Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 58
19 July 2022
Welcome to the 58th 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
Pham v Insurance Australia Ltd [2022] NSWPIC 320
Member: Susan McTegg
MOTOR ACCIDENTS—claims assessment—assessment of claimant’s contributory negligence as a pillion passenger on motorcycle intending on waving—assessment of non-economic loss and economic loss.
The claimant was a pillion passenger on the insured driver’s motorcycle when she fell off the motorcycle and sustained a fracture of the proximal femoral shaft (requiring surgery), soft tissue injuries to the spine, right hip and knees, a right knee meniscal tear, and abrasions that resulted in scarring as well as PTSD.
The insurer admitted breach of duty of care but alleged 30% contributory negligence on the basis that the claimant had removed her right arm from the insured’s waist to wave when the motorcycle had passed her friend’s home, after initially executing a U-turn. She had consumed four alcoholic drinks and had a backpack on, which had some alcohol in it weighing not more than three kilograms. The claimant conceded to police that she had lost balance when she had waved goodbye to friends, that the motorcycle was moving at the time at about five km/h, and that it jolted forward as the insured rider changed gears to increase speed. However, in later statements she alleged that the rider, her former partner, was conscious of whether she had her arm around his waist and that she was certain that it was the sudden acceleration or lurching forward of the motorcycle without warning that caused her to fall. It was noted that the claimant was on morphine when she made her initial report to the ambulance officers and the Member determined that she had no real recollection of the events of the accident as she was in and out of consciousness.
The insured rider alleged that he was travelling at 40-50 km/h at the time the claimant fell and that he felt both arms release from his waist at the same time. He thought that if she had attempted to wave that he would have felt only one arm release. He noted the claimant fell immediately after he changed to second gear.
The claimant had a history of pre-existing anxiety, depression and work stress, for which she had previously received counselling. This history was backed-up by evidence including reports to treatment providers up until a couple of months prior to the accident.
The claimant reported ongoing persisting physical and psychological symptoms.
At the time of the accident, the claimant was a single mother with children aged 22 and 9, and she had worked in a number of clerical and administrative roles since the birth of her eldest in 2000. From 2014 she had worked for Transport NSW as a payroll officer.
Findings: In relation to liability, the Member determined that a 15% reduction for contributory negligence was appropriate on the basis that the rider changing gears simultaneously occurred with the claimant commencing to remove her right hand from the rider’s waist with the intention to wave. The Member considered that the insured may not have been aware that the claimant had started to lift her right hand given that it occurred simultaneously.
The Member awarded damages of $889,609.88 as follows:
- Non-economic loss $300,000.00
The Member took into account the claimant’s ongoing disabilities and psychological impairment, that she had lost her job as a result of her injuries, that she suffered chronic pain and that the insurer’s medico-legal doctor diagnosed PTSD, that her relationship with her eldest daughter had been impacted, and that she had become reliant on others to assist her. The claimant was 45 years of age and there was little expectation of improvement, subject to the success of psychological treatment. She opined that the claimant’s ability to participate in poker tournaments, as she had done regularly prior to the accident, was not inconsistent with her psychological impairment related to the accident, which persisted.
- Past Loss of earnings (including superannuation) $255,162.18
The parties had agreed on the claimant’s past economic loss but there was a dispute about a sum of $6,524 paid by the claimant’s employer. The Member was ultimately satisfied that there was no evidence that this was income and that it was payment of annual leave entitlements accrued prior to the accident.
- Future loss of earnings (including superannuation) $474,217.68
Following consideration of the parties’ medico-legal evidence and vocational assessments, of which some residual capacity was generally agreed, the Member determined the claimant was unfit for work for a further two years, and thereafter fit to work 15 hours per week. The Member took into account the likelihood of availability of suitable work, ability to compete on the open labour market and the claimant’s ability to maintain work with her psychological symptoms but also that a number of sedentary or semi-sedentary administrative roles were identified as suitable.
The Member allowed for two years for the claimant to undertake treatment as proposed by the medical experts to improve her psychological well-being.
- Fox v Wood $17,220.00
The parties had agreed this figure.
Sub-total $1,046,599.86
Reduction for contributory negligence $156,989.98
Claims Assessment – Interim Decision
QBE Insurance (Australia) Ltd v Walker [2022] NSWPIC 338
Member: Elizabeth Medland
MOTOR ACCIDENTS—claims assessment—determination of liability—single vehicle accident whereby tree fell on claimant’s vehicle—whether no-fault accident—whether claim can proceed when claimant owner and driver.
The claimant was driving along Kenyu Road Boorowa during a storm when a branch from an overhanging tree fell onto the passenger side of the roof and windscreen of the claimant’s vehicle. The branch caved in the cabin and hit the victim in the left arm and chest. The claimant veered off the road and collided with several trees.
The claimant was the owner and driver of the only vehicle involved in the accident.
Liability for statutory benefits was accepted on the basis that the accident was a “no-fault accident”. However, the insurer denied liability for the claim for damages as it noted that as the accident was a “no-fault accident”, the claimant was precluded from making such a claim.
The claimant was unrepresented, though confirmed that two solicitors had declined to represent him. The insurer lodged an application with the Commission for determination of the dispute.
The insurer submitted that as the claimant was both the owner and the driver of the only vehicle involved, he did not have a cause of action for common law damages on the basis of a “no-fault” accident as defined by s 5.1 of the Act:
“A motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use of operation of the vehicle and not caused by the fault of any other person.”
Section 5.2 of the Act deems, for the purposes of a claim for damages, a no-fault accident to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
The insurer referred to the decision of Whitfield v Melenewycz [2016] NSWCA 235 as authority for an injured person who is the owner and driver in a single vehicle motor accident not being entitled to common law damages. The Member noted that this case considered the “blameless accident” provisions in the 1999 Act, which were essentially identical to those in the 2017 Act. She highlighted the following comments of Sackville AJA at paragraph 53:
“Deeming the owner/driver to be negligent, as Meagher JA has pointed out, does not permit the owner/driver to claim damages for the injuries he or she sustains in the blameless motor accident. That is because deeming a driver to be negligent in the use or operation of the motor vehicle does not entitle the driver to sue himself or to claim damages from a third party. It would require much clearer language than that used in s7B(1) of the MAC Act to construe the provision as conferring on the owner/driver in a single vehicle blameless motor accident case an entitlement to claim damages by reason of his or her own deemed negligence.”
Findings: The Member determined that the accident was a no-fault accident pursuant to s 5.1 of the Act but that as the claimant was the owner and driver in a single motor vehicle accident, the claimant was not entitled to bring a claim for damages in accordance with the decision of Melenewycz.
Hurst v AAI Limited t/as GIO [2022] NSWPIC 341
Member: Maurice Castagnet
MOTOR ACCIDENTS— claims assessment—whether there is a full and satisfactory explanation for late application for claims assessment—interaction of ss 7.32 and 7.33 of the Act.
The claimant was involved in an accident on 4 May 2018 and lodged an application for claims assessment with the Commission on 19 October 2021, approximately four and a half months outside the three-year time limitation period.
The claimant relied on his statutory declaration, a statement from his solicitor and submissions by way of explanation for the delay in lodging his application. The evidence detailed the claimant’s steps during the course of his claim that led to the lodgement of an application for assessment of permanent impairment, serving various medical and economic loss evidence.
The insurer submitted that the late application was an issue raised by the Commission, and for the Commission to determine whether to grant leave.
Findings: The Member considered that the meaning of “full and satisfactory explanation” as contained in s 6.2 of the Act should not be applied as that definition only applied to its relevant Part of the Act.
Instead, the Member stated that in relation to s 7.33 of the Act, the “query is informed by the referring party’s actions in compliance with s 7.32(3) of the MAI Act. The period of enquiry should be from the date that a claimant is eligible to make his or her claim for damages to the date of referral of the claim for assessment”.
Section 7.32(3) requires the parties to use best endeavours to settle the claim before referring it for assessment.
As the permanent impairment threshold was not conceded, a claim for damages could not be made until 4 January 2020. Accordingly, the Member deemed the relevant period to consider was from that date until the application for claims assessment was lodged.
The Member considered that “the claimant had used his best endeavours to progress his claim towards a settlement before referring it for assessment by the Commission. He believed that the claimant has acted reasonably in making, preparing and advancing his claim towards a resolution, within the short window of time allowed to him to do so”.
The Member accepted that the claimant’s explanation was full and satisfactory in satisfaction of s 7.33 of the Act and granted leave for the claim to be referred for claims assessment.
Bromhead v AAMI Limited t/as GIO [2022] NSWPIC 340
Member: Maurice Castagnet
MOTOR ACCIDENTS— claims assessment—whether there is a full and satisfactory explanation for late application for claims assessment—interaction of ss 7.32 and 7.33 of the Act.
The claimant was involved in an accident on 9 November 2018 and lodged an application for claims assessment with the Commission on 10 November 2021, one day outside the three-year time limitation period. She notably had been unrepresented until October 2021 and lodged a claim for damages on 8 November 2021.
The claimant relied on her statement, a statutory declaration from her solicitor and submissions by way of explanation for the delay in lodging her application. The evidence detailed the claimant’s steps during the course of her claim that led to the lodgement of an application for assessment of permanent impairment in April 2022.
The insurer submitted that the late application was an issue raised by the Commission, and for the Commission to determine whether to grant leave.
Findings: The Member considered that the meaning of “full and satisfactory explanation” as contained in s 6.2 of the Act should not be applied as that definition only applied to its relevant Part of the Act.
Instead, the Member stated that in relation to s 7.33 of the Act, the “query is informed by the referring party’s actions in compliance with s 7.32(3) of the MAI Act. The period of enquiry should be from the date that a claimant is eligible to make his or her claim for damages to the date of referral of the claim for assessment”.
Section 7.32(3) requires the parties to use best endeavours to settle the claim before referring it for assessment.
As the permanent impairment threshold was not conceded, a claim for damages could not be made until 9 July 2020. Accordingly, the Member deemed the relevant period to consider was from that date until the application for claims assessment was lodged.
The Member considered it was reasonable for the claimant, who was not represented at the time, to expect that the insurer would lodge an application for a permanent impairment dispute in August 2020 as she was advised the insurer would do so. He also considered the claimant’s solicitor had taken reasonable steps to progress the claim from the date of instruction and before referring it for assessment by the Commission. The Member also accepted the explanation that the one-day delay was caused by an error in diarising that date. He believed that the claimant has acted reasonably in advancing her claim towards a resolution, and there was no practical utility in resolution prior to the determination of the permanent impairment dispute.
The Member accepted that the claimant’s explanation was full and satisfactory in satisfaction of s 7.33 of the Act and granted leave for the claim to be referred for claims assessment.
Miscellaneous Claims Assessment
Mansour v QBE Insurance (Australia) Ltd [2022] NSWPIC 336
Member: Elizabeth Medland
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—contested facts as to whether claimant entered intersection or was stationary.
The accident occurred when the claimant was at Walters Street, a terminating road at the T-intersection, intending on turning right at Hirst Street. The insured driver was travelling along Hirst Street towards Walters Street when a collision occurred between the vehicles, causing the claimant’s vehicle to come to rest on the property on the nearside corner. The insured driver alleged that the claimant drove into his path, causing the collision.
The claimant alleged the insured driver collided with her vehicle while she was still stationary waiting to turn after overtaking a vehicle in front of her and overcorrecting due to an oncoming vehicle. The claimant alleged that she had not entered the intersection. Both parties sustained significant injury.
The insurer denied the claimant’s statutory benefits and the claimant referred a dispute to the Commission in relation to ss 3.11 and 3.28 of the Act.
The parties relied on several detailed expert reports in relation to the circumstances of the accident. The claimant’s expert used simulation to support his opinion that the claimant’s version of events was correct and noted that the insurer’s version of events could not be supported by simulation. However, the insurer highlighted that the claimant’s expert could not discount that there was a possibility that the claimant’s vehicle entered the roadway to a degree and became stationary, and that the insured driver could have balked and swerved in reaction to the claimant vehicle being on the roadway. That expert was not on notice around the swerving action taken by the insured driver (contained in a police statement), which explained the angle of impact and why evasive action was taken. The Member gave some weight to those simulations failing to produce an outcome consistent with insurer’s expert’s conclusions, however she considered altered inputs may have produced different outcomes.
The claimant highlighted that the insured driver was speeding, though expert evidence demonstrated that this was not excessive. The insurer submitted it was not relevant as the claimant had entered the intersection and failed to give way. Further, the insurer submitted that there was no evidence to suggest the vehicle travelling in front of the insured vehicle was at a distance that warranted overtaking, and the insured driver denied this was the case or that there was an oncoming vehicle that it had to avoid.
Findings: The Member determined that the insured’s version of events was more plausible than that of the claimant’s based on the evidence. She considered the claimant had failed to keep a proper lookout and give way when entering an intersection.
The Member accepted that the insured had taken evasive action, but that there was no reasonable opportunity to stop the vehicle prior to impact.
The Member considered that the insured was travelling in excess of the speed limit (albeit not significantly) but that the accident could not have been avoided regardless of the speed. Nevertheless, she considered the accident would have been less severe if the insured was travelling at or below the speed limit. She assessed the insured’s culpability at 20%.
Accordingly, the claimant was mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Zaina v QBE Insurance (Australia) Ltd [2022] NSWPIC 319
Member: Elizabeth Medland
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—claimant entered intersection from terminating road.
The accident occurred when the claimant was stationary on Alfred Street, a terminating road at the T-intersection with Parramatta Road. The insured driver was travelling eastbound on Parramatta Road when the claimant attempted to turn right into westbound traffic. In doing so, the claimant drove in front of the insured driver who collided with her vehicle, causing that vehicle to spin out of control. A third vehicle then collided with the front of the claimant’s vehicle.
There were no signs at Alfred Street.
The claimant could not recall the accident as she woke up in hospital.
The insured driver alleged that the claimant entered Parramatta Road without giving way and that he attempted to stop but, was too close to the claimant’s vehicle to do so.
This version of events was corroborated by an independent witness and the driver of the third vehicle. The events were also agreed by the attending police officer. The claimant was issued a traffic infringement notice.
The insurer denied benefits post-26 weeks on the basis that the claimant was mostly at fault, which was affirmed on internal review. The claimant lodged an application in relation to the dispute.
At a teleconference, the claimant advised she had sought legal advice, but that the solicitor’s advice aligned with the insured’s decision. Her injuries were significant, and she sought ongoing treatment be paid by the insurer.
Findings: The Member determined that the claimant had failed to keep a proper lookout and give way when entering an intersection from a terminating road. She considered that the insured had taken evasive action, but that there was no reasonable opportunity to stop the vehicle prior to impact.
Accordingly, the claimant was wholly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Xue v AAI Limited t/as AAMI [2022] NSWPIC 321
Member: Elyse White
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—head on collision—dismissal pursuant to s 54 of the Act.
The accident occurred when the claimant was travelling north on Nelson Bay Road when she drove through a roundabout and missed her turn. She pulled over to her left and noted two lanes, both of which she believed were northbound. Her GPS told her to conduct a U-turn. She entered the first lane and intended on entering the right lane when her husband (who was a passenger) alerted her to a truck travelling towards their vehicle. She tried to turn back to the left and alleged she was almost completely back into the left lane when she collided with a garbage truck.
It was reported the claimant was half in the southbound and half in the northbound lane and that the truck driver applied his brakes and moved into the northbound lane in an attempt to avoid a collision. The claimant however swerved back into the northbound lane and the front of the garbage truck collided with the claimant’s driver door.
The police determined that the insured’s evasive action was a direct result of the claimant crossing to the southbound lane.
The insurer denied the claim for statutory benefits pursuant to s 3.37 of the Act on the basis that the claimant had been charged with a serious driving offence in relation to the accident (dangerous driving occasioning grievous bodily harm and caused bodily harm by misconduct in charge of motor vehicle). Pursuant to s 3.37, no statutory benefits are payable to someone charged with a serious driving offence as defined by that section.
The claimant conceded she had been charged with a serious driving offence but submitted that she was not wholly at fault and that her contributory negligence was 30%. She said she was confused by the roadway.
The insurer submitted that the application was frivolous and lacking in substance and should be dismissed. It was further submitted that any claim for damages should be made against the garbage truck driver and that the determination on liability for statutory benefits was not binding.
Findings: The Member dismissed the claimant’s application pursuant to s 54 of the Act on the basis that the claim was misconceived.
Muscat v Allianz Australia Insurance [2022] NSWPIC 337
Member: Maurice Castagnet
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—pedestrian crossing four lanes of traffic—insured attempting to drive around the claimant endangered the claimant.
The accident occurred when the claimant was attempting to cross four lanes of eastbound traffic on the Hume Highway. It was daylight and the weather at the time of the accident was fine.
There was heavy traffic and the claimant crossed the first three lanes; the first lane being a parking lane and the second and third lanes allegedly having a stationary vehicle. The claimant alleged that she stopped on the line between the third and fourth lane to check for traffic. At this time the traffic in lanes two and three had started to move.
The claimant saw the insured vehicle travelling in lane three at some speed and starting to change to lane four about two car lengths away from her. She thought the insured driver saw her and moved their arm in a way to signal to her that it was okay for her to walk in front of their car. She alleged the car sped up and started to drive towards her rather than completing the merge into lane four. In one version she alleged she had proceeded to cross into the fourth lane when the collision occurred, and in another, she was completely stationary the entire time she was observing the insured vehicle.
The insured driver alleged that she was driving in the third lane and saw the claimant running across the road; she stated she was already braking.
The speed limit was 70 km/h. Police and ambulance records suggested the insured driver was travelling at between 20–40 km/h but, the insured driver suggested she was travelling at 60 km/h prior to the impact, and the collision occurred at about 50 km/h.
Notably, there was a pedestrian crossing approximately 50 metres east of the location of the intersection, at a set of traffic lights. The claimant alleged that the pedestrian crossing was dangerous as the lights often changed without warning and did not provide a pedestrian enough time to cross the road. There was some evidence to support that there had previously been collisions at the crossing in question.
The claimant’s friend, who had dropped her off near the scene, witnessed the insured vehicle but not the collision. He had then seen the claimant on the road in lane three.
On bodycam footage, the Member noted that the claimant was seen lying on the road to the left of the insured vehicle in about the middle of lane three, and the insured vehicle was in between the third and fourth lanes.
There was a traffic island in between the east and westbound traffic lanes, which the claimant intended to move towards.
The insurer denied the claimant’s statutory benefits and submitted that the claimant’s contributory negligence was 70%. The claimant referred the dispute to the Commission.
Findings: The Member determined that the claimant was not mostly at fault.
He found that the insured driver saw the claimant prior to the collision, failed to slow down or take evasive action, that the accident occurred near a traffic island and therefore the insured driver’s awareness should have been heightened, that the insured should have taken more care changing lanes having seen the claimant.
The Member noted there was no evidence that the insured driver intended to make a right-hand turn from lane four and did not have her right indicator activated. It was also noted that the insured driver had made an apparent attempt to drive around the claimant, which the Member described as a “serious miscalculation” and that the insured driver had slowed to only 50 km/h indicated only “a last minute appreciation of the danger she had placed the claimant in”.
While the claimant had failed to take reasonable care for her own safety, the Member considered the insurer driver had endangered the claimant by attempting to drive around the claimant and had not taken corrective action to avoid the collision.
The Member assessed 20% contributory negligence on the part of the claimant on the basis that the pedestrian crossing she was aware of was the safer option, and it would be more perilous for a reasonable person to cross the roadway at the location she did and put herself at the “mercy of careless drivers such as the insured driver”.
*Note: The decision refers to the claimant being struck by the front right-hand and the left-hand side of the insured vehicle. It therefore appears there was a typographical error in the decision and while an assumption can be made, it would be inappropriate to do so for the purposes of this summary.
Merit Review
Tissaoui v QBE Insurance (Australia) Limited [2022] NSWPICMR 38
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculating claimant’s pre-accident weekly earnings (PAWE)—travel claim payments and whether reimbursement or allowance—COVID-19 disaster payments excluded from PAWE—application of Shahmiri decision.
The claimant was employed as a security officer at the time of the accident.
The insurer determined that the claimant’s PAWE was $1,107.91. The claimant sought an internal review and the insurer affirmed its decision.
The claimant sought a merit review and alleged that his PAWE should be calculated to include COVID-19 disaster payments he received as well as the extra he was paid for travelling for regional work.
The insurer submitted that the payments did not represent earnings as an “earner”.
Findings: The Merit Reviewer noted the decision of Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481.
Accordingly, the Merit Reviewer determined that the claimant’s PAWE was to be calculated by taking into account the claimant’s earnings over the whole of the 12-month period immediately prior to the date of the accident and divided by 52. Further, she concluded that the Act did not allow for any adjustment by reason of a break or reduction in employment or earnings due to the COVID-19 pandemic (or any other interruption such as illness, maternity leave or leave of absence).
As to the travel expense payments, the Merit Reviewer discussed the difference between allowances and reimbursements, with an allowance being “earnings received as an earner” and often folded into an earner’s salary or wage and recorded on a payslip whereas a reimbursement was a payment for business expenses incurred by the earner using their own money.
The Merit Reviewer noted that the payments made to the claimant were irregular for irregular amounts, and not recorded on his payslips. She therefore considered the payments to be reimbursements. It was highlighted that the claimant had not discharged his onus to demonstrate that such payments should be classified as allowances.
The Merit Reviewer affirmed the claimant’s PAWE as per the reviewable decision. In calculating the PAWE, the Merit Reviewer affirmed that only earnings received by the claimant as an “earner” could be included in the calculation of the PAWE, and that COVID-19 disaster payments and travel expenses are not classified as earnings.
