Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 3417 December 2021
Welcome to the 34th 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.
Palisi v AAI Limited t/as GIO  NSWPIC 480
Member: Terence O’Riain
MOTOR ACCIDENTS—whether an Insurer is required to pay statutory benefits in period prior to the date statutory benefits claim was lodged.
The claimant was injured in an accident on 27 May 2021 and did not lodge her Application for personal injury benefits until 30 July 2021. She sought the payment of weekly benefits for the period between 27 May and 30 July 2021. The Insurer declined liability for payments in that period, citing s 6.13(2) of the Act, which provides:
The claimant disputed the Insurer’s decision before the Commission.
Findings: There is no legislative exception to s 6.13(2) of the Act that the claimant could rely upon to establish the Insurer was liable to pay weekly benefits in the period prior to the date a statutory benefits claim was lodged, assuming it was lodged 28 days after the accident. The Member affirmed the Insurer was not liable to pay weekly benefits in the period prior to 30 July 2021.
IAG Limited Trading as NRMA v Naidu  NSWPIC 483
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—whether proposed settlement just, fair, and reasonable and within the range of likely potential damages assessments.
The claimant sustained injuries to her neck and back, and full thickness tear of her right rotator cuff subsequently requiring surgery, as a result of a serious rear-end accident on 13 January 2018. At the time of the accident, she was in her mid-40s, and working as a process worker. Her employment was subsequently terminated as she was unable to fulfil the inherent requirements of her role. She was able to secure work as a production operator for some 18 weeks, but her employment was again terminated as her performance was not satisfactory.
The parties agreed to resolve the claim for damages for the sum of $389,724.90, which included an allowance of $143,268.87 for past economic loss, $15,759.58 for past loss of superannuation calculated at 11%, the amount of $6,696.45 for Fox v Wood entitlements, a buffer of $200,000, for future economic loss, and $24,000 for future loss of superannuation calculated 12%.
As the claimant was not represented by solicitors, the proposed settlement required approval by the Commission, pursuant to s 6.23 of the Act.
Findings: The Member accepted the Insurer’s allowance for past economic loss, calculated on an assumption of a complete loss of capacity except for the period in which the claimant worked for some 18 weeks, was appropriate. She also accepted the $200,000 buffer for future economic loss was appropriate, having regard to the medical evidence, which suggested the claimant possessed a restricted earning capacity.
Since she agreed with expert evidence, which suggested the claimant had no entitlement to non-economic loss, the Member went on to conclude that the proposed settlement was just, fair, and reasonable and within the range of likely potential damages assessments, and approved the settlement.
Koster v NRMA  NSWPIC 484
Member: Terence Stern
MOTOR ACCIDENTS—miscellaneous claims assessment—claimant was a motorbike rider who rounded the corner and collided head on with insured vehicle—claimant alleged insured driver was driving in middle of the road—Insured alleged claimant driving in her lane—factual contest—whether claimant wholly or mostly at fault for accident.
The subject accident occurred on 14 November 2019, near the Macquarie Pass on Illawarra Highway near Robertson, NSW. The portion of the road required drivers to navigate a series of steep and winding bends, with multiple blind corners.
The claimant was riding a motorcycle along the road and said he was “hugging” the rock wall to his left, which was confirmed by another motorcycle rider and his friend, Tyson David. He said as he rounded a corner, the insured driver’s vehicle came into view. He said the insured was travelling “almost dead centre of the road and possibly maybe a little further over [his] side” in the moments prior to the collision. Mr David gave evidence, corroborating the claimant’s version of events.
In direct contrast, the Insured gave evidence that as she rounded the same corner, at a “crawling” speed, she saw the claimant travelling towards her in the centre of her lane.
Based upon the insured’s evidence, the Insurer asserted the claimant was wholly or mostly at fault for the accident and declined liability for statutory benefits beyond 26 weeks of the date of the accident. The claimant disputed the decision in the Commission, and the matter proceeded to an assessment conference.
Findings: Based upon photographic evidence depicting the two vehicles at rest following the collision, which showed insured vehicle position towards the centre of the road, and the rear of the vehicle angle towards the rock wall, the Member concluded the insured took the corner wide, which led to the accident occurring. He went on to conclude, in these circumstances, the claimant was not wholly or mostly at fault for the accident.
Ferizovic v IAG t/as NRMA Limited  NSWPIC 485
Member: Ray Plibersek
MOTOR ACCIDENTS—application for damages assessment lodged with the Commission outside of three-year time limitation—whether explanation for delay full and satisfactory.
The claimant was involved in an accident on 12 March 2018. He lodged his common law claim within the three-year time limitation, but his solicitors were approximately three weeks late in lodging an application for damages with the Commission. The Insurer took issue with the claimant’s late commencement of the Commission proceedings.
The claimant’s solicitor conceded in his statement that the sole reason the proceedings were lodged late was due to an administrative oversight on his part. The claimant said he relied upon his solicitors to prosecute his claim and was unaware of the procedural breach until the issue arose in the Commission proceedings.
The Member confirmed that for the claimant to proceed with his application for damages assessment, he had to provide a full and satisfactory explanation for the delay. Section 6.2 of the Act defines a full and satisfactory explanation as follows:
|¦||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.|
|¦||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: Although the Member accepted the Insurer’s submissions had certain gaps in the claimant’s explanation, he concluded the explanation was full, as it explained why the proceedings were commenced late. The Member also accepted the explanation was full, as a reasonable person in the claimant’s position would have experienced the same delay, arising from their solicitor’s oversight.
The Member accordingly granted leave to the claimant to proceed with application for damages assessment, despite it being lodged late.
Gul v CIC-Allianz  NSWPIC 491
Member: Terence Stern
MOTOR ACCIDENTS—application for damages assessment lodged with the Commission outside of three-year time limitation due to oversight on part of solicitor—whether explanation for delay full and satisfactory.
The claimant was injured in a motor accident on 13 April 2018 and completed his Application for damages under common law on 7 January 2021, and his solicitors subsequently lodged the common law claim form with the Insurer on 8 February 2021. However, it was not until 3 June 2021 that his solicitors lodged an application for damages assessment with the Commission, some three months outside of the s 7.33 three-year time limitation for the commencement of the Commission proceedings.
The claimant gave an explanation essentially setting out how he relied upon his solicitors to progress his claim for damages and it was due to a misunderstanding on their part, which led to the delay in commencing proceedings.
The Insurer disputed the claimant’s application for damages assessment was valid as it was lodged late and rejected the claimant’s explanation for the delay as being full and satisfactory.
Findings: The Member accepted the proceedings for damages assessment were commenced late solely due to error on the part of the claimant’s solicitors. He therefore accepted the claimant’s explanation as to the delay in commencing proceedings was full.
The Member also accepted a reasonable person in the claimant’s position would have experienced the same delay, and his explanation was satisfactory.
The Member accordingly granted the claimant leave to proceed with his application.
Gazal v QBE Insurance (Australia) Limited  NSWPIC 492
Member: Susan McTegg
MOTOR ACCIDENTS—miscellaneous claims assessment—claimant collided with pole when blinded by sun—whether accident no-fault accident—whether claimant wholly or mostly at fault for accident.
The claimant collided with a pole in the Bankstown Central Shopping Centre carpark on 12 May 2020. She alleges she had seen the pole, but because the sun obstructed her vision, she failed to steer her vehicle sufficiently to avoid colliding with it. The Insurer asserted the accident was caused wholly or mostly by the fault of the claimant. She disputed the Insurer’s determination and also said the accident was a no-fault accident.
|¦||The accident was not a no-fault accident. The Member referred to Hossain v Mirdha and noted Elkhaim DCJ found the act of steering a vehicle away from a road hazard was an avoidance measure, which amounted to an act of causation disentitling a claimant to damages for blameless accidents. The Member analogised Hossain v Mirdha to the issue at hand, and found the claimant, in failing to steer her vehicle properly, was an act or omission by the claimant, which contributed to the accident, and thus disengaged the no-fault accident provisions because of the operation of s 5.4 of the Act.|
|¦||The claimant was mostly at fault for the accident. Whilst the Member accepted the sun obstructed the claimant’s vision, she found the claimant mostly at fault because the claimant had been aware her vision was compromised for some time before the collision and did nothing about it. The Member concluded a reasonable person in the claimant’s position would have slowed their vehicle down and driven to the conditions of her surrounding environment. Although she did not assess contributory negligence to a specific percentage, the Member did find the claimant’s contributory negligence was greater than 61%.|
Medical Review Panel
Bradley v Allianz Australia Insurance Ltd  NSWPICMP 226
Panel members: Member John Harris, Dr David Gorman, Dr Shane Moloney
MOTOR ACCIDENTS—Medical Review Panel decision—whether proposed medicinal cannabis treatment reasonable and necessary.
The claimant had a longstanding medical history, which pre-dated her motor accident on 4 December 2018. Her treating doctors had diagnosed her as suffering from a somatoform disorder, a severe panic disorder, agoraphobia, and fibromyalgia and provided treatment accordingly.
The claimant sustained further injury in the subject accident. In view of her symptoms, she was referred to Dr Sanjay Nijhawan, a doctor at the Cannabis Access Clinic, who prescribed a cannabidiol (CBD oil) product. She used this product and found relief for her headaches, anxiety, depression, and pain.
The claimant sought funding for treatment in the form of the CBD oil but the Insurer declined to fund it on the basis the treatment was neither causally related to the accident nor reasonable and necessary. She disputed the decision in the Commission and at first instance, Medical Assessor Thomas Rosenthal determined the dispute in the Insurer’s favour.
The claimant then lodged an application for review.
Findings: The Panel concluded the proposed CBD oil product treatment was not reasonable and necessary. They referred to a Position Statement issued by the ANZCA Faculty of Pain Medicine in 2019, which set out how there was no evidence medicinal cannabis was an effective analgesic and how they did not support its use. The Panel also relied upon the Royal ANZ College of Psychiatrist’s Position Statement from 2020, which also did not support the use of medicinal cannabis for psychological issues given the lack of proven effectiveness and risk of habituation.