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Welcome to the 100th 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) 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

Colig v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 470

Member: David Ford

MOTOR ACCIDENTS—claims assessment— insured driver intoxicated more than three times over limit - claimant was driving on wrong side of road and collided head on with the insured driver with no attempt to take evasive action - physical injuries– high contributory negligence.

On 28 September 2019, the claimant was driving on the wrong side of the road and collided head on with the insured driver, who was driving on the correct side of the road. There was no explanation from the claimant as to why he was driving on the wrong side of the road; he stated that he could not recall the collision. The insured driver was found to have a high range blood alcohol content of 0.168.

The claimant sustained extensive fractures, including fractures to the face, sternum, ribs, hands and toes.

The insurer strongly denied liability and submitted that in the event that its liability was established, the insurer would submit that the contributory negligence of the claimant was at least 85% to 90%.

The parties agreed that the claimant was driving on the incorrect side of the road, however, the claimant submitted that the collision was a consequence of the insured driver driving his vehicle with a blood alcohol reading of 0.168.

Member Ford accepted from the insured driver that he was a long-haul truck driver, was very familiar with the road and the surrounding area, he travelled the road at least seven times per week and that his speed limit was 60-70km/h and he was accelerating, with the speed changing from 60km/h to 80km/h ahead. It was accepted that the insured pressed the brakes and when he was faced with an emergency situation, he took reasonable evasive action by swerving his vehicle to the left. The insured conceded that his reaction was slower as a result of the alcohol consumption.

Member Ford accepted that the claimant did not have any recollection of the collision nor any reasons as why he was travelling on the wrong side of the road. Member Ford relied on a witness to the accident who stated that he did not see the claimant’s vehicle at any time prior to the collision slow down, press the brakes nor any brake lights come on.

Member Ford found that the insured driver had breached his duty of care to the claimant, which had resulted in the claimant sustaining damage. Member Ford also found for contributory negligence at 80% on the basis that the claimant was driving on the wrong side of the road, driving at about 70km/h and did not take any evasive action or attempt to reduce speed at the time of the impact.

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Claims Assessment

Scott AAI Limited t/as GIO [2023] NSWPIC 509

Member: David Ford

MOTOR ACCIDENTS—claims assessment— motorcycle being driven by the claimant attempted to overtake a state transit bus - claimant failed to see insured bus driver and activated left turn indicator - the insured bus driver admitted the bus had a blind spot to vehicles overtaking on the left hand side of the bus - physical injuries – high contributory negligence.

On 3 December 2018, the claimant sustained injuries from a collision whilst he was riding his motorcycle behind a state transit bus. The collision occurred as the bus driver indicated left from lane 2 on approaching an intersection, and at the same time the rider did not see the left hand indicator of the bus being activated and proceeded to overtake the bus by heading into lane 1 on the assumption that the bus would remain in lane 2.  The bus turned left and collided with the rider.

The claimant sustained extensive physical injuries including complex fracture of the distal femur on the right leg, closed fracture of lateral tibia, fracture of ribs, facial scarring, injury to teeth and psychological injury.

The insurer denied liability on the basis that the motorcycle rider was the driver at fault, noting that the claimant was charged by Police with offence of overtaking/passing vehicle contrary to sign. During the questioning at the assessment conference by counsel, the insured driver confirmed that when he looked to the passenger side rear view mirror there was a blind spot. The bus CCTV confirmed the insured bus driver looked twice after turning on the left side indicator but, he did not check again before making the left turn.

The claimant submitted that liability should be accepted by the insurer and submitted that in the event contributory negligence was established, contributory negligence at most should be 35%.

Member Ford found that the insured bus driver had breached his duty of care to the claimant by not taking another look over to his left rear-view mirror prior to taking the left turn, which had resulted in the claimant sustaining personal injury/loss/damage as a result of the said breach. Member Ford found contributory negligence attributable to the claimant on the basis that the claimant had not kept a proper lookout when attempting to overtake the bus noting that the driver had activated the left indicator. Member Ford assessed contributory negligence at 60%.

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Determination of Review Panel

Chandab v Allianz Australia Insurance Limited [2023] NSWPICMP 521

Panel Members: Member Belinda Cassidy, Dr Sophia Lahs, and Dr Peter Yu

MOTOR ACCIDENTS—review panel— six month period between date of accident and lower back injury complaint – radiculopathy criteria.

On 23 September 2021, the claimant was involved in a motor accident when, as the front seat passenger in the family car driven by her husband, he swerved and lost control, rolling the vehicle. The claimant alleged she sustained injuries to her head, back and neck and developed shoulder pain and a psychological condition as a result of the accident.

A medical dispute arose between the parties as the insurer determined that the claimant had sustained threshold injuries. The claimant alleged she sustained L5/S1 annular tear from the accident.

At first instances, Medical Assessor Cameron determined that the annular fissure reported at L5/S1 was not caused by the accident and the claimant also did not present on the day of assessment with any signs of radiculopathy. Medical Assessor Cameron also stated that the presence of the fissure is normal amongst the general population.

The claimant sought a review of Medical Assessor Cameron’s Certificate on the basis that the Medical Assessor did not give reasons or respond to clearly articulated reasons for the annular tear.

The Panel accepted the insurer’s submissions that there were no records of lumbar spine complaints from the claimant until more six months after the accident, even though the claimant was regularly attending her GP rooms and physiotherapy. The records for the initial six months contained complaints about her neck and shoulders.

The Panel noted that MRI showed a “tiny central annulus tear with mild diffuse disc bulging” at the L5/S1 level. There was no neural compression seen. The radiological report noted “diffuse bulging” at L5/S1 and “disc desiccation”, which the Panel noted were signs of degeneration and not trauma.  The clinical judgment of the medical members of the Panel was that such tiny tears (or fissures) occur in the general population with or without injury. 

The Panel was not satisfied the claimant injured her lower back in the accident, and stated that as such, there was no need to consider whether she had a threshold lower back injury. 

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