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Welcome to the 36th 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.

Merit Review

Katrib v QBE (Insurance) Australia Limited [2022] NSWPICMR 3

Merit Reviewer: Terence O’Riain

MOTOR ACCIDENTS—merit review—claimant sought payment of costs incurred in connection to an application to set aside deemed withdrawal of damages claim following non-compliance with notice provided under s 6.26 of the Act—whether Commission had jurisdiction to determine dispute as merit review matter—as dispute concerned an issue with common law damages claim, Commission did not have jurisdiction.

The claimant lodged a common law damages in connection with the accident he was involved in on 16 September 2018. The insurer requested particulars of the claim for damages, but the claimant did not respond to the request. The insurer subsequently sent a notice under s 6.26 of the Act, requiring production of the particulars but this was not complied with and the damages claimed was deemed to be dismissed.

The claimant applied to the Commission to have the deemed dismissal set aside. That dispute was resolved between the parties, and the claimant lodged a further dispute with the Commission, seeking to have the insurer pay the costs he incurred with respect to having his deemed dismissal set aside.  

On review of the file, a case manager of the Commission noted that there was a potential issue with the Commission’s jurisdiction to determine the dispute. The Commission noted that the primary dispute—to have the deemed dismissal set aside—was a miscellaneous claims assessment matter relating to a common claim, but s 8.10 of the Act only empowered the Commission to assess costs for statutory benefits disputes by way of merit review.

Findings: The claimant conceded that the Commission did not have jurisdiction to determine the dispute relating to payment of costs, as it was not strictly a merit review matter regarding statutory benefits. The insurer agreed, as did the Merit Reviewer. The Merit Reviewer dismissed the application.

View decision

Balmain v Insurance Australia Limited t/as NRMA [2022] NSWPICMR 4

Merit Reviewer: Michael Sofoulis

MOTOR ACCIDENTS—merit review—claimant lodged application seeking determination of whether travel was reasonable and necessary treatment required as a result of accident—whether the Commission’s Merit Reviewer had jurisdiction to determine dispute—as dispute concerned treatment, Merit Reviewer did not have jurisdiction.

The claimant sustained serious injuries in an accident that occurred on 2 July 2020. The insurer issued a decision to decline funding for daily transport and instead advised it would fund taxis for two community-related outings a week. The claimant disputed the decision at the Commission and lodged a merit review application.

The submissions lodged by the parties suggested that the dispute concerned whether the treatment was reasonable and necessary, and required as a result of the accident.

Findings: As the matters in dispute were in fact with respect to a component of treatment and care, and not a merit review matter, the Merit Reviewer concluded that he did not have jurisdiction to determine the dispute. He dismissed the application.

View decision

Yin v Allianz Insurance Australia Limited [2022] NSWPICMR 5

Merit Reviewer: Katherine Ruschen

MOTOR ACCIDENTS—merit review—whether claimant an earner at the time of the accident—whether claimant discharged onus of proof and adduced sufficient evidence to establish he was an earner—entitlement to weekly benefits.

The claimant was involved in an accident on 24 August 2021. After he made claim for statutory benefits, the insurer determined the claimant was not an ‘earner’ at the time of the accident, within the meaning of the Act, and declined to pay weekly benefits. This determination was affirmed on internal review, and the claimant disputed that decision in the Commission.

The insurer asserted there was insufficient evidence to establish that the claimant was an earner. It noted the only evidence in support were details of the claimant’s employment as a gyprocker with YRAN Pty Limited, and bank statements showing transfers into the claimant’s accounts, with the description ‘HENG WANG salary’. Despite requests for further information by the insurer, the claimant did not cooperate. The dispute before the Commission was confined to that limited information.

Findings: The Merit Reviewer highlighted that the claimant bore the onus of establishing that he was an earner at the time of the accident. Having regard to the very limited information available, the Merit Reviewer was not comfortably satisfied that the evidence established that he was an earner at the time of the accident.
The Merit Reviewer accordingly affirmed the insurer’s decision on internal review. 

View decision

Claims Assessment – Interim Decision

Sims v Insurance Australia Ltd t/as NRMA [2021] NSWPIC 537

Member: Brett Williams

MOTOR ACCIDENTS—application for damages assessment lodged with the Commission outside of three-year time limitation—whether explanation for delay full and satisfactory—reliance on legal representative and other factors.

The claimant was involved in an accident on 4 January 2018 and lodged his application for claims assessment three years, eight months later. The accident occurred in the course of the claimant’s employment as a disability care worker as he transported a client, who died in the accident. The claimant was diagnosed with PTSD and lodged a workers compensation claim, and the workers compensation insurer paid some benefits. Claims for statutory benefits and damages were lodged against the CTP insurer as well.

The claimant sought leave to proceed with the late application pursuant to s 7.33 of the Act and relied on submissions and statements from himself and his solicitor. The insurer did not provide any submissions on the issue, and the matter was determined on the papers.

The claimant advised that he had left the management of his claims and legal matters to his solicitor and that he was not aware that an application for assessment must be lodged within three years of the accident, until his solicitor advised him after that time had passed. He also advised that he had difficulty understanding the process due to his psychological injury and the medication he was taking as part of his treatment.

His solicitor confirmed that the claimant had left him to deal with his legal matters and that due to an administrative oversight the time limit had been missed and he had not appreciated the significance of the time limit until it was raised by counsel in another matter. Further, he advised that the focus had been on dealing with the effects of and management of the claimant’s injuries—noting it was not clear if the claimant’s injuries were stable—and that the claimant had family matters to attend to prior and after the time limit expired.

Findings: Having regard to the explanations provided in the statements, the Member accepted that the explanation was both full and satisfactory, and granted leave to the claimant to proceed with an application for claims assessment.

View decision
Claims Assessment - Settlement Approval

McPherson v AAI Limited trading as GIO [2022] NSWPIC 21

Member: Belinda Cassidy

MOTOR ACCIDENTS—settlement approval—liability admitted—insurer directed to make application for medical assessment at Commission in relation to neck injury, capacity and treatment—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.

The claimant was a passenger in a vehicle that was t-boned and as a result of the accident suffered various haematomas, anxiety, emotional distress and neck pain.

At the request of the insurer, Dr Keller examined the claimant, and assessed her injuries at 0% WPI and diagnosed a soft tissue injury to the neck aggravating mild degenerative changes.

The parties agreed to resolve the claim for the sum of $77,000, for economic loss damages only ($7,000 for past economic loss and $70,000 for future economic loss). As the claimant was not represented by solicitors, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.

The Member was troubled by the claimant’s GP recording cervical radiculopathy, though an MRI did not verify radiculopathy and that the claimant had consulted a pain specialist (at her own expense as the insurer did not fund the consultation) who also noted C6 and C7 radicular pain. Further, at the first Teleconference the claimant reported ongoing symptoms including radiation to the shoulders and intermittent pins and needles in the left upper limb, and that she had taken time off work due to flare ups of pain. The claimant had also changed roles with her employer (in aged care) so that she could better manage her symptoms as she intended to work until she was 70-75.

The Member was not satisfied by Dr Keller’s opinion as the doctor did not have available the pain specialist’s records and accordingly directed the insurer to refer a medical dispute to the Commission in relation to permanent impairment, treatment (the pain specialist’s treatment) and earning capacity. Medical Assessor Ian Cameron assessed 5% WPI, that the treatment was reasonable and necessary and that there was no impairment to earning capacity.

In considering whether the proposed settlement was appropriate, the Member took into account that while the claimant had changed roles, she was not losing any hours or income. The Member did however note that the claimant may need to cease work earlier than she had intended and take time off work due to flare ups of pain.

Findings: The Member accepted the proposed sum of $77,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing. The Member approved the settlement.

View decision

Miscellaneous Claims Assessment

Natale v Allianz Australia Insurance Ltd [2021] NSWPIC 539

Member: Ray Plibersek

MOTOR ACCIDENTS—claim for statutory benefits—first application sent by post not received—second application made late—whether explanation for delay full and satisfactory.

The claimant was involved in an accident on 17 May 2018.

The claimant alleged that he attended his GP the day after the accident, who completed certificate of capacity. He alleged that he sent a completed application for personal injury benefits with the certificate in May 2018. However, the GP’s records demonstrate the claimant did not attend the GP until 30 May 2018 when he reported the accident.

An application for personal injury benefits was lodged in November 2018 submitted by his solicitor. The insurer sought a full and satisfactory explanation for the late claim.

In an undated letter, the claimant alleged he had sent the application in May 2018 and that it may have been lost in the post, but that he made numerous telephone calls to the insurer seeking a claim number so that he could have treatment paid for, as he otherwise could not proceed with treatment.

However, on request, the claimant did not provide particulars of where he posted the application and on what date, and when he made the telephone calls and who he spoke to. The insurer denied that the first application was received and declined liability as the explanation for delay was neither full nor satisfactory. The claimant lodged a miscellaneous claim assessment application with the Commission.

By way of further statements, the claimant confirmed he was not aware of the procedural requirements for a claim including time limits.  The claimant also confirmed that he was mistaken as to when he attended his GP and could not recall the documents he posted or the address he posted the documents to.  He did recall a woman he spoke with at the insurer had dissuaded him from making a claim due to costs but, could not access his phone call logs to verify the call. The claimant reiterated that he had relied on his solicitor to manage his claim and explain the delay to the insurer.

The Member was required to determine whether a full and satisfactory explanation was provided in accordance with s 6.13 of the Act. The Member considered the definition of ‘full and satisfactory explanation’ in s 6.2 of the Act and found that:

  • As there was no evidence the insurer received the first application, the application was not made. The claimant had not provided any evidence to corroborate his account of sending the application at that time. Further, there was no full account of the claimant’s actions, knowledge and beliefs for most of the period between the alleged first application and the second application. Accordingly, the explanation was not full.
  • A reasonable person in the position of the claimant would not have been justified in experiencing the same delay, as they would have acted sooner and continued to make enquiries about what had happened to their application. Therefore, the explanation was not satisfactory.

Findings: The Member determined that the Claimant’s explanation for the delay in lodging his application for statutory benefits was not full and satisfactory and that the claim could not be made. The claimant was awarded regulated costs.

View decision

Review Panel Decisions

Lynch v AAI Limited t/as AAMI [2022] NSWPICMP 6

Review Panel: Principal Member John Harris, Dr Brian Parsonage, Dr Michael Hong

MOTOR ACCIDENTS—whether psychological injury is minor—Major Depressive Disorder in remission and Specific Phobia of Driving are both non-minor— onus of proof in establishing minor injury.

The claimant alleged that she suffered injuries as a result of a motor vehicle accident, including a psychiatric injury. The claimant’s psychologist had diagnosed “Other specified trauma and stressor related disorder” related to the accident. The claimant’s statutory benefits claim was denied on the basis that she did not suffer a non-minor injury.

The Medical Assessor at first instance determined that the claimant suffered a chronic adjustment disorder with depressed mood and mixed anxiety, which was a minor injury. The claimant lodged an application for review, which was successful.

The two Medical Assessors on the Panel re-examined the claimant. The claimant reported various symptoms related to being anxious about being involved in another accident and in relation to car travel in general. She also reported becoming depressed in light of ongoing pain, not being able to enjoy or engage in previously enjoyed activities and socialising, and having recurrent thoughts of suicide. However, she reported that after a period of depression she now only has occasional “brief feelings of being down” due to neck pain, though she avoided socialising if it involved car travel.

The Panel diagnosed Major Depressive Disorder (in remission) and Specific Phobia of Driving. The Panel noted that a diagnosis of Adjustment Disorder is not made if the stress-related disturbance met the criteria for another mental disorder, which they determined it did in the condition Specific Phobia of Driving, which satisfied the DSM-5 criteria.

In relation to the Major Depressive Disorder, the Panel commented that a psychiatric diagnosis may change over time, which is consistent with the provisions of DSM-5, as the condition can be described as being in partial or full remission. The Panel analogised that a fracture was still a non-minor injury even when it had healed and “changed in status” and concluded that the diagnosis of Major Depressive Disorder (in remission) was a non-minor injury.

The Panel also addressed the claimant’s submission that the onus of proof is on an insurer to establish that an injury is minor as the determination relates to a disentitling provision. The Panel considered relevant case law and commented that:

The issue of whether an injury is classified as non-minor affects both the entitlement to pursue damages and provide an entitlement to statutory benefits beyond the 26-week period. It is incorrect, as the claimant submitted, to suggest that the diagnosis of minor injury is a disentitling provision as that submission ignores that the finding is also a pre-condition to recovering damages. The claimant only focused on an ongoing entitlement to statutory benefits…It does not fit within the scheme of the MAI Act that the minor injury be determined for the purposes of the cessation of statutory benefits and determined separately for the purposes of satisfying the pre-condition to an award of damages. Read contextually in accordance with established principles of statutory construction, the injured person is required to establish that the injuries are non-minor for all purposes of the MAI Act.

Findings: The Panel determined that the claimant’s Major Depressive Disorder (in remission) and Specific Phobia of Driving were non-minor. Accordingly, the Medical Assessor’s Certificate was revoked.

View decision

Lemieszek v Allianz Australia Insurance Limited [2021] NSWPIC 542

Member: Hugh Macken

MOTOR ACCIDENTS—contributory negligence—claimant was a driving instructor, sitting in the passenger seat, and instructing a learner driver—semi-trailer rear ended vehicle in which the claimant was sitting—whether claimant contributorily negligent for failing to warn or advise the learner driver to take action—contributory negligence found for failing to properly instruct learner driver—contributory negligence assessed at 10%.  

The claimant was a driving instructor, and sustained injury whilst he was instructing a learner driver. They were travelling in the far left lane, when a semi-trailer collided into the rear of their vehicle. The semi-trailer essentially merged into the vehicle in which the claimant was a passenger, in the process of merging from a slip lane onto the main roadway.

The insurer alleged that the claimant was contributorily negligent to the extent of 25%. It asserted that as the supervising driver, he failed to instruct, warn, or advise the learner driver to accelerate or move out of harm’s way.

The claimant disputed the decision at the Commission. There was no statement from the claimant nor the learner driver in evidence.

Findings: The Member noted the difficulties in assessing contributory negligence in circumstances where there was no evidence from the claimant or the driver. However, he accepted that the semi-trailer was capable of being seen by the claimant, even in his position as a passenger, and that he should have directed the learner driver to take some form of action and that he was consequently contributorily negligent.

The Member assessed contributory negligence at 10%. He reasoned:

The overwhelming responsibility for this accident was that the insured vehicle struck the claimant’s vehicle from the rear. The highest that any allegation of contributory negligence can be put against the instructing driver is that he did not advise the claimant to take evasive action. Whilst the facts and circumstances of the accident, together with the inference which can be drawn from the failure on the claimant’s part to provide a statement, support this contention the negligence on the part of the claimant is minimal. Firstly, he was not the driver. Secondly, there may have been concerns about the insured driver changing lanes in wet weather, at night and in relatively high speed. Thirdly, whilst the insurer submits a figure of 25% for contributory negligence, this allegation is made against both the claimant and the learner driver.

I consider the claimant, in circumstances where the contributory negligence relates solely to an omission in respect to an instruction in respect to avoiding an imminent collision, to be minimal.

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