Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 124
13 November 2024
Welcome to the 124th 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 this week’s 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.
Claims Assessment
Hinch v Allianz Australia Insurance Limited [2024] NSWPIC 604
Member: Brett Williams
Claims assessment for liability and quantum – 20% contributory negligence where claimant pedestrian struck at the rear of his vehicle at night in blizzard like conditions with reduced ability for other drivers to sight him, failure to activate hazard lights in accordance with section 7.36 – damages assessed for non-economic loss, past and future economic loss and reduction for contributory negligence.
The claimant sustained significant right leg injuries, scarring and post-traumatic stress disorder (PTSD) as a result of a motor accident which occurred at 10pm on 9 August 2019. He was standing at the rear of his vehicle on the Alpine Way in Kosciuszko National Park changing his shoes when he was struck by the insured vehicle at a speed of 15-20km/h. His right leg was crushed between the two vehicles.
The insurer admitted liability for the common law claim on 4 April 2022 and alleged 25% contributory negligence. The insurer argued that the claimant failed to account for his own safety by not activating his hazard lights. The dash cam footage showed only the headlights of the insured vehicle.
The matter proceeded to assessment on 11 September 2024.
On the issue of liability and contributory negligence, the insured driver’s evidence was that the weather and road conditions caused her to lose control of the vehicle and slide into the claimant and his vehicle. The insurer accepted that the weather conditions had deteriorated such that a reasonable person in the claimant’s position would have stopped at the chain bay he passed on the Alpine Way, but that the claimant placed himself in danger by alighting his vehicle and by not activating his hazard lights.
The claimant argued that there was no obligation to stay in his vehicle. He argued that the insured driver should have sounded her horn and rejected the insurer’s agony of the moment defence in that respect.
The Member rejected an argument that the exercise of reasonable care required the claimant to continue to drive his vehicle further down the roadway before bringing it to a stop – due to the change in weather conditions, it was consistent with his obligation to take reasonable care to stop where he did.
The Member considered that the claimant failed to exercise reasonable care for his own safety by standing to the rear right hand side of his vehicle and by failing to activate his hazard lights. The Member assessed the claimant’s contribution at 20% after undertaking the comparative examination per Podrebersek.
After resolving the liability dispute, the Member went on to assess past economic loss, future economic loss and non-economic loss damages.
Held: Contributory negligence 20%; damages of $448,243 assessed after reduction for contributory negligence including an allowance of $320,000 for non-economic loss assessed.
Miscellaneous Claims Assessment
Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605 (29 October 2024)
Member: Belinda Cassidy
Wholly or mostly at fault for purposes of ss 3.11 and 3.28 – assessment of contributory negligence for purposes of s 3.38 – where claimant motorcyclist injured in single vehicle motor accident – application of GIO v Evic; Axiak v Ingram and Davis v Swift considered
The claimant was seriously injured when his registered motorbike lost control and collided with a tree on a fire trail in the Southern Highlands on 24 September 2023.
The insurer denied liability beyond 52 weeks on 18 December 2024, on the basis that the claimant was wholly or mostly at fault. The insurer conceded that the claimant sustained more than a threshold injury in a further decision on 19 December 2023 and maintained that the claimant was wholly at fault.
A dispute about treatment and care services (childcare) under s 3.26 was declared a merit review matter but resolved without the need for determination under Division 7.5. Member Cassidy was allocated to resolve the wholly or mostly at fault dispute for the purposes of payment of statutory benefits under ss 3.11 and 3.28.
The claimant argued that his contribution to the accident was less than 61%. He argued that he did not lose control of the motorbike until he collided with a tree that was laying on the trail, and that there was “something other than his riding that caused the accident (the fallen tree)”. The insurer argued that if the circumstances were different and the claimant’s loss of control resulted in him colliding with another vehicle, he would be found to have breached a duty of care to people in that vehicle.
Member Cassidy accepted this argument but rejected that the claimant owed a duty of care to himself.
The claimant’s submissions suggested that culpability lay in the entity responsible for maintaining the fire trail. The Member rejected this absent of evidence in support. She also rejected the argument that the rider in front of the claimant was responsible for “stopping where he did (not in a “more suitable location”) and “gesticulating which distracted the claimant” absent of supporting evidence. The Member further stated that culpability of anyone else was irrelevant if his contribution was more than 61%.
The Member accepted that the claimant rode over a bump and into the fallen tree and that this caused him to lose control of his motorbike. She said that a reasonable person in the position of the claimant who was riding in an unfamiliar bush setting on a fire trail would have followed the lead rider, and when he lost sight of that person, would have slowed to a speed that he could stop if necessary.
The Member used Evic as authority for there being no relative culpability to measure the claimant’s actions against in a single vehicle accident. She said that the claimant’s failure to account for his own safety, keep a proper lookout, ride at a reasonable speed to brake and evade a collision or obstruction resulted in a finding of 75% for contributory negligence.
Held: Claimant’s contributory negligence was assessed at 75%. He was wholly or mostly at fault.
Medical Review Panel
Halliday v AAI Limited t/as GIO [2024] NSWPICMP 742 (28 October 2024)
Member Elizabeth Medland, Medical Assessor Sophia Lahz and Medical Assessor Les Barnsley
Medical review of decision that the claimant sustained a threshold injury in the motor accident – complaints of headaches, allegation of traumatic brain injury and injury to the thoracic spine where there is evidence of developmental or degenerative pathologies – consideration of accident velocity on injury.
The claimant was injured in a rear end motor accident on 2 November 2022. The insurer denied liability for ongoing statutory benefits beyond 52 weeks on the grounds that the claimant sustained a threshold injury. This decision was affirmed on internal review on 13 April 2023.
The claimant subsequently lodged an application with the Commission for determination of the threshold injury dispute and in accordance with Division 7.5 of the MAI Act. Medical Assessor Ian Cameron determined on 18 March 2024 that the claimant sustained threshold injuries, specifically he found no evidence of an injury to the brain, and concluded the claimant suffered soft tissue injuries to the cervical spine and thoracic spine.
The claimant satisfied the President’s Delegate that there was a reasonable suspicion of material error in Assessor Cameron’s assessment. The particulars in the application were that the Medical Assessor’s finding that there was not a significant thoracic injury caused by the accident was inconsistent with the medical evidence, that he failed to give reasons as to causation and that the Assessor made no findings regarding a lumbar spine injury.
The claimant was re-examined by the Panel, after which the Panel confirmed Medical Assessor Cameron’s findings in a Review Panel Determination dated 28 October 2024. Relevant to that finding, the Panel determined that the claimant’s ongoing cervicogenic headaches were not evidence of a traumatic brain injury but rather a soft tissue injury to the cervical spine.
Absent of radiculopathy or non-threshold pathology, the cervical spine injury was a threshold injury.
Regarding the thoracic spine, the Panel did not observe signs of radiculopathy. The Panel commented that the ‘wedging’ of thoracic vertebrae on imaging “is not synonymous with trauma/fracture” but “often a developmental finding”. Based on evidence that the claimant mobilised at the scene, the Panel determined that “the occurrence of multiple thoracic wedge fractures due to the subject motor accident is simply medically implausible.” On the balance of probabilities, the Panel was satisfied that the claimant’s disc protrusion and wedging was not caused by the motor accident and that the thoracic injury sustained in the accident was a soft tissue threshold injury.
Regarding the lumbar spine, the Panel determined that the subject accident neither did, nor could have resulted in the present degree of L1 compression, specifically given the claimant made no acute complaints of low back pain to the doctor at the time of the motor accident. The Panel further commented that it was “medically implausible” for the claimant to aggravate his L1 fracture if there was no contemporaneous pain.
The Panel concluded that all of the referred injuries were threshold injuries, thus confirming Assessor Cameron’s assessment.
Held: The Medical Assessment Certificate was confirmed; the claimant suffered a threshold injury.
