Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 7311 November 2022
Welcome to the 73rd 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.
Miscellaneous Claims Assessment
Ormonde-James v AAI Limited t/as GIO  NSWPIC 555
Member: Shana Radnan
MOTOR ACCIDENTS—whether claimant wholly or mostly at fault—single vehicle accident—allegation rear tyre deflation loss of control.
The claimant was riding his motorcycle when he was involved in a single vehicle accident on 16 June 2020. The claimant alleges that the motorcycle left the roadway when the rear tyre deflated and lost control.
The insurer alleged that the claimant was wholly at fault as he was the only person riding his motorcycle and therefore not entitled to statutory benefits beyond 26 weeks, which was affirmed on internal review. The claimant lodged an application in the Commission.
At the teleconference, the claimant provided oral submissions that he has no recollection of the circumstances of the accident as he suffered amnesia. He also could not recollect the contents of the interview provided to police and as such his statements could not be relied upon. The claimant however advised that he considered that the accident was caused by his rear tyre deflating due to a number of potholes on the road surface, which caused the motorcycle to slide out from underneath him. He also disputed the contents of the police report on the basis the constable involved was a probationary constable and did not have the experience to properly determine the cause of the accident.
The insurer referred to the police report and factual investigation report and submitted that as per Douglas v AAI Limited t/as AAMI  NSWPIC 246, the claimant’s evidence, in its totality, does not support that the cause of the accident was by a fact or event beyond the claimant’s control. The insurer submitted that the claimant was wholly or mostly at fault as he was riding at an excessive speed and failed to maintain proper control of his motorbike.
The claimant confirmed that he will provide additional evidence as to whether the lack of tyre pressure in the rear tyre would render the motorcycle uncontrollable. However, the claimant later advised he will not be providing any further information.
Findings: The Member noted the claimant did not produce the evidence to support his contention despite being provided with additional time to produce reports and photographs. As such, based on the available evidence the Member determined that the rear tyre deflation was not the cause of the accident. The Member accepted that the claimant was travelling above the speed limit and had failed to control his motorcycle so as to avoid an accident.
The Member determined that for the purpose of ss 3.28 or 3.36 of the Act, the claimant was wholly or mostly at fault for the accident.
Anderson v Insurance Australia Limited t/as NRMA Insurance  NSWPIC 564
Member: Belinda Cassidy
MOTOR ACCIDENTS—whether claimant wholly or mostly at fault—claimant lost control due to pothole in the road—self represented.
On 19 April 2022, the claimant was injured in a motor accident when she lost control of her vehicle and drove into a truck and a wall.
The claimant made a claim for statutory benefits and the insurer denied liability beyond 26 weeks on the basis she was wholly at fault for causing the accident. An internal review was lodged by the claimant and the insurer affirmed its original decision. The claimant lodged an application in the Commission. She was self-represented.
In her submissions, the claimant says her accident was a no-fault accident. She noted she reduced her speed from 70 kmph to 60 kmph and that the police did not hold her responsible for the accident. The claimant referred to the police officer’s statement who stated that the police formed the view the accident was caused by the state of the road, in particular a pothole. The attending police officer also stated that the accident was caused due to the force of the claimant hitting the pothole “which was a considerably sized one” pushing her into the barrier.
The insurer submitted that the claimant was wholly at fault for failing to take account of the topography of the roadway and failing to safely manoeuvre and control her vehicle accordingly. In addition, the insurer submitted that the claimant could have avoided the accident had she been alert and keeping a proper lookout and took reasonable care for her own safety.
In order to determine whether the claimant is wholly at fault, the Member explained that the question of whether there was anything else, other than the way the claimant was driving, that caused the accident. The Member noted that the police report indicated that although the claimant’s vehicle was the vehicle responsible, it was the pothole that caused the claimant to lose control of the vehicle. The police did not take any action against the claimant. The insurer has conceded that the cause of the accident was the pothole. In light of the above, the Member determined that the pothole was the cause of the accident and as such, the claimant was not wholly at fault for the accident.
The Member determined the issue of whether the claimant was mostly at fault and addressed the arguments raised by the insurer as follows:
Whether the claimant failed to drive safely?
The Member found that at the time of the accident the claimant was driving safely whereby she was driving within the speed limits, in the flow of traffic and merging from one lane to another with care.
Whether the claimant failed to control her vehicle?
The Member noted the claimant had no idea how the accident occurred until the police told her about the pothole. As there is no expert or other evidence to suggest that the claimant should have been able to maintain control of her vehicle after she hit the pothole, the Member rejected this argument.
Whether the claimant kept a proper lookout?
The Member explained that it is difficult to determine whether the claimant could have seen the pothole before she ran into it in absence of evidence regarding the size of the pothole or its depth. The police confirmed that the pothole has been repaired since the accident. The Member referred to the findings in Mamo v Surace  NSWCA 58 and accepted that the claimant’s ability to see the pothole would have been limited noting that there was a flow of heavy traffic in front of and around her at the time of the accident.
The Member also referred to the dissenting judgment of Davies AJA in Derrick v Cheung  HCA 48 and determined that it was not reasonable for the claimant to reduce her speed even further and cause disruption to the general flow of traffic. Further, the Member determined that even if the claimant had the opportunity to see the pothole before she ran into it, she would not have been able to take evasive action as there was a truck to her left and a wall to her right.
Whether the claimant failed to take reasonable care?
The Member determined that there was no contributory negligence on her part as she was driving at a speed or below the speed limit and she was travelling in a line of traffic, which gave her limited view of the road surface due to the distance between her and the vehicle ahead of her, resulting in her hitting a pothole.
Findings: The Member determined that the claimant was neither wholly or mostly at fault for the accident. As such, the claimant was entitled to a continuation of her statutory benefits beyond the first 26 weeks after the accident.
Merit Review Panel Determination
Liu v AAI Limited t/as GIO  NSWPICMRP 8
Panel: Maurice Castagnet, Katherine Ruschen, Terence O’Riain
MOTOR ACCIDENTS—merit review—whether the expense of interpreting services incurred in connection with psychotherapy treatment was a reasonable cost of treatment and care.
The claimant was injured in a motor accident on 18 August 2020 and made a claim for statutory benefits. In her claim form, the claimant notified the insurer that she would require a Mandarin Chinese speaking interpreter to assist her through the claims process.
The insurer refused to pay the costs of an interpreter attending the psychological treatment sessions provided by the claimant’s treating psychologist, Mr Hansen Li. As such, the claimant requested an internal review and the insurer issued a Certificate of Determination affirming its original decision.
The matter was referred to the Commission for determination. At first instance, Merit Reviewer Tajan Baba determined that the dispute does not fall under ss 1.4(1) and 3.24 of the Act and found that the Commission did not have jurisdiction to review the dispute.
A successful application for review was lodged by the claimant, and the matter was referred to the Review Panel.
The request for interpreters attending the psychological treatment sessions had been denied as the insurer determined the requested service was not considered reasonable and necessary. The insurer noted that Mr Li is registered on the AHPRA website and he has recorded that in addition to English, he can communicate in Mandarin and Shanghainese. As the claimant listed Mandarin as the preferred method of communication in the Application for Personal Injury Benefits, the insurer considered there is no need for the use of a Mandarin interpreter in psychological treatment sessions with Mr Li.
On review, the Review Panel confirmed that the psychological treatment provided by Mr Li to the claimant was “medical treatment” within the definition of s 1.4(1)(a) of the Act and therefore falls within the definition of “treatment and care” per s 3.24(1) of the Act. Further, the Review Panel noted that under s 3.24(1) of the Act, if the claimant requires the assistance of the interpreter to be present when treatment is delivered, such requirement would be intrinsically linked to the treatment.
The Review Panel referred to the SIRA FAQ’s published for the guidance for allied health practitioners and noted that whilst the Review Panel accepts that the SIRA FAQ’s are not part of the Regulation, the publication serves to re-enforce the Review Panel’s view that any request for interpreter service provided to enable delivery of treatment is a necessary expense.
The Review Panel noted that Mr Li previously advised the insurer that he could not provide the treatment to the claimant in Mandarin as his Mandarin proficiency is not adequate in a clinical setting. In the circumstances, the Review Panel found the expense of the interpreting services incurred in relation to the psychological treatment provided by Mr Li was a reasonable cost of treatment and care within the definition of s 3.24 of the Act.
Findings: The Review Panel determined to set aside the merit review decision of Merit Reviewer Tajan Baba and the insurer’s internal review decision. The Review Panel also determined the costs of interpreting services in the amount of $877.30 in connection with the psychologist treatment provided by Mr Li are reasonable costs of treatment and care under s 3.24 of the Act.
Review Panel Determination
AAI Limited t/as GIO v Amos  NSWPICMP 397
Panel: Principal Member Susan McTegg, Dr Geoffrey Curtin, Dr Drew Dixon
MOTOR ACCIDENTS—whole person impairment dispute—treatment dispute—whether MRI of cervical spine and chiropractic treatment is reasonable and necessary.
The claimant was the front seat passenger in a vehicle that collided with the rear of a bus and sustained multiple injuries. The claimant was assessed by a number of Commission’s Medical Assessors for determination of the degree of permanent impairment, including Medical Assessor Shahzad.
Medical Assessor Shahzad assessed injuries to cervical spine, lumbar spine, bilateral shoulder and abdomen and determined the claimant’s whole person impairment (WPI) as 26%. In addition, Medical Assessor Shahzad determined that the requested MRI cervical spine and chiropractic sessions are reasonable and necessary.
The insurer lodged an application for a review of the Certificate of Medical Assessor Shahzad, and the matter was referred to the Review Panel.
On examination, the Review Panel observed stiffness with decreased flexion in the cervical spine. There was tenderness of his trapezius muscles but there was no neurological deficit in either upper limb. Further, the Review Panel noted the claimant had stiffness on elevation of his shoulders and mild stiffness on trunk rotation without thoracic pain.
The Review Panel determined that the claimant sustained soft tissue injury to the cervical spine and lumbar spine as a result of the accident. Regarding shoulder injuries, the Review Panel found the claimant sustained bilateral shoulder injury by reason of referred pain from the neck caused by the accident in accordance with the decision in Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd. As for the abdominal injury, the Review Panel found the claimant sustained musculo-skeletal injury to the abdomen, which had resolved and does not result in permanent impairment.
Separately, the Review Panel determined that the MRI cervical spine scan is reasonable and necessary treatment. However, the Review Panel noted that this MRI scan was requested four years ago and considered the scan was reasonable and necessary at the time it was requested as a diagnostic tool. If the scan has not been undertaken to date, the Review Panel determined the scan is not reasonable and necessary as the claimant has sustained a soft tissue injury to the cervical spine.
The Review Panel determined that chiropractic treatment including mobilisation, deep tissue massage and dry needling are accepted treatment modalities for injuries to the cervical and lumbar spine. The Review Panel determined that the past treatment was reasonable and necessary and relates to the soft tissue injury. However, the Review Panel does not consider future chiropractic treatment to be reasonable and necessary as there would be no therapeutic benefit to be gained by the claimant.
Findings: The Review Panel determined the claimant suffered 4% WPI in relation to the cervical spine, lumbar spine, bilateral shoulder and abdomen injuries. The Review Panel revoked the certificate of Medical Assessor Shahzad and determined the MRI scan (if undergone by the claimant) and past chiropractic treatment was reasonable and necessary.