Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 125
10 December 2024
Welcome to the 125th 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 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
Allianz Australia Insurance Limited v Al Diwana [2024] NSWPIC 614 (4 November 2024)
Member: Belinda Cassidy
Wholly or mostly at fault for the purposes of s 3.11 – claimant riding bicycle onto pedestrian crossing in heavy traffic – insured vehicle rolled onto pedestrian crossing and accident occurred – both parties held to be equally responsible – claimant not wholly or mostly at fault.
The claimant sustained injuries in a motor accident on 25 April 2023. He was riding a bicycle and rode across a pedestrian crossing when he was hit by the insured vehicle and fell over.
The claimant subsequently lodged a statutory benefits claim against Allianz.
The insurer denied the payment of statutory benefits beyond 52 weeks from the accident date on the basis that the claim was made late and the claimant was considered wholly at fault and his injuries were considered threshold injuries.
The claimant sought an internal review of the insurer’s decision. Upon internal review, the insurer affirmed its original decision that the claimant was wholly at fault.
In his submissions, the claimant argued that:
- the insured had an obligation to look out for pedestrians and not queue across the pedestrian crossing
- the insured has a prior history of traffic offences
- if traffic was queued, then the insured should not have blocked the pedestrian crossing, and
- even if the claimant had failed to dismount and walk across the pedestrian crossing, the insured “initiated the necessary conditions for the collision, rather than the Claimant.”
The insurer submitted that it appeared the claimant was travelling in the same direction as the insured then moved onto the footpath and crossed the pedestrian crossing, and that riding a bicycle on a pedestrian crossing is considered a breach of the road rules.
The Member made the following notable factual findings:
- The claimant rode onto the pedestrian crossing without stopping.
- The insured hit the claimant’s front wheel at low speed which resulted in the claimant falling over.
- At the time of the accident, the claimant was on the pedestrian crossing partly into the second lane, however not fully in the lane and not fully in front of the insured vehicle.
- The insured was half way across the pedestrian crossing with the front third of her vehicle on the crossing.
In her reasoning, the Member considered that the claimant departed from the standard of care expected of a reasonable person in his position based on the following:
- A reasonable person would not have ridden around a corner and across the pedestrian crossing without having stopped to determine if it was safe to cross.
- A reasonable person having observed the presence of heavy traffic and two vehicles stopped at the pedestrian crossing should have taken extra care to ensure it was safe prior to crossing the road.
Member Cassidy noted that a reasonable person in the position of the claimant would have dismounted prior to crossing the road and would not have ridden across the pedestrian crossing.
The Member determined that the insured departed from the standard of care expected of a reasonable person in her position and breached that duty of care to the claimant on the basis of the following:
- A reasonable person driving a car in heavy traffic should have taken extra care when approaching a pedestrian crossing especially with a car to her left and a car in front.
- A reasonable person should not have moved onto the pedestrian crossing in the circumstances.
Ultimately, the Member considered that the claimant and the insured were equally responsible for the motor accident. Accordingly, on the basis that the claimant was 50% contributory negligent for the accident, it was held that the claimant was not wholly or mostly at fault.
Held: The claimant was not wholly or mostly at fault for the accident.
Miscellaneous Claims Assessment
Tornsey v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 613 (1 November 2024)
Member: Jeremy Lum
Statutory benefits claim not made within three months after the motor accident under s 6.13 – whether full and satisfactory explanation for the delay had been provided – claimant found to have provided a full and satisfactory explanation for the delay.
On 24 February 2023, the claimant was a passenger in the front seat of a vehicle driven by her son. They were stopped in traffic when the insured who was driving a Freightliner Argosy Truck with Victorian registration rear ended into them, which caused them to impact into the truck in front.
There was a delay in the claimant lodging the claim for statutory benefits with the claim form not lodged until 2 May 2024, some 15 months following the accident. Annexed to the claim from was a statement from the claimant dated 8 May 2024, which provided an explanation for the delay.
The insurer denied liability on the basis that the claim was not made within three months following the accident and did not accept the claimant’s explanation for the delay as being full and satisfactory.
The claimant requested an internal review of the decision and provided a further statement dated
7 August 2024 to explain the delay.
Upon internal review, the insurer affirmed its original decision.
Subsequently, the claimant lodged a miscellaneous claims dispute at the Commission. The matter was allocated to Member Lum for determination.
The claimant argued that her explanation for the delay was satisfactory, based on a number of reasons including but not limited to the following:
- The confusion pertaining to the jurisdiction of the claim, taking into account the at fault vehicle’s Victorian registration.
- Her lack of knowledge of the CTP system and ancillary time limits.
- The effects of the psychiatric condition.
- The false presumption that the claim would need to be made in the Australian Capital Territory (ACT), noting the registration of the at fault vehicle.
- A frustrated attempt to engage Tayscott Lawyers in the ACT, in the wrong jurisdiction.
- The difficulty in the processing of the property damage claim.
- The misunderstanding that took place with the State Insurance Regulatory Authority (SIRA).
The insurer argued that the claimant was aware of her eligibility to lodge a CTP claim as stated in an email from by SIRA dated 7 March 2023.
In his reasoning, the Member considered that the claimant’s explanation (contained in her two statements dated 8 May 2024 and 7 August 2024) represented a full account of her conduct, including her actions, knowledge and belief, from the date of the accident up until the date of providing the explanation.
As to whether the explanation was satisfactory, the Member considered that there were a number of factors, particular to the claimant, which explained why she delayed making a claim until she contacted a solicitor in April 2024. Whilst SIRA’s email dated 7 March 2023 referred to the three month timeframe towards the end of the email, the Member accepted the claimant’s explanation that she only read the first couple of lines. Member Lum considered that it was reasonably justifiable for a person in the claimant’s position to only read the first couple of lines, especially taking into account her circumstances at the time. In particular, the Member highlighted that she was confronted with a “maze of information” (and misinformation) from SIRA, the Transport Accident Commission (TAC) as well as the various bodies associated with the claimant’s property damage claim. Accordingly, the Member held that there would have been a number of persons within the spectrum of reasonable persons in the position of the claimant who would have only read the first couple of lines of SIRA’s email and not made a claim at that time.
In his reasoning, Member Lum accepted that the claimant was not informed of the existence of any strict time limits from the police, her treating doctors or the state insurance bodies (with the exception of the email from SIRA dated 7 March 2023).
The Member highlighted that following the motor accident to the time the claimant saw a solicitor, she was an owner and working in a very demanding hotel management business whilst juggling the demands of being a mother with two teenage sons, each with their own issues.
Member Lum determined that the claimant’s delay was also satisfactory.
Held: The claimant has given a full and satisfactory explanation for the delay in making her statutory benefits claim and accordingly, her claim lodged on 2 May 2024 was able to be made.
Miscellaneous Claims Assessment
Abdi v Allianz Australia Insurance Limited [2024] NSWPIC 609 (30 October 2024)
Member: Elizabeth Medland
Wholly or mostly at fault for the purposes of ss 3.11 and 3.28 – claimant motorcyclist injured in single vehicle accident – application of Evic v AAI Limited t/as GIO – claimant found to be wholly at fault.
The claimant sustained injury as a result of a single vehicle accident on 3 June 2023. He was the rider of a motorcycle in the Royal National Park, which was involved in a collision that caused the motorcycle to be wedged between a rock wall and a road sign.
The claimant subsequently lodged an Application for Personal Injury Benefits with Allianz.
The insurer denied ongoing liability beyond 52 weeks on the basis that the claimant was wholly at fault for the accident.
Upon internal review, the insurer’s original decision was affirmed on 16 August 2023.
The claimant subsequently lodged a miscellaneous claims dispute with the Commission and the matter was allocated to Member Medland for determination.
The claimant did not lodge any submissions.
The insurer submitted that the claimant was wholly at fault for the accident on the basis of the following:
- The claimant was negligent by not driving according to the prevailing weather and roadway conditions and failing to exercise reasonable precautions to avoid a reasonably foreseeable risk and avoid injury.
- The claimant failed to adjust his manner of driving reasonably and sufficiently and ought to have reduced his speed further to safely turn right on the bend.
- The negligent use and operation of the vehicle by the claimant caused him to lose control of his motorbike and resulted in the accident.
- The claimant was negligent through his actions of driving at a speed that was excessive in the circumstances.
- The claimant failed to exercise reasonable care and display due regard for his own safety.
- The claimant did not take adequate measures or precautions to guarantee his own safety and having regard to the driving conditions.
In her reasoning, Member Medland relied upon the decision in AAI Limited t/a GIO v Evic [2024] NSWSC 1272, where it was established that a claimant in a single motor vehicle accident can be found to be wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the MAI Act.
Member Medland considered that the claimant was wholly or most at fault for the accident on the basis that the most likely cause of the accident was a combination of his inexperience and his failure to control the vehicle appropriately on a wet bendy road. As such, the Member determined that the claimant’s control of the vehicle resulted in the collision with the rock wall and sign by failing to ride to the prevailing conditions.
Member Medland held that there was no extraneous factor that contributed to the accident that the claimant ought not to have been reasonably cognisant of. In particular, the Member highlighted that an extraneous factor such as a wet road surface was a factor that the claimant should have reasonably been aware of and taken into consideration when manoeuvring the motorcycle. The Member reiterated that the claimant’s failure to adequately control the vehicle in light of those factors resulted in the accident.
Held: The claimant was wholly at fault for the accident.
