Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 57

Welcome to the 57th 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

Arici v AAI Limited t/as GIO [2021] NSWPIC 301

Member: Anthony Scarcella

MOTOR ACCIDENTS—claims assessment—whether the claimant used best endeavours to settle claim before referring for claims assessment.

The claimant was involved in an accident on 13 March 2018. On 16 April 2021, approximately one month after the three-year limitation period expired, the claimant lodged an application for claims assessment with the Commission.

The claimant submitted that despite using his best endeavours to resolve the claim, it was not capable of resolution as his injuries were yet to stabilise and that his entitlement to non-economic loss damages remained in dispute.

The insurer submitted that the application should be dismissed as the claimant failed to comply with s 7.32 of the Act by not using best endeavours to settle his claim before referring it for claims assessment. The insurer noted that the claimant made no genuine or reasonable attempt to settle the claim as he had not approached GIO to propose settlement discussions, nor did he serve an offer of settlement. The insurer submitted that the claimant failed to provide any substantive quantum evidence to the application in accordance with Personal Injury Commission Rules 67 and 100.

The Member highlighted compliance with s 7.32 was mandatory and that what constitutes “best endeavours” depends on the circumstances of the claim in a manner consistent with the objects of the Act, particularly the object of encouraging early resolution and the quick, cost effective and just resolution of disputes. Notably, the Member agreed with the insurer’s submission that the section requires a party to “act honestly, reasonably and make a positive effort to perform the relevant obligation of settling the claim before referring it to the Commission for assessment.” The Member also agreed that the claimant did not provide any substantive quantum evidence to the application in accordance with Personal Injury Commission Rules 67 and 100.

Findings: The Member dismissed the claimant’s application pursuant to s 54(d) of the Act as the proceedings were misconceived and lacking in substance, and the claimant failed to use best endeavours to settle the claim before referring the claim for assessment and therefore did not comply with s 7.32 of the Act.

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Miscellaneous Claims Assessment

Pham v AAI Limited t/as GIO [2022] NSWPIC 304

Member: Shana Radnan

MOTOR ACCIDENT—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—claimant swerved to avoid hitting a dog, which suddenly ran across his path and in doing so, collided with a tree—single vehicle accident.

The accident occurred on 14 October 2020 at around 5:00 PM on Magpie Hollow Road at Rydal, New South Wales, when the claimant swerved to avoid a dog, which suddenly ran across his path. The claimant lost control of his vehicle and collided with a tree sustaining serious injuries.

The insurer considered the claimant to be wholly or mostly at fault and denied statutory benefits after 26 weeks, which was affirmed on internal review.

The claimant lodged an application for miscellaneous claims assessment with the Commission regarding his entitlement to ongoing statutory benefits after 26 weeks.

The claimant submitted that he took evasive measure to avoid imminent risk, but still collided with a tree and was therefore not at fault and was entitled to ongoing benefits. The claimant relied upon the decisions of AAI Limited v Singh [2019] on the proposition that he is entitled to statutory benefits where there is no fault on the part of the injured person or of any other person.

The insurer drew attention to the following in its submissions:

There must be a causal connection between the use or operation of a vehicle and the injury resulting where use or operation of a motor vehicle is the proximate cause of injury in order for the claimant to be eligible for ongoing statutory benefits.

• If the cause of the accident is a dog running out onto the roadway, then the dog is the cause of injury and the accident could not be a motor accident.
• The insurer relied on the decision of Hossain v Mirdha [2015] and submitted that had the claimant not swerved to avoid the dog, it is likely the accident would not have occurred.
• The claimant must discharge the onus of s 5E of the Civil Liability Act 2002 and identify the cause of his injury.
• The claimant did not have a clear account of the scene and appears to have reacted in an agony of the moment, recalls seeing a dog and is the only witness in a single vehicle accident.       
• The insurer referred to ss 1.4, 1.9 and 3.1 and argued that the claimant is entitled to ongoing statutory benefits only if the injuries arise from the use and operation of a motor vehicle and cannot venture or be apportioned to any external causal event.
• It is common that drivers lose control because of external factors, however such factors cannot reduce or absolve the duty of care of a driver to use a vehicle in a way that avoids injury.

Findings: The Member found there was no negligence on the part of the claimant and determined that he was not at fault for the motor accident. The Member noted that based on the available evidence, the claimant was travelling within the designated speed limit. It was also noted that there is no evidence to suggest that the claimant’s actions to make a sudden swerve was reckless or inattentive behaviour, considering that he saw the dog and acted immediately to avoid hitting it. The Member referred to decisions made in Hossain v Mirdha and QBE Insurance (Australia) Limited v Abberton [2021], which confirmed that when an emergency decision to swerve to avoid a collision with an animal on the roadway occurs, the decision to swerve was a reasonable response in the circumstances.

The Member found the insurer was not successful in establishing that the claimant was at fault for the motor accident as per ss 3.2 and 3.28 of the Act.  Accordingly, the claimant was not wholly or mostly at fault for the motor accident.

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Mitchell v AAI Limited t/as GIO [2022] NSWPIC 306

Member: Elizabeth Medland

MOTOR ACCIDENT—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—collision occurred between the claimant’s vehicle and the insured vehicle that stopped suddenly due to an undetermined mechanical failure—whether the claimant was keeping a proper lookout and safe distance.

The claimant, a 69-year-old male, was injured in a motor accident on 3 December 2020 when he was travelling along the Princes Highway and collided with the rear of a vehicle insured by GIO, which had stopped suddenly.

The insurer considered the claimant to be mostly at fault and denied statutory benefits after 26 weeks, which was affirmed on internal review.

The claimant lodged an application for miscellaneous claims assessment with the Commission regarding his entitlement to ongoing statutory benefits after 26 weeks.

In his submissions, the claimant highlighted that whilst the police attended the accident scene and undertook an investigation, there was no action taken against him. The claimant submitted that at the time of the accident he was travelling at the speed limit and only momentarily glanced downwards. The claimant further submitted that the insured was not doing a reasonable job of driving, and that neither the brake lights nor the hazard lights were activated at the time to warn that the insured vehicle was stationary.

The insurer submitted that the claimant was not keeping a proper lookout and a safe distance behind the insured vehicle.

Findings: The Member found that it is reasonable to conclude that the insured vehicle came to a stop due to some type of mechanical malfunction. The Member accepted on the evidence that whatever occurred with the insured vehicle extended to the brake lights not being illuminated, noting that the insured stated having her feet placed onto the floor, rather than depressing the brake. The Member noted that there was no expert evidence to confirm that the brake assist technology would have illuminated the brake lights even if the insured had not depressed the brake pedal herself.

The Member also found that the claimant was not keeping a proper lookout and that he was not adequately observing the roadway in the lead up to the accident. However, the Member determined that the claimant was not wholly at fault and assessed contributory negligence of the claimant to be 20%. 

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Araujo-Perez v Allianz Australia Insurance Limited [2022] NSWPIC 310

Member: Elizabeth Medland

MOTOR ACCIDENT—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—the claimant who was riding a motorcycle collided with the rear of the stationary vehicle at high speed.

The claimant, a 27-year-old male, was injured in a motor vehicle accident on 15 May 2021 at approximately 9:30 PM. He was the rider of a motorcycle travelling along the M5 motorway when he collided with the rear of a stationary vehicle insured by Allianz.

The insured driver reported to police that he had stopped in the middle of the road as his steering wheel locked and he could not turn to the side. The insured stated that at the time the accident occurred he was outside of the vehicle and his friend was recording the roadway and therefore the accident was recorded. The insured vehicle was stationary and had its hazard lights on. The Member viewed the footage and noted the insured vehicle was visible in the right lane, stationary, and with its hazard lights illuminated. The footage also showed the claimant approaching the area at a constant speed in the far-right lane. The claimant collided with the rear of the insured vehicle without speed or path of travel altered.

The insurer considered the claimant to be mostly at fault under ss 3.11 and 3.28 of the Act and denied statutory benefits after 26 weeks, which was affirmed on internal review.

The claimant’s submissions referred to the case of AHL v Allianz Insurance Limited [2019], which found the stationary vehicle was 40% at fault and the other driver was 60% at fault. On the basis of such assessment, the claimant submitted that he would be entitled to ongoing statutory benefits as the contributory negligence would not meet the threshold of greater than 61% contributory negligence. The claimant submitted it was unreasonable that the insured vehicle was obstructing traffic on M5 motorway. The claimant also submitted that the insured vehicle was positioned directly below the overhanging speed limit signage and therefore this visual distortion made it difficult for the claimant to perceive the stationary vehicle as a hazard.

The insurer submitted that the claimant was wholly at fault as he had failed to keep a proper lookout and there is no evidence to suggest that the claimant took any evasive action prior to the collision.

Findings: The Member found that the insured vehicle suffered a mechanical failure and therefore was left on the M5 motorway with hazard lights illuminated. However, the Member found that there may have been an opportunity for the insured driver to stop in a safer position when the vehicle first began to malfunction. On that basis, the Member determined the insured driver is at least partly at fault.

In determining the contributory negligence, the Member relied on the video footage of the accident, which confirmed that the claimant had failed to keep a proper lookout. Accordingly, the Member determined that the claimant was mostly at fault and assessed contributory negligence of the claimant to be at least 70%.

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