Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1422 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.
Miscellaneous Claims assessment
ABW v Allianz Insurance Ltd  NSWPIC 222
ABU v Allianz Insurance  NSWPIC 221
Member: Terence Stern
MOTOR ACCIDENTS—Psychiatric injury—insured vehicle was involved in a police pursuit—driver apprehended by police at the scene—police drew their firearms—traumatic scene—whether injury caused by motor accident or by witnessing police actions—whether exceptional circumstances justified increase in costs.
Finding: The Commission member found that each claimant had suffered an injury in the accident. Their post-traumatic stress disorder (PTSD) was caused by a series of stressors in the context of a motor accident, of which the police actions were just one element. The member also found that there were exceptional circumstances in the matters justifying an increase in costs (including five teleconferences, a language barrier between the claimants and their solicitors, and a substantial amount of documentation), and he allowed $2,282.50 for each dispute.
These disputes both arose from the same accident. ABU was driving a vehicle. His wife, ABW, was in the backseat with their baby. Another vehicle collided with the rear of their vehicle. The driver of the other vehicle was being pursued by police. The police apprehended the driver at the scene, drawing their firearms in the process.
Both claimants claimed that they suffered psychiatric injuries. Both claims were referred to Medical Assessment Service and allocated to Assessor Doron Samuel. In each matter Assessor Samuel concluded that the claimant was suffering from PTSD. However, the accident was not sufficient to cause PTSD, but rather it had been caused by the actions of the police and particularly the drawing of their firearms.
The insurer therefore declined ongoing payment of weekly benefits in each claim on the basis that the injuries were not caused by a motor accident. The claimants sought determination
View Decision in ABW v Allianz Insurance Ltd  NSWPIC 222
View Decision in ABU v Allianz Insurance  NSWPIC 221
ABV v AAI Ltd t/as GIO  NSWPICMR 26
Merit Reviewer: Tajan Baba
The claimant suffered injuries in an accident. As a result, she underwent psychological therapy, which was approved by the insurer. The insurer declined to approve the costs of interpreting services during this treatment, on the basis that the psychologist was able to conduct treatment in the claimant’s native Mandarin. Finding: The merit reviewer agreed with the insurers submissions, and found that the Commission did not have jurisdiction to determine the dispute.
The decision to decline payment for interpreting was maintained on internal review. The claimant sought merit review.
The insurer disputed that the Commission had jurisdiction to determine the dispute. Clause 1(aa) of Schedule 2 of the Act allows for merit review of decision made under s 8.10. This section refers to recovery of costs and expenses in relation to claims for statutory benefits. Statutory benefits under Part 3 are payments of weekly benefits, or payment of treatment and care. Interpreting services are not weekly benefits, and do not fall under the definition of “treatment and care”. They are therefore not statutory benefits.