Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 38

Welcome to the 38th 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.

Miscellaneous Claims Assessment

Coyne v The Nominal Defendant [2022] NSWPIC 54

Member: Belinda Cassidy

MOTOR ACCIDENTS—claim against Nominal Defendant—whether due inquiry and search undertaken—claimant was a minor—claimant viewed photograph at scene of accident taken by another but did not save photo and phone later destroyed.

The claimant was riding his pushbike on his way to work on 18 February 2019 when a motor vehicle that was travelling out of the driveway of a 7-11 petrol station collided with him, causing his to be ejected from his pushbike. He was 16 at the time and sustained injury to his knees.

On 19 January 2021, the claimant forwarded a claim for damages to SIRA as he did not know the registration of the vehicle. It was allocated to the insurer under the Nominal Defendant scheme. The insurer denied the claim on the basis that due inquiry and search had not been made to establish the identity of the vehicle in accordance with s 2.30 of the Act.

The claimant provided a number of statements by way of explanation of his due inquiry and search.

The driver got out of the vehicle momentarily and asked if the claimant was okay but left the scene “within 1 minute” without offering any assistance. The claimant could describe the driver and colour of the vehicle but was in shock and so did not look at the number plate. Two tradespeople working at the petrol station (possibly some distance from the scene of the collision) took a photo of the vehicle and sent it to the claimant’s phone, and took him to hospital, respectively. The claimant did not get their names but did return to the petrol station that day to collect his bike and look for the tradespeople, without success. He did not think to ask for CCTV footage at that time as the hospital advised his injuries were minor.

The claimant’s injury worsened and in July 2020 his doctor advised that his condition was due to the accident and to make a claim for compensation.

The claimant no longer had the phone the photo was on as the phone was damaged and had been unable to retrieve the photo after enquiries with his phone provider and with Apple. He had not written down the details of the registration from the photo and had not looked at the photo at the time to confirm it contained the registration details of the vehicle.

In September 2020, at the instigation of his solicitor the claimant approached the petrol station regarding CCTV footage with no success. Later, the claimant’s solicitor wrote to the petrol station seeking information and put an advertisement in the newspaper. Both were met with no response.

There were some inconsistencies in the claimant’s various statements, which were explained by the claimant as being due to shock and his recollection improved as he was asked for more detail and probing questions. The Member accepted the claimant as reliable finding that he did his best to remember details and was not attempting to mislead, but rather was not aware of what was important to the matter and his oral evidence satisfied some of the gaps in his statements.

The Member also accepted that the claimant was a young man who was in shock after the accident and did not have the wherewithal to make the inquiries of the driver and that he had not looked at the photo closely enough to see what it showed. She did not accept that she could make the finding that the photo was clear enough to show the registration details (sufficient to enable the vehicle to be identified) as the tradesperson who took the photo was some distance from the scene.

Further, the Member found that the claimant had the possible means to identify the vehicle, being the photo, but that at that time did not need to identify the vehicle as he had been told he had minor injuries. By the time his injuries were more significant, those means were destroyed. She considered that writing down the details or looking at the photo before it was destroyed were beyond the actions that might have been contemplated by a 16 or 17-year old man.

Findings: The Member was satisfied that due search and inquiry had been established and that the claim against the Nominal Defendant could be pursued by the claimant.

View decision
 
Faiz v QBE Insurance (Australia) Ltd [2022] NSWPIC 41

Member: Ray Pilbersek

MOTOR ACCIDENTS—late claim for statutory benefits—non-compliance with motor accident verification requirements—full and satisfactory explanation —delay due to no access to phone or internet, homelessness, and panic attacks.

The claimant was involved in an accident on 17 May 2020 as a passenger in an Uber vehicle. Her solicitor lodged an unsigned and incomplete application for personal injury benefits, more than three months later on 20 August 2020. Also, the claimant did not provide a police event number and the wrong accident date was supplied. The application was rejected, and an explanation was sought, in addition to a complete form. There were further communications and a statement was eventually provided on 28 April 2021 proposing an explanation for the late claim.

The claimant submitted that she could not afford a phone due to her poor financial circumstances, had poor and unreliable access to internet, was homeless and living in refuges with her children (aged three and four), did not have regular doctors due to moving from refuge to refuge, suffered panic attacks preventing her from attending appointments with doctors, lawyers and police (including attempting to seek medical treatment on the day of the accident), and had no means to find out the police number. Though it is understood police and ambulance attended the scene, she did not speak to them. The claimant returned to work in aged care and disability services the day after the accident, though she noted that after the accident she was dealing with a separation, losing her job, home and financial stability.

The explanation was not accepted by the insurer as being full and satisfactory. The insurer contended that the claimant had previous representation and that there was no evidence as to their advice, that she conceded that she knew within two days of the accident that she needed to lodge a claim, no evidence as to whether the claimant sought assistance from her solicitors to obtain a police event number nor as to why she was unable to attend her lawyers or police or follow advice due to anxiety symptoms and panic attacks, no evidence as to why the claimant could not obtain a certificate of fitness but could communicate and lodge documentation relevant to her permanent residency and Centrelink benefits.

Accordingly, the matter was referred to the Commission for determination.

While the Member considered the insurer’s submissions were persuasive and pointed to a number of gaps and issues in the claimant’s explanation, he accepted that the claimant’s explanation was “full and satisfactory” noting she was experiencing panic attacks, was homeless and did not have access to phone and internet and that a reasonable person in the claimant’s position would have experienced the same delay.

As to the accident verification requirements, the Member considered the provisions were complied with as the correct information was provided, and a police report was obtained. The Member also accepted the claimant’s explanation for non-compliance and providing the wrong date on the same basis as the late claim.

Findings: The Member determined that the claimant’s explanation for the delay and non-compliance with the motor accident verification requirements was full and satisfactory.

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Merit Review

Shqau v AAMI [2022] NSWPICMR 6

Merite Reviewer: Maurice Castagnet

MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—self-employed painter and decorator—JobKeeper payments treated as business income—treatment of instant asset write-off of motor vehicle purchase.

The claimant made a claim for statutory weekly benefits for loss of income as a result of an accident on 15 August 2021. He was a self-employed painter and decorator at the time of the accident and operated as a sole tradership.

The insurer calculated the claimant’s PAWE to be $1,245.63. The claimant disagreed and sought an internal review. On internal review, the insurer determined that the claimant’s PAWE was $1,369.12.

The claimant disagreed with the internal review determination and proceeded to the Commission.

The parties had agreed that consideration of the claimant’s business income in his 2021 tax return was appropriate and that the expenses incurred by the business should be deducted from that income to calculate the claimant’s gross earnings and PAWE.

The dispute before the Merit Reviewer was how the business income and expenses should be treated.

The insurer calculated $84,088 business income and business expenses of $12,702, equating to gross earnings of $71,386 and $1,369.12 gross per week.

The claimant submitted that the $10,500 received by the business in JobKeeper payments should be included as business income. Further, the claimant submitted that not all the business expenses should be deducted, including an instant asset write off of $8,328 for a motor vehicle purchased by the business in the 2021 financial year, as well as some other fixed motor vehicle expenses (vehicle registration) of $1,811. It was contended that these were fixed expenses and should not be deducted in accordance with Aktop v Allianz Insurance [2021] NSWPICMR 33 (as discussed in MAD edition 18). On this basis, the claimant calculated only expenses of $2,649 should have been deducted.

In relation to the JobKeeper payments, the Merit Reviewer determined that this was an amount received as a subsidy by the claimant in carrying on his business and therefore was to be included as part of the gross business income.

The Merit Reviewer noted that “it does not follow that all business expenses claimed by the business as eligible tax deductions should also be treated as expenses incurred by the claimant in producing his income from personal exertion”. The Merit Reviewer agreed that the instant asset write-off of the motor vehicle  was not to be included as a deduction in the business income to calculate the claimant’s gross earnings, but did not agree that the costs of vehicle registration should be excluded as they were operating expenses incurred in producing the claimant’s income. The Merit Reviewer noted that Aktop was not binding and he made his findings based on the facts and circumstances of the case.

Findings: The Member determined that the claimant’s PAWE was $1,772.44 based on a gross business income of $96,790 (including the JobKeeper payments) and deduction of expenses that did not include the business’ motor vehicle purchase.

View decision