Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 6212 August 2022
Hello from Sparke Helmore Lawyers
Welcome to the 62nd 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
Jia v QBE Insurance (Australia) Limited  NSWPIC 404
Member: Belinda Cassidy
MOTOR ACCIDENTS—settlement approval—liability admitted—65-year-old claimant —damages limited to economic loss—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 65-year-old male, was injured when the insured vehicle collided with pedestrian claimant at a speed of approximately 15 km/h causing him to fall on his right side. As a result of the accident, the claimant suffered grazes to his knee, shoulder, wrist and elbow.
Dr Bentivoglio assessed the claimant at 7% whole person impairment and therefore he did not meet the s 4.11 threshold for damages for non-economic loss. Having regard to the claimant’s injuries, recovery and the medical evidence, the Member considered Dr Bentivoglio’s opinion to be accurate.
The claimant was employed as a research archaeologist working approximately 30 hours per week depending on his assignment and confirmed that his role was supervisory and involved minimal digging but involved the carrying of his luggage to and from sites and during travel. He advised his present assignment had been delayed to the COVID-19 pandemic and anticipated that position would continue for a further two years and he intended to work for another three to four years.
It was accepted by the insurer that the claimant’s earning capacity was likely impacted by his accident-related injuries due to the possibility of his symptoms flaring up and the claimant being required to rest at times.
The parties agreed to resolve the claim for the sum of $35,000 for future 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.
Findings: The Member accepted the proposed sum of $35,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Insurance Australia Limited t/as NRMA v Cox  NSWPIC 415
Member: Belinda Cassidy
MOTOR ACCIDENTS—settlement approval—liability admitted—elderly claimant who sustained hearing loss after airbags deployed—damages limited to non-economic loss—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, an 82-year-old male, was injured when the insured vehicle collided with the claimant’s vehicle at an intersection causing the airbags (including side airbags) in the claimant’s vehicle to deploy. As a result of the accident, the claimant suffered hearing loss and vertigo. He had not experienced hearing loss prior to the accident and his medical history was in keeping with his age and unremarkable.
The claimant’s vertigo had settled after the accident but the hearing aids required to treat the claimant’s permanent hearing loss amplified all noise, which made it difficult for the claimant to socialise in noisy environments, interfered with his enjoyment of his pre-accident activities such as going to the cinema, theatre or dinner, and required him to turn the volume up on his radio when driving to a significant volume to overcome the amplified traffic noise.
Liability was wholly admitted.
The claimant was retired and therefore made no claim for economic loss.
The insurer conceded that the claimant met the s 4.11 threshold for damages for non-economic loss and made an offer of $80,000.
The parties agreed to resolve the claim for the sum of $80,000 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.
At the initial teleconference, the Member advised the parties that she would not approve the proposed settlement as she indicated that the claimant’s injury would impact him every day for the rest of his life and restrict his enjoyment.
The parties re-negotiated and a proposed settlement of $120,000 was agreed and submitted to the Member for approval.
Findings: The Member accepted the proposed sum of $120,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Miscellaneous Claims Assessment
Lin v AAI Limited t/as GIO  NSWPIC 408
Member: Brett Williams
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—claimant pedestrian darted in front of insured vehicle at night and wearing dark clothing.
The accident occurred when the insured driver collided with the pedestrian claimant, who had run across the road and stumbled and fell prior to the impact. The accident occurred in a mixed commercial/residential/industrial area, and both parties were familiar with the area. Notably, the accident occurred at night, the claimant was wearing dark clothing, and the insured had headlights on. No road conditions contributed to the accident, and the road was straight at the impact point.
The claimant had little recollection of the accident, but the insured noted that upon observing the claimant they began to brake and then, upon observing that the claimant hesitated but continued on their path, veered right into the oncoming traffic lane to attempt to avoid the claimant. Damage was sustained to the left front bumper and left-hand side panel near the headlight.
CCTV footage corroborated the accident circumstances as alleged.
The insurer denied the claimant’s statutory benefits on the basis that the claimant was wholly or mostly at fault and the claimant referred the dispute to the Commission in relation to ss 3.11 and 3.28 of the Act.
The claimant alleged that the insured driver was driving too fast in the circumstances and had failed to keep a proper lookout.
The insured had reported that the speed limit was 50 km/h and they were travelling no more than 50 km/h. However, it was confirmed that the speed limit was in fact 60 km/h. The Member found that it was more probable than not that the insured driver was travelling at or about the actual speed limit of 60 km/h.
Findings: The Member determined that the claimant had failed to exercise reasonable care for her own safety by running across the road when she did as the risk was foreseeable and not insignificant, and the claimant knew or ought to have known of the risk. Further, he considered that the claimant’s dark clothing was relevant to the insured’s response time as they made it difficult for the insured to see the claimant.
The Member accepted that the insured had taken evasive action, was not required to travel at a lower speed so as to be able to react to anything that ventured into their path or happened in the vicinity of the insured vehicle.
The Member also determined that even if the accident was caused by the fault of the insured driver, the claimant would have still been mostly at fault as her contributory negligence would have been more than 61%.
Accordingly, the claimant was wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Review Panel Decision
Marques v QBE Insurance (Australia) Limited  NSWPICMP 302
Review Panel: Member John Harris, Medical Assessor Clive McKenna, Medical Assessor Drew Dixon
MOTOR ACCIDENTS—review panel determination—minor injury dispute—singular annular tear at lumbar spine.
The claimant alleged she sustained a lumbar spine injury in a motor accident when she had to stop her vehicle suddenly to avoid a collision with the insured vehicle, which was stolen and being pursued by police and travelling through a red traffic light. While the claimant vehicle did not collide with any other vehicle, she was required to brake heavily.
The claimant reported she experienced lower back pain immediately and was taken to hospital the next day. She also reported left leg symptoms approximately one-month post-accident. An MRI scan demonstrated a mid-line annular defect at L5/S1, which her treating specialist considered was the source of her pain.
Another treating specialist opined that there was no pain radiating in the dermatomal distribution and suspected there was discogenic pain at L5/S1 disc sustained when the claimant braked heavily, causing an overloading of the disc and internal derangement.
At first instance, Medical Assessor Assem determined that the claimant had sustained a lumbar spine injury as a result of the accident that was minor and diagnosed lower mechanical back pain with non-specific left leg symptoms that did not conform to any specific dermatomal distribution.
The claimant lodged an application for review, which was successful. She was further examined by the Panel’s Medical Assessor.
Findings: The Panel commented that there were not two signs of radiculopathy in satisfaction of the Guidelines, as the reported radicular symptoms were not in a dermatomal distribution.
However, the Panel determined that the claimant suffered an annular tear in the accident based on there being no pre-accident lower back symptoms, the complaints of low back pain immediately following the accident and considered by her specialists to be the source of pain. The Panel also considered that the annular tear was caused by the accident having regard to the claimant’s age, as while annular tears can be degenerative, the claimant was young and noting that the annular tear was limited to one level and was therefore more likely to be traumatic than degenerative.
The Panel further commented that the outer layer of the vertebral disc known as the annulus fibrosus is a ring of cartilage and ligamentous fibres that contain nerve receptors, and an annular tear is a tear of the annulus fibrosus. The Panel noted that a partial rupture of ligaments or cartilage are excluded from the definition of soft tissue injury.
The Panel accordingly determined that the claimant suffered a non-minor injury to the lower back and the Certificate of Medical Assessor Assem was therefore revoked.
Colquhoun v AAI Limited t/as GIO  NSWPICMR 43
Merit Reviewer: Kriesen Seeneevassen
MOTOR ACCIDENTS—claim for statutory weekly benefits—calculation of pre-accident weekly earnings (PAWE)—whether claimant was required to undergo training, instruction or examination for the purpose of being qualified under contract of service as per schedule 1, clause 6 of Act.
The claimant made a claim for statutory benefits in relation to an accident on 12 May 2021. The insurer determined that the claimant’s PAWE was $1,292.
The claimant contended that the PAWE should be $1,450 as the insurer had not applied clause 6(2) of schedule 1 of the Act on the basis that the claimant was a trainee pursuant to clause 6(1)(c). clause 6, Schedule 1 states:
- This clause applies if, at the time an earner was injured in a motor accident, he or she was--
- under the age of 21 years, or
- an apprentice, or
- employed under a contract of service under which he or she was expressly required to undergo any training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related,
and, under the terms of his or her employment, he or she was entitled to increments in earnings as the employment continued.
- In respect of any week after the motor accident in which the earner is entitled to a weekly payment under Division 3.3 the calculation of which depends on the amount of the earner's pre-accident weekly earnings, the payment is to be calculated on the basis that the earner's pre-accident weekly earnings are the weekly earnings that it is likely that he or she would have been entitled to in that week had the accident not occurred and had he or she continued in the employment.
The claimant referred the dispute to the Commission for merit review and relied on a statement and correspondence from his former manager, which indicated that the claimant was required to undergo training for the purpose of becoming further qualified for his role as a production worker, and that by December 2021 he was confident he would have achieved the necessary requirements to be upgraded to the next level of production worker 3.
The insurer highlighted that the claimant had been employed with his employer for approximately two and a half years at the time of the accident, and submitted that there was no evidence to support that the claimant’s contract of service required him to undergo training, instruction or examination for the purpose of becoming qualified in the occupation to which the contract of service related as set out in the decision of AFB v QBE (Merit Review)  NSWSIRADRS 128.
The Merit Reviewer agreed, noting that there were not any references in the evidence relied upon by the claimant that he was required to undergo training for the purpose of becoming further qualified for his role as a production worker.
Findings: The Merit Reviewer determined that the claimant was not employed under a contract of service that required him to undergo training, instruction or examination for the purpose of becoming qualified for the occupation to which the contract of service related and affirmed the insurer’s decision.