Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 22

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

Sarcasmo v AAI Limited t/as GIO [2021] NSWPIC 337

Member: Brett Williams

Whether claimant mostly or wholly at fault—claimant crossing road at an intersection—claimant had red pedestrian light—insured driver entered intersection with a green light.

The claimant was riding an electric scooter, attempting to cross Taren Point Road, Caringbah. There are four lanes of traffic at this location: lanes one and two continue straight through the intersection, lanes three and four turn right. The claimant entered the intersection against a red pedestrian light. The traffic lights governing vehicles turning right from lanes three and four were red. Vehicles were stopped in these lanes. The traffic light governing vehicles travelling straight was green. The claimant travelled across lanes three and four, but was hit by the insured vehicle whilst crossing lane two.

The insurer determined that the claimant’s contributory negligence should be assessed at 75% and denied liability for payment of statutory benefits beyond 26 weeks. The claimant disputed this finding and applied to the Commission for assessment.

Findings: The insured driving was taking reasonable care as she preceded through the intersection. The accident was caused wholly by the fault of the claimant.

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Marzifar v Allianz Australia Insurance Limited [2021] NSWPIC 323

Member: Brett Williams

Whether claimant mostly or wholly at fault—two vehicle collision at intersection—both vehicles claimed that they had a green traffic light.

The claimant was driving straight through an intersection when he was hit by a car entering the intersection from his left. The claimant stated that he had a green light. The insured driver also claimed that he had a green light, and the claimant had a red light.

The insurer determined that the accident was caused wholly by the fault of the claimant and denied liability for payment of statutory benefits beyond 26 weeks. The claimant disputed this finding and applied to the Commission for assessment.

Findings: The member preferred the evidence of the insured over the claimant and found that the accident was caused wholly by the fault of the claimant.

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O’Connor v QBE Insurance (Australia) Limited [2021] NSWPIC 324

Member: Susan McTegg

Whether claimant mostly or wholly at fault—whether an unidentified vehicle pushed the claimant’s vehicle into a collision with the insured vehicle.

The claimant was driving her vehicle when it collided with the rear of another vehicle. The claimant stated that her vehicle was first impacted by an unidentified green vehicle, which pushed it into the other vehicle, and reported this to police at the scene of the accident. The claimant’s son was in her vehicle at the time of accident, and he also reported the involvement of a green vehicle. The other driver denied that a green vehicle was involved in the collision.

The insurer determined that the accident was caused wholly by the fault of the claimant and denied liability for payment of statutory benefits beyond 26 weeks. The claimant disputed this finding and applied to the Commission for assessment.

Findings: The member was satisfied that an unidentified vehicle did collide with the claimant’s vehicle. The claimant’s contributory negligence was assessed at 50%, and she was therefore not wholly or mostly at fault.

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Settlement approval 

Allianz Australia Insurance Limited v Clarke [2021] NSWPIC 330

Member: Belinda Cassidy

Claimant unrepresented—claimant 23 years old—suffered shoulder dislocation—subsequently returned to work and recreational activities without restrictions—risk of arthritis and future need for shoulder reconstruction—no entitlement to damages for non-economic loss.

The matter settled in principle for $43,500. This was comprised of $26,000 for past economic loss (including statutory benefits of $19,034.87) and $17,500 for future economic loss.

The claimant’s treating surgeon stated that the claimant had a 20% chance of developing right shoulder arthritis within 40 years as a result of the accident. He would then need time off work and may struggle to return to work.

Findings: The proposed settlement figure is appropriate, bearing in mind the length of time before the claimant incurs economic loss, and the possibility that the loss never eventuates.

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Merit review

Siao v QBE Insurance (Australia) Limited [2021] NSWPICMR 37

Merit Reviewer: Terence O’Riain

Whether costs and expenses incurred by the claimant were reasonable and necessary.

The claimant’s solicitors sought payment by the insurer of costs and disbursement relating to several medical disputes. The Commission directed the claimant’s solicitors to provide further submissions. No further submissions were received. Consequently, the application was dismissed.

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