Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1315 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.
ABR v AAMI  NSWPIC 204
Member: Hugh Macken
MOTOR ACCIDENTS—miscellaneous claims assessment—whether accident caused wholly or mostly by the fault of the claimant—single vehicle collision—claimant lost control of vehicle when travelling down a hill on wet road and navigating a left hand bend—insurer contended claimant wholly at fault for accident—claimant disputes he was wholly at fault, asserting rain and oil spill caused accident. Findings: no evidence of oil spill—accident caused wholly by the fault of the claimant—claimant failed to drive to the conditions of the weather and the road.
The claimant was travelling down a hill, on a wet road, with a left hand bend, at 90 km/h. As he was negotiating the bend, the rear wheels on his vehicle lost traction, and the claimant was unable to maintain control of the car, causing it to roll. Although he initially said in his statement he had applied the brakes, he conceded during the Assessment Conference that he did not do so.
The insurer asserted the accident was caused wholly by the fault of the claimant. The claimant asserted that “a mixture of the water and oil on the roadway after the rain caused my car to slide in the bend in the road and crash”.
The Commission agreed with the insurer, finding there was no evidence of any oil on the ground, and that there were no defects in the vehicle that led to the accident. The Commission found that the accident was caused wholly by the fault of the claimant, for failing to drive at an appropriate speed considering the reduced traction caused by the rain and the bend the claimant needed to navigate.
ABN v AAI Ltd t/as GIO  NSWPICMR 20 and ABO v AAI Ltd t/as GIO NSWPICMR 21
Merit Reviewer: Brett Williams
These two cases emphasise that in claims for nervous shock, and where examination of the “close member of the family” requirements of s 30 of the Civil Liability Act 2002 are required, it is important to consider the factual circumstances of the relationship shared between the claimant and the victim.
MOTOR ACCIDENTS—Merit review—whether deceased is a close family member of the claimants—granddaughters of deceased—application of s 30(5)(c) of Civil Liability Act 2002—whether deceased had parental responsibility for claimants—whether Family Law Act 2005 definition of parental responsibility applies to Civil Liability Act 2002. Findings: Family Law Act 2005 definition of parental responsibility does not apply to Civil Liability Act 2002—deceased was responsible for day to day care of claimants, and instrumental in their character development—deceased determined to be a person with parental responsibility for claimants—claimants entitled to access statutory benefits.
These two claims and decisions arise from the same accident.
The deceased was struck by a motor vehicle whilst riding a motorcycle and subsequently died from her injuries. ABN and ABO were the deceased’s granddaughters, and lodged statutory benefits claims in order to access treatment for nervous shock injuries sustained following their grandmother’s death.
Section 30(2) of the Civil Liability Act 2002 provides that a person cannot recover compensation for pure mental harm arising from another person (the victim) being killed, injured, or put in peril, by the act or omission of a tortfeasor, unless they witnessed the victim being killed or put in harm’s way, or that victim was a close family member. This section relevantly defines a “close family member” to include a child of the victim, or, importantly, “any other person for whom the victim has parental responsibility”.
The insurer denied liability on the basis that the deceased victim was not a “close family member” to the claimants within the meaning of s 30(2)(b) and 30(5)(c) of the Civil Liability Act 2002.
The claimants led evidence from family members and themselves showing that their mother, a single parent who operated her own business, would work on weekends and weekdays, and that their grandmother would be responsible for preparing their meals, taking them to and picking them up from school and karate, and involved in their day to day care generally. Importantly, the evidence showed that the deceased victim also provided moral and ethical guidance, set goals for them, and was instrumental in developing their character.
The claimants asserted they were persons “for whom the victim had parental responsibility”, that the deceased victim was therefore a close family member, and therefore satisfied s 30(2)(b) of the Civil Liability Act 2002.
The insurer agreed that the deceased played an instrumental role in the claimants’ lives but, asserted that “parental responsibility” must be confined to a legal definition. The insurer relied upon s 61B of the Family Law Act 1975 (Cth), which defined that term as “encompassing all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. It submitted that “Unless a court order specifically provides to the contrary, each parent of a child under 18 years of age has parental responsibility”.
The Commission rejected the insurer’s position, finding that there were no legislative provisions that incorporated the Family Law Act 1975 definition of parental responsibility into the Civil Liability Act 2002.
Given the breadth of the deceased’s responsibilities to the claimants, the Commission accepted that she was a person with parental responsibility for the claimants and determined the grandmother was a close family member. Claimants were able to access statutory benefits under the Motor Accident Injuries Act.
View decision in ABN v AAI Ltd t/as GIO  NSWPICMR 20.
View decision in ABO v AAI Ltd t/as GIO  NSWPICMR 21.
ABP v QBE Insurance  NSWPICMR 19
Merit Reviewer: Steve Georgiadis
MOTOR ACCIDENTS—Merit review—assessment of Pre-Accident Weekly Earnings (PAWE)—claimant was a self-employed painter and subcontracted to a company—tax records lodged with the ATO supported insurer’s PAWE calculation of $203.46—claimant alleges had higher earnings from cash in hand payments not declared with ATO. Findings: claimant did not discharge onus of proof to demonstrate that cash payments exceeded declared income—insurer’s PAWE determination affirmed.
The insurer initially calculated the claimant’s PAWE to be nil and on internal review and production of further information, PAWE was re-calculated to be $203.46. The claimant disputed this determination in the Commission.
The claimant asserted that he was a self-employed painter, who contracted for JC. He said he was paid $30 per hour, and worked 30 hours per week on average, earning either $900 gross or $900 net per week. He led evidence from JC, who inconsistently said the claimant worked 30 or 40 hours a week. JC also said he paid the claimant in cash, that the claimant did not invoice him for his work, and that there is therefore no corroborating documentary evidence. The insurer submitted that the claimant and JC’s evidence was insufficient to determine the claimant’s PAWE with any accuracy.
Given the inconsistencies in the claimant’s and JC’s evidence as to the claimant’s work hours and earnings, and the lack of corroborating documentary evidence generally, the Commission found the claimant’s evidence unreliable. It affirmed the insurer’s PAWE calculation of $203.46, which was based upon the claimant’s tax return.
ABQ v Insurance Australia Ltd t/as NRMA  NSWPICMR 22
Merit Reviewer: Brett Williams
MOTOR ACCIDENTS—Merit review—recovery of legal costs incurred in connection to minor injury and treatment disputes lodged under one application—insurer conceded minor injury—medical assessment of treatment dispute only—insurer paid costs for minor injury dispute but declined liability for cost of treatment dispute. Findings: minor injury and treatment disputes are distinct disputes—claimant entitled to reasonable and necessary costs of both medical disputes despite being lodged under one application—reasonable and necessary legal costs assessed at $1,000 plus GST—exceptional circumstances costs order denied.
The claimant lodged a minor injury dispute and treatment dispute with the Commission. The insurer conceded that the accident caused non-minor injuries, but maintained declinature of the treatment sought, a work-related activity program. The treatment dispute was decided in the claimant’s favour, and the claimant applied to recover the costs of both disputes from the insurer.
The insurer paid the claimant’s costs incurred in connection with the minor injury dispute but, declined liability for costs associated with the treatment dispute, on the basis that there was only one application lodged and only one medical assessment took place. The claimant disputed this, and also sought an uplift on costs as they considered the insurer’s position an unreasonable denial under s 6.21 of the Act.
The Commission found that minor injury and treatment disputes were distinct disputes under the Act, and that the claimant was required to recover the costs of both disputes. It did not consider s 6.21 (costs penalties for unreasonable denial of liability) applied to treatment disputes, and there was otherwise any compelling grounds for an exceptional circumstances costs order. Having regard to the applications and the issues in dispute, the Commission assessed the claimant’s costs for the treatment dispute at $1,000, plus GST.
ABS v AAMI  NSWPICMR 23
Merit Reviewer: Nick Delfendahl
MOTOR ACCIDENTS—Merit review—amount of weekly payments of statutory benefits—calculation of PAWE where claimant had full-time employment and was also self-employed—calculation where insufficient evidence to calculate self-employment income and losses for 12 months prior to accident, which occurred halfway through financial year. Findings: PAWE calculated by adding together half of gross income in preceding and subsequent financial years.
The claimant sustained injury in an accident on 19 January 2019, approximately halfway through the 2019 financial year. Prior to the accident, he earned income as a property manager, and also from self-employment. The insurer initially calculated the claimant’s PAWE to be $1,254.23 but subsequently revised its assessment to $780.08 following internal review. The revised assessment was based upon the claimant’s 2018 tax return, as the internal review considered there was insufficient evidence to calculate the claimant’s business expenses from self-employment in the 12 months prior to the accident.
The Commission revised the insurer’s assessment of PAWE on internal review. Noting the accident occurred about halfway through the 2019 financial year, it calculated PAWE by adding 50% of the claimant’s gross income in the 2018 financial year to 50% of the claimant’s gross income in the 2019 financial year. The Commission determined the claimant’s PAWE to be $861.38.
ABT v CIC Allianz  NSWPICMR 24
Merit Reviewer: Kriesen Seeneevassen
MOTOR ACCIDENTS—Merit review—amount of weekly payments of statutory benefits—claimant was a carer at the time of the accident and received Centrelink benefits—claimant did not receive any other payments—insurer determined claimant not an earner at time of accident—claimant disputed determination. Findings: citing a Department of Social Services fact sheet, carer allowances are income supplements and payments are not made by way of an employment relationship—insurer’s decision that claimant was not an earner affirmed.
Hafeez v AAI Ltd t/as AAMI  NSWPICMR 25
Merit Reviewer: Terence O’Riain
MOTOR ACCIDENTS—Merit review—recovery of costs associated with obtaining medico-legal report obtained in minor injury dispute—Commission Medical Assessors (Commission) determined claimant’s injuries to be minor injuries—Insurer asserted medico-legal report unnecessary as the minor injury issue was to be determined by the Commission in any event. Findings: medico-legal report was reasonable and necessary for the purposes of giving legal advice for the prospects of disputing the minor injury determination in the Commission, and to support the claimant’s position in that dispute.
The claimant disputed the insurer’s minor injury determinations by the Commission and relied upon a medico-legal report by Dr Eugene Gehr. The Commission determined the claimant’s physical and psychiatric injuries to be minor injuries.
The insurer agreed to pay for the claimant’s legal costs, but disputed liability for Dr Gehr’s report, on the basis that it was unnecessary. The insurer said that the minor injury issue was to be determined by the Commission and that the report was therefore unnecessary.
The Commission disagreed with the insurer’s position, finding that it was reasonable for the claimant to obtain that report to allow his solicitor to provide legal advice as to the prospects of successfully overturning the insurer’s decision, and to support his application to the Commission.