Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 116

Welcome to the 116th 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) (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.

Settlement approval

Insurance Australia Limited t/as NRMA Insurance v Morris [2024] NSWPIC 451 (20 August 2024)

Member: Susan McTegg

Settlement approval – claimant self-represented female aged care worker – awards for non-economic loss and past and future economic loss with a 50% deduction for contributory negligence – settlement approved.

The claimant was a passenger on a motorcycle ridden by her then fiancé (now husband) when it travelled over a raised bitumen causing her to fall off the back of the motorcycle.

As a result of the subject accident, the claimant sustained a L2 compression fracture of the spine and her scaphoid bone, a dislocated lunate bone, a fractured end of the ulna and the bones in her thumb, and ligament damage to the lunate bone.

The insurer accepted liability for the claim for common law damages but alleged contributory negligence at 80% due to the claimant’s failure to hold onto the driver of the motorcycle to prevent herself falling from the motorcycle.

The claimant was self-represented.

The claimant accepted the initial offer of settlement, which included a 50% deduction for contributory negligence. The insurer subsequently lodged the application for settlement approval with the Commission pursuant to s 6.23(2)(b) of the Act. It was allocated to Member Susan McTegg.

In the preliminary conference on 8 July 2024, the Member did not consider the allowances for future economic loss to be adequate given the difficulties experienced by the claimant as an aged care employee following the accident, which included often requesting a fellow staff member to use the lifter due to concerns pertaining to her wrist and now working six shifts a fortnight as opposed to nine shifts a fortnight prior to the motor accident. Further, the Member also considered that the figure for non-economic loss was not appropriate.

Eventually, the claimant accepted a further offer of settlement made on 13 August 2023 of $240,044.52, which included $220,000 for non-economic loss, $109,732.31 for past economic loss, $12,070.55 for past superannuation, $122,268.18 for future economic loss and $16,018 for Fox v Wood damages, with a 50% deduction made for contributory negligence. This settlement was then put before Member McTegg for approval.

In considering whether to approve the settlement, the Member considered the following:

1. The reduction of damages by 50% for the claimant’s contributory negligence was appropriate in the circumstances in view of the decision of Podrebersek v Australian Iron and Steel [1985] HCA34
2. The claimant’s age of 59 years, with a life expectancy of 28 years, and
3. The ongoing impairment of the claimant’s earning capacity as reflected through her inability to return to her pre-injury hours of work and the possibility that she may not be able to work until the age of 67 years.

The Member agreed that the award of damages of $240,044.52 was just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment and approved the proposed settlement pursuant to s 6.23(2)(b).

Held: The settlement was approved.

View decision

Miscellaneous claims assessment

McDonough v Youi Pty Limited [2024] NSWPIC 445 (19 August 2024)

Member: Belinda Cassidy

Miscellaneous claims assessment – whether claimant is wholly or mostly at fault – claimant riding a motorbike at night and lost control – decision upheld.

The claimant was involved in a motor accident on 19 July 2021. He was riding his motorbike to work; it was 8pm, dark and cold. The claimant asserts that he passed through one intersection looked ahead to the next intersection and saw vehicles stationary at that intersection. He then braked and lost control of the motorbike, coming off and sliding along the road.

The claimant was wearing full protective gear and sustained an injury to his lower back.

On or about 4 August 2021, the claimant made a claim for statutory benefits against Youi, who were the insurer of his motorcycle.

The insurer denied liability for the payment of ongoing statutory benefits on the basis that the claimant was wholly or most at fault for causing his accident.

The claimant sought an internal review of the insurer’s decision, which was affirmed by Youi.

On 27 February 2024, the claimant referred the issue of whether he was wholly or mostly at fault to the Commission for determination. Member Cassidy was appointed.

Member Cassidy highlighted as per the decision of Insurance Australia Limited t/as NRMA v Richards, the onus of proof lies with the insurer to satisfy her that the claimant’s fault wholly or mostly caused the accident based on the established facts.

The following facts were agreed between the parties:

1. the subject accident occurred on 19 July 2021 at about 8pm
2. it was dark at the time of the subject accident
3. the claimant was riding his motorcycle on Lenore Drive at Erskine Park
4. the subject accident occurred after the lights at the intersection of Lenore Drive with John Morphett Place and Tyrone Place and before the intersection of Templar Road
5. the speed limit was 80km/hr
6. the claimant was riding with his headlights on and was wearing protective gear
7. the claimant was riding to work and this was his usual route
8. the claimant saw vehicles up ahead stationary at the Templar Road intersection and braked
9. the claimant lost control of his motorcycle and fell, and
10. the fall caused the claimant injury.

The parties did not agree upon the following:

1. what evidence should be accepted
2. where the claimant first applied the brakes
3. how the claimant applied the brakes
4. whether there was oil or some other contamination on the road surface, and
5. the claimant’s speed.

In terms of what evidence should be accepted, the Member was satisfied that police did not attend the scene of the subject accident based on the record of interview with Constable Stoneman and evidence of the claimant’s wife who was there at the scene approximately 10 minutes after the accident and left 20 minutes later before police and Fire & Rescue attended.

Based on the claimant’s evidence, Member Cassidy was satisfied that he braked at the location of the bus stop after the John Morphett and Tyrone Place intersection about 195m from the back of the line of traffic.

Further, the Member accepted the claimant’s evidence that he braked normally at around the location of the bus stop when he had noticed the stationary vehicles up ahead.

The Member determined that there was contamination on the road surface that led to the claimant losing control of his motorbike, especially taking into consideration the following:

1. The claimant suggested that the accident occurred due the contamination of the road based on how his bike behaved (the road was like ice).
2. The claimant made a complaint to police within 10 days of the accident and inferred that there was something on the road surface.
3. The claimant is an experienced driver and motorcyclist and there is no evidence of a mechanical defect.
4. The claimant’s expert found that a contaminated road is not unusual and there does not need to be a large amount of oil on the road to cause difficulty for a motorbike.

Member Cassidy considered that the claimant was travelling at least 120km/hr, relying upon the expert evidence of the insurer’s expert, Dr Anderson. The claimant’s expert had not been asked to assess the claimant’s speed. The Member did not accept the claimant’s evidence that he was travelling at the speed limit of 80km/hr.

Notably, Member Cassidy held that the claimant could not be wholly at fault for the subject accident as it has been accepted that there was a substance on the road that he did not see, which caused him to lose control when he braked.

The Member then considered whether the claimant was mostly at fault for the motor accident. Member Cassidy referred to ss 3.11(2) and 3.28(2) of the Act, which stipulate that a person is mostly at fault if there is contributory negligence on their part and if that contributory negligence is assessed at greater than 61%. Significantly, based on the finding that the claimant had been travelling 40km/hr above the speed limit, the Member determined that there must be a finding of contributory negligence made against him.

In relation to assessing the degree of contributory negligence of the claimant, the Member cited the decision of Davis v Swift [2014] NSWCA 458, which stated that reference needs to be made “to the extent to which the [claimant’s] conduct failed to conform with the standard of care expected of a person in [the claimant’s] position”.

Ultimately, Member Cassidy assessed the claimant’s contributory negligence at 80% based on the following:

1. The claimant would have been familiar with the environment as at the time of the accident he was riding to work and it was his usual route.
2. According to his letter of 20 January 2024, the claimant was aware of the possibility of oil or diesel spills in the area.
3. The claimant also acknowledged in his letter dated 20 January 2024 and in his claim form that it was a bit damp and slightly foggy.
4. Foggy conditions would affect a motorcycle rider’s visibility of the road ahead.
5. The standard of care expected of a person riding at night in foggy conditions and in an industrial area where there was the possibility of being substances on the road would, be to ride at or below the speed limit.

Held: The claimant was mostly at fault.

View decision

Atwal v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 440 (15 August 2024)

Member: Brett Williams

Section 4.12 – assessment of permanent impairment required if dispute over impairment threshold -  whether a dispute had arisen for the purposes of s 4.12 in circumstances where insurer had served a report assessing impairment above 10% whole person impairment (WPI), however, considers the report to be flawed – dispute had arisen.

The claimant was injured in a motor accident on 27 June 2020. He subsequently made a claim for damages on NRMA Insurance.

On 19 May 2023, the insurer admitted liability for the claim.

The claimant referred the claim to the Commission for assessment under Division 7.6 of the Act, seeking awards for non-economic loss, past economic loss and future economic loss.

The claimant was seeking damages for non-economic loss and did so on the basis that his permanent impairment was greater than 10% arising from both the physical and psychological injuries he sustained in the motor accident. His position was that the matter should be listed for damages, he was entitled to damages for non-economic loss, and that the Commission may award him damages for non-economic loss. The insurer disagreed.

The claimant relied on the reports of Dr Lim, psychiatrist, dated 17 August 2023, who provided an impairment assessment of 50% WPI.

The insurer served the report of Dr Cocks on 19 January 2024 and informed the claimant that it did not accept that the permanent impairment assessment made by Dr Cocks was reliable and was therefore not in a position to concede that the claimant’s WPI exceeded 10%.

In his submissions, the claimant confirmed that he wanted the matter listed for assessment in respect of both non-economic loss and economic loss, and made the following notable arguments:

1. There is nothing in the legislation that the insurer identified that makes a medical assessment mandatory or precondition to eligibility for non-economic loss.
2. Section 4.12 is not a limitation on the Commission’s power or jurisdiction to determine non-economic loss but instead only limits the circumstances in which a party to medical dispute can seek to claim non-economic loss.
3. The assessment of permanent impairment made by Drs Lim and Cocks “result in [him] satisfying the eligibility to non-economic loss damages”.
4. It would be non-sensical for s 4.12 to be construed as requiring him, in the absence of any factual dispute as to impairment, to request that the President determine whether there is a “medical dispute” in absence of plausible evidence to validate a dispute.

The insurer’s submissions relied upon ss 4.12, 7.17 and 7.20 of the Act. The insurer made the following relevant arguments:

1. The “dispute” envisaged in s 4.12 is a dispute that can be referred for assessment under Division 7.5, with such a dispute defined by s 7.17 to encapsulate both a dispute between the parties as well as an issue about the degree of permanent impairment arising in the proceedings.
2. The existence of a dispute does not necessarily require evidence from an approved health practitioner of WPI being above or below the threshold.
3. The parties are plainly in dispute in relation to the claimant’s degree of permanent impairment and that “this issue will arise at any assessment of this matter based on the claimant’s subsequent treating reports”.

The Member accepted the insurer’s submission that the existence of a dispute for the purposes of s 4.12, did not necessarily require evidence from an approved health practitioner or WPI below the threshold. Specifically, Member Williams highlighted that a party may dispute the degree of permanent impairment on the basis that the medical evidence is in some identified way(s) flawed and is not able to be relied on to establish the level of impairment contended for. A dispute that arises in these circumstances is considered a factual dispute about impairment.

Relevantly, Member Williams noted that in circumstances where the insurer considers Dr Cocks’ assessment of WPI to be “flawed”, the opinion did not bind the insurer, nor did it preclude the insurer from declining to accept that he had a WPI that exceeds 10%.

On the basis that the insurer did not accept the claimant’s WPI is greater than 10%, the Member considered that this meant the insurer disputed the degree of permanent impairment of the claimant arising from the psychological injury caused by the motor accident exceeded 10%. Accordingly, there is a dispute between the insurer and the claimant about whether the degree of permanent impairment of the claimant is sufficient for an award of non-economic loss damages to be made.

Held: For the purposes of s 4.12 of the Act, a dispute about the degree of permanent impairment had arisen in the circumstances.

View decision