Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 114

Welcome to the 114th 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) (the 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.

Ford-Gunatilake v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 418 (5 August 2024)

Member: Belinda Cassidy

Contributory negligence – insurer’s decision regarding 50% contributory negligence under section 3.38 – decision upheld.

The claimant was involved in a motor accident on 14 March 2023. She had picked up her children from school and placed them in the car and their bags in the boot. Whilst the claimant moved from the back of the car around towards the driver’s side of her vehicle, she was struck by the insured vehicle passing alongside hers. The claimant sustained injury in the accident and made a statutory benefits claim against NRMA.

The insurer issued a liability notice to the claimant accepting fault on behalf of the insured driver, however, it was alleged that the claimant was 50% contributorily negligent. The decision of the insurer was maintained on internal review and the claimant subsequently referred the dispute to the Commission for assessment and determination in accordance with Division 7.6 of the Act. Member Cassidy was appointed.

The insurer alleged that the claimant was contributorily negligent on the basis of her failure to look prior to moving onto the road and causing an obstruction.

The claimant refuted that there should be any findings of contributory negligence against her as she was not crossing the road and was unable to observe the insured’s vehicle without sticking her head out into the traffic, which would have resulted in further injury.

In relation to the applicability of contributory negligence, the Member considered the dashcam footage of the motor accident to be compelling, which revealed that at no stage after securing the luggage in the rear of her car, turning and moving around the car, does the claimant look to her right in the direction of the insured’s vehicle. Specifically, it was noted that the claimant moved out onto the traffic lane without looking for oncoming vehicles and therefore without observing the insured’s vehicle. Further, the video identified that the motor accident occurred during school pick-up time, where there were cars parked on both sides of the street and cars travelling in both directions in the street. The video also captured the presence of children and adults on both sides of the road.

On the basis of the claimant being a parent, the Member considered that she would know that the area was a busy area at school pickup time and ought to have known that there were vehicles likely to be on the roadway. It was further assumed that the claimant knew the road was not wide. Significantly, Member Cassidy determined that a reasonable person in the position of the claimant and with her knowledge of the area and activity at this time of the day would have looked prior to moving around her car onto the roadway and before moving towards the driver’s side door. She considered that if the claimant had looked, then she would have observed the insured’s vehicle and thus would have had time to react and wait until the insured had passed and it was safe to be able to move onto the road and get into her own vehicle. Accordingly, the Member was satisfied that as a result of the claimant not looking she contributed to the motor accident as well as the cause of her injuries.

In terms of assessing the degree of contributory negligence, the Member relied upon the reasoning in Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34, which stated that the apportionment between the defendant and plaintiff of their share in the responsibility for the damage requires a comparison both of culpability as well as the relative significance of the actions of the parties in causing the damage. Importantly, Member Cassidy determined that if the insured had driven a little slower she may have had more time to be able to react, brake or take other evasive action. With respect to the claimant’s actions, the Member concluded that if she had looked prior to moving she could have avoided the accident irrespective of the speed of the insured.

Held: The claimant was 50% contributorily negligent in the motor accident.

View decision

Zhang v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 404 (29 July 2024)

Member: Belinda Cassidy

Miscellaneous claims assessment – whether claimant is wholly or mostly at fault – claimant riding a bicycle in morning peak traffic in lane 1 and collided with insured in lane 2 – decision upheld.

The claimant was involved in a motor accident on 1 May 2023. She was riding a bicycle on Parramatta Road when a collision occurred with the insured driver.

On 11 May 2023, the claimant made a claim for statutory benefits under the Act against NRMA.

On 29 May 2023, NRMA issued a liability notice to the claimant accepting the claim and informing her of an entitlement to statutory benefits.

On 19 January 2023, the insurer issued a further liability notice denying any liability for the payment of ongoing statutory benefits on the basis that the claimant was “wholly or mostly at fault”. The claimant sought an internal review of the decision, which was affirmed by the insurer on 23 February 2024.  As a result, the claimant referred the issue of whether she was wholly or mostly at fault to the Commission for assessment and determination. Member Cassidy was appointed.

In her submissions, the claimant argued that the insured driver caused the motor accident because of the following:

1. The claimant had changed lanes and was riding straight when hit by the insured driver.
2. The claimant did not observe the insured vehicle as it was travelling from behind.
3. The claimant had maintained a proper lookout at all times.
4. The photograph of the insured’s vehicle revealed damage to the passenger side rear door and the side mirror was still attached to the vehicle.
5. The insured was attempting to overtake the claimant and then side swiped the claimant, with the impact causing her to lose balance and fall towards the rear side door before falling to the ground.

The claimant noted in her version of the motor accident that she had to change lanes to cross the intersection as the bus in front of her was stopping and the light was green at the intersection.

Meanwhile, the insurer argued that the claimant was wholly or most at fault for the motor accident based on the following:

1. the photographs of the claimant’s bike reveal no damage to the rear end and do not validate her version of events, and
2. the photographs of the damage to the insured vehicle are consistent with her version of events and the claimant colliding into her.

The insured driver stated that the claimant failed to indicate. Notably, the claimant did not give any evidence to contradict this.

Upon review of the limited available evidence before her, the Member made the following important findings of fact:

1. The claimant was travelling in lane 1 behind a bus which was stopped.
2. When the bus had stopped, the light at the intersection ahead of the claimant, the insured and the bus stop was green.
3. The claimant had moved out of lane 1 and towards lane 2 to get around the bus.
4. The insured was travelling in lane 2, at all relevant times.
5. The claimant did not look nor did she look carefully enough prior to moving from one lane to the other.
6. The claimant did not indicate.
7. The insured did collide into the claimant from behind or from the rear.
8. As the claimant moved around the bus and into lane 2, a part of her bike made contact with the passenger side wing mirror of the insured’s vehicle forcing the mirror to fold inwards.

The Member highlighted that the onus of proof in determining whether the claimant is “wholly or mostly at fault” lies with the insurer as per the decision of Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC909.

Ultimately, Member Cassidy was satisfied that the insured driver was not at fault and the claimant was wholly at fault based on the following:

1. The insured was not speeding
2. The claimant moved, without looking nor indicating to travel around the bus.
3. The insured was keeping a proper lookout as she observed the claimant and saw the claimant move out and collide with her.
4. The claimant failed to keep a proper lookout as she did not observe the insured at all prior to moving.

Further, and in the alternative, the Member considered the possibility that if there was some negligence on the part of the insured, then there would need to be a finding of contributory negligence made against the claimant due to her failure to indicate and warn the insured of her intentions to move to the right or her failure to look and observe the insured approach.

The Member determined the degree of the claimant’s contributory negligence involved assessing the relative culpability of the two protagonists in accordance with the decision of Podresbersek v Australian Iron and Steel Pty Ltd [1985] HCA34. Upon comparison of the actions of the insured with that of the claimant, Member Cassidy concluded that a greater proportion of the blame lay with the claimant, and found 80% contributory negligence would have been appropriate.

Held: The claimant was “wholly or mostly at fault” for causing the motor accident.

View decision

Merit Review

Giuseppa Maugeri v QBE Insurance (Australia) Limited [2024] NSWPICMR 21 (26 July 2024)

Merit Review: Katherine Ruschen

Merit review – dispute about calculation of pre-accident weekly earnings (PAWE) – whether exceptions to Sch 1 cl 4(1) of the Act in cl 4(2)(a) or cl 4(2)(b) apply to the claimant’s circumstances – decision set aside.

The claimant was involved a motor accident on 26 October 2022.

A dispute arose between the claimant and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Act. The insurer had determined that the claimant’s PAWE was $236.07, which was affirmed upon internal review. The claimant provided further information to the insurer and requested a further internal review. The insurer conducted a further internal review and affirmed the claimant’s PAWE amount of $236.07. The claimant has requested a merit review of the insurer’s internal review decision. Merit Reviewer Ruschen was appointed.

The claimant made the following arguments concerning the calculation of PAWE:

1. She was not employed continuously as per cl 4(2)(a) of the Act due to the COVID-19 pandemic which affected her earnings long after restrictions had eased or ceased because of the nature of her work as a mobile massage therapist.
2. Her business began to pick up on or about 1 May 2022, which amounts to a significant change in earning circumstances under cl 4(3) of Sch 1 of the Act, triggering cl 4(2)(b).

Merit Reviewer Ruschen determined that the claimant had been earning continuously for the purpose of cl 4(4) of Sch 1 of the Act. It was noted that the claimant had failed to identify any specific period during the period from 26 October 2021 to 25 October 2022 that she was not earning continuously. The Merit Reviewer drew attention to the two tables provided by the claimant summarising business income in the 12 months prior to the accident, received into two bank accounts which identified the dates payments were received. She ultimately concluded that that these tables demonstrated that the claimant’s business remained an ongoing concern throughout the 12 months prior to the accident and was thereby a continuous source of earnings for the claimant both before and after 1 May 2022. Merit Reviewer Ruschen considered the fluctuations in the amount of income from month to month to be irrelevant to the determination of whether the claimant had been earning continuously in the 12 month period prior to the accident.

Relying upon the reasoning in Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481, Merit Reviewer Ruschen rejected the claimant’s argument that her PAWE should be adjusted by being calculated from the more recent date of 1 May 2022 as opposed to the whole of the 12 months preceding the motor accident because of the impact of COVID-19 prior to 1 May 2022.

Significantly, Merit Reviewer Ruschen held that the claimant’s assertion that her business began to pick up on or about 1 May 2022 did not amount to a significant change in earning circumstances under cl 4(3), which meant that cl 4(2)(b) did not apply to the claimant’s PAWE. The claimant relied upon letters from her business clients, consisting of Absolute Corporate and Corporate Bodies. The letter from Absolute Corporate stated that in the financial year ending 2023 the claimant “could earn $9,740 to $15,000.” Meanwhile, the letter from Corporate Bodies stated that as they were “getting increasingly busier in the lead up to Christmas [the claimant] also had the potential of earning a great deal more ...” Merit Reviewer Ruschen noted that the letters from both Absolute Corporate and Corporate Bodies were speculative in nature about only the possible availability of work or the potential to earn. Importantly, she determined that having the potential to earn or availability of work is not deemed an entitlement to receive any minimum amount of work or payments for the purposes of cl 4(3).

Further, the Merit Reviewer highlighted that there was no evidence of contract with either Absolute Corporate or Corporate Bodies agreed before the accident, pursuant to which the claimant would be guaranteed a certain amount of work creating an “entitlement” to earn more than she was earning prior to such agreement.

Merit Reviewer Ruschen also referred to the examples listed in cl 4(3) of what may be considered a significant change in earning circumstances, which include a promotion, a change of job or a move from part-time to full-time employment. She considered that these were all examples of specific, tangible events, which did not arise in this case.

As neither of the exceptions in cl 4(2)(a) and cl 4(2)(b) applied, Merit Reviewer Ruschen held that the claimant’s PAWE would fall under cl 4(1). She ultimately calculated the claimant’s gross earnings as an earner in the 12 month period from 26 October 2021 to 25 October 2022 in the sum of $19,696.09, which equated to a PAWE of $378.77.

Held: The calculation of the claimant’s PAWE fell under cl 4(1) and amounted to $378.77.

View decision