had the required Working with Children Check, Police Check or possessed the work experience and English communication skills to be fit for the role.

Finally, the Merit Reviewer took into consideration the rehabilitation services that are being or have been provided. Whilst the claimant had not participated in any work trials, it was highlighted that it did not appear that any work trials had been offered to him. Ultimately, Merit Reviewer Lum determined that the rehabilitation services were incomplete at the time of making of the reviewable decision, which importantly rendered the claimant less fit for employment in the roles identified.

In light of the above, Merit Reviewer Lum held that for the period after the second entitlement period, the claimant was not fit to work in any employment reasonably available to him.

Held: The insurer’s reviewable decision dated 7 June 2024 was set aside with the insurer required to recalculate the claimant’s weekly payments of statutory benefits after the second entitlement period.

View decision