Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1024 June 2021
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 Personal Injury Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on Australasian Legal Information Institute (AustLII) website.
All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.
ABH v AAI Ltd t/as GIO  NSWPICMR 16
Merit reviewer: Brett Williams
MOTOR ACCIDENTS—Merit review—whether claimant entitled to maximum costs allowed under regulation for minor injury dispute—claimant not successful in minor injury dispute—no itemised bill—whether claimant entitled to costs for merit review.
The claimant was legally represented. An application for assessment of minor injury dispute was lodged by her solicitors in the Commission. The dispute was not determined in the claimant’s favour, with a finding that the injuries were minor. Subsequently, the claimant’s solicitors sought payment from the insurer of the maximum amount allowable under the regulations, being $1,660 plus GST. The insurer declined payment. This declinature was referred to the Commission as a merit review.
The merit reviewer relied on AAI Ltd v Moon  NSWSC in finding that success in a dispute is not a pre-requisite to recovery of costs. He noted that there was no claim that the dispute involved “exceptional circumstances” justifying departure from the maximum amount fixed by regulations pursuant to s 8.10(4)(b). He noted that the application for assessment of minor injury dispute lodged by the solicitors do not include any detailed, substantive, or comprehensive submissions. There was no itemised schedule of work undertaken.
Finding: The merit reviewer assessed reasonable and necessary costs associated with the medical dispute at $500 plus GST. In relation to the claim for costs incurred in the costs dispute, he noted that the regulations do not permit payment of costs associated with merit reviews. Section 8.10(4) permits the Commission to allow such payment if the claimant is under a legal capacity, or if exceptional circumstances exist. Neither of these considerations applied to the dispute. No costs were allowed for the merit review.
As a general observation, the merit reviewer noted that it would assist the Commission to assess costs disputes if solicitors provided itemised schedules of costs.
Miscellaneous claims assessment
ABG v Allianz Australia Insurance Limited  NSWPIC 166
Member: Bridie Nolan
MOTOR ACCIDENTS—Miscellaneous claims assessment—insurer alleged 50% contributory negligence—contributory negligence reduced to 30% on internal review—claimant was crossing road as a pedestrian—dimly lit regional street—has been consuming alcohol but level of intoxication was unknown—was “negotiating” crossing with another vehicle when hit by insured vehicle—claimant is an interstate resident—whether Commission has jurisdiction to assess dispute.
The claimant resided in Wodonga, Victoria. The member noted that the High Court has original jurisdiction in all matters between residents of different states, or between a state and a resident of another state. She further noted that the insurer is a corporation and therefore not considered a resident of a state, and the Commission therefore has jurisdiction to hear the dispute.
The accident occurred in Albury. The claimant had consumed alcohol during the day. At about 7.15 pm her and another person attempted to cross a roadway. As they were crossing, a car sighted them and stopped. The driver of the vehicle and the pedestrians both indicated that the other should go first. Whilst this was occurring, the insured taxi travelling in the opposite direction collided with the claimant.
The insured’s statement was described as “self-serving” and difficult to reconcile with the facts.
The member noted that the Motor Accident Injuries Act 2017 post-dated the Civil Liability Act 2002 (which was not the case with the Motor Accident Injuries Act 1999), and that case law decided prior to the enactment of the Civil Liability Act should be applied with caution. She also noted that s 3.38(3)(c) directed the Commission to consider what is “just and equitable in the circumstances of the case” when assessing contributory negligence. As a result, the conduct of a driver is open to be judged to a higher standard than that of a pedestrian.
Finding: It was found that the claimant did not bear any responsibility for the accident, and the insurer was not entitled to reduce statutory benefits.
Maksoud v AAI Ltd t/as GIO  NSWPIC 167
Member: Ray Plibersek
MOTOR ACCIDENTS—Miscellaneous claims assessment—whether the claimant has provided a full and satisfactory explanation for late lodgement of application for statutory benefits—impacts of COVID-19 and restrictions on claiming.
The claimant alleged that he suffered injuries in an accident on 4 March 2020. He lodged an application for statutory benefits on 15 November 2020. The late claim was rejected by the insurer, and this decision was upheld on internal review. The matter was referred to the Commission.
At the time of the accident the claimant’s wife was pregnant. She gave birth some 2.5 months later on 23 May 2020. During her pregnancy the claimant’s wife attended hospital for fortnightly examinations due to the risk of gestational diabetes. The claimant attended all appointments with his wife until 1 March 2020 when he was advised not to go to the hospital unless it was an extreme emergency, due to fears around the COVID-19 pandemic. He complied with this advice and, following the birth of his newborn son, did not leave his house unless absolutely necessary due to these concerns.
The claimant thought his injuries would resolve, but they were not improving. On 28 July 2020 he contacted solicitors and was advised of the timeframes and requirements for making a claim. He did not act on this advice immediately as he was concerned about leaving the home to have a Certificate of Capacity completed. He stated that the police did not allow him to make a report.
The evidence included statements from the claimant and his wife.
Finding: The member found that the claimant had provided a full and satisfactory explanation for late lodgement of claim, and that that claim may be made.
ABE v AAI Ltd t/as GIO  NSWPIC 164
Member: Susan McTegg
MOTOR ACCIDENTS—Miscellaneous claims assessment—whether claimant wholly or mostly at fault—motorcycle accident—single vehicle accident—claimant lost control of motorcycle after colliding with a piece of gyprock on the roadway—whether incident is a motor vehicle accident.
The claimant was riding a motorcycle in a residential street. Very shortly after commencing the ride, he noticed a piece of gyprock on the roadway. His view of it was impeded by a parked vehicle. When he did observe the debris, he attempted to swerve around it, but his rear tyre went over it and caused him to fall from the motorcycle. The debris was not mentioned in the hospital records or police report.
The insurer determined that the claimant was mostly or wholly at fault in failing to observe and avoid the debris earlier (if it existed at all), and that the debris on the roadway was the proximate cause of the accident. Additionally, they submitted that the incident did not occur in the use and operation of a motor vehicle and that it was therefore not a motor vehicle accident.
The member referred to QBE Insurance (Australia) Ltd v Abberton  NSWSC 588 in finding that the incident was a motor vehicle accident.
Finding: The member found that the claimant was not wholly at fault for the accident as the accident would not have occurred in the absence of the gyprock. She found that the claimant was partly at fault for failing to keep a proper lookout and riding at a speed excessive in the circumstances. Contributory negligence was not greater than 61% (although not asked to do so, she determined it to be in the range of 35), and the claimant was therefore not mostly at fault.
ABD v NRMA Insurance 2021] NSWPIC 163
Member: Anthony Scarcella
MOTOR ACCIDENTS—Miscellaneous claims assessment—whether claimant wholly or mostly at fault—claimant was riding a bicycle, which collided with a motor vehicle.
The claimant was riding a bicycle, which was struck by a motor vehicle at an intersection in Nelson Bay. The direction from which the claimant travelled was governed by a give way sign. The claimant stated that he stopped at the give way sign, checked for approaching traffic, then entered the intersection before being hit by the claimant. The insured driver said that he proceeded slowly through the intersection, and that the claimant entered the intersection at speed and collided with the front passenger-side corner of his vehicle. The insured driver’s direction of traffic was not governed by a give way sign.
The insurer determined that the claimant was wholly at fault. This was affirmed on internal review.
Finding: The member found that the accident was caused mostly, but not wholly, by the fault of the claimant. The claimant was riding at a speed excessive in the circumstances, he failed to slow on approaching the intersection, and he failed to give way to the insured vehicle. However, the insured was partly at fault in failing to keep a proper lookout and failed to apply his brakes in time to avoid the collision.