Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 63

Hello from Sparke Helmore Lawyers

Welcome to the 63rd 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

Bao v QBE Insurance Australia) Limited [2022] NSWPIC 434

Member: Anthony Scarcella

MOTOR ACCIDENTS—claims assessment—contributory negligence—assessment of non-economic loss, past and future loss of earnings—claimant’s credit in issue.

The claimant is a 58-year-old male who was injured in a motor vehicle accident on 4 May 2018. Liability for his claim for damages was accepted with a reduction for contributory negligence alleged, and the claimant’s entitlement to damages for non-economic loss was conceded by the insurer.

The claim was referred to the Commission for claims assessment for the Member to determine the nature and extent of the claimant’s injuries, and the quantum of the claimant’s non-economic loss, past and future loss of earnings. At the teleconference on 24 January 2022, the claimant advised he accepted that a reduction of his damages on account of contributory negligence in the sum of 30% was appropriate.

At the time of the accident, the claimant was undertaking casual work as a tutor in the Mandarin language for high school students. He also had income as an active travel blogger for a magazine in China, where he had one or two articles published per week. He had also been receiving a Newstart benefit from Centrelink from about 2013. The claimant stated that, prior to the accident he was a full-time lecturer at a University in China, and it was his intention to move back into full-time work either in Australia or China where there was also a lot of potential for work as a teacher or tutor.

The claimant claims that as a result of the accident-related injuries and ongoing disabilities, he is unable to continue tutoring. He alleged that, but for the accident, he would have been tutoring for 10 hours each week. Additionally, the claimant alleges that he had lost the opportunity, through his contacts, to go back to lecturing at his old university in China.

At the assessment conference, the claimant was questioned about his earnings and Centrelink benefits. The claimant confirmed that at the time of the accident he was in receipt of Centrelink benefits. He also conceded that he did not inform Centrelink about his tutoring income and did not disclose his tutoring income in the tax returns as his fees were paid in cash.

The insurer submitted that there were significant issues of credit if the Commission accepted that the claimant was engaged in paid employment at the time of the accident when he had failed to disclose any earnings received from personal exertion to Centrelink and to the Australian Taxation Office and did not have an ABN in order to be engaged in self-employment. The insurer also submitted that there were elements of exaggeration and secondary gain in his evidence as noted in the medical evidence of Dr Anthony Smith.

The claimant submitted that his medical evidence supported his ongoing complaints of pain and restrictions. He also submitted that the Commission would be very cautious about making an adverse credit finding as he did his best to truthfully answer the questions he was asked in the assessment conference despite the difficulty traversing via audio-visual hearing through an interpreter and dealing with documents that were not in his native language.

Findings: The Member made the following determination on the amount of damages:

• Non-Economic Loss

The Member considered that some of the claimant’s evidence at the assessment conference contained elements of exaggeration. However, based on the available medical evidence the Member considered that the claimant’s chronic physical and psychological injuries and disabilities have affected his daily functioning, levels of activity, relationships and future plans.

Accordingly, the Member assessed the claimant’s fair and reasonable compensation for non-economic loss damages as $250,000.

Past and Future Economic Loss

The Member referred to Medlin v State Government Insurance Commission and Morvatjou v Mordadkhani to assess damages for past and future loss of earnings.

The Member noted that it was significantly difficult to assess the claim for economic loss in absence of any corroborative evidence. The claimant had no income tax returns in evidence or other documentary evidence supporting his income from tutoring students in Mandarin. There were no tax invoices or appointment diaries in evidence. There was no corroborative evidence supporting the claimant’s income from his travel blogging nor any evidence supporting that the claimant took any steps to return to full-time employment in either Australia or China.

Significantly, the Member noted that given the claimant had failed to disclose his tutoring and travel blogging income to Centrelink or the Australian Taxation Office, his evidence in respect of his claim for economic loss was treated with caution. The Member opined that the claimant’s evidence with respect to economic loss contained a significant element of exaggeration. The Member opined that the claimant had no intention to return to full-time employment.

Despite the lack of any corroborative evidence, the Member was not satisfied that the claimant was tutoring on average 10 hours per week. He considered that the claimant had an income earning capacity of about $125 net per week from his tutoring work, being an average of 5 hours per week at an average of $25 per hour. The Member opined that the claimant’s most likely future circumstances but for the accident-related injuries are that he would have continued casual tutoring.

In light of the above, the Member considered a buffer for a reduction in earning capacity for the past and for the future would be appropriate. The Member assessed the claimant’s past and future loss of earning capacity at $70,000 inclusive of superannuation benefits.

Contributory Negligence

The total damages assessed are reduced by 30% for contributory negligence ($96,000).

            The claimant was awarded a total of $224,000 after the 30% reduction for contributory negligence.

View decision

Claims Assessment – Settlement Approval

McAllister v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 425

Member: Alexander Bolton

MOTOR ACCIDENTS—settlement approval—breach of duty of care admitted by the insurer—claimant is not legally represented—past and future economic loss only.

On 24 October 2019, the claimant was standing beside a utility vehicle being driven by his father. His father did not realise where the claimant was positioned and reversed the utility, colliding with the claimant, crushing his ankle and resulting in a fracture.

The claimant made a common law damages claim and liability was accepted. The insurer however did not concede that the claimant’s injury exceeds the 10% threshold for an assessment of non-economic loss.

An offer of settlement was made in the sum of $215,000 all-inclusive minus $57,406.09 for which the insurer was entitled to receive a credit for weekly statutory payments made to the claimant.

As the claimant was not represented by a solicitor, 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 $215,000 was just, fair and reasonable and the range of damages likely to be awarded if the matter had progressed to hearing. No allowance was made for non-economic loss.

View decision

Macdonald v Transport Accident Commission of Victoria [2022] NSWPIC 424

Member: Belinda Cassidy

MOTOR ACCIDENTS—settlement approval—self-represented claimant—insurer alleged 25% contributory negligence for placing herself in a position of danger—non-economic loss damages conceded.

The claimant was visiting Australia from the United Kingdom when on 18 November 2018, when in Byron Bay, she was hit by a campervan and injured. As a result of the accident, the claimant sustained a fracture of her right tibia and significant bruising, which led to a right leg thrombosis and neuropraxia.

The campervan that hit the claimant was registered in Victoria with third-party insurance provided by the Transport Accident Commission (TAC), so the Nominal Defendant paid her statutory benefits. The Nominal Defendant accepted the claimant had non-minor injuries and was not at fault and had she remained in Australia, the Nominal Defendant would have been required to continue paying benefits to cover her reasonable and necessary accident-related treatment and care needs.

TAC has accepted liability for the damages claim but alleged contributory negligence at 25%.

The parties agreed to settle the claim in the sum of $320,000.

As the claimant was not represented by a solicitor, the proposed settlement required settlement approval by the Commission pursuant to s 6.23 of the Act.

Findings: The Member did not approve the settlement sum of $320,000 for the following reasons:

The medical evidence in the matter was limited and there was no evidence of how the claimant’s injuries are likely to progress in the short, medium or long term.

No photographs of the claimant’s scarring were available to the Member and the insurer’s submissions did not suggest the scars have been considered.

Taking into consideration that the claimant has a further 48 years left on the life expectancy table, her pain was likely to continue at its current level or increase as her injuries deteriorate in time. This will also impact the claimant’s recreational pursuits, domestic activities and career prospects.

TAC’s allowance for non-economic loss was considerably low.

The absence of any consideration of costs associated with travel and accommodation in the past or the future pursuant to s 4.5(1)(b).

No evidence as to any past accident-related sick leave taken by the claimant and whether that could be reimbursed and re-credited and therefore whether the value of that should be included in the calculation of past loss.

The future loss of earning capacity allowance was based on the insurer’s submission that the claimant will have recovered from her injuries by June 2027, albeit there is no medical evidence to suggest the claimant’s injuries will have recovered by that date.

The future loss of earning capacity after June 2027 may not be amenable to precise calculation but may be accommodated in a buffer or cushion amount, which included the medium and long-term prognosis for the claimant’s injuries. Concerns regarding the allowance for contributory negligence; if the claimant was contributorily negligent, then the assessment of the percentage reduction for that contributory negligence is required.

The Member considered that there are significant gaps in the evidence, which may result in a substantially higher settlement figure.

Accordingly, the Member deferred the matter for a month for the claimant to seek legal advice and for the insurer to consider its position.

View decision

Miscellaneous Claims Assessment

Muratovic v QBE Insurance (Australia) Limited [2022] NSWPIC 429

Member: Maurice Castagnet

MOTOR ACCIDENTS—miscellaneous assessment—whether the claimant wholly or mostly at fault—claimant had failed to keep a proper lookout.

The accident occurred on 8 February 2021 when the insured driver collided with the claimant’s vehicle at a roundabout at the intersection of Wonga Street and Hill Road, Lurnea. The insurer accepted liability up to the first 26 weeks and made payment of statutory benefits but declined liability for payment after 26 weeks on the basis that the claimant was wholly at fault for the accident.

The claimant stated that as he approached the intersection at Wonga Road to turn right, he came to a complete stop to give way to any oncoming traffic before proceeding through the roundabout once it was safe to do so. He claims that he conducted a proper lookout (both to the left and right) and ensured it was safe to proceed before entering the roundabout. As he proceeded through the roundabout, he noticed the insured vehicle travelling west along Wonga Road suddenly entered the roundabout at high speed, without giving way and collided into the driver side of his vehicle at considerable speed.

The insured driver stated at the time of the accident she was travelling at about 40 kmph on Wonga Road towards the roundabout accident intersection. She stated that there were no other cars on the road at the time and entered the roundabout travelling at about 15 to 20 kmph. As she was travelling straight at the roundabout, she looked to her left and saw the claimant’s vehicle approaching the roundabout on Hill Road at speed. The insured driver stated that she had sounded her horn in an attempt to alert the claimant in an attempt to avoid the accident. Apparently despite her attempt, the claimant did not stop, and the front of the claimant’s vehicle collided with the insured’s front passenger side. The impact pushed the insured vehicle towards Wonga Road and broke a Give Way sign.

The claimant was issued an infringement notice for failing to give way to a vehicle when entering a roundabout.

Findings: The Member determined that the claimant had failed to slow down and failed to keep a proper lookout for other traffic before entering the roundabout. The Member also determined that the claimant entered the roundabout and failed to give way to the insured vehicle, which was already in the roundabout. Accordingly, the claimant was found to be wholly at fault for the accident for the purposes of ss 3.11 and 3.28 of the Act.

View decision

Review Panel Decision

Jubelin v Allianz Australia Insurance Limited [2022] NSWPICMP 310

Review Panel: Member John Harris, Medical Assessor Geoffrey Stubbs, Medical Assessor Shane Moloney

MOTOR ACCIDENTS—review panel determination—whether partial thickness tear of the right supraspinatus was caused or aggravated by the motor accident—no evidence of radiculopathy—whether injury is defined as a minor injury.

The claimant alleged she sustained injury to her neck, right shoulder and arm in a motor accident on 15 November 2020 when the insured vehicle merged from the right lane and collided into the driver’s door of the claimant’s vehicle.

The claimant reported that she did not have neck symptoms prior to the motor accident. She reported that her first record of neck pain was on 25 November 2020 and at the same time she complained of radiculopathy into the right arm/hand. The ultrasound of the right shoulder dated 24 November 2020 reported partial thickness tear of the supraspinatus tendon. There were no prior right shoulder symptoms and the insurer has not identified any other relevant causative event.

The insurer noted that the claimant did not complain of cervical spine pain until 25 November 2020. The insurer submitted that there is no diagnostic evidence of any fracture or rupture of tendons, ligaments or cartilage of the cervical spine nor is there evidence that the claimant sustained a nerve root injury with two signs of radiculopathy. The insurer submitted that the claimant’s injuries were not caused by the motor accident and referred to the claimant’s statement to the investigator where she stated that symptoms commenced on 17 November 2020 when she was vacuuming at a client’s house.

On 25 November 2021, Medical Assessor Woo issued a certificate and determined that the claimant suffered from soft tissue injuries to the cervical spine and right shoulder. Assessor Woo determined that the soft tissue injury of the cervical spine had non-verifiable radicular complaints and was assessed as a minor injury. Further, Assessor Woo found that the partial rotator cuff tear was a common finding in a 57-year-old individual, that the tears are usually degenerative in nature and the findings on ultrasound do not confirm an acute injury.

The claimant lodged an application for review, which was successful. She was further examined by a Medical Assessor of the Panel.

Findings: The Panel commented that there were not two signs of radiculopathy in satisfaction of the Guidelines. Particularly, in the absence of a specific description, it is not possible to ascertain whether those complaints are sensory loss in a specific dermatome.

Regarding the right shoulder injury, the Panel determined that the claimant sustained a minor soft injury to the right shoulder caused by the motor accident. However, the Panel commented that the delay of immediate onset of symptoms and the absence of direct trauma is not suggestive of a discrete partial tear being caused or aggravated by the motor accident. Accordingly, the Panel determined that the motor accident caused or aggravated the partial tear of the supraspinatus tendon.

For these reasons, the Panel confirmed the certificate issued by Medical Assessor Woo.

View decision

Application of section 3.21(2)(a) of the MAI Act

Janjua v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 435

Member: Brett Williams

MOTOR ACCIDENTS—proceedings arise in the context of s 3.21(2)(a)—the insurer ceased making weekly payments on the basis that the claimant resided outside Australia—whether the claimant’s loss of earning capacity is likely to be of a permanent nature.

On 3 April 2021, the claimant was injured in a motor vehicle accident. A claim for statutory benefits was made and the insurer accepted liability for the payment of statutory benefits after the first 26 weeks.

On 8 September 2021 the claimant moved to The Netherlands and the insurer was notified of the move on 1 October 2021. As a result of the move, the insurer ceased payment of statutory benefits under s 3.21 of the Act.

The claimant made an application to the Commission for a determination under s 3.21. The dispute was regarding whether the loss of earnings is of a permanent nature. Given the amendments to s 3.21,[1] the nature of the dispute has evolved into one about whether the claimant’s loss of earning capacity is likely to be of a permanent nature.

In the respective submissions, the parties agreed that the amendments made to s 3.21 by the Amendment Act apply to the proceedings.

Regarding whether the claimant’s loss of earning capacity is likely to be of a permanent nature, the claimant submitted that the nature and extent of the injuries and attendant symptoms plainly render the claimant less capable of earning income. The claimant also submitted that his impaired earning capacity is ‘likely to be of a permanent nature’ on the basis of the extent of his injuries and symptoms and his ongoing medical certification of incapacity for work.

The insurer submitted that the claimant’s orthopaedic surgeon reported that he was progressing well with his recovery, that he has been certified unfit for work up to until June 2022, and the medical evidence is unclear as to what the prognosis will be after this point. The insurer also submitted that the claimant’s injuries are not comparable to those suffered by the claimant in AAA v AAMI Insurance [2021] NSWPICMR 1. In further submissions, the insurer noted that the claimant will be returning to Australia for a minimum period of two to three months however there is no certainty as to whether he will be returning to The Netherlands. The insurer submitted that the claimant’s statutory benefits will likely recommence when he returns to Australia. The insurer’s position is that given the claimant’s recent certificate of capacity has certified him unfit for work for a closed period of time, his prognosis is unclear and the permanency of earning incapacity cannot be determined, particularly when the claimant is due to have further surgery.

Findings: The Member found that the claimant has a loss of earning capacity as a result of accident related injuries, the need for ongoing rehabilitation, the requirement for additional surgery, his current certification for work capacity, and the nature of his pre-accident work. The Member noted that while the claimant’s accident related injuries are not the same as those suffered by the claimant in AAA v AAMI Insurance [2021] NSWPICMR 1, that matter does not establish a threshold test, to be applied to other matters, in terms of the type or severity of injury required for an injured person to satisfy s 3.21.

Regarding whether the loss of capacity is likely be of a permanent nature, the Member determined that the claimant’s loss of earning capacity is likely to continue for an indefinite period and is likely to be of a permanent nature due to the injuries suffered as a result of the accident.

As such, the Member determined that the claimant’s loss of earning capacity as a result of accident related injuries is likely to be of a permanent nature for the purpose of s 3.21.

View decision

Supreme Court of NSW

Administrative Law – Judicial Review

AAI Limited t/as GIO v Luk [2022] NSWSC 1007

Judge:  Lonergan J

MOTOR ACCIDENTS—administrative law—judicial review—error on the face of the record—extension of time—delay explained—incorrect legal test applied by delegate—no point of principle.

The claimant was injured in a motor vehicle accident on 30 July 2018 and made a damages claim against the insurer. There was a dispute between the claimant and the insurer as to whether his injuries were minor under s 1.6 of the Act.

On 11 June 2019, Dr Perla certified that the claimant’s low back injury was not a minor injury under s 7.23(1) of the Act. Dr Keller, Occupational Physician, reported to the insurer on 25 October 2019 and raised a question over the claimant’s allegation that he was unable to return to work as a chartered accountant and referred to some inconsistent restriction of movement in the lower back, unexplained altered sensation in the left foot and unexplained weakness in the left ankle. On 5 March 2020, Dr Coroneos, Neurosurgeon, reported to the insurer and commented that the findings on MRI regarding the lower back were in fact related to spondylosis and not an accident-related injury. Dr Coroneos also raised a question over why the claimant had not returned to work. The insurer conducted surveillance and it suggests that there is inconsistency between the way the claimant behaves when he is engaging in medical assessments and going about his normal activities.

The insurer made an application for further medical assessment under s 7.24(2) of the Act and Regulation 13 of the Regulation. However, this application was wrongly dismissed by the Delegate as it had applied the wrong test at law. The insurer made an application to the Delegate to withdraw and remake the decision in accordance with the principles set out in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002). The insurer also sought an extension of time to lodge the judicial review proceedings in respect of the first decision.

Findings: The Delegate had failed to take into account properly, or at all, the test to be applied as set out in the decision of the NSW Court of Appeal in Jubb. As such, there is both jurisdictional error and error on the face of the record. The correct test is that it may constitute additional information, depending on the cogency of reasons provided.

Accordingly, the orders sought in the Summons are appropriate.

View decision

[1] S 3.21 has been the subject of amendment by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022 (the Amendment Act) which commenced on 16 June 2022.