Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 61
04 August 2022
Welcome to the 61st 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.
Miscellaneous Claims Assessment
Luck v QBE Insurance (Australia) Limited [2022] NSWPIC 364
Member: Susan McTegg
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—question of cause of damage to rear passenger side of claimant’s vehicle—evidence of competing biomechanical experts.
The accident occurred on 14 October 2018 when the claimant was on Boorea Street, Auburn. The claimant asserted that his vehicle was rear ended by an unidentified vehicle, which caused him to lose control of his vehicle, thereby travelling into oncoming traffic and colliding with a black Holden Rodeo and subsequently with a beige Toyota Camry. The black Holden Rodeo then collided into a red Toyota Corolla, which was travelling in the adjacent lane. A black Ford travelling in front of the claimant’s vehicle also sustained minor damage.
The insurer submitted that there was no evidence of an unidentified vehicle and that the claimant had caused the collision as he lost control of his vehicle, which slid over the centre divider into oncoming traffic.
The insurer denied the claimant’s statutory benefits and the claimant referred the dispute to the Commission in relation to ss 3.11 and 3.28 of the Act.
The parties relied on expert reports in relation to the circumstances of the accident. The insurer’s expert viewed a photograph of the rear near-side tyre of the claimant’s vehicle and noted it showed an absence of tread, was unroadworthy and would have reduced capabilities in wet conditions. The expert also noted the claimant stated that he had started to accelerate when he came out of the corner. The expert opined that had the claimant accelerated too hard for the conditions, the rear wheels would have broken traction and the rear of the vehicle would have moved laterally towards the median. The expert concluded that once the rotation was initiated it would have been very difficult for the claimant to recover, regardless of his reported counter-steering and driving experience.
The expert considered there to have been two collisions. The first/initial collision occurred between the claimant and the black Holden Rodeo. As a result of the first collision, the black Holden Rodeo rotated clockwise before colliding with the red Toyota Corolla before coming to rest. At the same time, the claimant’s vehicle also rotated clockwise, moving generally east before becoming involved in a minor collision with the beige Toyota Camry before coming to rest.
The second collision described by the expert as a ‘secondary slap’ was a less significant contact between the claimant’s vehicle and the black Holden Rodeo resulting in contact damage to the rear near-side corner of the claimant’s vehicle and the damage to the rear offside corner of the Holden Rodeo. The expert noted that the damage on both vehicles was consistent with the occurrence of a ‘secondary slap’ as described.
The expert also assessed the likely speed at impact. He relied upon a number of assumptions and noting that the driver of the Holden Rodeo stated that he was travelling at a speed of about 50 kmph and concluded that the claimant was travelling at a speed greater than 57 kmph at impact.
In his supplementary report, the expert noted that the claimant accelerated as he exited the left-hand corner, lost control, and caused the vehicle to rotate in an anti-clockwise direction before he over-corrected and steered hard to the right. This then caused the claimant’s vehicle to rotate in a clockwise direction until impact.
The expert concluded that the claimant lost control of his vehicle due to the wet road conditions, vehicle speed, excessive acceleration and unroadworthy tyres.
The claimant’s expert agreed that the claimant’s rear near-side tyre was very low in tread and smooth on the outer but commented that he was not able to conclude whether the tyre was defective without measurement of the tread depth. He concluded there appeared to be something else other than a normal loss of control that caused the alignment of the claimant’s vehicle to change direction before it moved towards the median.
Further, the claimant’s expert opined there was no secondary impact with the claimant’s vehicle and the Holden Rodeo, as well as the beige Toyota Camry, based on the post impact movement of the Holden Rodeo, which appeared to have been in a clockwise direction. He opined that the likely alignment of the claimant’s vehicle at impact and its position post impact suggested it did not rotate far enough to have engaged the right side of the Holden Rodeo. Further, the claimant’s expert noted that if the claimant’s vehicle did receive a significant impact at its rear left side, it was likely to have caused the vehicle to rotate in an anti-clockwise direction from its position at that time.
Nevertheless, the claimant’s expert concluded that he can only speculate as to what caused the damage to the claimant’s rear left side without a specific witness to the collision. Further, he considered one cannot disregard the possibility that another collision occurred with an unknown vehicle whilst the claimant’s vehicle was exiting the left-hand bend from St Hillier’s Road onto Boorea Street.
The claimant submitted that the cause of him losing control was an impact from behind by another vehicle. The insurer submitted that there is no evidence to suggest an initial collision occurred between the claimant’s vehicle and an unidentified vehicle.
Findings: The Member found that the claimant lost control of his vehicle after having accelerated too fast coming out of the sweeping left-hand bend from St Hillier’s Road, having regard to the wet road conditions and the lack of tread on the rear near-side tyre of his vehicle.
Accordingly, the claimant was wholly or mostly at fault for the purposes of ss 3.1 and 3.28 of the Act
NSW District Court Judgment
Condon v Bartley; Hayes v RACQ Insurance Limited; Smith v Allianz Australia Insurance Ltd; Ward v QBE Insurance (Australia) Ltd; Hackett v Allianz Australia Insurance Ltd [2022] NSWDC 282
Judge: Wilson SC DCJ
MOTOR ACCIDENTS—constitutional law—whether an insurer based in NSW and a NSW licensed CTP insurer is “the State” for the purposes of s 75 of the Constitution Act—whether such an insurer is a “resident” of a State of Australia for the purposes of s 75—do decisions in either of those cases require the exercise of federal jurisdiction—who are the parties to a dispute to be determined by the Commission.
The Commission has dismissed a number of applications for determination of disputes where, in the opinion of a Member, determination of that dispute may potentially require the exercise of federal jurisdiction. Accordingly, the five matters were brought before the Court either for determination of the application previously made, and refused by, the Commission, or for remittal to the Commission.
The proceedings before the Court concerned all but three third party insurers licensed under the Motor Accidents Compensation Act 1999 and the Motor Accident Injuries Act 2017. The three exceptions are NRMA, Youi Pty Ltd and CIC Allianz Insurance Ltd.
Determination in relation to NRMA was made by Priestley SC DCJ in Stanton v Winning [2022] NSWDC 104 and there are no decisions by the Commission involving Youi Pty Ltd to date in relation to the above issues.
Condon v Bartley
The claimant was involved in a motor vehicle accident on 26 October 2017. At the time of the accident, she was residing in New South Wales; she now resides in Queensland.
The claimant made a claim against AAI Limited trading as GIO (GIO) but her claim for damages has been exempt from assessment. The Commission also cancelled an assessment with a Medical Assessor raising issues of federal jurisdiction as between a Queensland resident and GIO, as a NSW CTP insurer. Despite the parties submitting to the Commission that there was no federal jurisdiction, the Commission dismissed the application for medical assessment.
GIO is a corporation with its registered office in the State of NSW and is a licensed CTP insurer in that State. AAI Limited also holds an NSW CTP licence through AAI Ltd trading as AAMI (AAMI). AAI Ltd also holds a CTP license in Queensland through AAI Ltd trading as Suncorp (Suncorp).
Findings: As each of GIO and AAMI in NSW and Suncorp in Queensland are corporations, and do not form part of the State of NSW and are not resident of the State of NSW or any other state. The Commission was ordered to determine the medical dispute.
Hayes v RACQ Insurance Limited
The claimant is a resident of NSW and he was involved in a motor vehicle accident in NSW on 11 February 2019. The insured vehicle was registered in Queensland and insured in Queensland by RACQ Insurance Ltd (RACQ).
An application for claims assessment was lodged with the Commission to protect the three-year limitation period. The Commission raised the issue of federal jurisdiction and dismissed the application for the assessment of damages.
Findings: RACQ is a corporation with its registered office in the State of Queensland and does not form part of the State of Queensland. RACQ is also not a resident of the State of Queensland or any other state or territory. Accordingly, the matter is to be remitted for determination by a Member at the Commission on the basis that a Commission Member does have jurisdiction to determine the assessment of damages.
Smith v Allianz Australia Insurance Ltd
The claimant is a resident of Victoria and on 5 June 2019 he was involved in a motor vehicle accident in NSW. He made a claim against Allianz Australia Insurance Limited (Allianz) and subsequently lodged an application for medical assessment of impairment with the Commission. The Commission raised issues of federal jurisdiction.
Findings: Allianz is not a resident of the State of NSW or any other state or territory. Therefore, the matter is to be referred to the Commission.
Ward v QBE Insurance (Australia) Ltd
The claimant is a resident of Victoria and on 3 January 2018 he was involved in a motor vehicle accident in NSW. He made a claim against QBE Insurance (Australia) Ltd (QBE) and subsequently lodged an application for medical assessment of impairment and for assessment of damages with the Commission. The Commission raised issues of federal jurisdiction and dismissed both applications.
Findings: QBE is not a resident of the State of NSW or any other state or territory. Accordingly, the matter is to be referred to the Commission for determination.
Hackett v Allianz Australia Insurance Ltd
The accident occurred on 1 April 2016 and at the time, the claimant was a resident of NSW. She subsequently moved to Queensland. The claimant made a claim against Allianz, a corporation with its registered office in NSW and licensed insurer of CTP policies in NSW.
The claimant lodged an application for review of the medical assessment with the Commission and was scheduled to attend an assessment. The Commission subsequently raised issues concerning federal jurisdiction and dismissed the medical review application.
Findings: As Allianz is not part of the State nor a resident of a state, the matter is to be remitted for determination by a Member at the Commission on the basis that a Member does have jurisdiction to determine the assessment of damages. The findings in the matter of Hackett is to apply equally to Youi Pty Ltd.
