Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 2407 October 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.
Wu v AAI Limited t/as GIO  NSWPICMR 42
Merit Reviewer: Brett Williams
Whether claim entitled to recovery of costs from insurer in relation to a merit review previously concluded.
This dispute related to a previous merit review decision. The insurer had asserted that the claim was deemed to have been withdrawn pursuant to s 6.26(3). Merit Reviewer Plibersek affirmed the insurer’s decision. He had made no provision as to costs given that he affirmed the insurer’s decision and no party had made submissions on costs.
The claimant subsequently commenced new merit review proceedings seeking recovery of his costs of the previous merit review proceedings.
Findings: Merit Reviewer Williams dismissed the proceedings. He noted that Merit Reviewer Plibersek had determined not to allow costs (rather than failing to consider the issue or leaving it for a later determination). As such, Merit Reviewer Williams did not have the power to revisit the decision.
Toprak v IAG Limited trading as NRMA Insurance  NSWPIC 365
Member: Susan McTegg
Assessment of damages—liability admitted—claimant entitled to damages for non-economic loss—statutory weekly payments made—whether the claimant had sustained an impairment of earning capacity.
The claimant was 61 years old at the date of assessment. He had a medical history including diabetes and chronic lower back pain. He had been in receipt of Centrelink benefits since 2000. Nevertheless, he stated that he undertook occasional work in the food industry prior to the accident.
In the accident the claimant sustained orthopaedic injuries, soft tissue injuries, and aggravation of his pre-existing lumbar spine condition.
Findings: The Member accepted that the claimant had completed a work trial at a restaurant in the weeks prior to the accident, and that the claimant would have secured employment had the accident not occurred. However, the Member considered that it was unlikely that he would have maintained that employment for greater than 18 months.
Past economic loss was allowed for a closed period of 18 months. There was no allowance for future economic loss. Non-economic loss was assessed at $300,000.