Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 126
11 December 2024
Welcome to the 126th 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.
Merit Review
Kumar v Allianz Australia Insurance Limited [2024] NSWPICMR 73 (26 November 2024)
Merit Reviewer: Katherine Ruschen
Dispute about payment of weekly benefits under Division 3.3 – meaning of pre-accident weekly earnings (PAWE), application of Sch 1, cl 4; Sch 1, cls 4(2)(b), 4(2)(c) and 4(3) – where there is significant change in earning circumstances – where claimant is involved in rideshare employment – consideration of business and motor vehicle earnings, GST and rental income.
The claimant was injured in a motor accident on 14 February 2024. He lodged a claim for payment of statutory benefits, and the insurer made three relevant decisions regarding pre-accident weekly earnings (PAWE):
- On 6 March 2024, the insurer determined the claimant’s PAWE as $1,570.11. The claimant applied for internal review of this decision.
- On 21 May 2024 in an internal review certificate, the insurer varied PAWE to $415.78.
- On 3 September 2024, the insurer again varied PAWE to $419.69.
The claimant then applied for merit review of the insurer’s decision on 3 September 2024. He submitted that PAWE was at least $1,227.35 on the basis that:
- In December 2023, some three months before the accident, he left employment with 7-Eleven and began working exclusively as a rideshare driver resulting in a significant increase in earning. He argued that this change in circumstances ignited the application of Sch 1 cl 4(2)(b) and (3) and/or (2)(c) such that the alternate method of calculation applied.
- He signed the Didi Vehicle Advertising Program on 12 February 2024, two days before the accident, and was to earn an extra $1,200 total in $50 instalments per fortnight.
- Rental income received from renting a vehicle that he owned should be included in PAWE.
- Payments made to him after the accident on 21 February 2024 and 1 March 2024 should be included in PAWE because these payments were for work carried out before the accident.
The insurer disputed that the alternate method of calculation applied. The insurer said that the claimant’s earnings as an Uber driver since 3 January 2023 were variable and that his resignation from Uber was not likely to be of significant consequence to his earnings.
The insurer argued that rental income is not income from personal exertion and is excluded from PAWE. Based on the total gross earnings in the calendar year preceding the accident of $32,301.77 (after business expenses and excluding vehicle rental income), the insurer argued that PAWE was $621.19.
Merit Reviewer Ruschen determined that:k
- For cl 4(3) to apply, the change in earning circumstances must be both “significant” and one that results in the claimant “regularly” earning more. She was not satisfied that the cessation of 7-Eleven employment or the Didi Vehicle Advertising program, whether viewed together or separately met this test, and therefore cl 4(2)(b) did not apply, noting that:
- Working as a rideshare driver was not a significant change in and of itself.
- Review of the earnings demonstrated that the change relied on by the clamant resulted in him earning around $60 per week less than he had been earning before. A significant change resulting in the claimant regularly earning more than he had earned before was not established.
- Regarding the Didi Vehicle Advertising Program, the claimant was likely to earn at most $25 per week through this. This is not a significant change.
- Clause 2(c) regarding self-employment does not apply. Signing up to a new rideshare platform is not a new arrangement for self-employment as the claimant was already in the same self-employment since at least January 2023, as “regardless of how many rideshare platforms the claimant subscribes to he can only complete one rideshare trip at any one time”.
- Regardless of what the pre-accident arrangement was in respect of the rental vehicle, income in the form of rent of any kind is excluded from “earnings” for the purpose of the MAI Act.
- Earnings received on or after the date of the accident irrespective of when the work was performed is excluded from assessment of PAWE in accordance with cl 4(1) of the Act.
Based on the gross earnings received from Uber, and the earnings received from 7-Eleven and Coles which “both parties appear to have overlooked”, Merit Reviewer set aside the reviewable decision and assessed PAWE at $852.34.
Held: The reviewable decision was set aside and PAWE assessed was at $852.34.
Miscellaneous Claims Assessment
Scattergood v Allianz Australia Insurance Limited [2024] NSWPICMR 72 (18 November 2024)
Member: David Ford
Dispute about payment of weekly benefits under Division 3.3 – dispute that injuries resulted from a motor accident – where the claimant fell whilst boarding a bus – insurer’s decision that claimant not entitled to payment of statutory weekly wage benefits as injury did not occur as a result of the motor accident.
The claimant was injured whilst boarding a bus on 5 June 2024. The claimant made a claim for statutory benefits arising from this accident, and on 24 July 2024, the insurer denied liability for statutory benefits on the basis that the claimant was not injured as a result of a “motor vehicle accident” as defined by the MAI Act. The claimant applied for internal review of this decision.
On 20 August 2024, the insurer affirmed the decision that the injuries sustained did not result from a “motor accident” as defined by the MAI Act, and accordingly that the insurer was not liable to pay statutory benefits at any point since the date of the accident.
The claimant applied for miscellaneous claims assessment. He argued that the bus moved before he could sit down, and that he fell and sustained an injury. The insurer denied the claimant’s version of events and relied on the bus driver’s statement. The insurer conceded that the injury occurred during the driving of the vehicle as shown by CCTV footage but argued that the claimant’s injuries were not caused by a motor accident, but because he tripped over his own feet. The insurer argued that the claimant’s injuries were not “caused” by the fault of the owner or driver, but by the claimant tripping/falling in the ordinary driving of the vehicle.
Member Ford placed weight on the CCTV footage, which he said showed that the injury had occurred during the driving of the vehicle as is demonstrated in the CCTV footage and was conceded by the insurer. He found that the claimant did not trip over his feet, but that the driving of the bus caused the claimant to lose his balance and fall to the floor of the bus, and that this satisfied the definition of a motor vehicle accident in accordance with the MAI Act.
Held: The decision was set aside and a new decision was issued – the claimant was injured in a motor accident and was entitled to statutory benefits pursuant to s 3.1.
El Shaimy v Transport Accident Commission [2024] NSWPIC 627 (10 November 2024)
Member: Gary Patterson
Whether late claim can be made in accordance with ss 6.14(3) and 6.14(4); where vehicle at fault was registered interstate – where explanation for delay for late claim in statutory benefits claim was accepted – where claimant sustained non-threshold injury and common law claim lodged more than three years after the motor accident and rejected by insurer for being late.
The claimant was injured in a motor accident on 6 May 2019. He was a passenger on a bus registered with the Transport Accident Commission (TAC) of Victoria. He lodged a claim for statutory benefits against the Nominal Defendant late on 22 October 2019, and this was allocated to NRMA to manage.
The claimant provided an explanation for delay in lodging the statutory claim form on 22 November 2019, after which the claimant was determined to have sustained more than a threshold injury by the Commission’s Medical Assessors in June 2023.
On 3 October 2023, an Application for Common Law Damages was served on NRMA in its capacity as the Nominal Defendant. On 15 November 2023, the insurer informed the claimant of his entitlement to lodge a common law claim against the TAC. The claimant lodged an application for common law damages on 12 March 2024. On 20 March 2024, TAC requested a full and satisfactory for delay in serving the application for common law damages claim form. It then rejected the explanation provided on 28 May 2024 on the basis that it was not full or satisfactory.
Absent of credit issues, the parties agreed that the dispute could resolve on the papers. The parties also agreed that the relevant period for explanation of the delay, in making the claim, was from 6 May 2022 (three years post-accident) to 12 March 2024 (the date upon which the explanation was given).
Member Patterson relied on Nominal Defendant v Browne [2013] NSWCA 197, which said that the full account of the conduct required by the MAI Act is “an account of the acts or decisions of the claimant and all relevant persons, including those acting or purporting to act on the claimant’s behalf, if their conduct is relevant, even if the explanation does not recount in perfect detail every moment within that period”.
The Member stated that the explanation must be satisfactory. He said that this is an objective test which considers whether a reasonable person, in the position of the claimant, would have been justified in experiencing delay.
The evidence was that the claimant’s statutory benefits claim entitlements (and thus common law claim entitlements) were delayed by a threshold injury dispute and review proceedings in respect to same, there were unique circumstances arising from COVID-19, the subsequent lockdown in society, the difficulty in accessing treatment and the delays caused by the assessment of medical disputes in the Commission, and that “but for the advent of COVID-19, it would have been expected the minor 'threshold' injury dispute would have been determined well before the three-year limitation period.”
The Member rejected the insurer’s argument that the claimant’s previous personal injury claim in 2012 was evidence that he ought to have known of claim time limits. The Member said that his claim arising from his first accident was under a separate Act and regulatory regime not directly of relevance to his present claim.
The Member rejected the argument that the claim for damages could have been lodged before the finalisation of the threshold injury dispute because “should such an application have been made without evidence of entitlement, TAC may have sought to have it dismissed’.
The Member was satisfied that a reasonable person in the claimant’s position would have been justified in experiencing the same delay, and that the explanation was relevantly full and satisfactory.
Held: The Member was satisfied as to full and satisfactory explanation for delay in making the claim; confirmed that a late claim was able to be made.
Medical Review
Wassef v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 784 (21 November 2024)
Member Hugh Macken, Medical Assessor John Carter and Medical Assessor Christopher Oates
Medical review – where claimant underwent gastric sleeve surgery after the accident and consideration for pre-accident history – where motor accident more than negligible cause for surgery – assessment of permanent impairment to digestive system tract.
The claimant made claims for statutory benefits and common law damages after he was injured in a motor accident 24 December 2017. He sustained injuries to his cervical spine, lumbar spine, right elbow, right ankle, and right shoulder which were assessed by Medical Assessor David Gorman at 8% whole person impairment (WPI).
Thereafter, the claimant applied for an assessment of degree of permanent impairment where he alleged that the motor accident caused permanent impairment to his intestine because he underwent post-gastric sleeve surgery due to accident-related refractory gastro-oesophageal reflux disease (GORD) and intestinal motility disorder. Medical Assessor Ian Cameron on 27 February 2024 determined that the injury was not caused by the motor accident and accordingly an assessment of the degree of permanent impairment for these injuries was not required.
The claimant was successful in satisfying the president’s delegate that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect and the matter came before the Review Panel. The Panel acknowledged that the claimant had consulted his GP on several occasions prior to the accident about increased weight but placed probative value on the fact that the claimant was attending the gym and walking to work before the accident. He was unable to do this after the accident due to his numerous orthopaedic injuries.
The Panel also considered that due to the claimant’s incapacity for work after the accident, his increased time at home and reliance on fast foods, the claimant’s weight increased “almost immediately” after the accident. He was assessed as suitable for a gastric sleeve operation and at the time of surgery was 110kg. He had this operation in July 2021, and that since the surgery, he had increased GORD symptoms, fatigue and reduced capacity for exercise.
The Panel overturned Assessor Cameron’s Certificate because it was satisfied that as a result of orthopaedic injuries to the ankle and elbow, along with his genetic predisposition to weight gain as demonstrated in the past history, the accident was a minor but more than negligible cause for gastric sleeve surgery.
The anatomical loss of part of the claimant’s stomach gave rise to class 1 impairment with a range of 0%-9%. In view of the upper digestive tract symptoms and anatomical loss, impairment of the intestine was 6%.
Held: The Certificate was revoked and a new decision issued – 6% WPI consequent on the injury being intestine – post gastric sleeve, refractory GORD and intestinal motility disorder.
