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Welcome to the 110th 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 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.

Miscellaneous Claims Assessment

Grinter v CIC Allianz Insurance Limited [2024] NSWPIC 267

Member: Susan McTegg

Dispute of whether claimant wholly or mostly at fault for the purpose of ss 3.11 and 3.28 – on the balance of probabilities lights were working on the trailer at the time of accident – claimant failed to keep a proper lookout and was wholly at fault – exceptional costs awarded under ss 8.10(4) and 8.3(4).

The claimant sustained serious injuries in a motor accident on 8 July 2021. He was driving down the Pacific Highway south of Ballina when he collided with the rear of a large trailer being towed by a truck.

The insurer accepted liability for the statutory benefits claim up to 26 weeks on 16 September 2021 but denied liability for statutory benefits beyond 26 weeks on 24 November 2021 on the basis that the claimant was wholly at fault for the accident. This decision was upheld on internal review.

The claimant referred the dispute of whether he was wholly at fault to the Commission in accordance with Division 7.6 of the Act and it came before Member McTegg to determine.

The claimant alleged that his ability to observe, react and brake in response to the insured truck coming to a halt was that the insured vehicle’s rear and side lights were not working or were not connected when the accident occurred. The insured driver denied this allegation. The parties agreed at least that the headlights were working, and photographs taken at the scene showed the taillights working.

The Member found that absent of independent recollection, having regard to his 30 years’ experience as a professional driver, it was more likely than not that the insured driver undertook his usual pre-check routine, which included walking around the truck to inspect the lights before leaving the yard. It was on this basis that the Member rejected the allegation that the insured driver realised the rear and side lights of the truck and trailer were not on and he connected or reconnected the link between the prime mover and the trailer to activate those lights at the scene. She found that it was unlikely that the insured driver had sufficient time at the scene after the collision to do this before the emergency services arrived.

The claimant conceded that if it were found that the headlights, rear and side lights were working at the time of the accident, the insured truck would have been visible at a time that would have been sufficient for the claimant to brake or serve to avoid the collision. As the Member was satisfied of that on balance, the Member determined that the motor accident was caused wholly by fault of the claimant.

On the issue of costs, both parties sought an award of additional costs. The claimant opposed the insurer’s application for additional costs and the insurer argued that the claimant did not have standing to do so as there was no application for the claimant to pay the insurer’s costs.

The Member addressed the comments made in obiter by Wright J in AAI Limited t/as GIO v Moon and determined that this decision empowered the Commission to award exceptional costs to the insurer’s lawyers. She rejected the claimant’s argument that awarding exceptional costs to insurers creates an “imbalance”, stating that it would be “unreasonable to deny the insurer an order which would permit its lawyers to be paid in excess of the regulated amount where the insurer bore the evidentiary onus in establishing the claimant was wholly or mostly at fault for the accident” where the matter is complex and requires the retention of Counsel.

Held: The claimant was found wholly at fault for the motor accident; both parties were awarded exceptional costs.

View decision

Wright v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 271

Member: Brett Williams

Claimant injured in motor accident at work between two forklifts – claim against Nominal Defendant as both forklifts uninsured and operation of s 1.10A; circumstances that restrict liability of the Nominal Defendant in a statutory benefits claim including where accident did not occur on “road” as defined.

The claimant was injured at work when an employee drove a forklift into another forklift that the claimant was driving in a private warehouse on 5 March 2019. The claimant made a claim for statutory benefits on 17 June 2019 for personal injuries sustained to his neck, back and shoulders as a result of that collision.

As both forklifts were uninsured at the time of the collision, the statutory benefits claim was allocated to the Nominal Defendant. Liability for statutory benefits was denied by the Nominal Defendant on the basis that CTP insurance did not apply as the accident was the fault of the driver of an unregistered vehicle on private property and, in any event, the claimant had no entitlement to statutory benefits as he had a successful workers’ compensation claim. There was no dispute on fault or that the claimant sustained more than a threshold injury.

The claimant was paid benefits under the Workers Compensation Act 1987 (WC Act) and also made a claim for workplace injury damages against his employer. The damages claim resolved on 27 May 2022 and brought to an end the claimant’s entitlement to payments under the WC Act. He reinvigorated his claim for statutory treatment expenses from the Nominal Defendant through a letter from his solicitors to the Nominal Defendant dated 28 July 2022.

The Nominal Defendant relied on s 1.10A of the Act to deny liability to pay statutory benefits to the claimant. The motor accident occurred after the introduction of the Act and before the Motor Accident Injuries Amendment Act 2022, but it was submitted that the legislative provisions in question applied to this motor accident, meaning a motor accident involving an uninsured vehicle must occur on a road or road related area for the Nominal Defendant to have any liability under the Act, including the payment of statutory benefits.

The Nominal Defendant conceded that if not for the amendments, the claimant would have been entitled to statutory benefits following the settlement of his workers’ compensation claim.  However, due to the amendments, that entitlement no longer existed.

The claimant argued that absent a clear statement to the contrary, an Act cannot be assumed to have retrospective operation. The Member rejected this argument and was satisfied that there was clear contrary intention contained in Schedule 4, Part 7 s 14 that s 1.10A was to apply retrospectively.

The Nominal Defendant argued that any liability that meant it would have had to pay statutory benefits, but for the amendments, extended only up to the fifth anniversary of the accident.  After that time, it became a matter for the Lifetime Care and Support (LTCS) Scheme to consider liability for any statutory benefits.

The claimant also argued that s 1.10A that applied exclusively to claims against the Nominal Defendant is not relevant because he did not rely upon the Nominal Defendant in its s 2.29 capacity as the default insurer of unidentified vehicles, but on s 3.2(2)(c) wherein the Nominal Defendant is the default insurer in various circumstances beyond where vehicles are not insured or identified.

The Member rejected this argument from the claimant. The note to s 3.2(2) directs that the Nominal Defendant is the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4, and an argument that Division 2.4 (which includes s 2.29) does not apply is illogical.

The Member addressed whether the claimant was barred from the recovery of statutory benefits by the operation of s 1.10A. It was noted that s 1.10 limited the application of the Act to injuries or death resulting from a motor accident where the vehicle at fault has motor accident insurance cover, or gives rise to a work injury claim, and that the following s 1.10A was included “to make it clear that the provisions of the Act relating to the liability of the Nominal Defendant in connection with a motor accident apply to a claim for statutory benefits in the same way as they apply to a claim for damages.”

As LTCS was not a party to the proceedings, the Member did not address whether the LTCS had a liability to pay statutory benefits to the claimant. There was scope for a finding that LTCS may not have a liability to pay statutory benefits after five years in circumstances where neither an insurer nor the Nominal Defendant had a liability to pay statutory benefits as the “relevant insurer”.

Held: Decision upheld – the Nominal Defendant did not have liability to pay statutory benefits to a claimant under Part 3 because the accident in which he was injured by an unregistered forklift did not occur on a “road” as relevantly defined.

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Medical Review

AAI Limited t/as AAMI v Burns [2024] NSWPICMP 323

Review Panel: Member Terence O’Riain, Assessor Drew Dixon and Assessor Christopher Oates

Medical review decision – where there is evidence of symptoms but not sufficient documentary evidence to calculate pre-accident permanent impairment or apportion.

The claimant was injured in a motor accident on 3 February 2019. He entered a roundabout on his motor tricycle and was struck by the insured driver. The claimant sustained a left femur fracture, which had a complicated recovery including infection, osteomyelitis, further surgery and rehabilitation. He also sustained injuries to his left knee, right wrist and back as a result of the accident.

A dispute arose between the parties regarding the claimant’s entitlement for non-economic loss and degree of permanent impairment. The insurer argued that the claimant had a significant medical history, that his permanent impairment needed to be apportioned and reduced on account of his pre-existing history and that impairment was not greater than 10% whole person impairment (WPI).

The claimant applied to the Commission for medical assessment seeking a determination that his degree of permanent impairment arising from injuries sustained in the accident was greater than 10% WPI.

In a Certificate dated 9 November 2023, Medical Assessor Gothelf assessed physical impairment of the left ankle, both hips, left knee, lumbar spine, skin and right wrist at 25% WPI. The insurer applied for review and satisfied the President’s Delegate that there was a reasonable suspicion that this assessment contained a material error. The review proceedings were put before a Panel to determine.

The Insurer argued that the pre-existing evidence of neuropathy and use of a walking stick rendered it necessary for Medical Assessor Gothelf to explain whether muscle atrophy would pre-date the accident, because atrophy will result from reduced muscle activity and that atrophy was used to assess 5% WPI in the left lower leg.

The Panel assessed the claimant by a different method than that of Medical Assessor Gothelf and critically, the Panel did not include gait, atrophy, or leg length discrepancies to assess the left lower extremity. This meant that the insurer’s allegation of error did not arise on re-examination. It ultimately assessed 29% WPI for impairment of the left lower extremity and of scarring and affirmed that impairment was greater than 10% WPI.

A critical finding in this decision was the fact that around 2019 before the motor accident, the claimant began to suffer neuropathy in his legs as a result of his diabetes and switched to a motor trike since he could not hold a bike upright anymore. Following the motor accident, the claimant could no longer ride his trike. The Panel considered this and noted that before the accident and aside from the weakness caused by pre-existing diabetic peripheral neuropathy, there was not sufficient documented evidence on which a reliable and accurate assessment of pre-accident permanent impairment could be based.

Held: Certificate revoked, and new Certificate issued with greater finding on permanent impairment.

View decision

Merit Review

Rabiei v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 10

Merit Reviewer: David Ford

Claimant’s application for merit review of insurer’s pre-accident weekly earnings (PAWE) assessment under Division 3.3 – where insurer required verification of cash payments in form of statutory declarations – where statutory declarations are not signed; determination that cash payments not verified and therefore not taken into account.

The claimant was injured in a motor accident on 3 February 2023. He was a passenger in a motor vehicle which collided with the rear of another motor vehicle. The claimant sustained injuries to his neck, lower back, both shoulders, left arm left leg and psychological injuries and, as a result of those injuries, has not returned to his pre-injury roles as a landscaper and retail sales assistant since the accident.

The claimant lodged an application for statutory benefits on 22 February 2023. The insurer admitted liability for payment of statutory benefits and assessed PAWE at $1,171.16. This assessment was based on a financial accounting report of PKF Forensic Accountants Pty Limited dated 6 July 2023.

A dispute arose between the parties surrounding the assessment of PAWE. The claimant argued that the insurer failed to include additional invoices, bank deposits and cash payments that he alleged were included in his role as a landscaper. It was alleged that the correct PAWE should be $2,630.18.

The claimant produced signed correspondence from his four clients that he said verified those payments, but the insurer requested he produce signed statutory declarations from each of those clients. The claimant did not do this and so the insurer affirmed the PAWE figure of $1,171.16 in an internal review determination dated 12 March 2024.

The claimant applied to the Commission to determine the reviewable decision of the insurer that his PAWE was $1,171.16 and the dispute came before Merit Reviewer Ford to determine.

The Member placed weight on the fact that the amounts paid in cash to the claimant by his clients that he sought to have included in the PAWE assessment amounted to $53,430. This was said to be a significant sum and so it was accepted that the requirement of the insurer to have the cash payments verified by statutory declarations was not unreasonable.

Absent of signed statutory declarations and sufficient verification, the Merit Reviewer agreed with the insurer’s assessment of PAWE for the purposes of the Act.

Held: PAWE assessment of insurer was affirmed at $1,171.16.

View decision

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