Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 41
18 March 2022
Welcome to the 41st 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 decisions
Le v NRMA [2022] NSWPIC 76
Member: Elizabeth Medland
MOTOR ACCIDENTS—miscellaneous claims assessment—vehicle versus pedestrian collision—whether insurer entitled to reduce weekly benefits payable by virtue of claimant’s contributory negligence—assessment of contributory negligence.
The claimant was involved in an accident on 22 May 2020. He was attempting to cross the Punchbowl Road, Punchbowl, when the insured driver reversed into him.
The claimant sought statutory benefits. The insurer partially admitted liability for benefits payable 26 weeks after the date of the accident but determined that the claimant’s entitlements to weekly benefits were to be reduced by 50% under section 3.38 of the Act, in view of his contributory negligence. The insurer specifically asserted that the claimant failed to access a pedestrian crossing or traffic walk signal.
Findings: The Member rejected the insurer’s argument but determined that the claimant failed to keep a proper lookout for his own safety. She concluded:
A reasonable person in the position of the claimant would firstly keep a lookout for a person in the driver’s seat of a vehicle they are about to walk behind. In addition a reasonable person in the position of the claimant would keep a lookout for rear lights on the vehicle indicating that it was about to reverse so as to avoid being in the path of such vehicle.
The Member went on to assess the claimant’s contributory negligence at 25%. She reasoned ‘the relative culpability of the claimant is much less than that of the insured who, on the evidence, failed to ensure that there was no pedestrian behind his vehicle prior to reversing his vehicle.’
Kemp v IAG Ltd t/as NRMA Insurance [2022] NSWPIC 77
Member: Terence O’Riain
MOTOR ACCIDENTS—Claims (damages) assessment—causation of injury—determination of claimant’s most likely circumstances but for the accident—determination of residual earning capacity.
On 1 January 2018, the claimant was a front seat passenger in a vehicle being driven by her husband. A car, travelling in the opposite direction, veered onto the wrong side of the road and collided head on with the vehicle in which the claimant was travelling. The claimant lodged a common law claim in connection to the accident. The insurer accepted liability in full.
The parties agreed that the accident caused an injury to the claimant’s right hand and wrist, with dislocation of the carpometacarpal joint in her right thumb, injury to the superficial radial nerve, and soft tissue injury to her neck. However, the insurer disputed injury to the right shoulder and lower back, and psychiatric injury.
The claimant was found to not have an entitlement to non-economic loss. The parties agreed to the past economic loss payable, but there was a dispute as to assessment future economic loss.
The claimant was working as an assistant in nursing at the time of the accident. However, she says she intended work part-time at her husband’s restaurant whilst she studied to become a registered nurse, until the accident intervened. The insurer conceded that the claimant could no longer work as an assistant in nursing or registered nurse, but disputed that the claimant could have qualified to become a registered nurse. It also disputed that the claimant had no residual earning capacity.
Whilst the claimant had obtained TAFE Certificates in aged care and medicine administration, the insurer disputed that the claimant would have been able to complete a Bachelor of Nursing degree to be able to qualify as nurse. They also relied upon evidence from ECA, to argue that the claimant had a residual earning capacity as she could obtain alternative employment as a call centre operator.
Findings: Having considered the parties’ oral evidence and the expert medical evidence, the Commission member determined:
- Injury: the claimant’s expert medical evidence and PIC Medical Assessor Bodel accepted that the accident caused injuries to the claimant’s right shoulder and lower back. The insurer did not cite any expert evidence in support of their argument that the accident did not cause those injuries. Accordingly, the Member accepted that those injuries were accident-related. The Member also accepted that the accident caused a post-traumatic stress disorder.
- The claimant’s most likely circumstances but for the accident: The Member was initially hesitant to accept that the claimant could ultimately qualify as a registered nurse. However, he accepted evidence from witnesses with a similar background to the claimant, that the claimant would have been able to complete a Bachelor of Nursing, especially bearing in mind her work ethic. He accepted that the claimant would have earned $500 per week for 22 weeks from the date of assessment whilst the claimant worked part-time in her husband’s restaurant, and $1,500 a week as a registered nurse thereafter.
- Residual earning capacity: Whilst the Member accepted that the claimant would probably be capable of finding alternative employment, he did not believe that that employment would be highly remunerative. The Member did not expressly quantify the extent of her residual capacity, but instead increased the deduction for vicissitudes of life from the typical 15% to 25%, to accommodate potential future earnings.
- Past economic loss: assessed at $66,161, plus $7,939 for past loss of superannuation (12%), as agreed to by the parties.
- Future economic loss: assessed at $884,000, being a loss of $1,500 per week multiplied by the multiplier for 26.5 years, 776, less 25% for vicissitudes. Loss of superannuation was calculated at $126,766, based on a rate of 14.34%.
- Costs: regulated costs and disbursements calculated at $79,318.89.
Merit Review decisions
Phung v AAI Ltd t/as AAMI [2022] NSWPICMR 12
MOTOR ACCIDENTS—Merit review—whether costs incurred in connection to treatment dispute payable—quantum of costs payable.
The claimant sought physiotherapy but the insurer declined to fund that treatment. The claimant disputed that decision in the Commission, but, in a Certificate dated 18 November 2020, a Commission Medical Assessor concluded that the treatment was not reasonable and necessary, and would not improve claimant’s recovery.
The claimant sought to recover legal costs of $1,660.16 plus GST, being the maximum regulated fee. The insurer offered to pay $622.56 plus GST, being 6 monetary units. The claimant lodged a merit review application, seeking payment of the full regulated fee.
The insurer submitted that the claim for the maximum regulated fee did not correspond with the amount of effort that would have been expended in preparing the application, especially in circumstances where the claimant’s submissions did not address the medical evidence.
Findings: The Merit Reviewer noted that the claimant had not provided an itemised invoice setting out the work his solicitors had completed. Based solely on the application documents, he accepted the insurer’s submissions that the lack of depth of the claimant’s submissions warranted payment of costs at the maximum regulated fee. The Merit Reviewer went on to assess costs at $1,000, plus GST.
Bussenschutt v QBE [2022] NSWPICMR 13
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—Merit review—claim for domestic assistance—whether liability to pay domestic assistance a medical assessment or merit review matter—whether Merit Reviewer of the Commission has jurisdiction to determine dispute about domestic assistance—whether claim for domestic assistance inferentially claim for loss of capacity to provide services to others under section 3.26 of the Act.
The claimant sought statutory benefits for domestic assistance for 6 hours per week. The insurer declined liability to pay those benefits, and the claimant lodged a merit review dispute within the Commission.
Issues arose surrounding whether the disputes in question were medical assessment or merit review matters. The claimant contended that the application for payment for domestic assistance under section 3.24 of the Act (entitlement to statutory benefits for treatment and care) was a merit review matter and that, in the alternative, the claim was a claim under section 3.26 of the Act (statutory benefits for loss of capacity to provide gratuitous domestic services), which was a merit review matter as prescribed by clause 1(j) to schedule 2 of the Act.
Findings: Domestic assistance falls within the section 1.4 definition of attendant care services. An insurer’s liability to pay benefits for attendant care services is a medical assessment matter as prescribed by clause 2(2) to schedule 2 of the Act. Accordingly, the Merit Reviewer determined that she did not have jurisdiction to determine the dispute.
Regarding the claim for domestic assistance potentially being one under section 3.26, the Merit Reviewer accepted that the assistance the claimant hoped to receive for meal preparation and cleaning may tangentially benefit his children. However, applying White v Benjamin [2015] NSWCA 75, she noted that the assistance would have assisted the claimant the most and that, accordingly, its benefits to his children could be disregarded. In any event, the Merit Reviewer noted that section 3.26 required the claimant to have performed those tasks prior to the accident, for the assistance to be compensable. The claimant himself conceded he did not perform those tasks prior to the accident, and the Merit Reviewer accordingly declined to find in favour of the claimant.
Liu v Allianz [2022] NSWPICMR 14
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—Merit review—entitlement to weekly benefits—whether claimant earner at time of accident—claimant likely worked cash in hand—whether claimant discharged onus of proof to establish he was an earner—calculation of PAWE.
The claimant claimed statutory benefits following an accident on 24 August 2021. He says that he was working as a gyprocker with a company called YRAN at the time of the accident. However, the insurer was not satisfied that there was sufficient evidence establishing that employment, and declined to pay weekly benefits, having determined he was not an earner at the time of the accident. The claimant disputed this determination.
Evidence submitted in the merit review proceedings demonstrated that the claimant did not have a tax file number (TFN). The claimant also provided personal bank statements which showed transfers into his account with a description of ‘salary’, and bank statements from YRAN which tended to corroborate those transfers were made into his account.
Findings: The Merit Reviewer commented that the lack of formal employment records and the claimant not having a TFN pointed to him working on a cash in hand basis. She accepted that whilst the claimant’s employment arrangement may have been unlawful, it does not mean that the claimant was not an earner within the meaning of the Act.
Having considered the evidence available, the Merit Reviewer accepted that the claimant was an earner.
The Merit Reviewer proceeded to calculate the claimant’s Pre-Accident Weekly Earnings (PAWE) to be $551.54, instead of the $1,530 claimed. In calculating PAWE she took only the deposits into the claimant’s bank account which were corroborated by matching transfers out of YRAN’s accounts.
The Merit Reviewer proceeded to calculate the claimant’s Pre-Accident Weekly Earnings (PAWE) to be $551.54, instead of the $1,530 claimed. In calculating PAWE she took only the deposits into the claimant’s bank account which were corroborated by matching transfers out of YRAN’s accounts.
