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Welcome to the 105th 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 issues 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 Australasians Legal Information Institute (AustLII) website. Please see the latest edition below.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (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.

Judicial Review

Insurance Australia Limited (trading as NRMA) v James Hulse [2024] NSWSC 142

Judicial Review – statutory interpretation – historical fact of a charge – revocation of statutory benefits – remitted back to the Commission.

The claimant sustained serious injuries in an accident on 11 September 2020 where he was the rider of a motorcycle. The claimant was charged with operating the motorcycle under the influence of prescribed illicit drug(s) in his system. The Local Court found the claimant guilty however did not proceed to a conviction and the matter was dismissed. The claimant subsequently lodged a claim for statutory benefits.

By s 3.37 of the Act no statutory benefits are payable to an injured person who commits a serious driving offence. The issue was whether the claimant was disentitled to statutory benefits where he was found guilty of a serious driving offence, but no conviction recorded.

Members decision

The insurer denied liability on the basis that the claimant had been “charged with or convicted of a serious driving offence” related to the accident therefore terminating statutory benefits. The claimant lodged an application with the Commission disputing the insurers decision to deny liability and not pay statutory benefits. At first instance in the Commission, Member Cassidy found in favour of the claimant stating that the effect of the dismissal of the charge was “as if there had never been a charge at all other than the ‘historical fact’ of a charge being laid” [52]. The Member found the claimant was not disentitled to payment of statutory benefits by s 3.37.

On appeal

The primary dispute presented to the Member revolved around whether the decision made by the Local Court to dismiss the case against the claimant under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 fell within the scope of s 3.37(2). The insurer argued that the Member's conclusion constituted a misinterpretation and misapplication of s 3.37, constituting a legal error evident on the record of the Commission.

It was concluded that the words “has been charged with a serious driving offence” refer to past tense – only requiring that the person had been charged in the past. The words do not require that the person remains charged at any particular later point of time.

Ultimately, it was found the Member erred in construing s 3.37(2) as lifting the disentitlement in any circumstance where a charge was no longer pending, and the charge remained when the offence was proven. Secondly, the Member’s conclusion was erroneous on the fact that it is was found the legislative intent of s 3.37 is that some persons who have been charged, but not convicted, would be permanently disentitled. They do not pertain to an ongoing condition of being charged, as the Commission determined.

Held: The decision of the Member on 14 December 2022 was set aside and the matter remitted back to the Commission.

View decision

Determination of Review Panel

Muddle v AAI Limited t/as GIO [2024] NSWPICMP 53

Review Panel: Member Belinda Cassidy, Medical Assessors Drew Dixon and Robin Fitzgerald

Medical assessment – whole person impairment dispute – prior injuries to head and left ankle – subsequent injury to left wrist – causation – Certificate revoked.

The claimant sustained injuries as the result of a motor vehicle accident that occurred on 27 April 2019 when the claimant was riding a mobility scooter across an intersection and was hit by a car. In July 2020, the claimant sustained a fracture to the left wrist after a subsequent fall, claiming to be due to lack of balance caused by the head injury sustained in the accident.

On 25 September 2022, Medical Assessor Ian Cameron determined that the claimant sustained a mild complicated traumatic brain injury and a left leg malleolar fracture with scarring as a result of the accident. He assessed these injuries at 4% whole person impairment (WPI). Medical Assessor Cameron was not satisfied the subsequent left wrist injury was caused by the accident. The claimant applied for a review of this decision.

The claimant argued that the left wrist fracture sustained from the fall was caused by the brain injury, which the claimant argued affected her balance. The claimant submitted that Medical Assessor Cameron did not take a proper medical history and assumed because the claimant used a mobility scooter prior to the fall, there were mobility issues previously therefore those prior mobility issues caused the fall. Further, the claimant argued Medical Assessor Cameron erred in considering the scar on the hip, which was not injured in the accident when he should have assessed the scar on the left ankle.

The Review Panel undertook a re-examination of the claimant, which was conducted by Medical Assessors Dixon and Fitzsimons.

The Review Panel identified six potential causes of impaired balance affecting the claimant, however these were all ruled out after further examination of prior medical history from the claimant’s GP records. A CT scan of the brain dated 29 May 2019 indicated the claimant hit the back of her head (occiput) in the accident, therefore the claimant’s cerebellum (below the occipital lobe and back of the head) could have been traumatised. The Review Panel explained that the cerebellum is responsible for maintaining balance, therefore were of the view that the claimant’s cerebellar pathology could explain the impaired balance resulting in her subsequent fall.

Held: The Review Panel revoked the Certificate of Medical Assessor Cameron, instead finding that the claimant had total WPI of 17%, being made up of 7% impairment for the right wrist injury, 6% impairment for the closed head injury, 3% impairment for the left ankle injury and 1% impairment for scarring. The Panel also concluded that the claimant’s left wrist fracture was caused by balance and gait issues resulting from the claimant’s head injury sustained in the accident.

View decision

Settlement approval

AAI Limited t/as GIO v Higgins [2024] NSWPIC 74

Member: Hugh Macken

Settlement approval – damages for non-economic loss – evidence of pre-existing conditions having consequence on most likely future earning capacity – no allowance for economic loss.

The claimant, who was a passenger, was seriously injured in a motor accident on 21 July 2018. Her partner was the insured driver and sustained fatal injuries. The claimant suffered multiple fractures to her left foot, multiple bruises and abrasions, collapsed lung and a mild traumatic brain injury in the accident.

The parties agreed a settlement in the sum of $400,000, which reflected an award of non-economic loss damages only. This was on the basis that the claimant had suffered a significant learning disability since birth and apart from six months’ employment at Hungry Jacks many years ago, the claimant had never worked.

Member Macken agreed that an award for economic loss was not reasonable as there was no material before him to suggest that, but for the injuries sustained in the accident, the claimant would have worked. He was satisfied that the claimant’s future earning capacity, irrespective of any post-accident disabilities, was the same. 

Regarding the award of non-economic loss, he considered $400,000 to be “at the higher end” for someone of the claimant’s age, being 37 years, notwithstanding her significant injuries but because of her pre-existing comorbidities.

Held: Settlement approved.

View decision

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