Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 117
11 September 2024
Welcome to the 117th 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.
Supreme Court
Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099 (29 August 2024)
Basten ACJ
Administrative law – judicial review – motor accident – decision of Medical Review Panel – unexplained delay by Review Panel in providing Certificate – whether delay resulted in jurisdictional error or error of law on face of record.
The plaintiff was injured in a motor accident on 17 April 2017 when she was struck by a motorised buggy at the Royal Easter Show. The insurer admitted liability for the claim under the Motor Accidents Compensation Act 1999 (MACA). A dispute arose between the parties regarding the plaintiff’s degree of permanent impairment and whether it exceeded 10% for the purpose of payment of non-economic loss damages.
A combined medical certificate was issued on 9 December 2021, which assessed permanent impairment above 10%. The insurer was successful in having the two medical assessments referred to a Review Panel and the claimant was re-examined in August and November 2022. The Panel did not issue the two certificates until January 2024—over one year after the re-examination that overturned the combined certificate—and assessed permanent impairment at not greater than 10%.
The plaintiff applied for judicial review of the Panel determination and challenged the validity of both certificates because of the temporal limits governing the review, namely the obligation to determine impairment at the time of assessment and the legal consequence of the delay in issuing the certificates.
The Court determined that the plaintiff’s application was a “pending” and “unheard” proceeding at the establishment day for the operation of the Commission, and that the issue was created by the initial medical assessment certificates and was therefore a ‘completed pre-establishment proceeding’. To determine whether the Personal Injury Commission Act 2020 (PIC Act) and Personal Injury Commission Rules 2021 (PIC Rules) applied, the Court considered cl 14F of Sch 1 of the PIC Act, which provided that “completed pre-establishment proceedings” included the plaintiff’s referral for determination because that matter had been referred but not heard or considered as at the establishment day under the PIC Act. This meant that “new review provisions were to apply” according to cl 14F of Sch 1 of the PIC Act.
Included in those new review provisions was rule 129 of the PIC Rules, which directed that the rule applied to “an application to refer a medical assessment for review under section 63 of MACA”. Thus, whilst s 63 of MACA conferred the right of a review on the insurer, the provisions of the new PIC Rules governed the review. Even so, the Medical Assessment Guidelines were not engaged and so the temporal requirements contained within those Guidelines did not apply. The Court also commented that in the case that the conclusion was incorrect and the Panel was to comply with the Medical Assessment Guidelines, s 133(2) of MACA contained a number of temporal requirements which required the Panel to issue the determination and any certificates within 20 days the final Panel meeting. The Court accepted that the Panel did not comply with the temporal obligations but ultimately concluded that the “excessive and unexplained” delay did not affect the proper assessment of permanent impairment. The Court rejected the plaintiff’s argument that non-compliance with this requirement was a jurisdictional fact that made the ultimate determination invalid.
It determined that the Permanent Impairment Guidelines do “not impose any temporal requirements upon the evaluation undertaken by a panel” and that the assessment can be undertaken belatedly without any risk to the soundness of determination.
Held: The amended summons filed on 9 August 2024 was dismissed.
Merit Review
Liu v QBE Insurance (Australia) Limited [2024] NSWPICMR 65 (22 August 2024)
Merit Reviewer: Katherine Ruschen
Dispute about payment of weekly benefits and calculation of pre-accident weekly earnings (PAWE) for the purpose of Division 3.3 – meaning of earnings and application of Sch 1, cl 4 – where claimant is self-employed but runs a company that is a separate legal personality – rental income.
The claimant was injured in a motor accident on 11 April 2023. At this time, the claimant derived earnings from R&J Timber Floor Pty Ltd.
The insurer on risk accepted liability for statutory benefits relating to the motor accident and determined PAWE at $326.15. That decision was affirmed in an internal review certificate dated 19 July 2023. The claimant referred this dispute to the Commission for assessment of PAWE under Division 3.3.
The issue in dispute between the parties, which was allocated to Merit Reviewer Ruschen to determine, was whether PAWE was $2,678.92 assessed on the basis of total gross sales of the company as the claimant submitted or $326.15 being the net profit of the company as the insurer submitted, or the claimant’s personal/individual earnings received from the company as what was paid to him in director fees, wages, profit distribution or similar payments.
Merit Reviewer Ruschen highlighted that the parties approached assessment of PAWE as if the claimant was self-employed running a business as a sole trader for the whole of the 12-month pre-accident period, but that the claimant operated as a sole trader only for part, and for the remainder had incorporated the company to operate the business.
As a company is a separate legal entity, Merit Reviewer Ruschen[IJ2] [TW3] stated that it was incorrect to calculate PAWE based on the income received by the company and rejected the claimant’s assessment on this basis. She also rejected his assessment on the basis it did not account for business expenses, which must be deducted for the purpose of PAWE.
The Merit Reviewer rejected the insurer’s assessment because it did not include the payments from the company akin to a form of wages or director fees. She was satisfied that this should be included in the PAWE assessment. She affirmed that rental income is not included as “earnings” under the Act.
The claimant received gross earnings as an earner in the 12-month period preceding the accident of $29,980.75 which comprised of $3,980.75 in sole trader earnings and $26,000 in earnings paid by the company. His PAWE was assessed at $576.55 under cl 4(1) ($29,980.75 divided by 52 weeks).
Held: The reviewable decision was set aside and PAWE was assessed at $576.55
Miscellaneous Claims Assessment
Allianz Australia Insurance Limited v Ren [2024] NSWPIC 470 (27 August 2024)
Member: Maurice Castagnet
Dispute as to whether the motor accident was caused wholly or mostly by the fault of the claimant for the purposes of payment of statutory benefits under ss 3.11 and 3.28 of the Act – incident involves a bus and a passenger – decision overturned – claimant not wholly or mostly at fault.
The claimant was injured as a passenger on a bus on 29 August 2022. She was standing to tap her Opal card, the bus driver braked, and she fell onto the floor. She made a claim for statutory benefits on 30 September 2022, which was accepted for the first 26 weeks but then denied beyond 26 weeks because the insurer determined that the claimant was wholly at fault in the accident. The insurer argued that the injury she sustained in the motor accident would not have occurred if the claimant was sitting down in the available seat. This decision was affirmed by the insurer in an internal review certificate of determination dated 1 February 2023.
The claimant applied to the Commission for resolution of this wholly or mostly at fault dispute. She argued that there was not sufficient time for her to sit after she boarded the bus because she was looking for her Opal card, that the bus driver did not conduct a check before driving off, and that she was not at fault for the injury sustained in the motor accident.
The insured driver’s evidence was that he gave the claimant “a good [sic] at least 5 minutes” before departing and that this was “enough time for her to tap on and enough time for her to sit down and enough time for her to hold on, she didn’t do it”. His oral evidence at the assessment conference was that he was aware that the claimant was looking for her Opal card when he departed and that he pulled away from the kerb “extremely slow”.
The Member made a factual finding from the CCTV footage that the elapsed time period between the claimant boarding the bus and her fall was 15 seconds. The Member rejected the insured driver’s oral evidence that he was not aware that the claimant was standing because of “the proximity of the claimant to the driver’s seat and his view in the rear vision mirror”, he would have reasonably been aware.
The insurer relied on the case of Saleh v Allianz Australia Insurance Limited [2022] NSWPIC97 (Saleh) in its argument that a claimant is wholly at fault for standing on a bus and not holding onto any support when the bus braked causing her to fall. The Member distinguished this from the current facts because the claimant in Saleh had stood up to alight the bus before it had stopped and there was no evidence of heavy braking, whereas this claimant was standing because she was trying to tap her Opal card and the insured driver did brake heavily.
The Member placed weight on the fact that the insured driver “operated under a system where passengers had to swipe their cards on the Opal card device after boarding the bus” and that his Bus Operations Handbook required him to ensure all passengers were seated or had a firm hold before departing. He determined that a reasonable driver would have taken precautions by monitoring and ensuring the claimant was seated or had a firm hold before departing the bus stop.
Held: The motor accident was not caused wholly or mostly by the fault of the claimant.
Vanoostwaard v Allianz Australia Insurance Limited [2024] NSWPIC 463 (23 August 2024)
Member: Brett Williams
Assessment of contributory negligence for purpose of statutory benefits claim under s 3.38 of the accident – where the claimant was assessed at 50% for failure to exercise reasonable care – decision overturned as the no failure on claimant to exercise reasonable care
The claimant made a claim for statutory benefits regarding injuries sustained in a motor accident on 15 July 2023. It is understood that the claimant motorcyclist navigated a blind left hand corner and that the insured vehicle travelling in the opposite direction slightly entered the claimant’s lane. The claimant swerved, avoided a head on collision but his handlebars caught the side of the insured vehicle, which caused the claimant to lose control and be ejected from his motorcycle.
On 24 October 2023, the insurer determined that the claimant was mostly at fault for the motor accident and denied his entitlement to statutory benefits beyond 52 weeks for the purpose of ss 3.11 and 3.28. In an internal review certificate of determination, the insurer varied the decision and determined that the claimant’s contributory negligence was 50%.
The claimant disputed the findings of contributory negligence and applied to the Commission for resolution as a miscellaneous claims assessment matter. He argued that the insured was wholly at fault for travelling at an excessive speed for the circumstances, cutting the corner and for failing to drive reasonably around a blind corner.
Member Brett Williams determined the dispute on the papers. He noted that there were no line markings on the road where the collision occurred. He accepted the claimant’s evidence that the insured vehicle was “well over” the centre of the roadway and that she “cut the corner” and that this was a demarcation from the reasonable care required to position her vehicle to the left side of the roadway. The insured was aware of the area and “knew the road was terrible” and should have slowed her vehicle to appropriate speed to navigate the bend, notwithstanding that there was no speed advisory sign leading up to the bend.
The Member rejected that the claimant was at fault for the incident. He considered that the claimant was travelling at an appropriate speed, was positioned to the left of the road and took reasonable steps to avoid the accident by leaning to his left and attempting to steer left.
Held: The insurer was not entitled to reduce statutory benefits – there was no failure to exercise reasonable care on part of the claimant
Ul Haq v Transport Accident Commission [2024] NSWPICMP 592 (21 August 2024)
Panel: Member Gary Patterson, Medical Assessors Drew Dixon and Shane Moloney
Medical review dispute concerning causation of lumbar spine surgery, assessment of permanent impairment and causation of cervical injury – vehicle at fault registered in Victoria — insurer for statutory benefits made a different decision regarding causation of injury and treatment than insurer for common law damages – consideration of biomechanical evidence – Certificate revoked.
The claimant was injured in a motor accident on 18 July 2019. The accident occurred in the Sydney CBD when a vehicle insured by the Victorian Transport Accident Commission (TAC) reversed into the claimant’s vehicle at a very low speed. The claimant developed cervical and lumbar symptoms in the days following the motor accident and underwent an anterior lumbar fusion and later a posterior L4/5 fusion.
As the at-fault vehicle was insured interstate, statutory benefits were paid by NRMA on behalf of the Nominal Defendant for six months, after which further payments were declined on the basis that the claimant’s injuries were minor. The claim for common law damages was handled by TAC.
It is relevant to note that the claimant underwent a L4/5 discectomy in 2012 and made a good recovery.
In separate preceding proceedings, Medical Assessor James Bodel overturned NRMA’s decision and determined the lumbar spine injury was a not a threshold injury in a Certificate dated 10 June 2020. He determined that the L4/5 anterior fusion was reasonable and necessary treatment and that the cervical spine injury caused by the accident was a threshold injury.
A further Certificate was issued by Medical Assessor Bodel on 7 March 2023 following provision of additional information, namely pre-accident clinical records, photographs of the damaged vehicles, property damage records and a report by Michael Griffiths, biomechanical engineer. He affirmed the decision that the claimant sustained more than a threshold injury to his lumbar spine in the accident because he was satisfied by a pre-accident MRI scan that the L4/5 disc protrusion that preceded the accident had increased in size as a result of the motor accident and that this structural damage led to the need for the anterior body fusion.
A dispute arose between the claimant and TAC as the insurer on risk in the common law damages claim regarding the degree of permanent impairment under s 4.12 and Sch 2, cl 2(a) of the Act. Assessor Neil Berry determined in a Certificate on 24 January 2024 that the claimant sustained an injury to his cervical spine resulting in permanent impairment of 5% and that the lumbar spine injury was not stable and not capable of assessment.
TAC applied for review of Medical Assessor Berry’s Certificate on the basis that it was incorrect in a material respect. The application was made on the grounds that the Assessor failed to properly apply the principles of causation, failed to provide adequate reasoning in light of the significant pre-accident history and failed to address the insurer’s submissions and evidence regarding causation, the mechanism and force of the motor accident. The assessment was referred to the Review Panel.
The insurer argued that the motor accident did not result in any change to the claimant’s natural deterioration of original pathology and that the lumbar injury, surgery and consequent impairment was not related to the motor accident. The claimant relied on Dr Thomas Rosenthal’s report, which opined with respect to the lumbar spine that the motor accident resulted in aggravation of the L4/5-disc injury and need for spinal fusion.
The Panel commented that Dr Rosenthal “rightly observed” that Mr Griffiths was a biomechanical engineer and not a medical practitioner and that his opinion that the motor accident was not of sufficient force to cause the lumbar injury “ is normally made by a medical practitioner who has examined the patient.” It concurred with Dr Rosenthal’s opinion on causation and assessment of permanent impairment because it agreed that the L4/L5 disc injury and related symptoms progressed as a result of the accident.
The Panel overturned Assessor Berry’s assessment of the cervical spine because it was of the view that the neck injury was non-causal. With regard to the lumbar spine, the Panel disagreed with the biomechanical evidence and concluded that the reversing manoeuvre caused a sufficient frontal impact to the claimant’s vehicle as it considered was demonstrated by the damage. It determined that the lumbar injury had now stabilised and assessed DRE IV arising from the reasonable and necessary fusion surgery.
Held: The lumbar fusion surgery related to accident; permanent impairment assessed at 20%; not satisfied as to causation of cervical injury; Medical Assessment Certificate was revoked and new Certificate issued.
