Sparke Helmore's MAD (Motor Accident Division) Weekly - Issue 8021 December 2022
Welcome to the 80th 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.
Review Panel Determination
Allianz Australia Insurance Limited v Alalawi  NSWPICMP 478
Review Panel Members: John Harris, Les Barnsley and Michael Couch
MOTOR ACCIDENTS – review panel determination – minor injury dispute – presence of radiculopathy.
The claimant suffered injury in a motor accident when the insured vehicle collided into the rear side of the claimant’s vehicle forcing it into another vehicle. There was a dispute as to whether the accident caused a non-minor injury. Medical Assessor Shahzad issued a Certificate dated 9 June 2022 wherein he concluded that the claimant sustained a non-minor injury for the purposes of the Act. It was held that the claimant suffered radiculopathy into the upper limbs, left shoulder and left sacroiliac joint. A successful application for review was lodged by the insurer.
The insurer’s submissions were not included in the material before the Panel. The claimant submitted that the Medical Assessor found at least two clinical signs of radiculopathy. The claimant referenced David v Allianz Australia Insurance Ltd noting that radiculopathy can be present at any time to establish that the injury was not a minor injury.
The claimant was re-examined by Medical Assessor Barnsley on 14 November 2022. The Panel adopted the examination report. It was noted that the claimant bore the onus of proof in establishing that the injuries were not a minor injury consistent with the observations of Wright J in Briggs v IAG Ltd (No 2).
The Panel agreed that two signs of radiculopathy could be present at any time for the purposes of defining the injury as not minor, however it was noted that Medical Assessor Shahzad did not state what the two signs of radiculopathy were. The Medical Assessor specifically referred to “muscle power, tone and deep tendon reflexes” as being normal, but it was held that those precise examination findings were incompatible with the conclusion reached that there was “radiculopathy into the left sacroiliac joint” and “radiculopathy into the upper limbs”. The Panel did not accept these findings, stating that references to radicular pain do not satisfy the criteria in cl 5.8.
It was otherwise accepted that the claimant sustained an injury to the cervical spine probably aggravating pre-existing degenerative changes as a result of the accident. This was considered consistent with a whiplash injury, and therefore a minor injury.
Findings: The Panel concluded that the claimant suffered a minor injury. The Panel revoked the Certificate of Medical Assessor Shahzad and issued a new Certificate consistent with the findings detailed above.
Miscellaneous Claims Assessment
Paget v AAI Limited t/as Suncorp Insurance  NSWPIC 650
Member: Brett Williams
MOTOR ACCIDENTS – interim decision – claims assessment application; where the application has been referred to the Commission for assessment more than three years after the motor accident; whether the claimant used his best endeavours to settle his claim before he referred it to the Commission – permanent impairment dispute.
The claimant was involved in a motor accident on 19 March 2019. He referred the claim to the Commission for assessment on 8 March 2022 but, it was subsequently dismissed due to issues related to federal jurisdiction. The claim was referred to the Commission again on 23 May 2022 although this was lodged more than three years after the accident. It is notable that entitlement to non-economic loss damages was in dispute at such time.
The insurer raised issues in relation to both ss 7.32(3) and 7.33 of the Act. The insurer submitted that the claimant did not use his best endeavours to settle the claim before referring it for assessment. The claimant argued that it would be unreasonable to expect him to settle his claim when assessment of his permanent impairment remained in dispute. He further argued that, in seeking a concession from the insurer on multiple occasions that his permanent impairment exceeded 10%, he did use his best endeavours to settle the claim despite not receiving a response.
The Member held it was not reasonable to expect the claimant to make an offer of settlement, or engage in settlement discussions, in circumstances where his entitlement to non-economic loss remained in dispute. It was therefore considered that the claimant did use his best endeavours to settle his claim before he referred it to the Commission.
The late claim issue was not pressed. The Member accepted the claimant’s submissions and accompanying annexures as a full and satisfactory explanation for the delay. Leave was granted for the claim to be referred for assessment.
The claimant sought an order for the payment of “extraordinary costs” in connection with the preliminary conference and the preparation of submissions. It was assumed by the Member that this was a reference to “exceptional circumstances”, found in s 8.10(4)(b) of the Act. The Member held that this section only applied to a claim for statutory benefits and did not apply to a damages claim.
Findings: The Member referred the proceedings to the stood over list noting there was an outstanding medical dispute. There was otherwise no power to allow costs under s 8.10(4)(b) of the Act in relation to these proceedings.
Dinkha v Insurance Australia Limited t/as NRMA Insurance  NSWPICMR 67
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS – merit review – dispute about payment of weekly benefits – meaning of pre-accident weekly earnings.
A dispute was referred to the Commission between the claimant and insurer about the amount of weekly benefits payable under Division 3.3 of the Act. The issue for determination was whether the claimant’s pre-accident weekly earnings (PAWE) falls under Sch 1, cl 4(1) or under cl 4(2)(a) or (b). The matter had previously been subject to a merit review decision at which time the Merit Reviewer determined the claimant was an earner pursuant to the Act.
Prior to the motor accident the claimant had completed a two-week trial with a painting business run by Mr Esho of La Ho Pty Limited (La Ho). Amongst several other arguments, the claimant submitted that if the accident had not occurred, he would have continued working as a painter’s labourer for La Ho. On this basis the claimant further submitted that he became entitled to earn more than he was earning before he applied for the job. The insurer contended that as the claimant’s pre-accident employment was limited to a discreet two-week work trial, he was not earning continuously nor was there a significant change in circumstances. The insurer therefore determined the claimant’s PAWE as nil, as no earnings were received in the 12-month period before the motor accident.
Firstly, as to cl 4(1), the Merit Reviewer considered the claimant’s PAWE to be nil as he did not provide any evidence of earnings received in the pre-accident period. She also referenced two statements provided by Mr Esho, noting that further employment may have been contemplated or intended but this was not sufficient for the purpose of cl 4(2)(a). Rather, the definition of “earning continuously” requires that the claimant was obtaining earnings from a source that, as of the date of the motor accident, was likely to continue for six months. She held that the evidence did not establish on balance that the source of earnings was likely to continue on the same or similar basis for at least six months, even if there were arrangements for the claimant’s employment to continue after the end of the work trial. She did not consider cl 4(3) and in turn, cl 4(2)(b) applied for similar reasons.
The Member found that the claimant’s PAWE was nil in which case he is entitled to be paid the minimum weekly statutory benefits amount less his post-accident earning capacity (if any) under ss 3.6 and 3.7 of the Act.
Findings: The reviewable decision was affirmed and the claimant’s entitlement to costs was nil.
Hawach v AAI Limited t/as GIO  NSWPICMR 67
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS – merit review – dispute about payment of weekly benefits – whether the degree of permanent impairment as a result of the injury is greater than 10% – cessation of weekly payments – pending claim for damages – whether weekly payments continue if there is an internal review decision and no medical dispute or a pending medical.
The insurer determined that the claimant’s degree of permanent impairment as a result of the injury was not greater than 10%, which was affirmed on internal review. This had not been formally disputed by way of an application for a medical assessment. The insurer also determined that the claimant’s entitlement to statutory benefits ceased on 5 July 2022 pursuant to s 3.12(2)(b) of the Act, which was again affirmed on internal review.
The matter was referred to the Commission for determination.
The claimant disputed the insurer’s determination regarding the degree of permanent impairment. He also submitted that as there was a pending claim for common law damages, both requirements of s 3.12 of the Act were met and therefore weekly benefits continue past 156 weeks, up to 260 weeks. The insurer argued that weekly benefits cease after 156 weeks after the date of the motor accident noting there was a determination that the claimant’s degree of impairment was not greater than 10% and this determination had not been overturned by the Commission by way of a medical assessment determination.
The Merit Reviewer acknowledged there was competing expert opinion about the claimant’s degree of impairment. She noted there was clearly no consensus among the medical experts and questions arise about the adequacy of briefs to doctors and their investigations. She ultimately held that the medical controversy was a matter to be resolved by way of a medical assessment for which the Act prescribes clear processes.
The Merit Reviewer proceeded to note that the wording “is assessed” in s 3.12 of the Act requires consideration of the current position, that is, there has been a formal determination by the insurer in an internal review decision that the claimant’s impairment is not greater than 10%. With that said, she opined if interim payments under s 3.12 were permitted simply because some of the medical evidence assessed the injured person as being greater than 10% despite competing assessments or pending a medical dispute, it would be problematic for the motor accident scheme. The insurer could potentially be put in a position of trying to claw back payments from the claimant, if a medical dispute outcome confirms the claimant’s impairment is not greater than 10%. She held that such circumstances would be inconsistent with the objects of the Act under s 1.3.
Findings: The Merit Reviewer found that the insurer’s decision to cease payments after 156 weeks under s 3.12(2)(b) was correct at the current time and continues to be the correct decision, pending determination of a medical dispute about the question of impairment.
The reviewable decision was affirmed.
Miscellaneous Claims Assessment
McLean v Insurance Australia Limited t/as NRMA Insurance  NSWPIC 658
Member: Anthony Scarcella
MOTOR ACCIDENTS – claims assessment – contributory negligence – damages for non-economic loss, past economic loss and future economic loss.
The claimant was involved in a mo0tor accident on 30 December 2018. The claimant stated he was travelling on his motorcycle when the insured who was travelling in front indicated right, then turned left and then sharply right in front of him again. The insured stated that she activated her right indicator with the intention of crossing the southbound lane to enter her friend’s driveway, however prior to reaching the street she moved slightly to the left without an indicator and commenced a right-angle turn. She did not see or hear the motorcycle prior to the collision.
The claim was listed for assessment conference on 20 June 2022. The parties agreed that various issues were required to be determined including any contributory negligence, the nature and extent of the claimant’s injuries, and quantum of the claimant’s damages for non-economic loss, past loss of earnings or past loss of earning capacity and future loss of earnings or past loss of earning capacity.
The Member first considered the issue of contributory negligence. The insurer submitted that the claimant’s failure to wear leather pants and gloves contributed to his injuries. The insurer also submitted that the claimant was under observation of the insured vehicle for some time and should have been aware it was the insured’s intention to turn right. This constituted a failure to take sufficient care of his safety. In turn, the claimant submitted that despite applying his rear and front brakes, he was unable to avoid a collision. The Member concurred with the claimant’s submission that if a motorist pulled over on the side of the roadway or off the roadway, it would clearly convey a message to other motorists on the roadway that the former was going to comply with the laws and not re-enter the roadway until it was clear to do so. The Member was therefore not satisfied that the insurer had discharged its onus and found that the circumstances of the accident did not give rise to any contributory negligence.
The Member found that the claimant sustained multiple physical and psychological injuries. Taking into consideration all of the evidence produced by both parties, the Member assessed damages as follows:
- Non-economic loss
The Member considered that the combined effect of the claimant’s physical and psychological injuries and disabilities have significantly affected his daily functioning, levels of activity, relationships and future plans. The Member accepted that prior to the accident the claimant performed his work duties, domestic duties, leisure activities and activities of daily living without restriction and without requiring any assistance despite his fluctuating levels of stress and anxiety, excessive consumption of alcohol and regular use of cannabis. The Member determined non-economic loss damages at $325,000.
- Past loss of earnings or loss of earning capacity
At the time of the accident, the claimant was employed as a casual trade assistant/labourer by Allmens at the BlueScope Steel Facility in the coke ovens. He had not been able to return to work since the accident. The Member accepted that the claimant’s income-earning capacity at the time of the accident was, at least, $504.84 net per week. The Member also accepted that the claimant is unable to sustain employment in an open and competitive labour market, even at reduced hours. His most likely occupation but for the accident would have been that of a labourer. Accordingly, the Member assessed entitlement to past loss of earnings from 30 December 2018 to 29 November 2022 based on average weekly earnings of $504.84, allowing 2% per annum increases. The claimant’s total past loss of earnings was assessed at $107,096.54, plus superannuation at 11% being $11,780.62.
- Future loss of earnings or loss of earning capacity
The Member accepted the claimant’s most likely future circumstances but for the accident, would have seen him eventually transition to full-time employment with Allmens or another employer. Thereafter, he would have earned, at least, the average weekly full-time earnings of all adult males in NSW as published by the Australian Bureau of Statistics, which is currently $1,490 net per week. Taking into account the claimant’s consumption of alcohol and cannabis, the Member made an appropriate reduction in earning capacity of 50%. As such, the Member assessed the claimant’s entitlement to future loss of earnings at $745 net per week for 26 years (until retirement age of 67) less 15% vicissitudes, totalling $486,779.27. Loss of future superannuation entitlements were also assessed at 14.53%, being $70,729.03.
Findings: The Member found there was no contributory negligence on the part of the claimant. The Member otherwise assessed the claimant’s damages as follows:
- Non-economic loss: $325,000
- Past economic loss: $118,877.16
- Fox v Wood: $306 (agreed)
- Future economic loss: $557,508.30
Costs were also assessed in the total sum of $64,383.91 inclusive of GST.
We hope you find this publication of some interest and would be delighted to assist you on any queries you may have. Please feel free to contact Monique Essey or any one of the CTP Partners.