Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 3202 December 2021
Welcome to the 32nd edition of Sparke Helmore’s MAD Weekly.
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 Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see this week’s edition below.
All references to legislation are to the Motor Accident Injuries Act 2017 unless otherwise noted.
Commentary and analysis of trends will be provided on more substantive decisions by our CTP team and will be separately published when necessary.
White v AAI Limited t/as GIO  NSWPIC 449
Member: Brett Williams
MOTOR ACCIDENTS—claims assessment—damages assessment—assessment of non-economic loss and economic loss—assessment of travel expenses.
The claimant sustained significant injuries, including compression fractures in the T1 to T3 vertebrae, fractures in the L2 and L3 vertebrae, right femoral mid-shaft fracture, fractured ribs, perforation of the small bowel, a laceration to the liver, and psychological injury.
Liability was admitted, and the matter proceeded to the Commission as an assessment of damages. Past economic loss was agreed at $42,320.33. The Member was required to assess non-economic loss and future economic loss from loss of earnings and travel expenses.
In relation to the heads of damages, the parties submitted:
||Non-economic loss: the claimant sought an award of $425,000, taking into account the permanency of her injuries, her inability to perform simple activities of daily living, let alone pursue her pre-accident recreational activities including skiing or aerial yoga, and evidence from her fiancé and family attesting to the decline of her psychological health since the accident.
The insurer asserted that an award of $250,000 was more appropriate, having regard to the claimant’s favourable recovery.
||Future economic loss (loss of earnings): although the claimant had returned to full-time work following the accident, and was earning more than previously, she claimed the sum of $375,000 to compensate for diminution of earning capacity, and also $125,000 to account for intermittent absences from work. She claimed $500,000 in total.
The insurer asserted that a buffer, in the sum of $200,000, was more appropriate, taking into account the claimant’s demonstrated work capacity since the accident, and their expert evidence, which suggested that the claimant’s capacity would not be compromised to a significant extent in the future.
||Future economic loss (travel; s 4.5(1)(b) damages): the claimant sought a sum of $20,000 for the increased cost of business class airfares for her upcoming honeymoon.
The insurer disputed the claim, given the claimant’s evidence that she could stretch and otherwise acclimate to long-haul flights, and given the lack of expert evidence on the issue.
||Non-economic loss: taking into account the claimant’s symptoms and disabilities, and the likely permanency of her injuries, the Member awarded the sum of $360,000.|
||Future economic loss (loss of earnings): the Member accepted, based upon the totality of the expert evidence as well as the claimant’s fiancé’s evidence, that she would experience increased symptoms after working, that she suffered from a reduction in work capacity, which was productive of financial loss. Taking into account the claimant’s young age, and the raft of uncertainties that would transpire between now and retirement age, the Member awarded $275,000 to account for a loss of opportunity, diminution of earning capacity, likely absences from work from time to time and the possibility of early retirement.
||Future economic loss (travel; s 4.5(1)(b) damages): the Member rejected the insurer’s submission that express expert evidence was necessary to support a claim for travel damages. Taking into account that the claimant’s planned honeymoon to Europe would require almost 24 hours of air-travel, but the varying cost of business class fares, he awarded $10,000.|
Wang v QBE Insurance Australia Ltd  NSWPIC 465
Member: Ray Plibersek
MOTOR ACCIDENTS—application for reinstatement—claim deemed withdrawn after insurer issued notice under s 6.26 of the Act—whether claimant provided full and satisfactory explanation—whether quantum threshold met.
The claimant was injured in an accident on 15 May 2018. On 27 November 2020, the insurer’s solicitors sought particulars of the claim for damages and issued a direction under s 6.26 of the Act for the production of that information by 27 February 2021.
The claimant’s solicitor did not provide particulars of the claim for damages until 11 March 2021 and the insurer’s solicitor advised, on 16 July 2021, that the damages claim was deemed withdrawn because the s 6.26 direction had not been complied with.
The claimant applied to the Commission to have the claim reinstated. She and her solicitors provided statements explaining how she was initially focused on undergoing medical treatment for her injuries, how the solicitors were unable to obtain the necessary instructions due to COVID-19 restrictions preventing face to face solicitor-client conferences (which were a necessity due to the need for an interpreter) and how COVID-19 created delays in arranging medico-legal appointments.
The insurer objected to the application. It focused primarily on the quantum threshold set by s 6.26(3)(b) of the Act, which required the claimant to show that the total damages were likely to exceed 25% of the maximum amount payable for non-economic loss. It said that because the claims for economic loss would fail due to the claimant’s immigration status that restricted her from working, the claim for damages was limited to non-economic loss, of which there was no certainty that the claimant was entitled to make.
The issues to be determined were whether the claimant had led sufficient evidence to surmount the quantum threshold, and whether the claimant had provided a full and satisfactory explanation, as defined by s 6.2 of the Act:
|1) "For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation."|
|2) "The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."|
Findings: the Member accepted that the claimant had provided a full and satisfactory explanation for the delay in providing the required particulars. He accepted that the explanations sufficiently explained the difficulties the claimant and solicitors encountered in obtaining the required information and evidence, and that a reasonable person in this position would have encountered the same delay.
On quantum, the Member relied on Rahman v Al-Maharmeh  NSWCA 31, highlighting that an arbiter “should be very slow to resolve the matter adversely to the claimant on the basis of medical reports arguably favourable to the insurer but contradicted by the claimant’s medical evidence”. As the claimant’s expert evidence assessed her as having permanent impairment in excess of 10%, the Member accepted that there was a likelihood that the damages would exceed the threshold.
Review Panel decision
Venizelou v AAI Ltd  NSWPICMP 215
Review Panel members: Member John Harris, Dr Drew Dixon, Dr Geoffrey Stubbs
MOTOR ACCIDENTS—Medical Review Panel decision—whether exacerbation of pre-existing knee injury a minor or non-minor injury—whether treatment reasonable and necessary.
The claimant was suffering from left knee symptoms prior to the accident. The symptoms were, at one point, of sufficient severity for doctors to recommend undergoing a total knee replacement. However, and importantly, medical records showed that she was only suffering from minimal complaints in years prior to the accident.
The accident subsequently intervened. The question was whether the alleged further injury to the claimant’s left knee was a minor or non-minor injury and whether the total knee replacement that took place after the accident was reasonable and necessary and causally related to the accident. Medical Assessor Woo initially determined the injury to be minor, and treatment was not related to the accident, but the claimant sought a review of that decision.
Findings: taking into account the minimal and intermittent symptoms the claimant experienced prior to the accident, and the onset of new symptoms never reported before, including left knee locking, and increased symptoms and disabilities, which caused incapacity for work, the Panel accepted the accident caused injury to the claimant’s left knee. They specifically accepted the accident caused further tearing of a degenerative lateral meniscus, and concluded it was a non-minor injury.
The Panel also accepted the accident accelerated the need for the left knee surgery. They reasoned that prior to the accident, the claimant’s symptoms were not of sufficient severity to warrant that treatment, but the accident aggravated her symptoms to the extent that surgery was required.