Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1604 August 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.
ACA v GIO  NSWPICMR 30
Merit Reviewer: Katherine Ruschen
Motor accidents—Merit review—dispute about Pre-Accident Weekly Earnings (PAWE) calculation—PAWE dispute resolved—dispute about earning capacity—whether claimant fit to return to pre-injury employment—earning capacity assessment conducted by medical assessor—whether Commission has jurisdiction to hear matter as merit review.
The claimant was not legally represented. On 25 July 2019 the insurer calculated his PAWE at $660.52. On 17 July 2020 the claimant determined that he had capacity to return to his pre-injury employment. The claimant sought merit review of both decisions.
Subsequently, the claimant agreed that the insurer’s PAWE calculations were correct.
The parties subsequently referred the earning capacity dispute for medical assessment. Medical Assessor Alan Home issued a certificate under s 7.23(1) on 2 December 2020 certifying the claimant as fit to return to pre-injury employment. The claimant disputed Assessor Home’s findings.
The parties agreed that there was no jurisdiction to conduct a merit review of the certificate of Assessor Home. Both applications were dismissed.
Miscellaneous claims assessment
Kriske v QBE (Insurance) Australia Limited  NSWPIC 247
Member: Terence O’Riain
Miscellaneous claims assessment—whether claimant wholly or mostly at fault—whether accident is a no-fault accident—claimant a motorcyclist—assessment conducted on the papers.
The claimant was riding a motorcycle. She was travelling behind another vehicle. As they approached an accident scene, the vehicle in front of her applied its brakes. In response, the claimant applied her brakes and lost control of her motorcycle. The claimant submitted that there may have been oil or some other fluid on the road left from the first accident on which her motorcycle slipped.
The insurer declined payment of statutory benefits after 26 weeks on the basis that the claimant was wholly or mostly at fault. The decision was upheld on internal review. The claimant sought assessment. The parties agreed that the assessment could proceed on the papers.
Finding: The member found that the claimant did not establish on the balance of probabilities that there was fluid on the surface of the road that might have contributed to the accident. The claimant’s actions were therefore the sole cause of the accident, the accident was not a no-fault accident, and the claimant was wholly or mostly at fault.
ABZ v AAI Limited t/as AAMI  NSWPIC 246
Member: Bridie Nolan
Miscellaneous claims assessment—whether claimant wholly or mostly at fault—whether accident is a no-fault accident—single vehicle accident—claimant’s vehicle collided with a road sign.
The claimant was driving his motor vehicle. It collided with a road sign. The insurer declined payment of statutory benefits beyond 26 weeks on the basis that the claimant was wholly or mostly at fault. The decision was affirmed on internal review and the claimant sought assessment.
The claimant submitted that the road sign must have been bent such that it was encroaching into the roadway. He produced photographs taken after the accident. The insurer served an expert report by Michael Griffiths concluding that the road sign was not causing any obstruction or danger to passing traffic. If the claimant had collided with it, then he must have failed to exercise reasonable care and was therefore at fault.
Finding: The member found that a consideration of whether a claimant is “wholly or mostly at fault” requires comparison of their culpability with that of another tortfeasor. If no other tortfeasor is involved in the accident the claimant cannot be wholly or mostly at fault.