Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 6906 October 2022
Welcome to the 69th 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
Insurance Australia Limited t/as NRMA Insurance v Dobner  NSWPIC 502
Member: Terence Stern
MOTOR ACCIDENTS—settlement approval—50% contributory negligence—insured driver lost control when the claimant moved over to cuddle the driver—insured driver just above the mid-range prescribed concentration of alcohol (PCA) (0.087).
On 28 October 2018, the claimant was a front seat passenger in a vehicle driven at about 80-100 kmph when it was involved in a motor vehicle accident. Prior to the accident the claimant had attempted to cuddle the driver, causing the driver to lose control of the vehicle. The driver was later found to have a PCA of 0.087.
The insurer asserted the claimant contributed to the accident and that her injuries were caused by not wearing a seatbelt; she knew or ought to have known the driver was intoxicated; and she had attempted to cuddle the insured driver while the vehicle was in operation and she knew or ought to have known that this would affect the driving. The insurer assessed contributory negligence at 50%.
The claimant made a common law damages claim and the insurer conceded that the claimant was entitled to damages for non-economic loss. The parties agreed to settle the claim for lump sum damages in the sum of $528,000, including an apportionment for contributory negligence of 50%.
Findings: The Member accepted that $528,000 was just, fair and reasonable. The Member also accepted that contributory negligence of 50% was reasonable.
Mudge v Allianz Australia Insurance Limited  NSWPICMR 52
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—claim for statutory weekly benefits—whether the degree of permanent impairment is greater than 10%—whether weekly payments continue if there is a medical dispute.
The claimant made a claim for statutory benefits in relation to an accident on 29 May 2019.
The insurer determined permanent impairment as a result of the accident was not greater than 10%. As such, the insurer ceased payment of weekly payments pursuant to s 3.12(2)(b) of the Act.
The claimant requested an internal review and the insurer affirmed its original decision. The claimant referred the dispute to the Commission.
The claimant submitted that when there is a pending claim for damages and a medical dispute regarding permanent impairment, weekly payments should continue beyond 156 weeks, pursuant to s 3.12(2)(c) of the Act.
The Merit Reviewer also noted that there is nothing in the wording of s 3.12 that permits payments to be made on any kind of interim or contingent basis, pending a medical dispute.
In fact, the wording of s 3.12(2)(c) states that weekly payments can continue beyond 156 weeks where there is a pending claim for damages if “the degree of permanent impairment of the injured person as a result of the injury is greater than 10%”.
As the claimant had the onus of proof, she was required to establish that her permanent impairment is greater than 10% for the purpose of s 3.12(2)(c).
Findings: The Merit Reviewer accordingly affirmed the reviewable decision and determined that the insurer was not required to pay weekly benefits pending determination of permanent impairment by the medical assessor.
Miscellaneous Claims Assessment
McGrath v Insurance Australia Limited t/as NRMA Insurance  NSWPIC 492
Member: Maurice Castagnet
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the insurer is entitled to reduce statutory benefits payable for contributory negligence—50% contributory negligence.
The claimant claimed statutory benefits arising from an accident in which his vehicle collided with the insured vehicle at a roundabout.
The insurer accepted liability for statutory benefits after 26 weeks however notified the claimant that his weekly payments will be reduced by 50% on the basis of contributory negligence. On internal review, the insurer affirmed that decision.
The insurer alleged that the claimant failed to keep a proper lookout and failed to give way and as such, contributory negligence should be assessed at 50%.
A dispute was referred to the Commission in relation to whether the insurer was entitled to reduce statutory benefits in accordance with s 3.38 of the Act for contributory negligence.
The Member determined that the insured driver entered the roundabout at excessive speed and failed to give way to the claimant’s vehicle, which was already well into the roundabout. The Member did not identify any contribution by the claimant.
Findings: The Member found that the insured driver was wholly at fault for the accident and there was no contributory negligence.
Mihalis v QBE Insurance (Australia) Limited  NSWPIC 501
Member: Belinda Cassidy
MOTOR ACCIDENTS—miscellaneous claims assessment—whether claimant was wholly or mostly at fault—self-represented.
On 5 January 2020 the claimant was involved in a motor vehicle accident when his vehicle was hit from behind, causing him injury. The claimant stated that he was stationary in lane 1 waiting to turn when he was hit from the rear by a small bus (insured vehicle). The bus driver stated that the claimant moved suddenly into his lane, which was lane 2.
The insurer obtained an investigator’s report with photographs of the accident scene. The photographs showed the insured bus at an angle and there was debris (including broken glass from the claimant’s vehicle) in lane 2.
The claimant made a claim for statutory benefits in relation to the accident.
The insurer determined that the claimant was wholly at fault and that the claimant’s injuries were minor injuries, which was affirmed on internal review. The claimant referred the dispute to the Commission.
The claimant initially had legal representation and the claimant’s solicitor informed the Commission that an accident reconstruction report would be provided. The Commission issued a direction for the claimant to serve the report. The Commission was later notified by the claimant’s solicitor that she no longer held instructions. The Commission and the insurer then made a number of attempts to contact the claimant, which were unsuccessful.
The Member determined that it was not appropriate to determine the proceedings and noted that it was a matter for the claimant to pursue the claim if he wished to have his benefits reinstated.
The Member was satisfied that the claimant was not pursuing the application and failed without reasonable excuse to comply with a direction of the Commission.
Findings: The Member dismissed the proceedings pursuant to s 54(a) of the Personal Injury Commission Act and rule 77(b)(ii) and (ii) of the Rules.
Iskander v Allianz Australia Insurance Limited  NSWPIC 504
Member: Ray Pilbersek
MOTOR ACCIDENTS—late claim for damages assessment—more than three years after the motor accident—whether a full and satisfactory explanation for delay in making the application.
On 27 June 2019 the claimant was involved in a motor accident. On 5 July 2022, an Application for Damages was lodged by the claimant’s solicitor, submitting that the matter be placed in the Stood Over List to preserve time. The insurer requested that the claimant provide a full and satisfactory explanation for the delay in lodging his Application for Damages as well as to provide particulars of his claim for damages.
The insurer submitted in its Reply that it was considering the explanation provided by the claimant’s solicitors and that the claim should be placed in the Stood Over List as there is a medical dispute regarding the degree of permanent impairment, which is yet to be finalised.
The claimant subsequently provided a statement explaining the delay; he stated that he initially spoke to another solicitor in 2019 and then instructed his current lawyers in early 2021 however did not have a conference with them until late February 2022. The claimant stated that it was not until 5 July 2022 his current solicitor informed him (with the assistance of an interpreter) the circumstance surrounding the three-year limitation and late lodgement of an application for damages under common law. The claimant explained that he wholly relied on his solicitor to manage his claim and was of the belief that everything was under control. The insurer did not take issue with that explanation nor did they oppose the Commission granting leave for the claim to be referred for assessment.
The Member was satisfied there was sufficient evidence that a reasonable person in the claimant’s position would have experienced the same delay.
Findings: The Member determined that the claimant’s explanation for the delay in lodging his application for damages was full and satisfactory.
Review Panel Determination
Dandan v QBE Insurance (Australia) Limited  NSWPICMP 350
Panel: Principal Member Ray Pilbersek, Dr Melissa Barrett, Dr Christopher Rikard-Bell
MOTOR ACCIDENTS—Review Panel determination—two motor vehicle accidents fours days apart—pre-existing psychiatric condition—first accident was significant and caused the claimant’s injury—second accident not causally related to the development of a psychiatric condition or injury.
The claimant was involved in two motor vehicle accidents on 30 December 2017 (the first accident) and 3 January 2018 (the second accident).
The first accident occurred when the insured vehicle failed to give way at a give way sign and collided with the claimant’s vehicle. The claimant reported to her doctor that she was distressed and worried about her nephew being in the car and her concern for injuries that he could have suffered.
The second accident occurred when the claimant was stationary in a shopping centre car park when another car collided with the front of her car.
Assessor Mason described the second accident as trivial and stated that “it is highly improbable that the [claimant’s] psychological condition could have deteriorated so significantly as a consequence of the second trivial motor accident”. The claimant sought a review of the certificate.
The review application was accepted and was referred to a Review Panel for assessment. The Review Panel issued a Direction to the parties to confirm whether they agree to the Review Panel proceeding without a re-examination of the claimant.
Upon considering the parties’ submissions, the Review Panel decided not to re-examine the claimant for the following reasons:
- The Review Panel was able to form an opinion as to issues identified in submissions.
- The Review Panel noted that the claimant presented differently to treating doctors and Medical Assessors at assessments.
- Assessors Mason and Samuell reported inconsistencies in the claimant’s presentation.
- The certificate of Assessor Mason reported the claimant was unable to answer basic demographic questions.
- The Review Panel opined a further medical re-assessment could potentially increase distress in the claimant, especially noting her reported self-harming behaviours, which could potentially lead to further inconsistencies in her presentation.
- A re-examination may have had a detrimental effect on the claimant.
The Review Panel said that when causality was resolved, it would reconsider a need to assess the claimant.
The decision by the Court of Appeal in Sydney Trains v Batshon  NSWCA 143 was considered for the Review Panel to reach its decision not to re-examine the claimant.
The Review Panel reviewed the application on paper and found evidence that the first accident was more significant than the second accident and concluded that the first accident was the cause for the psychiatric condition. The Review Panel considered the second accident was minor and noted the medical evidence made no reference to injury or impairment attributable to it.
Findings: The Review Panel determined that there was no diagnosable psychological injury attributable to the second motor vehicle.
Montibeler v Insurance Australia Limited t/as NRMA Insurance  NSWPICMP 358
Panel: Principal Member John Harris, Dr Chris Oates, Dr Alan Home
MOTOR ACCIDENTS—Review Panel determination—whether the claimant suffered a non-minor injury—the claimant did not sustain low back injury as alleged—prior chronic history of back problems and L1 fracture showed to be longstanding—whether the motor accident could cause aggravation of pre-existing right shoulder condition.
The claimant suffered injury in a motor accident on 4 February 2020 when the insured vehicle merged into traffic and collided with the side of his vehicle.
A dispute arose regarding whether the claimant’s injury was classified as a “minor injury”. The matter was referred to Assessor Cameron who found soft tissue injuries to the right shoulder, cervical and lumbar spine, which were minor injuries. Assessor Cameron found no evidence that a ‘full thickness tear’ occurred in the subject motor accident as the mechanism of injury would not be expected to cause that injury and there is a high prevalence of ligament degenerative disease in asymptomatic people of the claimant’s age.
The claimant sought a review of the certificate of Assessor Cameron dated 25 April 2022. The review application was accepted.
The Assessors found:
Low back injury: The Assessors noted that the claimant has a long history of chronic back pain, which was reported as recently as one month prior to the motor accident. Following the motor accident, there was no reference to low back injury in the contemporaneous medical evidence and the claimant did not mention low back injury in his claim form. The Assessors noted the inclusion of injury in the claim form was relevant to satisfy causation. Reference to low back injury was mentioned when the claimant attended hospital following a fall from stairs. The Assessors concluded that there was no low back injury arising from the accident and that the L1 compression fracture pre-dated the motor accident.
Right shoulder injury: The Review Panel found that the mechanism of accident could cause aggravation of pre-existing right shoulder condition. The Assessors determined that biomechanical expert Dr McIntosh strayed outside his expertise when commenting on medical probabilities. The Review Panel found that the supraspinatus tear was either caused or aggravated by the subject motor accident and is a non-minor injury.
Findings: The Review Panel revoked the certificate issued by Assessor Cameron on minor injury and issued a replacement certificate that the claimant sustained a non-minor injury to the right shoulder.
Idrees v Insurance Australia Limited t/as NRMA Insurance  NSWPICMP 359
Panel: Principal Member John Harris, Dr Drew Dixon, Dr Trudy Rebbeck
MOTOR ACCIDENTS—Review Panel determination—whether the claimant suffered a non-minor injury—mechanism of injury—cyst shown on scan was not caused by the motor accident.
On 22 September 2019 the claimant was injured in a motor accident when the insured vehicle collided into the rear of his vehicle.
The issue in dispute was whether the claimant’s injury is classified as a “minor injury”. The matter was referred to Assessor Cameron who determined that the claimant sustained soft tissue injuries to the lumbar and cervical spine, which are minor injuries. Assessor Cameron also determined the claimant did not sustain an injury to either shoulder, and that supraspinatus tears were not caused by the motor accident.
The claimant sought a review of the certificate of Assessor Cameron dated 24 May 2022. The review application was accepted.
On 1 September 2022, the claimant was re-assessed by Assessor Rebbeck. The claimant reported that he was involved in a second motor accident in December 2021, which had exacerbated the symptoms from the first motor accident.
Assessor Rebbeck reported the claimant presented inconsistently. He noted as follows:
Cervical spine (cervicothoracic): There was noticeable reduction in range of motion in all places of movement that was symmetrical. Assessor Rebbeck observed inconsistency. For instance, the claimant demonstrated greater cervical rotation when speaking during non-formal components of the assessment.
Lumbar spine (lumbosacral): There was noticeable reduction of motion in the lumbosacral spine. However, Assessor Rebbeck observed during informal components of the assessment that the claimant was able to move in a more normal range.
Shoulders: There was noticeable reduction of ranges of motion in bilateral shoulder movements. Assessor Rebbeck found that the shoulder supraspinatus tears were not caused by the subject accident.
The Review Panel was satisfied that the subject motor accident did not cause or aggravate pathology in the lumbar spine, the claimant has not satisfied two clinical signs of radiculopathy in the lumbar spine and the shoulder supraspinatus tears were not caused by the accident.
Findings: The Review Panel determined that injuries to the cervical spine, lumbar spine and bilateral shoulder were minor and confirmed Assessor Cameron’s certificate.
 Bugat v Fox  NSWSC 888 at -.