Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 119
01 October 2024
Welcome to the 119th 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 MAI 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
Ellul v Allianz Australia Insurance Limited [2024] NSWPIC 491 (5 September 2024)
Member: Shana Radnan
Wholly or mostly at fault dispute – where claimant motorcyclist engaged in lane filtering at roundabout and over solid white line – where claimant breached the Road Rules 2014 (NSW) – statutory benefits declined on basis of ss 3.28 and 3.36 of the Act.
The claimant was injured in a motor accident as a motorcyclist on 21 January 2021. The accident occurred very close to the commencement of the roundabout in proximity to a solid white line between lanes 1 and 2 travelling in a southerly direction on the Pacific Highway at the intersection of Chittaway Road, in Ourimbah. It was understood that the claimant collided with the insured vehicle and fell, but the circumstances of the collision were otherwise in dispute.
The insurer denied liability for statutory benefits beyond 26 weeks on the grounds that the claimant was mostly at fault for the motor accident. The insurer argued that the accident occurred solely due to the actions of the claimant who, while approaching the roundabout, attempted to lane filter under conditions where it was unsafe to do so and where there was insufficient space between the two utility vehicles at the head of the queue for the claimant to undertake such a manoeuvre. The insurer said that this was a breach of regulation 151A of Road Rules 2014 (NSW).
The decision was upheld on internal review and the claimant applied to the Commission for dispute resolution seeking a determination that he was not at fault for the motor accident. The claimant argued that the insured driver breached his duty of care by moving left and out of the lane in a dangerous manner, thereby striking the claimant. He argued that the insured driver’s version was not reliable.
In response, the insurer argued that the claimant was lane filtering when it was unsafe to do so. This submission was supported by the fact that a collision occurred between the vehicles in circumstances where it is submitted it would not be found that the insured driver undertook any deliberate or sudden manoeuvre. Rather, the insured driver was proceeding into the roundabout, maintaining his lane as he was entitled and required to do, and it was the actions of the claimant who was in an unsafe position between the respective vehicles when they entered the intersection.
Member Radnan rejected the claimant’s argument that the geography and layout of the area was such that the two lane road had “ample space for a lane filtering motorcycle to pass safely between traffic”. She stated that the position of the claimant coming to a halt between two utilities situated at the front of the queued traffic has put him at risk of harm.
The Member accepted the insured driver’s evidence that his attention was on oncoming traffic entering the roundabout and that it was reasonable that the insured driver did not see or hear the claimant approaching. The Member concluded that the claimant’s lane filtering and positioning at or near the unbroken line before the give-way line at the roundabout was inherently unsafe.
Member Radnan noted that the insurer’s decision to decline statutory benefits was on the basis initially that the claimant was wholly at fault. She stated that there was some culpability in the insured driver’s actions for failing to check surrounds sufficiently and assessed this at 10%. She found no fault in any other driver’s conduct and assessed the claimant’s culpability at 90% for “riding his motorcycle near to the front of waiting vehicles seeking to enter the roundabout in a location where filtering is prohibited, … in breach of the road rules, in heavy traffic where the distance between the two vehicles at the time was too narrow for such a manoeuvre and at a section where the vehicles were not travelling in the same direction”. As the motor accident was caused mostly by the fault of the injured person, the insurer’s decision to decline statutory benefits beyond 26 weeks was upheld.
Held: The motor accident was caused mostly by the fault of the injured person. The insurer was entitled to cease payment of statutory benefits for the purposes of ss 3.28 and 3.36 of the Act.
Stern v AAI Limited t/as AAMI [2024] NSWPIC 497 (9 September 2024)
Member: Brett Williams
Wholly or mostly at fault dispute – claimant’s vehicle involved in rear-end collision with stationary vehicle with allegations of mechanical fault – statutory benefits declined on basis of ss 3.11 and 3.28 of the Act.
The claimant was injured in a motor accident on 25 March 2023. Liability for his claim for statutory benefits up to 26 weeks was accepted, but the decisions that followed were varied. The insurer denied liability for the claim on 30 June 2023, overturned that decision on internal review, made further liability decisions, and on 22 March 2024 an internal reviewer affirmed the decision made by the insurer to deny liability for the claim on the basis that the claimant was wholly at fault for the accident for the purposes of ss 3.11 and 3.28 of the Act. The insurer argued that the accident was caused by the claimant’s failure to keep a proper look out and to apply his brakes in sufficient time to stop safely.
The claimant applied to the Commission seeking a determination that the motor accident was not caused wholly or mostly by his fault. The parties made oral submissions before Member Williams at an assessment conference on 4 September 2024.
It is relevant to note that the claimant was a self-employed Uber driver and that he leased the vehicle involved in the accident from ANC Consulting Pty Ltd (ANC), the registered owner of the vehicle, five weeks prior to the accident. The vehicle registration was renewed on 19 December 2022, an e-Safety check was carried out and the front brakes were changed.
The claimant argued that the brakes failed and that this was the cause of the collision. He asserted that he attended a mechanic two days before the accident and was advised that all four tyres and the front brakes needed replacing. The claimant argued that he was not at fault for the accident.
The insurer argued that there was no evidence of defect, that such mechanical fault was not raised by the claimant to police after the accident and that there was documentary evidence that all four tyres were changed, and other inspections of the vehicle were undertaken on 10 March 2023. The claimant alleged that the servicing documentation produced by the insurer on behalf of the owner of the vehicle was false and that a person or persons on behalf of the owner of the vehicle provided false and misleading information to AAMI about the state of repair of the vehicle.
The Member was not satisfied on the balance of probabilities that the invoice dated 10 March 2023 was accurate, albeit not deliberately false either, nor that any form of inspection or maintenance was performed on the vehicle that day. He was satisfied that the claimant attended the mechanic the day before the accident because he was advised that the brakes needed replacing by a mechanic, not because of any fault, and he was subsequently advised by the second mechanic that the brakes were inspected. The claimant continued to work as an Uber driver that evening and did not observe any mechanical fault during that shift.
The Member acknowledged that the owner of the vehicle owed the claimant a duty to take reasonable care for his safety and that that duty included a requirement to keep the vehicle in good repair. He was not persuaded that the brakes on the vehicle were not in good repair and that the accident was caused by the fault of the owner of the vehicle.
The Member made a factual finding that it was more probable than not that the road surface was wet and slippery when the accident occurred. He went on to state that the claimant had knowledge of the road conditions, the traffic density and that due to a failure to keep a proper lookout, “the claimant’s vehicle collided with the rear of the stationary vehicle because he failed to maintain control of the vehicle and failed to drive to the prevailing conditions, in particular the wet road”.
The Member determined that the sole cause of the motor accident was the claimant’s failure to exercise reasonable care in the driving of the vehicle.
Held: Sections 3.11(1) and 3.28(1) merely require fault to establish causation and the claimant’s conduct was the sole cause of the accident that involved fault. The decision was upheld that the accident was caused wholly by the fault of the claimant.
Lis v AAI Limited t/as GIO [2024] NSWPIC 493 (6 September 2024)
Member: Belinda Cassidy
Wholly or mostly at fault dispute – single vehicle motorcycle accident – statutory benefits declined on basis of s 3.11 and 3.28 of the Act.
The claimant was injured in a motor accident as a motorcyclist on 16 July 2023. He lost control of his motorcycle and collided with trees. The claimant lodged a claim for statutory benefits against his third-party insurer and liability was accepted up to 52 weeks from the date of the accident.
The insurer subsequently denied liability to pay statutory benefits after 52 weeks on 24 April 2024 because he was wholly at fault for the motor accident. After the insurer refused payment of treatment after 52 weeks, the claimant applied for internal review of the liability decision. The insurer affirmed that decision and advised the claimant that his entitlement to weekly benefits and treatment expenses ceased 52 weeks after the accident.
The self-represented claimant applied to the Commission seeking his treatment be funded. He conceded at the preliminary conference that his accident was caused by the way in which he was riding his bicycle but advised the Member that he wanted to have his treatment paid for to assist with a return to work. The dispute was allocated to Member Cassidy who agreed to determine the matter on the papers.
The Member acknowledged that the claimant had ongoing injuries but advised the claimant that because he is at fault for the motor accident, his entitlement to benefits ceased on 14 July 2024 in accordance with ss 3.11(1)(a) and 3.28(1)(a) and he was not entitled to benefits beyond that period.
Held: The accident was caused wholly by the fault of the claimant and the insurer had no liability to pay statutory benefits incurred more than 52 weeks after the accident.
Medical Review Panel
Magick v AAI Limited t/as GIO [2024] NSWPICMP 628
Panel Member: Elizabeth Medland Medical Assessors: Christopher Canaris and Michael Hong
Medical Panel review of assessment of permanent impairment under the Motor Accidents Compensation Act 1999 (MACA) - significant and lengthy history of pre-existing psychological issues where impairment was apportioned as per-existing psychological condition held to have been exacerbated.
The claimant was injured in a motor accident on 16 September 2014 when the insured vehicle entered an intersection and t-boned the claimant’s vehicle. The claimant lodged a personal injury claim against the insurer and liability was accepted. A dispute arose between the parties surrounding the degree of whole person impairment (WPI) and entitlement to non-economic loss damages.
On 13 September 2020, Medical Assessor Melissa Barrett determined that the psychological injuries of exacerbation of pre-existing diazepam dependence, opioid analgesic use disorder, methamphetamine use disorder, in remission, and specific phobia (car travel) gave rise to 30% WPI and that there was 11% WPI that preceded the motor accident.
A further medical assessment application was lodged against Assessor Barrett’s assessment on the basis of further medical information and on 18 January 2023, Medical Assessor Matthew Jones issued a determination that the claimant’s alleged psychological injuries listed as exacerbation of pre-existing diazepam dependence, opioid analgesic use disorder, methamphetamine use disorder in remission and specific phobia car travel were not caused by the motor accident. He determined that there were no grounds for assessment of WPI.
The claimant was successful in having Assessor Jones’ assessment referred to a panel for review. She argued that the Assessor conflated the issues of causation with the assessment of functioning and that the Assessor failed to consider if pre-existing conditions were exacerbated by the motor accident.
In light of the lengthy pre-accident history and the grounds for review, the panel re-examined the claimant. The panel noted significant inconsistencies in the history provided by the claimant, including her failure to disclose a criminal matter and pre-accident psychological impairment. Those were put to the claimant for commentary.
The panel determined that the claimant suffered a material aggravation of pre-existing polysubstance use disorder, post-traumatic stress disorder (PTSD) and cluster B personality disorder as a result of the motor accident. The panel assessed permanent impairment at the time of the examination as 15% WPI and deducted what it assessed the pre-existing impairment to be of 7% WPI, bringing a total 8% WPI.
Held: Medical Assessment Certificate revoked; claimant suffered psychological injury caused by the motor accident (exacerbation of pre-existing conditions) but impairment caused by the motor accident is not greater than 10%
