Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 20
08 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.
Claims Assessment
Sharma v IAG Ltd t/as NRMA Insurance [2021] NSWPIC 297
Member: Terence O’Riain
Claim for statutory benefits made outside of time—whether claimant has provided full and satisfactory explanation—matter determined “on the papers”.
The claimant was injured in a motor vehicle accident on 3 December 2018. Her husband lodged a property damage claim the day after the accident. The claimant obtained treatment in both Australia and India for her injuries. In 2020 she reduced her shifts at work due to her injuries. Her husband subsequently encouraged her to seek legal advice, which she did, and a claim for Application for Personal Injury Benefits was lodged on 28 July 2020, one year and four months late. The claimant stated that she was not previously aware of the timeframes for making a claim.
The insurer did not accept her explanation as full and satisfactory. The decision was affirmed on internal review. The claimant applied for resolution in the Commission.
Findings: claimant’s explanation for late lodgement of her claim was found to be full and satisfactory. The husband’s conduct in lodging a property damage claim immediately after the accident, and yet not informing himself about his wife’s standing to make a personal injury claim, was not reasonable. However, the member was required only to assess the claimant’s conduct and knowledge, and not that of her husband.
Verhagen v GIO [2021] NSWPIC 302
Member: Hugh Macken
Assessment of damages—assessment of economic loss and non-economic loss—above knee amputation—prior injuries and compensation.
The claimant was a 66 year old male. He had a significant medical history. His claim’s history included a claim for psychiatric injuries brought against his previous employer in 2003 (which settled for $600,000), and a medical negligence claim following the insertion of a defective prosthesis to the left knee (which resolved earlier in 2021 for $915,000).
The claimant suffered a right above knee amputation in the subject motor accident. He claimed damages for non-economic loss and for past and future economic loss.
He had previously been employed as a bus driver, but had not worked since 2013. He owned properties on which he grazed cattle. These properties were not profitable prior to the accident, and were described as “hobby farms”. However, the claimant stated that he had intended to build his herd to a point that it could have generated sales and income, but was no longer able to do so as a result of his injuries.
Non-economic loss was assessed at $400,000.
Findings: The member did not accept that the claimant would have returned to work as a bus driver had the accident not occurred and made no award for past economic loss. However, he accepted that he had lost the opportunity to derive an income from his properties, and awarded $25,000 for future economic loss.
