Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1902 September 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
ACF v Insurance Australia Limited t/as NRMA  NSWPIC 290
Member: Brett Williams
Whether claimant wholly at fault—two vehicle accident—intersection controlled by traffic lights—insurer did not argue in the alternative that claimant was mostly at fault.
The claimant was travelling in a southerly direction. He attempted to turn right at an intersection controlled by traffic lights. As he was turning, his vehicle was struck by the insured vehicle travelling straight through the intersection from a northly direction.
The insurer determined that the accident was caused wholly by the fault of the claimant. The decision was affirmed on internal review. The claimant sought determination.
A traffic light phasing report was produced. The insurer’s position was that both drivers were faced with a solid green light, and the claimant therefore failed to give way to the insured vehicle.
Finding: The member accepted the claimant’s evidence that he had a green arrow, in which case the insured vehicle must have had a red light. The claimant was therefore not wholly at fault for the accident. As the insurer did not argue in the alternative that the claimant was mostly at fault, the member did not address the issues of contributory negligence.
This matter serves as a reminder to argue a position in the alternative where appropriate.
ACE v AAI Limited t/as GIO  NSWPIC 289
Member: Brett Williams
Whether claimant entitled to costs—dispute referred to Commission—insurer subsequently changed its position and the assessment was vacated—whether exceptional circumstances exist.
The insurer determined that the claimant did not suffer injury in an accident, and that he was wholly or mostly at fault. Therefore, it declined to make payments post-twenty-six weeks. The decision was affirmed on internal review. The claimant sought determination.
The matter was set down for assessment. Prior to the assessment, the insurer advised that it accepted liability for payment of statutory benefits after twenty-six weeks. The assessment was vacated.
The claimant sought an order that the insurer pay his costs in excess of the statutory maximum on the basis that exceptional circumstances existed. The insurer submitted that the claimant should be entitled to the maximum regulated amount, but that exceptional circumstances did not exist.
Finding: The member was not satisfied that exceptional circumstances existed justifying an allowance for costs above the regulated maximum.
Dhakal v QBE Insurance (Australia) Limited  NSWPIC 296
Member: Susan McTegg
Settlement approval—no entitlement to damages for non-economic loss—liability admitted.
The claimant suffered injuries to his bowel in an accident. Liability for damages was accepted.
The claim resolved in principle for $30,872.71 (comprised of past economic loss of $20,872.71 and a future economic loss buffer of $10,000). The parties sought settlement approval as the claimant was not legally represented.
Finding: The claimant had been assessed by a medical expert at the request of the insurer. The expert considered that the claimant would suffer from no ongoing incapacity for work. Whole Person Impairment was assessed at 0%
Settlement was approved.