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Welcome to the 65th 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.

NSW Supreme Court Judgment

Bell v Allianz Insurance Australia Limited [2022] NSWSC 1108

Judge: Basten AJ

MOTOR ACCIDENTS—administrative law—whether cause of injury part of motor accident—failure to exercise statutory function—no power of medical assessor to determine scope of motor accident—failure of Medical Assessor (Assessor) to assess whole person impairment (WPI)—failure of delegate to find reasonable cause to suspect assessment incorrect in a material aspect.

The claimant brought proceedings for judicial review of a decision of a delegate of the President, Personal Injury Commission of NSW. The delegate dismissed the claimant’s application for review of a medical assessment certificate issued by an Assessor on 28 February 2021 in relation to the degree of permanent impairment suffered by the claimant as a result of psychological injury arising from a motor vehicle accident.

The subject accident occurred on 11 July 2018 when a man attempted to steal a Harley-Davidson motorcycle belonging to the claimant from a carpark where it had been temporarily parked while the claimant went into nearby commercial premises. The claimant heard the person try to start the motorcycle and ran after him. As the claimant closed in, the man pushed the motorcycle towards the claimant, which fell on him, with the foot peg causing a flesh wound to his leg. The claimant allegedly suffered a psychological injury after he was approached by another motorcycle that had picked up the would-be thief as a pillion passenger, which turned as if to drive towards the claimant. The claimant treated that conduct as life threatening.

The claimant lodged an application for medical assessment and the Assessor found the claimant’s psychological injuries were not related to the accident.  The claimant lodged an application for review of the medical assessment certificate and the matter was referred to the delegate who was not satisfied there was “reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application” as per s 7.26(5) of the Act. Accordingly, the delegate dismissed the review application.

In relation to the delegate’s certificate, the Court noted:

  1. The Assessor was satisfied that the symptoms described by the claimant were “consistent with a post-traumatic stress disorder diagnosis” noting there was a traumatic life-threatening event when the claimant feared for his life and his safety from ‘the bikies’.
  2. The Assessor however was unsure if the diagnosed PTSD as a result of perceived threats to the claimant’s safety and feelings of intimidation constituted a “motor vehicle accident”.
  3. If it was found that the threats and intimidation formed part of a single incident involving the use or operation of a motor vehicle, then the Assessor erred in determining a WPI assessment was not required. It was accepted that it was not the role of the Assessor to determine the scope of a motor accident, but, with reference to AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales), if a matter is referred to a medical assessor and there is doubt about whether the incident falls within the statutory definition, the medical assessor should make findings about causation by reference to the physical event or events, and leave it to the court to determine whether or not the events constitute a “motor accident”.

The Court stated that unless there was another factor in play, there appeared to be a failure on the part of the Assessor to carry out his statutory function of assessing WPI. Either the Assessor went beyond his power in determining there was no motor accident or failed to exercise his power because he did not complete his statutory function by assessing WPI.

Findings: Dealing with the delegate’s decision, his Honour noted the delegate determined that the Assessor had not made a decision as to whether it was a motor accident but at the same time made a decision that the claimant’s psychiatric injury was not caused by the motor vehicle accident and that there is no psychiatric impairment that can be assessed for the purposes of WPI resulting from the subject accident.  The delegate’s conclusion could not be correct.

The question, therefore, was whether this error of the delegate constituted an error of law on the face of the record.  His Honour found the delegate had failed to address the claimant’s proposition that the Assessor had failed to complete the exercise of his statutory function to assess WPI. By failing to address the Assessor’s failure to exercise his statutory function, the delegate also failed to address his statutory function under s 7.26(5) of the Act.

His Honour made the following orders:

  1. Set aside the decision of the President’s delegate dated 26 August 2021, and
  2. Re-determination of the claimant’s application for review in accordance with the law.

View decision

Miscellaneous Claims Assessment

Gillespie v AAI Limited t/as GIO [2022] NSWPIC 383

Member: Elizabeth Medland

MOTOR ACCIDENTS—miscellaneous claims assessment—whether the insurer is entitled to reduce weekly payments of statutory benefits on account of contributory negligence—insured driver collided with a cyclist.

The claimant made a claim for statutory benefits arising from an accident when he was a cyclist struck by the insured vehicle whilst riding along Jonson Street in Byron Bay NSW on 1 July 2021. The claimant was riding an electric bicycle on Jonson Street to the left of the insured vehicle when the insured vehicle made a left-hand turn into Kingsley Street and into the path of the claimant.

The insurer accepted liability for statutory benefits after 26 weeks with a reduction of 40% for contributory negligence. The claimant lodged an application for internal review and the insurer issued an internal review decision that set aside the original assessment of 40% contributory negligence and determined contributory negligence to be 15%.

A dispute was referred to the Commission in relation to whether the insurer was entitled to reduce the payable statutory benefits in accordance with s 3.38 of the Act for contributory negligence.

There are two critical issues that were in dispute, namely whether:

  1. the insured driver indicated her intention to turn left, and
  2. the claimant would have been visible to the insured driver prior to her commencing her left turn into Kingsley Street.

Having considered the evidence of the parties including an expert report from a traffic engineer, the Member determined the insured driver did not activate her indicator on approach to the intersection or at a time when it could have provided adequate warning to the claimant to take action to avoid the collision. The Member rejected the evidence that the insured driver checked to her left and her mirrors and it was “clear” for her to make a left-hand turn. Further, the Member referred to the statement provided by the front seat passenger of the insured vehicle and concluded that the insured driver made a sudden turn to the left without activating her indicator in the lead up to the intersection. Accordingly, the Member determined that a reasonable person in the position of the claimant would not have had sufficient opportunity to avoid the accident.

The insurer submitted that the claimant was not wearing a helmet at the time of the accident and that this had materially contributed to the claimant’s injuries. The Member referred to the decisions in Nominal Defendant v Rooskov [2012] NSWCA 43 and determined that the failure to wear a helmet in no way contributed to the occurrence of the accident or the injuries occasioned.

Findings: The Member made a finding of 0% contributory negligence. Accordingly, the insurer was not entitled to reduce the statutory benefits for contributory negligence, effective from six months after the accident.

View decision

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