Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 54
16 June 2022
Welcome to the 54th 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 t/as GIO v Vardouniotis [2022] NSWPIC 248
Member: Alexander Bolton
MOTOR ACCIDENTS—settlement approval—liability admitted—claimant certified fit to return to pre-injury role but retired--whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, an 88-year-old female, was injured in a motor vehicle accident when she was a passenger in the insured bus, and she fell when the driver accelerated. As a result of the accident, the claimant suffered a spinal lumbar fracture, fracture to the right hand, fractured rib and broken front tooth, injury to the neck and aggravated a pre-existing shoulder injury.
The claimant was described as being very active prior to the accident.
Liability was admitted.
Dr Robin Mitchell assessed the claimant at 23% Whole Person Impairment (WPI), including 10% WPI for the spinal fracture and 5% WPI for the neck. The claimant therefore met the s 4.11 threshold for damages for non-economic loss. Dr Mitchell noted that while there was a previous history of osteoporosis that required injections, and the claimant was susceptible to sustaining a compression fracture, there was no history of such a fracture prior to the accident and a deduction was not appropriate.
The parties agreed to resolve the claim for the sum of $150,000 for non-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 noted that if the injury had occurred to a much younger person than the claimant, a larger assessment of damages would be expected.
Findings: The Member accepted the proposed sum of $150,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Claims Assessment
Gray v QBE Insurance (Australia) Ltd [2022] NSWPIC 247
Member: Terence Stern
MOTOR ACCIDENTS—claims assessment—economic loss—whether claimant could work full-time and whether buffer required for surgery during work life
As a result of the T-bone collision at an intersection when the insured failed to give way, the claimant sustained an injury to the right wrist, transverse fracture through distal radial metaphysis with bony impaction, avulsion fracture of the ulnar styloid and right distal fracture with intraarticular extension. The claimant required two surgeries to her right wrist.
The claimant was not entitled to damages for non-economic loss and liability was wholly admitted.
At the time of the accident, the claimant worked as a part-time paediatric speech pathologist. She had intended to work full-time after a gradual increase in hours after relocating prior to the accident and following settling her children into their new school.
Following the accident, the claimant had a period of time off work and gradual increase in hours to 4 days per week. She alleged she had to modify her work due to her right wrist injury and had difficulties with her work duties due to her injuries; her work involved dexterity of the hands and playing with toys with children to gain their confidence and using a keyboard to take clinical notes. She therefore alleged that due to her injuries she had only been able to work 4 days per week.
The claimant submitted that she had sustained a future loss of $294 net per week until retirement age as she had intended to work 5 days per week, and that a buffer should also be awarded for a period of total incapacity following surgery if she developed post-arthritic arthritis of the wrist. The parties’ medico-legal experts differed in their opinions as to timing of the possible surgery.
The insurer submitted a total buffer of $10,000 for future economic loss was appropriate. The insurer disputed that the claimant could only work 4 days per week.
Findings: The Member found the claimant was credible and accepted that on the balance of probabilities the claimant had found working 4 days per week difficult and painful and could not work 5 days per week. The Member noted that the claimant was in good health prior to accident, her children were reaching an age where the level of care necessary did not require her to work part-time, that she was very experienced, had work available and was able to carry out that work.
The Member was, however, not satisfied that the claimant would require wrist surgery during her working life.
The Member awarded damages totalling $250,831.36 to the claimant as follows:
- Past loss of earnings $57,024.00
- Past loss of superannuation $6,272.64
- Future loss of earnings $167,269.12.
This award was based on a net loss of daily earnings of $256 not $294 less 15% for vicissitudes, and that the claimant most probably would have worked a fifth day per week until retirement as a paediatric speech therapist but for the accident.
- Future loss of Superannuation $18,399.60 (11% loss of superannuation).
- Fox v Wood $1,866.00.
Miscellaneous Claims Assessment
Douglas v AAI Ltd t/as AAMI [2022] NSWPIC 246
Member: David Ford
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—single vehicle veered off road into tree—no-fault accident provisions
The accident occurred when the claimant felt a loss of traction of the rear of her vehicle when approaching a righthand turn and left the road and collided with a tree, causing the vehicle to flip and spin back onto the road. She struck her head and suffered a number of injuries.
On the day of the accident it had been raining but was not at the time of the accident. She was not familiar with the road having travelled it only once and had been driving for about 20 to 25 minutes prior to the accident.
The insurer considered the claimant to be wholly or mostly at fault and denied statutory benefits post-26 weeks, which was affirmed on internal review. In her application for internal review, the claimant stated that the accident was a “no fault” accident. The insurer submitted that there may have been many “environmental factors that contributed to the accident”, and that “it may be doubtful that an inference of negligence is so compelling that any other conclusion would be perverse”. The claimant rejected the decision and referred the dispute to the Commission. The claimant submitted that any one of the “environmental factors” was the cause of the accident and did not require any negligence or fault. Further, it asserted that the insurer’s concern that accepting liability left the Act open for “potential misuse” was not a proper consideration.
The claimant had difficulty recalling the accident, her recollection being fragmentary, though she recalled applying pressure to the brakes before the collision.
Findings: The Member determined there was not an external cause absent of fault that led to the claimant losing control of the vehicle, nor was there a cause of the accident that was by a fact or event beyond the claimant’s control. The Member referred to Windeyer J’s comments in Piening v Wanless [1968] HCA 7 that:
If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent.” (cited by Gaudron J in Schellenberg v Tunnel Holdings [2000] HCA 18).
The Member noted that the claimant was driving the vehicle, lost traction, applied the brakes, left the road and collided with the tree. Accordingly, she was not wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Stone v IAG Limited t/as NRMA Insurance [2022] NSWPIC 259
Member: Ray Plibersek
MOTOR ACCIDENTS—miscellaneous claims assessment—whether a full and satisfactory explanation for late claims assessment application—reliance on solicitor’s mistaken belief regarding time limitation.
The accident occurred on 21 August 2018. An application for claims assessment was lodged three years and 49 days after the date of the accident. The claimant was a minor at the time of the accident.
The claimant’s injuries were still being medical assessed, and it was not clear whether there would be a dispute regarding her whole person impairment. Accordingly, the matter was not reading for assessment.
In submissions and a statement, the claimant’s solicitor conceded that he had proceeded under a mistaken belief that the time for making the application for claims assessment was when the claimant attained 18 years of age, which was in February 2022. It was also noted that the medical assessments were delayed due to COVID-19. The claimant, in a statement, confirmed that she had assumed her lawyers were taking all necessary action in relation to her claim and was not aware of the time limitation.
The insurer accepted the explanation for the delay and made submissions to that effect.
The Member accepted the claimant’s explanation as being a full account of her conduct, actions, knowledge and belief, and that a reasonable person in the claimant’s position would have experienced the same delay in attaining a medical assessment and relying on her solicitors to take the necessary steps in her claim.
Findings: The Member determined that the claimant’s explanation for the delay in lodging her application for claims assessment more than three years after the accident was full and satisfactory in accordance with s 7.33 of the Act.
Miscellaneous Claims Assessment and Merit Review
Patel v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 254
Patel v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 34
Member and Merit Reviewer: Maurice Castagnet
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—accident at intersection when both vehicles turning and claimant alleges insured veered on to wrong side of road
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—casual role through agency—calculation of income over 12-month period
Miscellaneous Claims Assessment
The claimant was injured in an accident on 8 October 2020, when his scooter collided with the insured vehicle at an intersection, which was at an almost perpendicular right angle. The vehicles had arrived at the intersection at around the same time.
The insurer considered the claimant to be wholly at fault and denied statutory benefits post-26 weeks, which was affirmed on internal review. The insurer submitted it was likely that the claimant had moved into the centre of the road to go around the parked vehicle, and that upon seeing the insured vehicle he had suddenly braked and lost control of his scooter. It was contended that a reasonably prudent driver would have been able to safely manoeuvre, control and stop his vehicle in a safe manner to avoid the accident.
The claimant submitted that the insured had driven onto his side of the road and caused the collision and referred the dispute to the Commission.
The Member determined that the claimant had approached the sharp corner and made a slow left turn, stayed close to the parked vehicle, had braked to avoid the collision as soon as the insured was observed, had not behaved recklessly and exercised reasonable care. While the Member found it was likely that the claimant had moved to the centre of the road to move around the parked vehicle, the scooter was only one metre wide and therefore it was unlikely he crossed onto the insured’s side of the road.
On the other hand, the Member found that the insured had more than likely travelled onto the wrong side of the road, had a better opportunity to observe the road by making a wider turn, and attention should have been directed towards observing the parked vehicle on his right and approaching traffic from behind that parked vehicle.
Merit Review
The claimant was employed as a casual warehouse assistant sourced through an agency. He alleged his earnings were $1,228.62 per week.
The insurer determined that the claimant’s PAWE was $653.62. The claimant sought an internal review and the insurer affirmed its decision. The PAWE was based on a forensic accounting report, which demonstrated earnings of $33,988 for the 12 months prior to the accident
The claimant sought a merit review and alleged that his PAWE was incorrect. The claimant noted his 2021 tax return demonstrated income of $90,868 and his payslip prior to the accident demonstrated income of $1,228.62 per week.
The Merit Reviewer calculated the claimant’s income for the 12 months prior to the accident based on a pro rata figure, having regard to the claimant’s gross income for the 2021 financial year from personal exertion ($73,481), which he calculated to be $55,259. He added to this figure the claimant’s gross earnings for the period in the 2022 financial year until the accident, totalling $71,697, which he divided by 52.
Findings:
The Member determined that the claimant was not wholly or mostly at fault.
The Merit Reviewer varied the insurer’s internal review decision and determined the claimant’s PAWE was $1,378.78.
Miscellaneous Claims Assessment View decision
Merit Review View decision
Review Panel Determination
Bjelan v AAI Limited t/as GIO [2022] NSWPICMP 241
Panel: Member Belinda Cassidy, Dr Matthew Jones, Dr Michael Li Ying Hong
MOTOR ACCIDENTS—review panel—minor injury dispute—psychological injury—criteria satisfied for major depressive disorder
The claimant alleged injuries to the neck, shoulders, lower back and left knee as a result of a rear-end collision. The insurer assessed all the claimant’s injuries to be minor and the claimant lodged an application in the Commission to resolve the minor injury dispute, submitting that his psychological injury was not a minor injury.
Following the internal review decision, the claimant sought approval for counselling sessions with Dr Protulipac, psychologist. Treatment was approved by the insurer.
At first instance, Medical Assessor Sidorov diagnosed an adjustment disorder with mixed anxiety and depressed mood and determined that the claimant’s psychological injury was minor. He did not address in his certificate why the claimant did not meet the diagnostic criteria for Post-Traumatic Stress Disorder or Major Depressive Disorder, as diagnosed by Dr Protulipac in a report before the Medical Assessor. During the examination, the claimant had denied nightmares, and that his being frightened or apprehensive of being in a car or further accidents had subsided. He reported that his mood fluctuated with his pain and he woke at night with pain.
The claimant lodged an application for review. Being satisfied that the Medical Assessor’s certificate was incorrect in a material respect, the dispute was referred to the Review Panel.
On examination by the Panel, the claimant became irritated after 45 minutes, was a mixture of surly, disinterested and flat. He reported that after the accident he had been irritable, had headaches and was fatigued, and that now he also forgets to shower, was quarrelsome, was quick to temper, no longer cooked and was not one for celebrations as he used to be. He denied a prior psychiatric history. He had attended sessions with Dr Protulipac and advised that the sessions were helpful, but that they had ceased as he could not pay for the treatment. The claimant experienced ongoing pain from his physical injuries
The Panel considered whether the criteria to diagnose Post-Traumatic Stress Disorder, Adjustment Disorder, Persistent Depressive Disorder and Major Depressive Disorder were satisfied.
Findings: The Panel accepted that the claimant suffered Major Depressive Disorder from some time between the accident and being referred to Dr Protulipac, and that he continued to fulfil the criteria for this diagnosis. Accordingly, the Panel determined that the claimant’s psychological injury was not minor.
Insurance Australia Limited t/as NRMA v Karisik [2022] NSWPICMP 235
Panel: Member Ray Plibersek, Dr Matthew Jones, Dr Michael Li Ying Hong
MOTOR ACCIDENTS—review panel—permanent impairment dispute—psychological injury—consideration of unrelated subsequent stressors
The claimant alleged injuries to the neck and shoulders as a result of a rear end collision whilst stationary at traffic lights as well as a psychological injury, which was the subject of a permanent impairment dispute.
At first instance, Medical Assessor James Allnutt diagnosed chronic Post-Traumatic Stress Disorder and assessed 13% Whole Person Impairment (WPI). The insurer lodged a successful application for review based upon the appropriate categorisation under the PIRS classes and the matter was referred to the Review Panel.
The Panel examined the claimant. The claimant confirmed he had previously suffered depression and anxiety 11 years earlier, from which he recovered after a few months and had not had any subsequent issues. His wife had previously taken an AVO against him years prior after a verbal argument when he was drinking alcohol, but their relationship had recovered, and he was not drinking.
Since the accident he reported he has low mood, shortness of breath, anxiety attacks, bad dreams, intrusive memories, is irritable, has gained weight, has reduced concentration and has contemplated suicide. He does not eat or shower regularly, does not go to social functions or see his friends, and found it hard to enjoy activities he normally would enjoy. He was anxious when driving and working.
After the accident, his wife left him and has remained overseas leaving their son in his sole care, his father passed away, and his son needed emergency surgery (from which he has recovered). The claimant felt his wife had left him because he has no libido due to the accident.
Findings: The Panel diagnosed Post-Traumatic Stress Disorder that had not remitted over time.
The Panel considered the unrelated subsequent life stressors experienced by the claimant did not sever the chain of causation and were difficult to apportion. It was determined that the accident was the major causal factor of his current psychological injury and there was no additional impairment caused by the unrelated stressors. The Panel assessed 7% WPI.
