Sparke Helmore's MAD (Motor Accident Division) Weekly - Issue 74
11 November 2022
Welcome to the 74th 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 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 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.
Claims Assessment
Visser-Lewis v Insurance Australia t/as NRMA Insurance [2022] NSWPIC 578
Member: Maurice Castagnet
MOTOR ACCIDENTS—claims assessment application—where the application has been referred to the Commission for assessment more than three years after the motor accident—administrative oversight in lodging application on time—outstanding medical dispute—whether the claimant has provided a full and satisfactory explanation.
The claimant suffered injuries in a motor accident on 11 July 2018. On 27 October 2021, the claimant applied to have his claim for common law damages referred to the Commission for assessment pursuant to s 7.32(1) of the Act. This referral was about three and a half months outside the prescribed time frame pursuant to s 7.33 of the Act, which provides that a party cannot refer a claim for assessment more than three years after the date of the motor accident, unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules.
The claimant sought leave from the Commission for his claim to be referred for assessment. He also sought a direction that his claim be referred to the stood over list pursuant to cl 10(a) of Procedural Direction MAI1, pending the conclusion of a medical assessment of his permanent impairment by the Commission; the claimant was due to attend a medical assessment with Medical Assessor Herald on 6 December 2022. In support of his application and by way of a full and satisfactory explanation, he relied on written submissions from his legal representatives.
The insurer submitted that it is a matter for the Commission to grant leave for the claim to be referred for assessment, however the claimant’s submissions did not constitute a full and satisfactory explanation for the delay. In addition, the insurer submitted that it was not necessary for the claimant to wait until the whole person impairment assessment in order to lodge an application, as he was able to have the matter placed in the stood over list whilst he awaited medical assessment.
In his discussion, the Member was not persuaded that the meaning given to the phrase ‘full and satisfactory explanation’ under Part 6 should be applied when considering a party’s explanation for the delay for the purpose of s 7.33 under Part 7 of the Act. He proceeded to reference s 6.2 of the Act, which asserts that any delay in making the claim requires the claimant to provide a “full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation” and “the explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay”.
The Member accepted the claimant’s explanation and noted that the delay in the lodgement of the application for assessment caused by the oversight was immaterial because the medical dispute was still on foot and the application to resolve that dispute was lodged within the three-year limitation period on 15 February 2021.
Findings: The Member was satisfied that the claimant has acted reasonably to progress his claim to a resolution prior to making his application to the Commission to refer his claim for assessment. He was also satisfied that the claimant has provided a full and satisfactory explanation for the delay in referring his claim for assessment.
The claimant was thereby granted leave to refer his claim for assessment by the Commission and the matter was adjourned to a teleconference on 17 February 2023 to await the outcome of the medical assessment and to determine whether it is ready to be set down for an assessment conference.
Miscellaneous Claims Assessment
Al Helou v AAI Limited t/as GIO [2022] NSWPIC 579
Member: Brett Williams
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—single vehicle motor accident which occurred in heavy rain—claimant lost control of his vehicle as or shortly after he entered the roundabout.
The claimant was approaching a roundabout and as he was switching on his air conditioning to clear the windscreen, his vehicle slid on the wet road, causing him to lose control and collide with a power pole on the side of the road. The claimant was issued with a penalty notice with respect to the accident in relation to negligent driving. The notice records that the claimant failed to pull over or slowdown in the wet weather.
The insurer considered the claimant to be wholly or mostly at fault and denied statutory benefits post-26 weeks, which was affirmed on internal review. The insurer submitted that the cause of the accident was the claimant’s failure to drive to the prevailing conditions. It is argued that a reasonable and prudent driver in the position of the claimant would have avoided the accident and taken all necessary precautions to drive to the prevailing conditions being negotiation of a roundabout in wet weather (where vision through the windscreen was obscured) and the roadway potentially being slippery and hazardous. It is further submitted that the claimant’s evidence as to his speed at the time of the accident, and that he slowed down, should not be accepted. It was also highlighted that the history given to his general practitioner by the claimant infers that he was distracted when he lost control of his vehicle.
The claimant maintained that the accident was not his fault as the rain was heavy and he could barely see what was happening. The submissions corroborate the claimant’s evidence that everything happened very quickly and that he was unable to slowdown and/or stop on the side of the road.
The claimant referred the dispute to the Commission.
Findings: The Member held that the claimant was travelling at a speed of at least 50km/h when he began to reduce the speed of his vehicle. He found that as the claimant entered the roundabout it is more probable than not that the vehicle was travelling at approximately 45km/h. He was not persuaded that the claimant’s vehicle hit a pole at 60km/h, however he did accept that the claimant’s vision of the road ahead was obstructed because the windscreen had fogged up and he had turned on the vehicle’s air conditioning in an attempt to clear it.
The Member found that the claimant should have reduced the speed of the vehicle much sooner and to a lower speed. He considered that given the prevailing conditions, namely the heavy rain and wet road, travelling at 50km/h was not consistent with the claimant’s duty to exercise reasonable care and skill. It was concluded that the claimant’s failure to reduce the speed of his vehicle was a necessary condition of the occurrence of the accident.
Accordingly, the claimant was found to be wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Miscellaneous Claims Assessment
Bray v Allianz Australia Insurance Limited [2022] NSWPIC 570
Member: Elizabeth Medland
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—claimant riding a motorcycle behind insured vehicle when attempted to overtake insured on the right-hand side.
The claimant was riding a motorcycle approximately 50 metres behind the insured vehicle in a northbound direction. The insured slowed down and began to indicate to turn right; at this time the claimant accelerated and began to overtake the vehicle on the driver’s side of a two-lane road. The insured observed this occurring, maintained her vehicle in a straight position and did not perform a right-hand turn at that moment. The claimant continued to overtake the vehicle and impacted with its offside mirror causing the motorcycle to become unbalanced. Consequently, the claimant lost control and impacted the pavement.
The insurer considered the claimant to be wholly or mostly at fault and denied statutory benefits post-26 weeks, which was affirmed on internal review. The insurer submitted that the claimant overtook the insured vehicle when it was unsafe to do so and whilst it was in the process of performing a right-hand turn. Further, that the insured only stopped her vehicle when she observed the overtaking manoeuvre of the claimant. Reference was made to r 140 and 142 of the Road Rules 2014. It was also alleged that the claimant was travelling at an excessive speed and that he failed to keep an appropriate distance from the insured vehicle. His gross negligence was considered the primary cause of the collision. Taking into consideration s 5R of the Civil Liability Act 2002 (CLA) and various case law, the insurer submitted that a finding of 80% or greater contributory negligence was open to the Member.
The claimant raised issues around whether the insured activated her indicator whilst slowing down near the intersection. It was submitted that no indication was made by the insured driver and an inference could not be drawn by the claimant that she was stopping or was intending to stop at the intersection. Alternatively, the claimant argued that if the insured utilised her right indicator a reasonable person would conclude that a right turn would have been made at any moment and not particularly near the subject intersection. Amongst several other arguments, the claimant’s submissions also referred to perceived inconsistencies in the insured driver’s accounts as to the distance she was ahead of the claimant and the speed she was travelling. He contended that the insured’s actions were spontaneous irrespective of whether she slowed down. It was otherwise maintained that the claimant kept a four second gap between him and the insured driver, which is a safe distance in accordance with the r 126 of the Road Rules 2014.
The claimant referred the dispute to the Commission.
Findings: The Member found that the insured driver had begun her right-hand turn when the accident occurred. As to speed she did not find any issues of credit, rather it was held that the insured has made estimations of her speed that had varied over time. She also considered it more likely that the insured activated the indicator only just before she began her right-hand turn.
Having regard to s 5R of the CLA, the Member found it an unreasonable action to overtake a slowing vehicle on the right-hand side adjacent to a T intersection. She proceeded to reject a few of the claimant’s arguments and held that on the balance of probabilities the insured driver did not activate her right-hand indicator at a reasonable distance from the intersection. However, that did not diminish the claimant’s responsibility to take due care for his own safety pursuant to the findings in Boral Bricks Pty Ltd v Cosmidis (no 2) [2014] NSWCA 139. A finding of 65% contributory negligence was awarded consequently.
Accordingly, the claimant was found to be wholly or mostly at fault for the purposes of ss 3.11 and 3.28 or 3.36 of the Act.
Claims Assessment
El-Dehaibi v AAI Limited t/as GIO [2022] NSWPIC 569
Member: Brett Williams
MOTOR ACCIDENTS—miscellaneous claims assessment—commencement of proceedings purporting to refer a claim for damages for assessment were commenced prior to the claimant making a claim for common law damages on the insurer.
The claimant suffered injuries in a motor accident on 14 October 2018. Proceedings purporting to refer a claim for damages to the Commission for assessment were commenced on 14 October 2021. However, the claimant had not made a claim for damages on the insurer until 5 November 2021, after the proceedings had been commenced.
The insurer submitted that the proceedings ought to be dismissed in the circumstances, as when the proceedings were commenced, there was no claim for damages capable of being referred to the Commission for assessment in accordance with s 7.32 of the Act.
The claimant argued that the proceedings should not be dismissed as if they were, she would be ‘statute barred’ as a consequence of s 7.33 of the Act. She also added that to dismiss the proceedings would mean that new proceedings would need to be commenced and an explanation for the delay in referring the claim for assessment would be required. Further, reference was made to the objects of the Personal Injury Commission Act (PIC Act) and the Act, which essentially encourages early resolution of motor accident claims and the quick, cost effective and just resolution of disputes. She submitted that dismissal of the proceedings would result in her incurring unnecessary legal fees and cause an overall delay in her case.
Findings: The Member found as there was no claim for damages capable of being referred to the Commission on 14 October 2021, the proceedings could not be maintained. The subsequent making of a damages claim could not overcome this fact. The proceedings were therefore considered misconceived and lacking in substance.
Accordingly, the proceedings were dismissed under s 54(b) of the PIC Act.
