Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 113
09 August 2024
Welcome to the 113th 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 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
Mayer v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 393 (24 July 2024)
Member: Elizabeth Medland
Miscellaneous claims dispute regarding liability for treatment and care expenses under s 3.28 – where claimant is wholly at fault and liability for treatment expenses ceases after 26 weeks - claimant has surgery within 26-week period, but sought reimbursement of related expenses incurred after 26 weeks - issue for determination centred on statutory interpretation of the words “expenses incurred”.
The claimant made a claim for statutory benefits as a result of personal injury sustained as a result of a motor accident on 12 January 2023. The insurer denied liability for statutory benefits beyond 26 weeks on the basis that the claimant was wholly at fault. Member Medland affirmed the wholly at fault decision in separate proceedings, meaning that the claimant was not entitled to ongoing statutory benefits beyond 13 July 2023.
The claimant underwent cervical spine surgery within the 26-week period on 4 July 2023 and subsequent sought reimbursement of post-operative surgery and rehabilitation costs that were provided after the 26-week period. Medical Assessor Clive Kenna issued a determination on 10 January 2024 which certified that the surgery related to the injury caused by the motor accident and was also reasonable and necessary in the circumstances. The claimant then requested reimbursement of treatment and care expenses relating to that surgery but provided after 13 July 2023, which the insurer denied on the basis that it was “incurred or provided” after the 26-week period ended.
A dispute arose between the parties under Sch 2 cl 3(n) that provides for determination of “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”. The issue that required determination was the meaning of the word “incurred” in the context of the provision and this was determined on the papers before Member Medland.
The Member ultimately preferred the claimant’s position that the words “expenses incurred” is not synonymous with the words “treatment received” or “treatment required”, and that a treatment expense can be “incurred” after a particular action – in this regard it meant that the post-surgical rehabilitation received after the surgery and outside the 26-week period was considered to be “incurred” in the relevant period because “the insurer, once deemed liable for the surgery, became liable for all related treatment that would be reasonably contemplated as being reasonable and necessary at the time of the surgery.” Member Medland considered that this interpretation was most in line with the objects of the Act, particularly the objective to achieve optimum recovery and facilitate a return to work. She further stated that this interpretation would avoid situations where delays in receiving treatment occur because an insurer has denied liability, necessitating a dispute process to unfold, and then allowing the insurer to deny reasonable and necessary treatment costs because of that delayed process which it caused.
The Member found the insurer liable for treatment and care expenses that were directly related to, and reasonably contemplated at the time of, the surgery (C3/4 anterior cervical discectomy and fusion surgery) carried out on 4 July 2023, whether the treatment was provided after the 26-week period (13 July 2023) or not.
Held: An insurer is liable for related treatment and care expenses reasonably contemplated at the time of surgery, if outside the entitlement period.
Parker v Allianz Australia Insurance Limited [2024] NSWPIC 388 (22 July 2024)
Member: Elizabeth Medland
Whether claimant is wholly or mostly at fault for the purpose of ss 3.11 and 3.28 and assessment of contributory negligence for the purpose of s 3.38 - where insured driver activated right hand indicator only immediately before execution of turn - where claimant motorcyclist had no reasonable opportunity to avoid collision.
The claimant lodged a claim for statutory benefits for personal injuries sustained in a motor accident on 29 July 2023. Both parties were travelling in the same direction when the accident occurred. It was understood that the insured driver entered the left lane and slowed, the claimant motorcyclist attempted to pass him in the right lane, but then the insured driver suddenly turned right across the claimant motorcyclist’s path, resulting in a collision.
The insurer denied liability for statutory benefits beyond 52 weeks on 9 November 2023 on the basis that the claimant was mostly at fault for the motor accident in accordance with ss 3.11 and 3.28 of the Act. The insurer admitted breach of duty of care on behalf of the insured, but ultimately determined that the claimant was mostly at fault. The insurer argued that the claimant failed to observe the insured vehicle’s right-hand indicator, attempted to overtake the insured when unsafe to do so on the right-hand side and failed to brake soon enough. This decision was affirmed on internal review and the claimant applied to the Commission to resolve the fault dispute. Member Medland was appointed.
Motorcyclists travelling with the claimant provided evidence to the effect that the insured driver slowed down and indicated as a signal for the motorcycles to overtake. The claimant’s evidence was that the insured driver indicated to turn “at the very last moment”, and that he had no time to avoid the collision.
The insured driver was charged as a result of the motor accident, but for driving on a “refused licence” due to previous traffic offences resulting in accumulation of excess demerit points. He admitted that he was driving without a valid licence. His evidence was that he indicated to turn right approximately 100m from the turn. The claimant highlighted that the insured “was driving on a suspended licence. Given his history of various traffic infringements and his willingness to continue driving while on a suspended licence”, that his credibility as a witness must be raised.
Member Medland made factual findings on cumulative review of the evidence that the insured driver activated a right-hand indicator, but only immediately before executing that turn, that the insured driver was travelling at a relatively slow speed without an immediately discernible driveway or gate on the side of the road and that the claimant’s fellow motorcyclists had already overtaken the insured driver.
Member Medland determined it reasonable that the claimant would consider and then perform an overtaking manoeuvre of the insured vehicle and that it was not until the claimant was in the midst of his overtaking manoeuvre, either having reached the side of the vehicle or very close to it, that the insured driver braked and activated his indicator before performing a right-hand turn. On that finding, Member Medland determined that the claimant did not have a reasonable opportunity to avoid a collision with the insured vehicle and that therefore the claimant was not wholly or mostly at fault for the accident. She determined that the insured driver breached the duty of care owed to the claimant and that the claimant did not contribute to the accident.
Held: The insurer’s decision was overturned – the claimant was not wholly or mostly at fault for purpose of ss 3.11 and 3.28; contributory negligence assessed at 0% for purpose of s 3.38.
Michael v Allianz Australia Insurance Limited [2024] NSWPIC 387 (23 July 2024)
Member: Susan McTegg
Whether claimant is wholly or mostly at fault for the purpose of ss 3.11 and 3.28 - whether incident is a motor accident for purpose of s 1.4 - where elderly claimant fell getting into taxi with hand on door – was the claimant injured due to a fall or during the “driving of the vehicle” – evidence the insured vehicle moved when claimant attempted to enter vehicle.
On 1 May 2023, the claimant attempted to enter a taxi (the insured vehicle) when she fell to the ground. She sustained a comminuted trochanteric fracture of the left femur and brought a claim for statutory benefits against the insurer on risk.
The insurer denied liability for statutory benefits on 12 September 2023 on the basis that the circumstances of the accident do not meet the definition of a “motor accident” in accordance with s 1.4. The insurer relied on the insured driver’s statement that the vehicle was in park and not in motion at any time during the incident.
The claimant’s version of events was that she commenced to enter the taxi from the rear passenger side, placed her bag and walking stick inside the vehicle, placed her left hand on top of the door and as she placed her right leg into the taxi, the taxi moved forward and she fell to the ground, causing injury.
A dispute arose between the parties and on 1 May 2024, the claimant lodged a miscellaneous claims assessment with the Commission, which was allocated to Member McTegg to resolve. The issue in dispute was whether the incident met the definition of a motor accident. If the accident was determined to be a motor accident, the insurer conceded that the claimant was not wholly or mostly at fault and would be entitled to statutory benefits for the purposes of s 3.28.
Member McTegg made a factual finding that the vehicle was in motion at the time of the accident, based on the claimant’s testamentary evidence and the corroborative evidence of a doctor that she consulted on the day of the accident. This evidence was contrary to the police statement and the insured driver’s evidence given to police, but the Member did not place weight on that contradictory evidence because it was based on a version of events provided by the claimant’s husband, who had early-stage dementia.
It was noted that the insured driver did not provide an independent statement. He simply confirmed the version of the incident taken by police from the claimant’s husband.
After finding that the insured vehicle did move whilst the claimant was entering the vehicle, there was no dispute that this constituted a motor accident within the definition provided by s 1.4 because it involved “the driving of a vehicle”. That finding resolved the dispute as the insurer conceded that the claimant was not wholly or mostly at fault.
Held: The incident was a motor accident for purpose of s 1.4 – claimant not wholly or mostly at fault.
