Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 2513 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.
Gi Bum Kim v IAG t/as NRMA Limited  NSWPIC 369 and Yoon Young Kim v IAG t/as NRMA Limited  NSWPIC 370
Member: Ray Plibersek
MOTOR ACCIDENTS—claims assessment—related claims—applications for damages assessment lodged late contrary to s 7.33 of the Act—whether claimants’ explanation for a delay in bringing a claim were full and satisfactory within the meaning of s 6.2 of the Act.
The claimants were injured in a car accident on 11 December 2017. They lodged their statutory benefits and common law claim forms within time. However, they did not lodge their applications for damages assessment with the Commission within the three-year time limitation prescribed by s 7.33 of the Act. The applications were lodged on 23 March 2021, approximately three months out of time.
The claimants’ solicitor explained that the applications were lodged late because medical assessments were delayed as a result of COVID-19 limiting medical examinations. The solicitor also explained that they also incorrectly believed that the limitation period, for the purposes of s 7.33 of the Act, would be suspended.
The insurer did not oppose the application.
Findings: The Member accepted that the claimants had provided a full and satisfactory explanation in lodging their applications for damages assessment. He reasoned that reasonable people in the claimants’ position would have encountered the same delay, as they were acting on the advice of their solicitor. The Member accordingly granted leave for the claimants to proceed with their applications.
View decision in Gi Bum Kim v IAG t/as NRMA Limited  NSWPIC 369
View decision in Yoon Young Kim v IAG t/as NRMA Limited  NSWPIC 370
Magtoto v QBE  NSWPICMR 43
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—merit review—calculation of pre-accident weekly earnings (PAWE).
The insurer had calculated the claimant’s PAWE to be $209.82. The claimant sought a merit review of the insurer’s calculations, asserting that her PAWE was $900. She lodged further evidence of her earnings, causing the insurer to vary its decision. The insurer calculated the claimant’s PAWE to be $471.66, being the total of her gross earnings in the year prior to the accident, divided by 52 weeks. However, the claimant maintained the dispute.
Findings: The Merit Reviewer concluded that the claimant’s PAWE was to be calculated in accordance with clause 4(1) to Schedule 1 of the Act, as none of the circumstances in clause 4(2) applied. The Merit Reviewer affirmed the insurer’s calculation, that the claimant’s PAWE was $471.66.