Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 35

Welcome to the January 2022 Special Issue (and 35th 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 the relevant headnotes of published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Given the time of year, we are bringing you a Special Issue, which is a compilation of all the decisions made by the Commission for the month of January.  From our next issue, we will revert to our usual weekly schedule of updates.

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.

Claims assessment 

Peel v AAMI [2021] NSWPIC 495

Member: Elizabeth Medland

MOTOR ACCIDENTS—claims assessment —damages and liability assessment—assessment of non-economic loss and economic loss—bicycle versus utility vehicle at intersection.

The claimant, a 54-year old female, sustained injuries to her lumbar spine, left ankle, left knee and left shoulder, and a psychological injury as a result of a collision with the insured utility vehicle, when riding her bicycle through an intersection. She alleged that on her approach using a designated cycleway, the insured had been stationary at the intersection. The claimant believed that the driver would give way to her as he turned left into her path.

Initially, the claimant did not have the identification information for the insured driver, but subsequently located the insured vehicle in a driveway. A police report was issued following the claimant reporting the accident 10 days later. The insurer engaged an investigator to locate and interview the insured driver.  The investigator encountered some difficulties, complicated by the orders in place during the COVID-19 pandemic and including not being able to approach the address the claimant provided for the police report. The insurer denied liability on the basis that the insured could not be located, and it could not be verified the insured was involved in the accident, but did however seek a deduction of 25% for contributory negligence.

During proceedings, the insured was located and interviewed. The insured maintained a denial of liability and served a statement, which suggested the his view had been obscured by a sign, noted the cycleway ceased metres before the intersection, and that he was unsure who was at fault. The claimant-led expert evidence on liability argued that the insured was required to give way to bicycles and to traffic on the priority roadway (a t-intersection) he was wishing to enter.

The insurer amended its position at the assessment conference in oral submissions, seeking a deduction of 50% for contributory negligence.

In relation to the heads of damages, the parties submitted:
 

¦

Non-economic loss: This head of damage was conceded by the insurer. A claim was made for $400,000 taking into account the claimant requiring knee and shoulder surgeries with lengthy recoveries, her reliance on pain relief medication, the adverse impact on her career and pre-accident hobbies and her personal relationship, and she had been impacted psychologically as documented in a statement from her partner. The insurer submitted that the claimant had made a reasonable recovery and that the claim was excessive, and that $180,000 was a more appropriate amount.

¦		Past economic loss: The claimant was working part-time as a shop assistant in a jewellery store and also carrying out work in her dressmaking business. Shortly after the accident, she returned to her shop assistant role, although she did take several months off following her knee operation and was terminated six months later. She did not return to work in her dressmaking business, but secured alternative employment in a less onerous role sewing pre-cut garments. The claimant relied on a statement from the business owner she held a contract with in her own dressmaking business, which suggested that it was their intention to give all their work to the claimant  as work had increased significantly following a celebrity posting photographs of the claimant’s work to social media.  However, due to the claimant’s accident, the business owner had to move production to China to meet demand. The claimant sought an award of $179,667 inclusive of superannuation. The insurer submitted a figure of $60,000, which it considered more appropriate.
¦		Future economic loss: A claim was made on a buffer basis for $300,000 and the insurer submitted that $150,000 was more appropriate. The claimant submitted she would have increased her dressmaking business activity and worked until at least 70 years of age but for the accident.

Findings:  

The Member determined that the insured driver breached their duty of care and there was no finding of contributory negligence. The Member concluded that the insured driver was attempting to enter a priority road and was therefore required to give way, consistent with the claimant’s expert evidence.
 

¦

Non-economic loss:       $250,000. The Member took into account the claimant’s ongoing symptoms and impact to her daily activities of living and drew an adverse inference from the insurer failing to serve a psychiatrist’s report.

¦		Past economic loss:      $65,416. The Member largely accepted the statement from the business owner and the claimant’s tax material, which demonstrated a steady increase in earnings from the dressmaker business, though not the amounts claimed by the claimant. The Member did not accept that the sale assistant work ceased due to the claimant’s injuries or that the claimant would have had capacity pre-accident to perform the entirety of the work that the business owner offered following the social media post (4.5 times the amount of work).
¦		Future economic loss:   $200,000. The Member considered the claimant was working at her capacity, which was consistent with the medico-legal opinion. The Member did not accept the claimant’s proposed anticipated income, but that the claimant may have increased her earnings in the future as demand for her work increased and her charge out rate also increased.

The Member also awarded a 25% uplift on the claimant’s costs on the basis that the denial of liability was unreasonable and that while the insurer had a reasonably arguable position to allege contributory negligence, it did not have such a position to deny breach of duty of care as a whole.

View decision

Mammone v Insurance Australia Limited t/as NRMA [2021] NSWPIC 501

Member: Brett Williams

MOTOR ACCIDENTS—whether the claimant used best endeavours to settle claim before referring for claims assessment —claim referred to Commission same day as claim for damages made.

The claimant was involved in an accident on 9 August 2018. On 5 August 2021, the claimant both made her claim for damages and lodged an application for claims assessment with the Commission to preserve the time limitation.

The insurer submitted that the application should be dismissed as the claimant failed to comply with s 7.32 of the Act by not using best endeavours to settle her claim before referring it for claims assessment and that the proceedings were misconceived and lacking in substance pursuant to s 54(d) of the Act. The insurer submitted that no endeavours were made by the claimant at all, that the claimant had not made any enquiry as to whether the insurer would enter settlement negotiations and made no offers of settlement. The insurer also noted that there was no medical or quantum evidence, particulars or evidence of any concession or agreement by either party as to the claimant’s whole person impairment. Additionally, the insurer noted that it had denied liability for the statutory benefits and damages claims on the basis that the claimant’s injuries were minor.

The Member highlighted that compliance with s 7.32 was mandatory and that what constitutes “best endeavours” depends on the circumstances of the claim in a manner consistent with the objects of the Act, particularly the object of encouraging early resolution and the quick, cost effective and just resolution of disputes. Notably, the Member agreed with the insurer’s submission that the section requires a party to “act honestly, reasonably and make a positive effort to settle the claim before referring it for assessment even where success is unlikely”.

Findings: The Member dismissed the claimant’s application pursuant to s 54(d) of the Act as the proceedings were misconceived and lacking in substance, and the claimant failed to use best endeavours to settle the claim before referring the claim for assessment and therefore did not comply with s 7.32 of the Act.

View decision

Wiegold v Allianz Australia Insurance Limited [2021] NSWPIC 512

Member: Belinda Cassidy

MOTOR ACCIDENTS—claims assessment —damages assessment—assessment of non-economic loss and economic loss—claimant, a trainee bus driver, suffered PTSD after witnessing a bus collide with a colleague.

The accident occurred on 28 May 2018. The claimant was a trainee bus driver and was watching a colleague drive a bus when that colleague lost control of the vehicle. The claimant watched as the bus driven by the colleague collided with his bus driving instructor.

The claimant went to render first aid to his instructor, but ”was confronted by the sight of his trainer who was clearly dead and ‘unrecognisable’ due to his head injuries”. He developed psychiatric injuries as a result.
The insurer conceded liability, and that the claimant was entitled to non-economic loss. The matter proceeded as an assessment of damages only.

There was a consensus in the evidence that the accident caused the claimant to suffer from Post-Traumatic Stress Disorder (PTSD). Medical experts also noted that the claimant’s alcohol consumption had increased since the accident.

On the issue of work capacity, treaters and experts ruled out the possibility of the claimant returning to work in any role that involved driving. However, and despite the severity of his symptoms, the experts considered he may be able to return to part-time work, particularly in his prior role as a labourer.

Findings: Taking into account the claimant’s symptoms, which included flashbacks and nightmares, the degree of dependency on his wife, the limited success of treatment and the chronicity of his symptoms, the Member awarded $250,000 for non-economic loss.

With respect to past economic loss, the insurer conceded that the claimant effectively had no residual earning capacity since he ceased working, a few weeks after the accident occurred.

The Member accepted that the claimant would have continued earning $837 net per week, but for the accident, and awarded the sum of $150,000, being $837 per week multiplied by the 182 weeks that had passed since the accident, less earnings in the post-accident period. She awarded an additional $16,500, being past loss of superannuation benefits, calculated at 11%.

In assessing future economic loss, the Member accepted that the claimant would have continued working as a bus driver until age 70, and that he would have been earning $1,000 net per week as a trained bus driver or in some other driving or labouring role. Having regard to the medical evidence, she also accepted that the claimant had a residual capacity to work 12 hours per week and earn $333 net per week. However, the Member considered that there was a real possibility that the claimant, at points in time in the future, may not be able to utilise his residual earning capacity.

The Member awarded $225,000 for future economic loss. Future economic loss was calculated by multiplying the figure of $667 per week ($1,000 less $333) by the 8 year multiplier, 345.6, and subtracting 15% for vicissitudes, giving a figure of approximately $196,000. The Member awarded an additional uplift to reach the figure of $225,000, to compensate the claimant’s likely difficulties in obtaining and maintaining employment. Future loss of superannuation benefits were also awarded in the amount of $24,750, calculated at 11%.

View decision

Merit review

Liu v Allianz Australian Insurance Limited [2021] NSWPICMR 51

Merit Reviewer: Katherine Ruschen

MOTOR ACCIDENTS—merit review—calculation of pre-accident weekly earnings (PAWE)—claimant earned cash in hand income as a housekeeper—whether cash in hand income to be included for PAWE calculation.

The claimant was employed as a packer at the time of the accident but, says she also received cash in hand income as a housekeeper, working for a person named ‘Anan’.

A dispute arose as to the calculation of the claimant’s PAWE. The insurer had concerns about the veracity of the claimant’s cash in hand income and considered only her verifiable income from her packer role in order to calculate PAWE. The insurer calculated the claimant’s PAWE to be $279.58, being her income of $14,538.01 earned as a packer, divided by 52 weeks.

The claimant says there was sufficient information to verify her income as a housekeeper. She prepared a chronology of her work schedule, specifying the number of hours she worked on various days, and provided text messages between her and Anan confirming that she was to provide housekeeping services to Anan. She submitted the housekeeping income should be included for the purposes of calculating PAWE.

Findings: The Merit Reviewer accepted that the claimant had established, on the balance of probabilities, that she did earn cash in hand as a housekeeper and that that income should be included for the purposes of PAWE calculations. However, she considered that only the income that could be verified by text messages should be included.

Of the 160 hours the claimant claimed she worked in the pre-accident year, only 56 hours were verified by text messages. At a rate of $30 per hour, the Merit Reviewer accepted that the claimant earned verifiable income of $1,680 as a housekeeper.

The claimant’s PAWE was adjusted to $311.88, being gross income of $16,218.01 ($14,538.01 + $1,680) divided by 52.

View decision

Frost v NRMA [2021] NSWPICMR 52

Merit Reviewer: Katherine Ruschen

MOTOR ACCIDENTS—merit review—whether the cost of hoof trimming for horses is a compensable treatment and care or attendant care services expense.

The claimant operated a business on a rural property, training horses for sale, riding, and for showing. As a result of her accident, the claimant was unable to hoof trim her horses. Her inability to do so led to a loss in business income. She claimed the cost of hoof trimming from the insurer, but the insurer declined to pay for those services, on the basis that it did not fall within the meaning of compensable treatment and care nor attendant care services. The claimant disputed the decision.

Findings: The Merit Reviewer noted that s 1.4 of the Act defined treatment and care as medical treatment (including pharmaceuticals); dental treatment; rehabilitation; ambulance transportation; respite care; attendant care services; aids and appliances; prostheses; education and vocational training; home and transport modification; workplace and educational facility modifications; or any other type of treatment and care as prescribed by the regulations. She concluded that the hoof trimming services did not fall within the definition of treatment and care, as defined by s 1.4 of the Act.

The Merit Reviewer also noted that s 1.4 defined attendant care services as ”services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services”. She accepted that hoof trimming did not fall within the s 1.4 definition of attendant care services, reasoning:
 

The Merit Reviewer affirmed the insurer’s decision to decline funding the hoof trimming services, on the basis of it not being a treatment and care or attendant care services expenses.

View decision

Dimic v AAI Limited t/as GIO Insurance [2021] NSWPICMR 53

Merit Reviewer: Ray Plibersek

MOTOR ACCIDENTS—merit review—legal costs—claimant lodged minor injury and treatment and care disputes at same time—insurer paid one invoice for the maximum regulated fee and offered to pay $1,200 for the other invoice.

The claimant lodged two applications with the Commission, seeking to overturn the insurer’s minor injury determination, and decision to decline to fund spinal fusion surgery. The Commission affirmed both of the insurer’s decision.

The claimant subsequently sought payment of the maximum regulated fee for both disputes. The insurer paid the maximum regulated fee for the treatment dispute and offered to pay $1,200 plus GST for the minor injury dispute. The claimant refused to negotiate the quantum of costs payable, and applied to the Commission to determine the dispute.

Findings: The Merit Reviewer noted that the claimant had not particularised the nature of the legal work conducted by his solicitors, and the lack of complexity associated with the submissions advanced in the minor injury dispute, submissions that dealt only with the procedural history rather than the substantive matters. The Merit Reviewer concluded that in the absence of details of the specific work conducted, an assessment of whether the claimed costs were reasonable and necessary could not be conducted. He accordingly assessed costs of the minor injury dispute at $1,200 plus GST.

View decision

Allianz Insurance Australia Limited v Rymer [2021] NSWPIC 534

President’s Delegate: Jeremy Lum

MOTOR ACCIDENTS—application for review of merit review decision concerning costs—whether President’s Delegate satisfied there was reasonable cause to suspect that the original decision was incorrect in a material respect— application for review allowed.

After a medical dispute concluded, the claimant lodged an application for merit review to have the issue of costs determined. He had incurred costs and disbursements approximating $70,000, and sought a costs order for payment of costs and disbursements in excess of the regulated fee. In a Rymer v Allianz Insurance [2021] NSWPICMR 45 (discussed in issue 27) Merit Reviewer Plibersek awarded costs of $30,800 and disbursements of $4,455.

The insurer lodged an application for review of Merit Reviewer Plibersek’s decision. It contended that the Merit Reviewer, whilst recognising that ”some of the work done by the Claimant’s solicitors for the Review Panel was unnecessary” did not properly engage with the costs material to specify what work performed was unnecessary.

Findings: The President’s Delegate accepted the insurer’s submissions and concluded that there was reasonable cause to suspect that the original costs decision was incorrect in a material respect.

In particular, the Delegate noted the Merit Reviewer had a costs ledger spanning more than 400 time entries and commented that the Merit Reviewer in not analysing that ledger in any detail, beyond concluding that some of the work performed was unnecessary, gave rise to a reasonable suspicion of error in the analysis.

The Delegate accordingly referred the application to a Merit Review Panel.

View decision

Marshall v Allianz Australia Insurance Limited [2022] NSWPICMR 1

Merit Reviewer: Katherine Ruschen

MOTOR ACCIDENTS—merit review—calculation of Pre-Accident Weekly Income (PAWE)—claimant self-employed at time of accident.

The claimant was self-employed as a pest control technician at the time of the accident. The insurer calculated his PAWE to be $421.65, being the claimant’s gross income, net of personal deductions, divided by 52 weeks.

The claimant disputed this calculation, saying that his PAWE should be calculated to be $1,500. However, neither the redacted excerpts of selected bank statements nor the tax returns he provided supported his PAWE quantification..

Findings: Given the claimant’s refusal to provide all of his bank statements to allow analysis of pre-accident income, the Merit Reviewer did not accept that the claimant had established on the balance of probabilities that his PAWE was $1,500.

Having regard to the imperfect nature of the evidence, the Merit Reviewer concluded that the claimant’s PAWE would be calculated with reference to his tax return. However, she noted the insurer should have used the claimant’s gross income, rather than gross income net of personal deductions, to calculate PAWE. Accordingly, she revised the claimant’s PAWE to $424.54. 

View decision

Towers v GIO [2022] NSWPICMR 2

Merit Reviewer: Katherine Ruschen

MOTOR ACCIDENTS—merit review—calculation of per-accident weekly earnings—change in circumstances prior to accident.

At the time of the accident, the claimant was employed by a plumbing business, but also ran his own company. The insurer calculated his PAWE to be $1,777.90, but the claimant asserted it should be higher, as there was a change in his financial circumstances in the year prior to the accident. He specifically asserted that his business was recovering from the economic effects caused by COVID-19 and that his PAWE calculation should only take into account the average income earned after his business began recovering.

Relevantly, clause 4(3) to Schedule 1 of the Act provides that:
 

Clause 4(2)(b) prescribes:
 

Findings: The Merit Reviewer rejected the claimant’s assertion that clause 4(3) applied to the calculation of the claimant’s PAWE, as the increase in income following the recovery of his business from the economic effects of COVID-19 was not as a result of ‘action taken by the earner’. Accordingly, the Merit Reviewer accepted the insurer’s determination that PAWE was to be calculated with reference to clause 4(1) to Schedule 1 of the Act.

However, the Merit Reviewer did not accept there was sufficient evidence to properly verify some of the income the claimant earned as an employee. Noting the insurer had erroneously incorporated some of the claimant’s post-accident income in its PAWE calculation, the Merit Reviewer adopted the insurer’s PAWE calculation method but revised PAWE to be $1,739.44, and directed the claimant to provide further information to the insurer to permit PAWE to be calculated more accurately.

View decision

Review Panel Decisions

David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227

Review Panel: Principal Member John Harris, Dr Geoffrey Stubbs, Dr Shane Moloney

MOTOR ACCIDENTS—whether injury is minor—lumbar spine annular tear or fissure degenerative and pre-existing— left wrist tear demonstrated on subsequent MRI caused by accident and non-minor.

The claimant alleged that he suffered injuries to his lumbar spine and left wrist as a result of the insured driver running a red light and colliding with his vehicle. The claimant’s statutory benefits were denied on the basis that he did not suffer a non-minor injury.

The Medical Assessor determined at first instance that the claimant’s lumbar spine injury was minor. The claimant lodged an application for review on the basis that various clinical material recorded complaints of symptoms of radiculopathy, which were objectively verified in radiological evidence by way of an annular fissure and annular tears. The insurer opposed the application and contended that there were no signs of radiculopathy on examination by the Medical Assessor and that the pathology demonstrated was degenerative in nature.

As to the left wrist injury, it was noted by the insurer that this injury was not originally referred to the Medical Assessor, that there were no documented complaints of left wrist pain and the claimant had suffered a prior work-related left hand injury. However, x-rays of the left wrist were performed at  hospital following the accident and were noted as normal. The claimant had later experienced a clicking sensation in his wrist and an MRI scan was performed.

The Review Panel concluded that the claimant’s annular tear or fissure was more likely degenerative, pre-existing and asymptomatic.

Further the Review Panel was not satisfied that the claimant had suffered two or more signs of radiculopathy at any time since the accident in accordance with the Guidelines. The Review Panel observed that it could consider whether radiculopathy occurred at any time since the accident and not only during the examination by the Medical Assessor. Nevertheless, the Review Panel considered the complaints of leg pain in the clinical evidence were vague and not localised to a nerve root distribution.

However, the Review Panel determined that the claimant’s alleged left wrist injury was caused by the accident noting that the claimant had no pre-existing left wrist condition (and that the prior left hand injury was a separate condition), that the injury was consistent with the claimant’s report that the steering wheel “kicked back” during the accident, that he complained of pain in the left forearm at hospital, and that a subsequent MRI scan demonstrated a tear of the triangular fibrocartilage in the left wrist.

Findings: The Review Panel determined that the claimant’s lumbar spine injury was minor, but that his left wrist injury was non-minor. Accordingly, the Medical Assessor’s Certificate was revoked.

View decision

AAI Ltd v Singh [2021] NSWPICMP 230

Review Panel: Principal Member John Harris, Dr David McGrath, Dr Alan Home

MOTOR ACCIDENTS—whether physical injuries are minor—treatment dispute—psychological injury non-minor and dispute in relation to physical injuries misconceived—cervical spine injury pre-existing and not caused by accident and proposed cervical spine surgery not related to accident.

The medical dispute related to whether the claimant’s alleged physical injuries sustained in a rear end collision were minor and whether treatment in relation to those injuries was reasonable and necessary.

The Medical Assessor at first instance determined that the claimant’s left shoulder and cervical spine injuries were non-minor and that treatment related to those injuries was reasonable and necessary. The other injuries to the lumbar spine and left arm/elbow were considered minor.

The insurer sought a review of the Certificate. Notably the insurer had accepted that the claimant suffered a non-minor psychological injury. The Review Panel observed that the dispute in relation to whether the physical injuries were minor was therefore misconceived. Despite making directions for further submissions on this issue, the Review Panel was of the view that a satisfactory response was not provided and therefore the review proceeded in relation to both the minor injury and treatment disputes.

In relation to the left shoulder, the Review Panel noted that a pre-accident ultrasound demonstrated a supraspinatus tear as noted in a post-accident ultrasound, though the claimant refused to provide the former ultrasound when the Review Panel called for it, and had not provided a copy of it to other doctors. The Review Panel also concluded that the mechanism of the accident was unlikely to cause such a tear, and that it was likely that the claimant sustained a minor exacerbation of left shoulder pain only.

The Review Panel was not satisfied that the claimant’s cervical spine injury was caused by the accident, having regard to the claimant’s pre-existing degenerative condition, that there was no contemporaneous evidence of a cervical spine injury though a contemporaneous GP note that there were no neurological symptoms, and that the claimant provided inconsistent history to the Medical Assessors as to the delay in the onset of symptoms.

The Review Panel determined that the mechanism of the accident was not consistent with causing forearm trauma impacting the claimant’s fistula, and that there was no history or features of local trauma reported by the claimant or in the clinical material, such as significant swelling or discolouration of the forearm or wrist.

As to the treatment dispute, the Review Panel noted that the proposed cervical spine injury did not relate to an injury caused by the accident, however the referral to a pain specialist was reasonably necessary in relation to the claimant’s chronic lumbar spine pain, which was caused by the accident.

Findings: The Review Panel determined that the claimant’s lumbar spine, left shoulder and left arm/elbow injuries were minor but that the cervical spine and fistula were not injured in the accident. Further, it was determined that the referral to a pain specialist was reasonable and necessary but that the cervical spine surgery was not.

View decision