Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 2123 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.
Dahal v QBE Insurance (Australia) Limited  NSWPIC 308
Member: David Ford
MOTOR ACCIDENTS—miscellaneous claims assessment—whether claimant wholly or mostly at fault—claimant and insured driver proceeded into intersection at same time.
The claimant rode on his bicycle into a T-intersection. At the same time, the insured driver proceeded into the intersection and collided with the claimant. The insurer asserted the claimant was wholly or mostly at fault for the accident.
The Commission determined the claimant was not wholly or mostly at fault for the accident. It reasoned that both parties had an unobstructed view of each other and given that the accident occurred, neither party was keeping a proper lookout for each other and their own safety. The Commission apportioned responsibility equally between the parties.
Findings: both parties there to be seen by the other—both parties failed to keep a proper lookout and thus equally responsible for the accident—claimant therefore not wholly or mostly at fault.
Camilleri v QBE Insurance (Australia) Limited  NSWPIC 309
Member: Belinda Cassidy
MOTOR ACCIDENTS—miscellaneous claims assessment—whether claimant wholly or mostly at fault—claimant riding a motorcycle when vehicle merged into his lane in front of him—conflicting evidence from parties and witness.
The claimant was riding a motorcycle when the insured vehicle merged into his lane in front of him, knocking him and his daughter, who was riding pillion, onto the ground. The insured gave a statement saying that she had been stationary for 10 seconds before she was rear-ended by the claimant.
The Commission preferred the claimant’s evidence over the insured’s evidence. It noted that the claimant had given consistent histories of the accident to Police, in his claim form, in his statement, and orally, at the assessment conference. The Commission considered the insured driver’s evidence was unreliable as she had a poor recollection of where and when the accident occurred.
The Commission concluded that the insurer had not discharged the burden of proof in order to establish the claimant was wholly or mostly at fault.
On the issue of costs, the Commission considered that, after having obtained the factual investigation report, the insurer’s position that the claimant was wholly or mostly at fault was untenable given the evidence was inconsistent, and also noted that the insurer had not investigated the inconsistencies further. The Commission considered the liability position was unreasonable, thus imposed a costs penalty under s 6.21 of the Act. The Commission granted a 25% uplift on the claimant’s costs.
Findings: claimant’s evidence over time was consistent whilst insured’s evidence was internally inconsistent—claimant’s evidence preferred—claimant not wholly or mostly at fault—costs penalty imposed on insurer for unreasonable denial of liability—25% uplift in costs recoverable by claimant.
Habib v AAI Limited t/as GIO  NSWPIC 311
Member: Belinda Cassidy
MOTOR ACCIDENTS—settlement approval—claimant suffered from several medical conditions at time of accident—unemployed at time of accident—whether settlement of $20,000 just, fair and reasonable and within the range of likely potential damages assessment.
The claimant was injured in an accident on 30 May 2019. Evidence documented a past medical history involving several orthopaedic injuries following five previous motor accidents, a work injury, and an injury in an airport bus. He also suffered from PTSD following a four year period of incarceration overseas, and chronic Achilles tendinopathy. He was not working at the time of the accident.
The claimant and the insurer agreed to resolve the claim for damages for the amount of $20,000. The Commission accepted that the claimant’s pre-accident history would have prevented him from maintaining a claim for past and future economic loss.
Given the lack of convincing evidence demonstrating losses, the Commission determined the settlement was just, fair and reasonable and within the range of likely potential damages assessment if damages were to be assessed by the Commission.
Findings: claimant’s evidence as to losses were general and lacking specifics. Settlement approved.
Merit Review Panel
ACJ v Insurance Australia Limited t/as NRMA  NSWPICMRP 3
Merit Review Panel Members: Brett Williams, Terence O’Riain, Michael Sofoulis
MOTOR ACCIDENTS—merit review—calculation of pre-accident weekly earnings (PAWE) where claimant self-employed—whether director’s fees and business profits to be taken into account or director’s fees only—pre-accident earning capacity.
The claimant was a co-director of a company at the time of the accident. He was 79 years old when the accident occurred. A dispute arose as to calculation of the claimant’s PAWE, and his post-accident earning capacity (PAEC).
The insurer relied upon forensic accountant’s reports to calculate PAWE. Taking into account the claimant’s company’s profits, as divided equally between himself and other shareholders, and management fees, the insurer calculated the claimant’s PAWE to be $2,178.27. The claimant asserted that only his management/director’s fees should be taken into account, and that PAWE should thus be calculated at $1,608.35. The Commission found, based on the evidence, that the only income derived from the claimant’s own physical exertion were his management/director’s fees, and accepted PAWE should be calculated at $1,608.35. They noted that the business profits had been retained and not paid out to the claimant and thus should not be included in PAWE.
Otherwise, the evidence disclosed a decrease in the director fees the claimant received following the accident commensurate with Certificates of Capacity certifying the claimant fit to work restricted hours and duties. The claimant and his wife also gave evidence demonstrating that the accident reduced the claimant’s earning capacity. The Commission accordingly remitted the issue of loss of capacity to the insurer to determine.
Findings: Having regard to the complexity of the issues in dispute and the materials, the Commission allowed an exceptional costs order in favour of the claimant and assessed costs at $6,600 inclusive of GST.
ACH v Allianz Australia Insurance Limited  NSWPICMR 35
Member: Brett Williams
MOTOR ACCIDENTS—merit review—whether dispute concerned loss of earning capacity or impairment of earning capacity and whether Commission had jurisdiction to determine dispute—whether claimant suffered loss of earning capacity.
The claimant returned to work on 28 September 2020 after an accident on 20 July 2019. A dispute arose as to the quantum of statutory benefits for weekly benefits payable for a closed period. The insurer asserted that the claimant suffered no loss of earning capacity whilst the claimant said he did suffer a partial loss of capacity. The dispute thus concerned the loss of earning capacity under s 3.8 of the Act.
The insurer raised an issue concerning the Commission’s jurisdiction to decide the dispute. It asserted that since the dispute concerned impairment of the claimant’s earning capacity, this dispute was a medical assessment matter in accordance with clause 2(d) in schedule 2 of the Act. However, the Commission disagreed, noting that the dispute concerned loss of earning capacity, rather than impairment of earning capacity, a matter which concerned only an assessment of damages.
Otherwise, the insurer submitted that the claimant had not suffered any loss of earning capacity as Certificates of Capacity certified him fit to work full-time in suitable duties, and given that pay records documented the claimant working over-time for a period of time following the accident. However, given that the claimant worked as a plant operator, and had not been medically cleared for full pre-injury duties, the Commission determined that he did suffer from a loss of earning capacity.
The Commission remitted the issue to the insurer for it to determine the claimant’s loss of earning capacity, taking into account the Commission’s findings on the issue.
Findings: dispute concerned loss of earning capacity as impairment of earning capacity a matter for damages assessments—evidence discloses loss of earning capacity—issue remitted to insurer to determine loss of earning capacity.
ACI v AAI Limited t/as GIO  NSWPICMR 36
Member: Terence O’Riain
MOTOR ACCIDENTS—miscellaneous claims assessment—whether costs incurred in connection to medical assessment dispute concerning minor injury dispute reasonable and necessary.
The claimant asserted that the accident he was involved in caused a right hip fracture and that this was a non-minor injury. The insurer disputed injury and causation and the matter proceeded to the Commission for medical assessment. The Medical Assessor determined the issue in the insurer’s favour.
The claimant sought cost, but the insurer disputed the extent of the costs payable. The insurer asserted the claimant’s application had no merit and that the submissions contained in the application itself were not complex.
The Commission found that the claimant was entitled to recover the maximum sum provided by the regulations. It noted the claimant’s representatives had obtained relevant medical evidence and prepared a statement on his behalf.
Findings: costs incurred in preparing application were reasonable and necessary—claimant to recover maximum regulated fee.