Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 68
30 September 2022
Welcome to the 68th 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 – Interim Decision
Miscellaneous Claims Assessment
Gohari v QBE Insurance (Australia) Limited [2022] NSWPIC 490
Member: Terence O’Riain
MOTOR ACCIDENTS—claim for common law damages annexed to claims assessment application—application for dismissal—whether dismissal would be consistent with objects of the Act.
The claimant sustained injury when his vehicle rear-ended another vehicle allegedly due to a defect in the vehicle he was driving. He lodged a workers’ compensation claim. He also lodged a CTP claim for statutory benefits, which had been rejected due to being lodged late and the explanation provided had not been responded to.
The claimant made the claim for common law damages by annexing the form to an application for claims assessment to the Commission. The application was lodged two days prior to the expiration of the three-year time limitation and included a schedule of damages but no particulars.
The insurer submitted that the application should be dismissed as the claimant had not complied with s 7.32 of the Act and the insurer had not been afforded an opportunity to promote settlement because it had not received the claim until the proceedings were lodged.
Notably, the claimant was still to have surgery, which was the subject of a dispute with the workers’ compensation insurer. Accordingly, the claimant’s medical condition was not stable. Therefore, the claimant submitted he was not able to quantify his claim for non-economic loss nor attempt settlement.
Findings: The Member declined to dismiss the application. He determined that dismissal would not promote the objects of the Act nor facilitate just, quick and cost-effective resolution. He considered the following factors:
- The claimant had an arguable claim.
- It was not presently possible to quantify the claim and therefore not possible to settle the claim.
- That the claim could involve complex questions of liability and the possibility other parties may need to be joined to proceedings due to the allegation of a defect in the claimant’s vehicle.
- Dismissal would involve further time, effort and expense in an application for leave pursuant to s 7.33 of the Act.
- That if the proceedings were dismissed, it would be costly to satisfy the monetary threshold pursuant to s 6.32(3) of the Act if the claimant was required to commence court proceedings.
The proceedings were referred to the Stood Over List.
Claims Assessment – Settlement Approval
Insurance Australia Ltd t/as NRMA Insurance v Willson [2022] NSWPIC 491
Member: David Ford
MOTOR ACCIDENTS—settlement approval—liability admitted—damages limited to economic loss—51-year-old employed as forklift driver—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 51-year-old male, was injured when the unidentified vehicle (the claim being against the Nominal Defendant) collided with the claimant who was riding a motorcycle when it merged without warning. The claimant managed to ride the motorcycle from the scene, but the following morning called an ambulance and was taken to hospital. As a result of the accident, the claimant suffered a fracture of the scapular blade inferior to the glenohumeral joint of the left shoulder, a displaced eighth rib fracture and multiple abrasions.
Liability was admitted, with no allegation of contributory negligence.
It was understood that the claimant had not exceeded the permanent impairment threshold to be entitled to damages for non-economic loss.
The parties agreed to resolve the claim for the sum of $25,000 for economic loss, broken down as follows:
- Past economic loss: $10,000
- Future economic loss: $15,000
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 from an orthopaedic surgeon engaged by the insurer.
The claimant was questioned by the Member.
The Member also questioned the claimant at the teleconference in relation to his employment as a forklift driver. The claimant confirmed he was able to carry out his daily work duties though required some variation approved by his employer. He was not concerned about performing his duties for his present or prospective employers.
Findings: The Member accepted the proposed sum of $25,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
AAI Limited t/as GIO v Catt [2022] NSWPIC 461
Member: Terence Stern
MOTOR ACCIDENTS—settlement approval—liability admitted—head-on collision—damages for non-economic and economic loss—whether proposed settlement just, fair and reasonable and within the range of likely potential damages assessment.
The claimant, a 41-year-old male, was injured when the insured vehicle collided with the claimant in a head-on collision whilst travelling on the wrong side of the road. As a result of the accident, the claimant suffered an intra-articular fracture of the base of the fifth metacarpal, left knee and right foot soft tissue injuries, lacerations and abrasions to his hands and face.
He sustained post-traumatic stress disorder and was assessed at 15% WPI by Dr Mason at the request of the insurer. Dr Mason recorded that the claimant thought about the accident every day, and that he had not received effective treatment until more recently, which reduced his chance of a full recovery. Accordingly, he was entitled to damages for non-economic loss.
He had a pre-existing history of psychological symptoms, knee, lumbar spine and a right shoulder injury. However, the Member pointed out that these conditions did not prevent the claimant from working prior to the accident.
Liability was admitted, with no allegation of contributory negligence.
The parties agreed to resolve the claim for the sum of $600,000, broken down as follows:
- Non-economic loss: $300,000
- Past economic loss: $30,000
- Future economic loss: $270,000
The past economic loss claim took into account weekly benefits paid for time off work and additional time off for treatment, calculated as a buffer.
The future economic loss claim took into account that the claimant continued to work in a similar role to that which he did pre-accident on a full-time basis. His role was unspecified, but a history was taken that he had injured himself previously whilst working in the building industry.
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 $600,000 was just, fair and reasonable and within the range of damages likely to be awarded if this matter had progressed to hearing.
Merit Review
Clark v QBE Insurance (Australia) Limited [2022] NSWPICMR 51
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—calculation of post-accident earnings—whether travel expenses are income from personal exertion in calculating post-accident earnings.
The claimant was employed with Occupational Health Professional and his salary package included payment of a travel allowance.
The claimant’s Pre-Accident Weekly Earnings (PAWE) was determined to be $3,447.12, which was not in dispute. A site allowance was included in the calculation of the PAWE.
In calculating the claimant’s loss of earnings for the purpose of paying weekly benefits, the insurer considered that the travel allowance payments were part of the claimant’s post-accident earnings when determining post-accident earning capacity.
The claimant submitted that the travel allowance should be excluded from post-accident earnings as the allowance was reimbursement of expenses that were incurred for use of his vehicle for work purposes and was different to the site allowance included in the PAWE.
The insurer submitted that allowances were included in the PAWE, regardless of the purpose or type of allowance, and that if the travel allowance was excluded from post-accident earnings then the claimant would be ‘double-dipping’.
Further, the insurer submitted that the definition of loss of earnings included allowances. In this regard, the insurer referred to cl 3(2), Schedule 1 of the Act, which defines ‘income from personal exertion’ to include allowances received in the capacity as an employee, and further that cl 3(1) defines ‘loss of earnings’ to be loss of ‘income from personal exertion’. To be entitled to weekly benefits, there must be a loss of earnings: ss 3.6, 3.7 and 3.8 of the Act.
It was not in dispute that the claimant’s post-accident earnings represented post-accident earning capacity.
The Merit Reviewer agreed with the insurer and further stated:
“the only way to implement the relevant provisions sensibly and consistent with the compensatory nature of the MAI Act, and so that a person does not obtain a windfall, is to include those payments in cl 3(2)(a) such as “allowances” in the calculation of post-accident earnings”.
Further, the Merit Reviewer elucidated how reimbursements and allowances are treated by the Australian Taxation Office and considered the travel allowance (that was paid on a per kilometre basis) was an allowance to cover potential or likely expenses rather than reimbursement of actual expenses incurred.
Findings: The Merit Reviewer determined that the travel allowance payments should be included in the calculation of the claimant’s post-accident earnings for the purposes of determining post-accident earning capacity for the purposes of ss 3.6, 3.7 and 3.8 of the Act. The insurer’s decision was therefore affirmed.
Review Panel Determination
Allianz Australia Insurance Limited v Taubman [2022] NSWPICMP 345
Panel: Principal Member John Harris, Medical Assessor Michael Hong, Medical Assessor Matthew Jones
MOTOR ACCIDENTS—Review Panel—minor injury and permanent impairment dispute—psychological injury and improvement in condition due to treatment.
The insurer determined that the claimant’s injuries were minor and that his permanent impairment was not greater than 10% WPI. The claimant referred the disputes to the Commission, which were the subject of a number of Medical Assessor certificates.
At first instance, Medical Assessor Parmegiani diagnosed post-traumatic stress disorder and that the claimant sustained a non-minor injury. He assessed 17% WPI. The insurer lodged a successful application for review.
The Panel examined the claimant, who reported frequent flashbacks and dreams, reliving the accident on the anniversary, and feeling he was in a constant fog, detached from life and just surviving. He lost interest in socialising or finding a new partner, and his only hobby was watching YouTube.
He also reported a history of a marriage breakdown and his children “hating” him, but no prior mental health history.
The claimant had some sessions with a psychologist a few months prior to the accident, which he found helpful and ‘healing’. However, he noted the insurer had refused to pay for any further sessions. He was observed by the Panel to break down and become emotional during the examination at that time.
Findings:
The Panel diagnosed post-traumatic stress disorder and therefore determined that the claimant suffered a non-minor injury.
The Panel assessed 6% WPI and commented that the claimant’s condition had improved since the original assessment of Medical Assessor Parmegiani, therefore explaining the change in impairment. Nevertheless, there was no adjustment for treatment effect as there was no ongoing treatment with any substantial treatment effect.
Accordingly, the certificate of Medical Assessor Parmegiani certifying a non-minor injury was confirmed, and the certificate assessing permanent impairment was revoked.
