Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 228 April 2021
The Personal Injury Commission (the Commission) commenced on 1 March 2021, an independent statutory tribunal formed in NSW to resolve disputes between people injured in motor accidents and workplaces, employers and insurers.
To help you navigate the myriad of recent decisions of the Commission, and easily locate those specific to the Motor Accidents Division, each week we are actively reviewing, sourcing from, and providing links to, the case notes on the Australasian Legal Information Institute (AustLII) website.
All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.
AAG v IAG Limited  NSWPIC 57
The claimant was a director and employer of a business in which he and his brother were the only two shareholders. A Deed for sale of the business was signed shortly after the accident, although there was debate as to when it was first drafted. The sale was subsequently renegotiated for a lesser sum, and there was a dispute as to whether the loss of value of shares is recoverable under s 4.5(1)(a) of the Motor Accident Injuries Act 2017.
MOTOR ACCIDENTS—Assessment of damages; whole person impairment greater than 10%; Claimant director and employee of business; Claimant and his brother were the only two shareholders; a Deed for the sale of the business was executed less than two months after the accident; dispute as to when Deed was drafted; the sale of the business was subsequently renegotiated for a lesser sum; dispute as to reason for renegotiation; loss of value of shares is recoverable under s 4.5(1)(a) of Motor Accident Injuries Act 2017; no allowance for sale of motor vehicle; buffer for future economic loss; claimant aged 67 years, dispute as to the length of working life but for the accident. Held: Loss of value of shares is recoverable under s 4.5(1(a) if causally connected to injuries suffered in motor accident.
AAJ v AAI Limited t/as AAMI  NSWPIC 68
This was an application for approval of settlement of a claim brought by an unrepresented adult claimant with no issues of legal capacity.
MOTOR ACCIDENTS—Insurer and claimant settle damages in-principle; claimant unrepresented; settlement must be approved by Commission pursuant to s 6.23 of the Motor Accident Injuries Act 2017; injuries included fractures of left tibia and fibula, scarring, peripheral nerve injury, aggravation of Irritable Bowel Syndrome; liability admitted; settlement reach based on insurer’s medico-legal assessment of Dr Keller that whole person impairment is less than 10%; Claimant’s medico-legal assessment arranged and funded by insurer; Member advised parties in teleconference that she would prefer an assessment of whole person impairment from the Commission; whole person impairment assessed by medical assessor at not greater than 10%; liability limited to damages for economic loss; Claimant changed job after accident; insurer provided a breakdown of the amount allowed for each head of damages; buffer awarded for future economic loss; settlement exclusive of Medicare recovery; Member would prefer Deeds of Release express that settlement exclusive of Medicare. Outcome: Settlement approved.
Miscellaneous Claims Assessment
AAH v QBE Insurance (Australia) Ltd  NSWPIC 58
This claimant was a pedestrian who was hit by a car whilst crossing a road. The insurer alleged that contributory negligence should be assessed at 70%, and the claimant was therefore most at fault. The claimant referred the matter for miscellaneous claim assessment.
MOTOR ACCIDENTS—Miscellaneous Claims Assessment; dispute about whether claimant most at fault; claimant was a pedestrian hit by a motor vehicle; insurer assessed contributory negligence at 70% and therefore most at fault under section 3.11 of Motor Accident Injuries Act 2017; decision upheld on internal review; matter determined “on the papers”; insured driver did not have a clear view due to traffic in the parallel lane; the insured driver failed to keep a proper lookout, failed to sound her horn, and failed to slow and stop in time to avoid collision; the Claimant crossed three lanes of moderate traffic in a 70km/hr speed zone; Claimant failed to keep a proper lookout, failed to use an available pedestrian crossing, crossed in moderate traffic when it was unsafe to do so; Claimant lived locally and was aware of the roadway; a reasonable person in the Claimant’s position would not have crossed that roadway where and when she did, knowing what she ought to know. Finding: Claimant was most at fault.