Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 5921 July 2022
Welcome to the 59th 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.
Green v AAI Limited t/as GIO  NSWPIC 317
Member: Brett Williams
MOTOR ACCIDENTS—claims assessment—assessment of the claimant’s economic loss where he conducted a business through a company—competing accounting reports adopting differing approaches to assessing economic loss.
The claimant was involved in a head-on collision accident on 5 January 2019 when the insured driver’s vehicle crossed into the claimant’s lane causing the claimant’s vehicle to roll onto its roof before coming to a halt. The insured driver was killed in the accident.
As a result of the accident, the claimant sustained fractures of the third and fourth metatarsal bones in his right foot together with soft tissue injuries and ligamentous injuries to the foot. He sustained soft tissue injuries to his chest from the seatbelt. He was also diagnosed with PTSD.
The claimant made a claim for damages with insurer and it admitted liability for the common damages claim. The claimant sought damages for past and future economic loss, excluding the period from 1 April 2020 to 30 June 2020 and 1 July 2021 to 31 December 2021. No claim was made for non-economic loss and the claimant did not seek an award for loss of superannuation.
At the time of the accident, the claimant was working in his business trading as “Connect Coaches”, which involved training and assessing individuals who sought to obtain a heavy vehicle licence, together with training for the use of 4WD vehicles, forklifts, bobcats and excavators. His business also provided day tours in his 28-seat coach including airport, cruise, concert, and wedding transfers. The claimant’s duties involved driving the tour bus for eight to ten hours a day as well as performing heavy vehicle driving assessments. The claimant claimed he was working 30-40 hours per week.
In his statement the claimant stated that, as of 1 January 2019, he believes his business was making “about $2,000 to $3,000 each week after expenses” and that he would pay himself a wage of approximately $45,000 net per annum. He stated that as a result of injuries and ongoing disabilities arising from the accident, he was restricted to office duties for the first month after the accident and was only able to carry out some heavy vehicle licence assessments. As such, he had to employ drivers to carry out the mini-bus and coach tour aspects of the business and instructors to carry out the training of potential drivers. The claimant stated that from 1 May 2019 he returned to performing some of the driving of the day trip tours for approximately 12 hours a week with restrictions. During this time, the claimant continued to hire a sub-contractor wherever possible to carry out the training aspects involved in the heavy vehicle side of the business.
The claimant stated that due to his inability to carry out normal business activities, the business has had to downsize the fleet to accommodate his reduced capacity and reduce its costs and overheads.
In his submissions, the claimant referred to the report of Furzer Crestani (Furzer) and claimed the sum of $66,544 for past economic loss, $317,196 for future economic loss and an amount of $696 in accordance with Fox v Wood. The claimant submitted that both the Vincents (obtained on behalf of the insurer) and Furzer reports adopted a method of pre and post-accident replacement labour costs to measure economic loss but that it was difficult, if not impossible, to measure the exact or approximate loss he has suffered by analysing his financial documents.
The claimant submitted a number of reasons why the insurer’s submissions in relation to economic loss were unrealistic and less than it should be including that the expenditure on labour in the year following the accident is important as it confirms his inability to work effectively in his business and the need for employees to maintain his business. As such, he submitted an alternative basis for measuring past economic loss based on the claimant working an average of 26 hours a week between March and December 2018 and the average of his post-accident working hours, 4.7 hours a week, at $30 net an hour. This amounts to $76,692 for past economic loss and $308,026 for future economic loss, together with an allowance of $696 for Fox v Wood. The claimant submitted that no claim for loss of superannuation was made as he is self-employed. In the alternative, the claimant submitted that a buffer of $240,000 for future economic loss was appropriate.
In response to the claimant’s submissions, the insurer submitted that both the reports of Furzer and Vincents based calculations of economic loss on the cost of hiring other people to replace the work the claimant would have undertaken in the business but for the accident (replacement labour costs). The insurer noted that Furzer calculated the hours the claimant would have performed but for the accident, subtracted the hours he did work, and multiplied that amount by what Vincents described as a “hypothetical hourly cost of replacement labour”. The insurer relied on the updated assessment of past economic loss made by Vincents and submitted the claimant should be awarded the sum of $40,830. It is noted the updated assessment reflected the deduction of concert and tour expenses from the business before quantifying the replacement labour cost. As to the future economic loss, the insurer submitted that a buffer of $25,000 was appropriate considering that it is difficult to reconcile residual symptoms with any ongoing loss. In the alternative, the insurer submitted that future economic loss should be assessed based on an ongoing loss of $5,245 per annum until the claimant turns 67, totalling $42,990 (rounded to $43,000) after a deduction for vicissitudes.
Findings: The Member accepted the claimant’s work capacity had been impacted as a result of his right foot injuries and PTSD and that he will suffer an ongoing loss of capacity as a result of these injuries.
In relation to the assessment of damages, the Member referred to principles in Husher v Husher  HCA and determined that the claimant’s salary from the business is not a true reflection of his pre-accident earning capacity, nor is it a reflection of his post-accident capacity. Further, the Member determined that the requirement to mitigate the loss would ordinarily mean that the damages for economic loss cannot exceed the cost of employing someone to do the work that the injured claimant is unable to do.
The Member awarded damages of $172,527 as follows:
- Past Economic Loss (not including superannuation) - $41,831
The Member considered both the reports of Furzer and Vincents and determined that for the period commencing on the date of the accident to 30 June 2021, the loss assessed by Vincents represents the appropriate measure of the claimant’s damages for that period. The Member provided four reasons in reaching this conclusion including that the assessment conducted by Vincents reflected the actual labour costs of the claimant’s business. Accordingly, the Member found the claimant’s past economic loss from the date of the accident to 30 June 2021 is $36,586.
Regarding the past economic loss for the period 1 July 2021 to the date of the assessment, the Member found that there is no claim for the period 1 July 2021 to 31 December 2021. The Member also found that the claimant was unable to work for a period in February 2022 as he had contracted COVID. Accordingly, the period during which the claimant suffered financial loss due to his injuries arising from the accident amounts to approximately 20 weeks in the period 1 July 2021 to 15 June 2022, which amounts to $5,245.
- Future Economic Loss (not including superannuation) - $130,000
The Member considered the claimant has an ongoing loss of earning capacity as a result of his right foot injury and PTSD.
The Member noted that there are a number of factors making the assessment of this head of damage challenging including the fact the claimant’s business was impacted by the pandemic, and that, but for the accident, the claimant’s business may have expanded. Further, the Member noted that it was difficult to determine the impact of the claimant’s injuries upon the economic benefit from exercising his earning capacity. Therefore, the Member considered awarding a buffer for future economic loss was appropriate.
- Fox v Wood - $696
Reduction for weekly statutory payment made to the claimant under Division 3.3 of the Act in the sum of $3,317.78
Claims Assessment – Settlement Approval
AAI Limited t/as GIO v Robertson  NSWPIC 347
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—past and future economic loss only—claimant is not represented by a lawyer—whether proposed settlement is just, fair and reasonable and within the range of likely potential damages assessment.
On 17 February 2020, the claimant was struck by the insured vehicle when he was standing on the driveway of 76 Alderson Avenue, Liverpool, NSW. As a result of the accident, the claimant suffered a ruptured lateral calf muscle to the right leg requiring surgical repair. He also suffered an injury to his right forearm as a result of an assault by the insured driver.
The claimant made a common law damages claim against the insured driver’s insurer and liability was accepted. The insurer also accepted that the claimant had non-minor injuries.
The parties have agreed to settle the claim for lump sum damages for the sum of $123,000 minus $7,937.37, which the insurer is entitled to receive as a credit for weekly statutory payments made to the claimant. The claimant is not entitled to damages for non-economic loss as Dr Murray Hyde-Page assessed the claimant’s WPI at 3% with respect to scarring to the right leg and Dr Todd Gothelf assessed the WPI at 6% for right lower extremity and scarring.
As the claimant was not represented by solicitors, the proposed settlement required settlement approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted the proposed sum of $123,000 was just, fair and reasonable and within the range of damages likely to be awarded if the matter had progressed to hearing.
GIO v Meneses  NSWPICMR 37
Merit Reviewer: Maurice Castagnet
MOTOR ACCIDENTS—merit review—whether for the purpose of s 6.26 of the Act a request for the claimant to attend a medical examination is reasonable—whether the claimant has a reasonable excuse for failing to comply.
The claimant, a 38-year-old male, was involved in an accident on 19 June 2018 when his stationary vehicle was rear-ended by the insured vehicle. As a result of the accident, the claimant claims to have suffered a head injury and injuries to his neck, shoulders, and lower back. He also claims he has developed a psychological injury.
The claimant made a claim for common law damages and the insurer accepted liability for the claim on 20 August 2020. There were disputes between the parties regarding the extent of the claimant’s damages for non-economic loss and whether the claimant’s degree of permanent impairment is greater than 10% for the purpose of damages for non-economic loss.
On 14 April 2021, the claimant was assessed by Dr Graham George, psychiatrist, on behalf of the insurer to assess the extent of his psychological injury. Dr George assessed the claimant’s whole person impairment at 18%. On 11 May 2021, the insurer requested a supplementary report from Dr George and provided him with reports of Drs John Bentivoglio and Andrew Keller.
In his supplementary report, Dr George was asked to confirm whether the contents of the reports of Dr Bentivoglio and Dr Keller altered his opinion. Dr George was also asked to re-confirm his opinion in regard to the contents of Mr Alexander’s clinical notes (the claimant’s treating psychologist) previously provided to him prior to the issue of his report of 26 April 2021.
In his supplementary report dated 16 May 2021, Dr George commented that he requires further information to either validate or discredit his opinion on whether the claimant’s history alters his opinion. As such, Dr George has recommended psychometric evaluation to take place.
On 19 May 2021, the claimant served the report of Dr Peter Anderson, psychiatrist, requesting the insurer to concede that he is entitled to damages for non-economic loss. On 2 June 2021, the insurer replied to the claimant’s request stating that the insurer requires further information to concede whether the claimant’s WPI is greater than 10% and that the insurer was in the process of arranging psychometric evaluation.
The claimant was subsequently advised that a psychometric evaluation had been arranged with Dr Vanitha Woodley on 6 September 2021. On 7 June 2021, the claimant advised the insurer that there was no basis for him to be subjected to a psychometric evaluation.
On 22 July 2021, the insurer advised the claimant that it did not concede the permanent impairment threshold, noting the claimant’s objection to the psychometric evaluation. The claimant subsequently requested an internal review of the insurer’s decision to which the insurer responded advising of the claimant’s obligations under s 6.27 of the Act and that the claim cannot be referred for assessment under Division 7.6 until the claimant has fulfilled his obligations under s 6.27.
The insurer lodged an application for merit review. In its submissions, the insurer submitted the request for the claimant to undergo a psychometric evaluation was reasonable and it falls within s 6.24(1) of the Act. The insurer also submitted that the claimant must comply with the insurer’s request to undergo a medical or other health related examination under s 6.27(1) of the Act provided the examination is not unreasonable, unnecessarily repetitious, or dangerous.
The claimant in his submissions highlighted that s 6.24 of the Act sets out a claimant’s duty to co-operate with the insurer and that the only penalty for a failure to comply is that the claimant will be barred from commencing court proceedings in respect of the claim while the failure continues. The claimant submitted that the given the insurer has fully admitted liability, the determination by a Member of the Commission as to damages would be binding on the insurer.
The claimant also submitted that the penalty for failure to comply with s 6.27 had no immediate implication on the claimant as the Member was to decide whether the matter should be referred for assessment and whether that assessment could continue should the insurer assert a breach of s 6.27 by the claimant. Further, the claimant submitted that there was no power within Schedule 2(1) for a Merit Reviewer to determine whether a claimant is in breach of any obligations under s 6.27 and therefore the insurer’s application is entirely misguided.
Findings: The Merit Reviewer dismissed the application as the Commission does not have jurisdiction under Schedule 2(1)(x) of the Act to determine the application. The Merit Reviewer considered that “sufficient information” means the provision of particulars, documents or records as apparent from sub-ss 6.24(2) and 6.24(3) and accordingly, a request to attend a medical examination is not a request to provide information, documents or records.
Regarding provisions under s 6.27, the Merit Reviewer noted that the claimant has complied with the insurer’s requests to attend the medical examinations with Drs George, Bentivoglio and Keller. The issue in this application is that the insurer has requested the claimant to attend a psychometric evaluation with Dr Woodley for the purpose of Dr George to either “validate or discredit” his assessment of 18% WPI. The Merit Reviewer noted that the claimant declined to attend the examination however this did not permit the insurer to seek a determination from a Merit Reviewer under Schedule 2 of the Act.
Accordingly, the application was dismissed pursuant to sub-ss 54(b) and (c) of the Personal Injury Commission Act 2020 and rule 77(b)(iv) of the Personal Injury Commission Rules 2021.
Review Panel Determination
Su v Allianz Insurance Australia Limited  NSWPICMP 267
Panel: Principal Member Alexander Bolton, Dr Margaret Gibson, Dr Clive Kenna
MOTOR ACCIDENTS—review panel determination—original decision that shoulder injury was minor revoked and new decision that the claimant suffered a non-minor injury—right shoulder injury following a rotator cuff tear causally related to the accident.
On 1 June 2020, the claimant was riding her bicycle on the footpath when the insured vehicle reversing from a driveway collided with her, impacting her on the right side causing the claimant to fall onto her left side. As a result of the accident, the claimant suffered injuries to the left knee, left leg, right shoulder, arm and elbow, lower back and psychological injury.
At first instance, Medical Assessor Assem determined the claimant suffered soft tissue injuries to her right shoulder, left knee and lumbar spine. Assessor Assem found that the injuries were minor injuries for the purposes of the Act.
The claimant lodged an application for review, submitting the Assessor erred in determining that the injury was more likely to be pre-existing and not causally related to the accident. The claimant submitted that there is no medical evidence that she had suffered a prior right shoulder injury. Further, the claimant submitted that the Assessor made a material error in his determination with respect to her left knee injury. The claimant made no submissions regarding the lumbar spine injury.
The Panel re-examined the claimant and determined as follows:
- Lumbar spine
The Panel noted the claimant demonstrated normal movement in range of motion and was not satisfied that the claimant suffered anything other than a minor injury.
- Left knee
The Panel determined that it was not clear that the claimant had suffered a partial tear as the bone scan suggested either infrapatellar tendinosis or a partial tear, and therefore was inconclusive. The Panel also considered the MRI scan, which did not identify any tendon tears. Accordingly, the Panel determined the claimant’s left knee to be a minor injury.
- Right shoulder
The Panel found that the claimant suffered a supraspinatus tear at the insertion on a background of supraspinatus tendinosis, subscapularis tendinosis and AC joint arthropathy. The Panel considered the tear is indicative of and evidence of a non-minor injury.
Findings: The Panel determined that the claimant suffered soft tissue injuries to the lumbar spine and left knee. With respect to the right shoulder, the Panel determined the claimant suffered a rotator cuff tear as a result of the accident which is a non-minor injury for the purpose of the Act.
 H Luntz and S Harder, Assessment of Damages for Personal Injury or Death (LexisNexis, 5th ed, 2021) [6.5.1].