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Welcome to the 37th 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.

Claims Assessment - Settlement Approval

AAI Limited trading as GIO v Morey [2022] NSWPIC 36

Member: Anthony Scarcella

MOTOR ACCIDENTS—settlement approval—liability admitted—claimant returned to work but still experiences some pain and discomfort—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.

The claimant was a pedestrian walking on a driveway when the insured driver drove over a piece of timber, which was then propelled and struck the claimant’s foot. A wound/tendon damage was surgically repaired, and the claimant wore a CAM boot for four months.

At the request of the insurer, Dr Rosenthal examined the claimant, and assessed his injuries at 3% WPI. After a period of time, the claimant returned to his role as a supervisor at a bottling factory, where he had worked for 10 years. His work involved being on his feet all day but no lifting. He was required to wear steel cap boots, which the claimant reported to Dr Rosenthal irritated his left foot but that his injury was not stopping him from performing his usual work duties.

The claimant reported to the Member that he experiences pain and discomfort in his left foot by the end of his 12-hour shifts.

The parties agreed to resolve the claim for the sum of $100,586.36, for economic loss damages only ($30,586.36 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.

There was no evidence put forward by the parties that restrictions should be applied to the claimant’s work activities or that his future earning capacity was impacted. However, in considering whether an award for future economic loss, the Member took into account that the claimant may require time off work for treatment when he experienced exacerbations of pain and discomfort, including irritation to his foot caused by his steel boot.

Findings: The Member accepted the proposed sum of $100,586.36 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.

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Miscellaneous Claims Assessment

Nasr v IAG Limited t/as NRMA Insurance and QBE Insurance (Australia) Ltd [2022] NSWPIC 34

Member: Ray Plibersek

MOTOR ACCIDENTS—claim for statutory benefits—whether one or two accidents—which is relevant insurer—whether claimant wholly or mostly at fault—contributory negligence and agony of the moment defence.

The claimant was the driver of a vehicle insured by NRMA. Whilst parking in a parking bay in a car park, another vehicle (insured by QBE) collided with the rear left of her vehicle. The claimant then accelerated and collided with a fence and tree 60 to 100 metres from the parking bay. It was her evidence that she heard a loud bang behind her, could not remember anything until she hit the fence and tree, and was shocked and frightened. The claimant suffered a number of injuries and was taken to hospital for surgery and treatment over a number of weeks.

At the time of the accident, the claimant was 78 years old and spoke little English. Her and her daughter completed a CTP claim form and lodged the claim with NRMA.

According to the investigating police officer and the claimant’s employer, the QBE insured driver admitted colliding with the claimant’s vehicle while she was parking. The insured driver further admitted that he was distracted by some papers falling from a seat onto his gear stick, and when he looked back up again after retrieving the papers, the claimant’s vehicle was no longer there. He drove around the carpark and noticed that the claimant’s vehicle had collided with a tree.

NRMA initially accepted the claim (first 26 weeks, and after 26 weeks pending investigations), but subsequently denied liability to continue paying statutory benefits after 26 weeks, as the claimant was considered wholly at fault for the accident based on a factual report, police interview and that she lodged the claim on her own policy.

The claimant then lodged a claim against QBE.

Miscellaneous claims assessment applications were lodged against both insurers. There were a number of issues before the Member, including:

Whether there were one or two accidents. The claimant and her insurer, NRMA, submitted that the chain of causation from the initial impact to the impact with the tree was unbroken, whereas QBE submitted that there were two separate accidents—the first being minor and the second collision with the fence and tree being high impact and causing the claimant’s injuries.
Who was at fault or mostly at fault. QBE submitted that the second collision was caused either by the claimant suffering a medical episode or mistakenly putting her foot on the accelerator rather than the brake.
Contributory negligence, including whether there was an “agony of the moment” defence. It was contended by QBE that the claimant’s response in driving through a car park, then a fence and then into a tree could not be considered as the response of a reasonably prudent driver or the reasonably foreseeable response to the impact of the two vehicles.
  The relevant insurer. The Member noted he could determine the relevant insurer pursuant to sections 3.2 and 3.3 of the Act.
  The claimant’s costs, including whether exceptional circumstances exist. The claimant submitted that the insurers’ conduct had led to significant costs and delays to the claimant and the claimant was required to brief counsel and hold multiple conferences/conduct investigations to challenge the liability decisions.

No oral evidence was required by the Member as it was noted that the drivers had either no memory or did not see the accident.

Findings: The Member determined the issues as follows:

As all of the events occurred in close proximity, the Member found that there was only one accident, not two separate accidents. Particularly the Member noted that the claimant’s vehicle had driven away in the time it took for the QBE insured driver to look down and then up again, which the Member determined indicated that “these events happened very quickly in one continuous chain of events. If there had been two separate accidents…one would expect some evidence of a slight pause, delay or gap between the initial collision and the driving away of the claimant’s car”.  Also, the Member commented that he could not make any findings as to the cause of the claimant’s injuries simply by relying on the parties’ interpretation of photographs of the damage to the claimant’s vehicle.
The QBE insured driver was wholly at fault. The Member found that the QBE insured driver was negligent as the risk of collision and subsequent injury was foreseeable, that the burden to avoid the risk of harm was not high and a reasonable person in the position of the QBE insured driver would have taken precautions to keep a look out, drive carefully and avoid colliding with another vehicle or pedestrian in a carpark full of moving vehicles and people.
There was no contributory negligence on the part of the claimant. The Member noted there was no evidence or submission made about any precautions the claimant could have taken against risk and that she acted as a reasonable person with what she knew at the time of the accident. Further, the Member opined that there was not sufficient evidence to suggest that the claimant suffered a medical episode or accidentally put her foot on the accelerator. She had not long before the accident had her driver’s licence renewed, which required medical clearance, and it was possible that the claimant was alternating between acceleration and braking as she manoeuvred prior to the collision.
  The Member also determined that it was open to the claimant to say that she was “acting in a sudden unexpected crisis or acting in a state of shock and was not negligent” in accordance with the “agony of the moment” defence in Stuart v Walsh [2012] NSWCA 186.
  QBE is the relevant insurer as the QBE insured vehicle was the at fault vehicle and there was no finding of contributory negligence.
  Exceptional circumstances did not apply in relation to costs as there was not an unusual degree of complexity, assessment hearing or large amount of written evidence. The maximum regulated legal costs were awarded for each application.

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