Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1206 July 2021
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 Personal Injury Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on Australasian Legal Information Institute (AustLII) website.
All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.
Mitchell v QBE Insurance  NSWPIC 190
Member: Margaret Holz
Motor accidents—Claims assessment—settlement approval—claim made under the Compensation to Relatives Act 1897 (NSW)—deceased received carer’s pension in relation to care provided to claimant.
The deceased was 80 years old at the time of her death. The claimant, her husband, was 77 years old. At the date of the accident both were in receipt of the aged pension. The deceased also received a carer’s allowance in relation to care she provided to the claimant. This care included driving him to appointments (including dialysis treatment three times a week), and all domestic, maintenance, and gardening work.
The matter initially settled in principle for $86,564.50 excluding funeral expenses (which had already been reimbursed). The claimant was unrepresented. The insurer lodged an application for approval pursuant to s 6.23. At the first teleconference the claimant was represented by his daughter. She gave evidence of the extent of the assistance that had been provided by the deceased to the claimant. The insurer was not previously aware of this evidence, and it rendered the settlement amount “wholly inadequate”. The member declined to approve the settlement.
Further discussions took place, and the matter subsequently settled in principle for $319,097.50 exclusive of funeral expenses. This figure was approved by the Commission.
This matter highlights the need for an insurer to ensure they have adequate particulars of a claim in which a claimant is unrepresented before seeking settlement approval.
ABM v Insurance Australia Limited t/as NRMA Insurance  NSWPICMR 18
Merit reviewer: Tajan Bab
Motor accidents—merit review—funding of medical imaging pre-approved—cost of imaging exceeded pre-approval—reimbursement of gap dispute by insurer—application lodged in the Commission—reimbursement subsequently paid by insurer—whether claimant entitled to costs of dispute.
The claimant underwent MRIs. Funding for this was pre-approved in the amount of $700. The claimant paid an amount in excess of the pre-approval and sought reimbursement of the gap. Reimbursement was declined by the insurer, and that decision upheld on internal review. The claimant’s solicitors lodged an application in the Commission, and the insurer subsequently paid the reimbursement.
The claimant’s solicitors sought payment of its legal costs incurred in bringing the application. The insurer declined payment. The claimant sought merit review. The insurer submitted that the dispute is not of a kind mentioned in Schedule 1 of the Motor Accident Injuries Regulation 2017, and that the claimant therefore had to show the existence of “exceptional circumstances” justifying payment of legal fees. The merit reviewer found that the dispute for reimbursement of gap payment was a dispute related to a medical assessment, which is mentioned in the regulations. There was therefore no need to establish exceptional circumstances. The member allowed the maximum regulated costs of $1,660.
Miscellaneous claims assessments
ABL v NRMA  NSWPIC 188
Member: Shana Radnan
Motor accidents—miscellaneous claim assessment—whether claimant mostly or wholly at fault—single vehicle accident—involvement of unidentified vehicle.
The claimant was involved in a single vehicle accident when his car collided with a tree. He told police and a witness at the scene that his brakes may have failed, and subsequent police investigations determined that the brake reservoir was empty. It could not be determined whether it was empty prior to the accident. The claimant was driving home from work having completed night shift, and admitted to a witness that he may have momentarily lost concentration.
In his claim form and subsequent statements the claimant alleged that an unknown vehicle moved from the left lane into the lane in which the claimant was travelling, forcing him to move into the left lane, during which he lost control of his vehicle and collided with the tree. A witness did not recall seeing the vehicle change lanes prior to the accident.
The insurer disputed liability for statutory benefits after 26 weeks on the basis that the claimant was wholly at fault in that he lost control of his vehicle. The claimant sought Commission review, asserting that it was a no-fault accident.
The member found that the accident was not a no-fault accident, and it was caused by the lane change of the other vehicle and the claimant’s subsequent manoeuvre to avoid collision. There was some culpability on the part of the claimant in his momentary inattention, sudden swerving, and travelling at a speed that may have been excessive in the circumstances, but his contributory negligence would be assessed at less than 61%. He was therefore not wholly or mostly at fault. The member accepted as a factual conclusion the claimant’s recollection that his brakes had failed. She noted that no expert evidence had been served identifying whether the brake fluid loss occurred prior to or after the accident.
BK v QBE Insurance Ltd  NSWPIC 187
Member: David Ford
Motor accidents—miscellaneous claim assessment—whether claimant mostly or wholly at fault—motor vehicle versus pedestrian—dispute as to whether collision occurred.
The insured driver attended the claimant’s house, parked in the claimant’s driveway, got out of his vehicle and engaged in conversation with the claimant. The conversation became heated. The insured driver wished to leave and re-entered his vehicle. The claimant stood between the insured driver and the open driver-side door of his vehicle to prevent him leaving. The insured driver drove forward a short distance so that he could close his door, and then reversed out of the driveway to depart. After reversing he noticed that the claimant had fallen to the ground. He denied that there was any contact between his vehicle and the claimant.
The claimant made an application for statutory benefits. The insurer disputed liability after 26 weeks on the basis that the claimant was wholly or mostly at fault. The claimant sought Commission review. The member found that the insured vehicle did collide with the claimant, causing him to lose balance and fall. There was some culpability on the part of the claimant in not moving away from the vehicle when it became clear that the insured wished to depart as quickly as possible, and contributory negligence should be assessed at 10%. Therefore, the claimant was not wholly or mostly at fault.
Stuparu v GIO  NSWPIC 189
Member: Terence Stern
Motor accidents—miscellaneous claim assessment—whether claimant mostly or wholly at fault—motorcycle accident—no collision between vehicle—claimant alleges that he swerved to avoid a vehicle.
The claimant was a motorcyclist who fell from his motorcycle. He alleged that this was due to a manoeuvre to avoid collision with a vehicle, which failed to give way and attempted a right-hand turn into his path of travel. Emergency services did not attend the scene. The insured and two witnesses both gave statements.
The insured driver denied commencing a turn prior to the accident and said that the claimant appeared to be speeding and lost control of his motorcycle as he approached the intersection. A witness reported that the insured driver stopped at the intersection for about half a second and then commenced the turn when the motorcycle was about a car length away. Another witness was travelling behind the motorcyclist and reported that he appeared to simply lose control.
The insurer determined that the claimant was wholly or mostly at fault. The claimant sought Commission review.
The member noted the inconsistencies between the three witness statements. He determined that the cause of the accident was the failure of the insured driver to keep a proper lookout and to enter the intersection when safe to do so. Any contributory negligence on the part of the claimant would be less than 61%. Therefore, he was not wholly or mostly at fault.