Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 26

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.

Merit Review

IAG Ltd t/as NRMA Insurance v Khaihra [2021] NSWPICMR 44

Merit Reviewer: Ray Plibersek

Whether cost of MRI scan reasonable and necessary.

The insurer approved MRI scan at the cost of $700. The claimant paid $1,705 for the scan. The insurer was not willing to reimburse more than the approved amount. The decision was affirmed on internal review, and the claimant sought merit review.

Findings: The insurer was liable for the full expense. The total charged was in line with the Australian Medical Association’s (AMA) list price. Clause 34 of the Motor Accident Injuries Regulations 2017 aligns the maximum amount to which an insurer is liable for treatment with the AMA list price.

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Miscellaneous Claims Assessment

Howell v QBE [2021] NSWPIR 386

Member: Elizabeth Medland

Whether accident caused mostly by the fault of the claimant—claimant was pedestrian hit by a motor vehicle while crossing a road.

The claimant was crossing Blacktown Road, Blacktown, which is comprised of two lanes of traffic in each direction. The claimant had crossed both southbound lanes and was hit by the insured vehicle as he crossed the first northbound lane. The insured vehicle had recently merged into that lane as the other northbound lane was backed up with traffic.

The insurer denied liability for statutory benefits post-26 weeks on the basis that the claimant was mostly at fault in the accident. The claimant sought assessment.

Findings: There was no fault on the part of the insured driver, and the accident was caused wholly by the fault of the claimant. The claimant failed to take reasonable care for her own safety. A reasonable person in the position of the claimant would not have crossed at that section of road.

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Claims Assessment

Siwek v NRMA [2021] NSWPIC 387

Member: Elizabeth Medland

Assessment of damages—claimant entitled to damages for non-economic loss—claimant self-employed—loss of earnings from contract work.

The claimant suffered significant injuries in the accident and was left ongoing symptoms in the right knee and right foot. It was accepted that that these injuries would cause him lifelong problems and limit him to sedentary work.

The claimant was entitled to damages for non-economic loss. At the date of the accident he was 57 years old. It was accepted that he took pride in providing for his family and was looking forward to being an active grandfather as well as a productive citizen for many years. His injuries had impaired his capacity to do so and had lessened his ongoing enjoyment of life. Non-economic loss was assessed at $300,000.

The claimant was a painter by trade. In the week the accident occurred he was due to begin work at Goulburn Correctional Facility on a two-year contract earning $1,812 net per week. Past economic loss was assessed at that figure for the two years that the contract would have run, and thereafter at a figure of $1,500 per week.

Findings: Future economic loss was assessed at $1,500 per week. There was a 25% deduction for vicissitudes to reflect the uncertainties of contract work.

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Settlement Approval

QBE Insurance (Australia) Limited v Mathur [2021] NSWPIC 385

Member: Susan McTegg

The claimant was 71 years old at the date of accident, in which she sustained pelvic and lower extremity fractures. She was previously in good health. Following the accident, she spent nearly two months in hospital or inpatient rehabilitation and underwent a total left knee replacement. As a result, she was left with significant restrictions in her activities of daily living. She also developed psychiatric injury.

Findings: Damages were agreed at $200,000 for non-economic loss. There was no claim for economic loss. The claimant was not legally represented, and the settlement was approved pursuant to s 6.23 of the Act.

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