Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 56
28 June 2022
Welcome to the 56th 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
QBE Insurance (Australia) Ltd v Spence [2022] NSWPIC 273
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—liability admitted—non-economic loss only—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 69-year-old female, was injured in a motor vehicle accident when she was a passenger in the insured vehicle that left a wet road, went through a guard rail and into a body of water. As a result of the accident, the claimant suffered three fractured vertebrae (T12, L1 and L2) and a psychological injury.
Liability was admitted.
Dr Yiu-Key Ho assessed the claimant at 20% Whole Person Impairment (WPI) for the lumbar spine. The claimant therefore met the s 4.11 threshold for damages for non-economic loss.
There was no award for economic loss as the claimant was retired at the time of the accident.
The parties agreed to resolve the claim for the sum of $220,000 for non-economic loss. As the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
The Member noted that the claimant had informed her that she took painkillers every day and required sleeping tablets to sleep. She was not able to attend to household chores, kneel to weed the garden or drive long distances as she had been able to do prior to the accident. Further, the claimant advised that her psychological symptoms are minimal, but the Member considered these were at risk of exacerbation on further trauma, noting that the claimant reported being triggered by the bushfires.
Findings: The Member accepted the proposed sum of $220,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Claims Assessment – Interim Decision
Allianz Australia Insurance Limited v Saini [2022] NSWPIC 297
Member: Belinda Cassidy
MOTOR ACCIDENTS—claims assessment—late referral by insurer of claim for claims assessment—whether full and satisfactory explanation provided by insurer—whether complied with pre-filing procedure when no offer or settlement conference.
The claimant, who was unrepresented, made a claim for common law damages after three years. The insurer did not take issue with the late claim and accepted liability for the damages claim.
The insurer referred the matter to the Commission for claims assessment three years and 11 months after the accident. It submitted that it did so to preserve the claimant’s position in relation to the three-year time limitation in circumstances where the claimant was unrepresented, and settlement was not yet possible.
The insurer submitted that it had made a number of attempts to obtain particulars from the claimant without success. The insurer had not made an offer to the claimant (nor the claimant to the insurer), and the parties had not participated in a settlement conference. The claimant had been difficult to contact both by the insurer and the Commission, despite reassurances to the insurer, for example by his wife, that he wished to pursue his claim.
The insurer also explained that it could not have referred the claim for claims assessment prior to the late claim for damages being made. The Member noted that the insurer had not explained why it had not referred the claim until six months after receiving the damages claim and that while the insurer was keen to preserve the claimant’s rights, those rights were already affected by the late referral of the claim.
Findings: The Member accepted that s 7.32 of the Act had been complied with as the insurer did not have particulars and therefore could not formulate an offer, stating that the section
“does not require the parties to participate in a settlement conference or formally exchange offers of settlement before a claim is referred for assessment. In my view best endeavours may be endeavours to determine what the claim is worth in order to arrange a settlement conference or to make an offer to the claimant”
However, the Member did not accept that insurer’s explanation for the late referral for claims assessment was full and satisfactory and therefore did not grant leave for the application to proceed before the Commission.
The Member further commented that she would have in any event dismissed the proceedings pursuant to s 54 of the Personal Injury Commission Act for being “misconceived or lacking in substance” or alternatively dismiss the application pursuant to r 77(b)(v) of the Commission Rules for being an “used for an improper purpose”. The Member determined that the matter was unlikely to be ready for assessment while the claimant was not co-operating with the insurer or engaging with the Commission.
Miscellaneous Claims Assessment
McGrath v AAMI [2022] NSWPIC 296
Member: Maurice Castagnet
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—claimant attempted U-turn across three lanes of traffic.
The accident occurred when the claimant was parked in a parking lane near her home and intended to cross three lanes of traffic travelling in an easterly direction to make a U-turn when a collision occurred between the driver’s side of her vehicle and that of the insured vehicle, which was travelling in lane one of three (closest to the claimant’s vehicle).
The accident occurred at approximately 6.00am; it was therefore before sunrise and the claimant had her headlights on. The weather was fine. The speed limit was 60 km/h.
The claimant stated that she had checked her side mirrors, with the passenger side mirror providing her with a view down the road to the corner. The claimant’s vehicle was a courier van and therefore she was not always able to look in her rear-view mirror but, did had a reversing camera.
She had not seen the insured vehicle and alleged that the insured vehicle had sped around the corner onto the street, which she estimated was about 50 metres from the point of impact. She conceded in Local Court proceedings that the insured may have travelled around the corner when she was conducting the U-turn.
The insured alleged that the claimant pulled out in front of his vehicle and was close to his vehicle. He had not seen the claimant’s vehicle until it was in front of him. He applied the brakes and veered to the right (into lane two) in an attempt to avoid the collision. There had been no vehicles travelling in front of him and he was travelling the speed limit.
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. The claimant rejected the decision and referred the dispute to the Commission.
Findings: The Member determined that the claimant had proceeded to make a u-turn without keeping a proper lookout. He considered there was no evidence to suggest that the claimant had looked in the mirrors again before commencing her U-turn as the claimant would have also looked for traffic from a westerly direction; it was highly likely that the insured was travelling around the corner by the time the claimant commenced to make her U-turn.
The Member did not accept that the insured was speeding and that he was not required to take steps to be in a position to know and react to everything that is happening or might be happening in the vicinity of his vehicle.
Accordingly, the claimant was wholly at fault for the purposes of ss 3.11 and 3.28 of the Act.
The claimant was entitled to costs for two disputes, noting that there were two disputes submitted for assessment under Schedule 2, clauses 3 (d) and (e) of the Act.
We hope you find this publication of some interest and would be delighted to assist you on any queries you may have. Please feel free to contact Jennifer Wicks, Christy Lee or any one of the CTP Partners below.
