Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 66
15 September 2022
Welcome to the 66th 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
Mepani v AAI Limited t/as AAMI [2022] NSWPIC 459
Member: Belinda Cassidy
MOTOR ACCIDENTS—settlement approval—liability admitted—damages limited to economic loss—biomechanical and surveillance evidence considered—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 42-year-old male, was injured when the insured vehicle collided with the rear of the claimant’s vehicle. As a result of the accident, the claimant suffered injuries to his neck, shoulders, back, as well as post-traumatic stress disorder (PTSD). The claimant also alleged he hit his head on the steering wheel, smashing his glasses.
Liability was admitted, with no allegation of contributory negligence.
At the time of the accident, the claimant was working as a self-employed project manager earning $1,350 per day.
Prior to the claim resolving, the claimant’s former legal representatives had served a claim for economic loss of $1,000,000. There was no claim for damages for non-economic loss.
The parties agreed to resolve the claim for the sum of $400,000 for economic loss, based upon a break down as follows (and slightly rounded up by the insurer):
- Past economic loss (including Fox v Wood): $247,049.78 (including weekly benefits totalling $212,752.78). There was no allowance for superannuation on account of the claimant being self-employed.
- Future economic loss: $114,500. The insurer allowed for one-year loss of 50% earning capacity into the future and no allowance for superannuation on the same basis as above.
- Costs and disbursements of former legal representatives: $33,500.
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.
The Member considered the medico-legal evidence served by the parties, including a psychiatrist reported relied on by the insurer suggesting the claimant was malingering, and that of an occupational physician who considered the claimant had made a full recovery from his physical injuries.
While the claimant had relied on evidence from a psychiatrist assessing above 10% whole person impairment (WPI) he did not press a claim for damages for non-economic loss.
Biomechanical evidence was also considered by the Member, which demonstrated the accident was of low impact and the claimant was unlikely to have sustained the injuries alleged (including his head colliding with the steering wheel, which the expert considered would have only occurred if the claimant was not wearing a seatbelt). Surveillance evidence included observations of the claimant participating in activities at an adventure park.
Findings: The Member accepted the proposed sum of $400,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Insurance Australia Ltd t/as NRMA Insurance v Haider [2022] NSWPIC 465
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—liability admitted—damages limited to economic loss—employed as Uber driver—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 45-year-old male, was injured when the insured vehicle collided with the claimant at an intersection. An ambulance attended the scene and the claimant was conveyed to hospital. As a result of the accident, the claimant suffered injuries to his neck, head, right shoulder and left leg as well as PTSD.
Liability was admitted, with no allegation of contributory negligence.
At the time of the accident, the claimant was working as an Uber driver. He had also commenced operation of an importing business, though had not earned any income from the business and had ceased operations following a relocation post-accident.
Prior to the claim resolving, the claimant terminated his legal representative’s services and an equitable lien for their costs and disbursements was served on the insurer.
The parties agreed to resolve the claim for the sum of $220,000 for economic loss, broken down as follows:
- Past economic loss: $46,000
- Future economic loss: $149,872.83
- Fox v Wood: $1,022
- Costs and disbursements of former legal representatives: $23,105.71
As the claimant was not represented by solicitors, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
The Member considered the medico-legal evidence (including a supplementary report from the joint psychiatrist, who amended his assessment of permanent impairment to below 10% WPI on taking into account history that had been recorded by the Medical Assessor in the minor injury dispute).
Forensic accounting evidence was also considered in relation to the calculation of the economic loss claim.
Findings: The Member accepted the proposed sum of $220,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Watmore v AAI Limited t/as GIO [2022] NSWPIC 461
Member: Susan McTegg
MOTOR ACCIDENTS—settlement approval—liability admitted—damages limited to economic loss with claimant taking minimal time off work—self-employed as construction landscaper—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 24-year-old male, was injured when the insured vehicle collided with the claimant whilst travelling on the wrong side of the road. As a result of the accident, the claimant suffered a femoroacetabular impingement with a torn anterosuperior labrum.
Liability was admitted, with no allegation of contributory negligence.
At the time of the accident, the claimant was working as a self-employed construction landscaper. He took three weeks off work post-accident, though he continued to supervise his apprentice. He had returned to work full-time, however went bankrupt (not due to his accident-related injury but due to the loss of his truck in the accident, difficulty keeping staff and the impact of COVID-19). He had since recommenced business.
The parties agreed to resolve the claim for the sum of $27,366 for economic loss, broken down as follows:
- Past economic loss (inclusive of Fox v Wood): $7,366
- Future economic loss: $20,000
The past economic loss claim took into account the claimant’s loss of wages for three weeks off work and superannuation.
The claimant had previously been legally represented, but the firm confirmed it were no longer engaged and there was no claim for costs and disbursements.
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.
The Member questioned the claimant regarding his ongoing treatment and the claimant confirmed he had not attended the recommended treatment but completed the recommended exercises to strengthen his hip. He had no interest in consulting other doctors, including for the purposes of an assessment as to the long-term impact of his injury. He was aware he could develop arthritis, but had no intention of relying on further medical evidence.
Findings: While highlighting there was no evidence as to the claimant’s long-term prognosis to inform the decision, the Member accepted the proposed sum of $27,366 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Merit Review
Wehby v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 49
Merit Reviewer: Kriesan Seeneevassen
MOTOR ACCIDENTS—calculation of pre-accident weekly earnings (PAWE)—COVID-19 disaster payments—whether PAWE adjusted by reason of the COVID-19 pandemic.
The claimant was employed as a full-time hairdresser/barber at the time of the accident on 4 December 2021. The business he worked for was closed between 26 June and 11 October 2021 due to the COVID-19 pandemic lockdown, and he received disaster payments from Centrelink during most of that period.
The insurer calculated PAWE of $944.77, affirmed on internal review.
The claimant lodged an application with the Commission disputing this amount. However, there were no submissions in support and no evidence of the PAWE amount claimed by the claimant.
Despite its earlier calculation and being a respondent to the application, the insurer submitted that it had erred in the calculation of the claimant’s PAWE as it had included the disaster payments and therefore the correct PAWE was lower at $885.93. The insurer relied on the decision of Merit Reviewer Ruschen in Zhao v Allianz [2022] NSWPICMR 10 and the finding that such payments are not considered earnings received by a claimant as an earner.
Findings: The Merit Reviewer agreed with the insurer’s submissions and decision in Zhao and determined that the claimant’s PAWE was $885.93. The Merit Reviewer therefore varied the internal review decision.
Patton v Allianz Australia Insurance Limited (No 2) [2022] NSWPICMR 48
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—determination of earning capacity—whether calculation of PAWE is a relevant factor.
The claimant made a claim for statutory benefits in relation to an accident. The claimant operated his own business at the time of the accident.
The insurer made an Earning Capacity Decision for the period after the first 78 weeks and determined the claimant suffered no post-accident earning capacity. The claimant disputed the decision and submitted he had a loss of earning capacity due to his alleged psychological injury and referred the dispute to the Commission.
The Merit Reviewer noted that there was a concurrent dispute in relation to the calculation of the claimant’s PAWE that had been remitted back to the insurer by the Merit Reviewer for re-determination. The re-determination of the claimant’s PAWE was yet to be finalised at the time of the earning capacity dispute.
The Merit Reviewer analysed s 3.8 of the Act in the context of the earning capacity dispute and highlighted that under that section it is necessary to make an assessment of pre-accident earning capacity and an assessment of post-accident earning capacity. She further noted that “pre-accident earning capacity” is defined as the capacity to earn before the motor accident concerned in employment “reasonably available” to the claimant with regard to the claimant's training, skills and experience.
In assessing pre-accident earning capacity, the Merit Reviewer opined that while it is not a determinative factor, the claimant’s PAWE is a relevant consideration as it is
“at least in part evidence of employment reasonably available to the person. If a person was engaged in particular employment, then it can be reasonably inferred that employment of that type is employment of a kind reasonably available to the person pre-accident. It is also probable that the value of such employment, measured in earnings received, represents in turn the value of a person’s pre-accident earning capacity subject to any other factors that require consideration”.
Findings: The Merit Reviewer accordingly remitted the earning capacity matter back to the insurer for re-determination following the re-determination of the claimant’s PAWE.
Miscellaneous Claims Assessment
Paton v Insurance Australia Limited t/as NRMA [2022] NSWPIC 460
Member: Stephen Boyd Boland
MOTOR ACCIDENTS—whether claimant was wholly or mostly at fault—no collision—claimant braked suddenly following momentary distraction.
The claimant was riding a motorcycle in traffic. The insured driver was travelling in front of him and braked suddenly due to the vehicle in front of him braking. He applied his brakes and his front wheel locked and slid out. There was no collision between the motorcycle and/or the claimant and the insured vehicle.
The insured driver confirmed the above circumstances and that when he braked, he saw the claimant in his rear-view mirror apply his brake and the motorcycle tip over and start to slide.
The claimant confirmed in a statement that he had been distracted by an insect on an instrument that was part of his motorcycle at the time.
The claimant made a claim for statutory benefits in relation to the accident.
The insurer determined that the claimant was wholly at fault, which was affirmed on internal review. The claimant referred the dispute to the Commission.
The Member found that there was an incident occurring requiring prompt braking, that the claimant was momentarily distracted, and did not safely stop his vehicle as a result of being momentarily distracted.
The Member found that the insured driver was not negligent.
Findings: The Member determined that the claimant was wholly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Review Panel Determination
Khan v Insurance Australia Limited t/as NRMA [2022] NSWPICMP 328
Panel: Principal Member John Harris, Medical Assessor Alan Home, Medical Assessor Thomas Rosenthal
MOTOR ACCIDENTS—review panel—minor injury dispute—consideration of causation and pre-accident imaging.
The claimant was involved in an accident on 20 September 2019 when she was a pedestrian crossing at a pedestrian crossing when the insured collided with her left leg, causing her to fall to the ground.
The insurer determined that the claimant’s injuries were minor and the claimant referred the dispute to the Commission.
At first instance, Medical Assessor Oates determined that the claimant’s left hip, lumbar and cervical spine injuries were minor and that the right shoulder symptoms were referred from the neck and therefore not a separate injury. The claimant lodged an application for review, which was accepted and the dispute was referred to the Review Panel.
The Panel’s determination focused on whether annular tears and right shoulder pathology were caused by the accident.
The Panel considered imaging at the cervical and lumbar spine from prior to the accident and found that there was no evidence to support traumatic tears related to the accident, and further that while the radiologist had referred to an annulus tear that the changes were more consistent with an annulus fissure as part of the degenerative process. The Panel commented that there was little difference between the pre- and post-accident scans. Also, there were no observations of two signs of radiculopathy in satisfaction of the Guidelines during the Panel’s examination.
The Panel was not satisfied that the claimant had injured her right shoulder in the accident as there was evidence of pre-existing longstanding gradual degenerative changes consistent with her age, that she fell onto her left side in the collision and there was no direct right shoulder injury, and that the reasonably contemporaneous right shoulder complaints were likely referred pain from the right shoulder.
Findings: The Panel determined that the claimant suffered minor injuries only and the Certificate of Medical Assessor Oates was confirmed.
Ruiz-Diaz v QBE Insurance (Australia) Limited [2022] NSWPICMP 329
Panel: Principal Member Belinda Cassidy, Medical Assessor Margaret Gibson, Medical Assessor Tai-Tak Wan
MOTOR ACCIDENTS—review panel—minor injury dispute—whether head injury resulted in brain injury.
The claimant was involved in an accident on 17 March 2020 when she was a passenger in a vehicle driven by her husband and a truck rear-ended her vehicle. The insurer determined that the claimant had suffered only minor injuries, and a dispute was referred to the Commission.
A number of Medical Assessors examined the claimant in the minor injury dispute:
- Medical Assessor Steiner determined the claimant did not suffer injury to her optic nerve and therefore was not required to determine the dispute. The Certificate was the subject of an unsuccessful application for review.
- Medical Assessor Parmegiani diagnosed a panic disorder that was a minor injury. The Certificate was the subject of an application for review, which is yet to be determined by a Panel.
- Medical Assessor Payten determined that the claimant’s ear injury and vestibulopathy were not caused by the accident and that he was not required to determine the dispute. There was no review application in relation to this assessment.
- Medical Assessor Cameron determined that the claimant’s cervical spine, thoracic spine and head injuries were minor. The claimant lodged an application for review, which was successful and the subject of the Panel’s present determination.
The Panel accepted that the claimant suffered soft tissue injuries to the cervical and thoracic spine but there were no two signs of radiculopathy on examination by the Panel nor at any time since the accident on a review of the clinical evidence.
The claimant alleged she hit her head on the back seat and glass panel above and behind the head rest in the accident and sustained a head injury. She had referred concussion, post-concussion syndrome and memory loss injuries as part of the dispute and alleged visual disturbance, nausea, dizziness, migraine, headaches, loss of memory and vertigo.
There was no contemporaneous evidence of a head strike and no loss of consciousness at the time of the accident. The Panel considered that having regard to the claimant’s height and the nature of the accident (rear-end collision), it seemed unlikely she would have hit her head on the various parts of the vehicle alleged, but accepted she hit her head on some part of the vehicle, likely the head rest.
Medical Assessor Steiner had diagnosed exophoria (weakness in the eye muscles or poor eye coordination) that he considered “almost certainly” was related to a closed head injury, which the Panel commented was an assumption that she sustained such an injury based on the history he was given.
The Panel noted that the only description of a concussion injury was in the claimant solicitor’s submissions (and not by any doctor). The development of exophoria was not reported until months after the accident, and in the clinical experience of the Panel was therefore not an indication of concussion. Further, it was highlighted that there was no documented loss of consciousness nor post-traumatic amnesia and no imaging of the brain demonstrating any abnormality. Testing on examination by the Medical Assessor did not demonstrate objective signs of cognitive significant memory or executive function impairment, nor amnesia.
The Panel noted some inconsistencies in the claimant’s recollection and reporting but was not satisfied that there was memory loss as a result of the accident.
Following examination, the Panel was satisfied that the claimant had not sustained a head injury resulting in an injury to the brain including concussion, post-concussive syndrome or memory loss, but a soft tissue injury to the back of the head.
Findings: The Panel determined that the claimant’s injuries to the cervical spine, thoracic spine and head were minor and confirmed Medical Assessor Cameron’s Certificate.
