Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 76
18 November 2022
Welcome to the 76th 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.
Merit Review
Taouk v AAI Limited t/as GIO [2022] NSWPICMR 60
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS – merit review – whether costs and expenses incurred by the claimant are reasonable and necessary – whether costs payable per medical dispute or per medical assessment.
The claimant was injured in an accident on 20 May 2020. In November 2020, he lodged an application to the Commission to determine whether his physical and psychological injuries were minor for the purposes of the Act. Around this time, he also lodged an application regarding two treatment disputes.
Medical Assessors Bodel and Mason proceeded to issue certificates. Shortly afterwards, the insurer lodged two separate applications for review of Medical Assessor Bodel’s decision, one concerning whether the injury was minor and the other concerning the treatment dispute. The two applications were referred by the Commission to one review of a medical assessment by a Review Panel comprising Medical Assessors Crane and Maloney.
The claimant claimed maximum costs for each separate medical dispute, being five in total. The claimant submitted that he was entitled to the maximum amount of $1,660.26 for each separate dispute that arose. He provided a 36-page itemised bill of costs totalling $23,946.50, though made no effort to clarify which items in the document formed part of any one of the five separate claims for costs. However, it was evident that the bill covered a period commencing before any medical dispute arose and included substantial administrative costs such as time spent on electronic and hardcopy filing and printing. The bill also included costs that would have no relationship to a medical dispute such as requesting documents from the Australian Taxation Office, or which were unrecoverable such as the costs of an internal review.
The insurer submitted that as the applications were consolidated into one medical assessment there could be only one claim for costs up to the maximum amount regardless of the number of disputes. The insurer further submitted that in any event, the work performed by the claimant’s solicitor was minimal and therefore unlikely to reach the maximum sum.
The matter was referred to the Commission for determination.
Findings: The Merit Reviewer rejected the claimant’s contention that costs were recoverable in connection with each dispute and instead concluded that the claimant was entitled to costs, up to the maximum for each medical assessment or review of a medical assessment, as follows:
- medical assessment by Medical Assessor Bodel
- medical assessment by Medical Assessor Mason, and
- review of a medical assessment by review panel Medical Assessors Crane and Maloney.
The Merit Reviewer otherwise declined to conduct a merit review pursuant to s 7.12(7) of the Act as to the amount of reasonable and necessary costs payable in connection with each of the above on the basis the claimant failed to provide information required by the Merit Reviewer pursuant to directions issued on 5 July 2022, which had been extended on two further occasions.
Merit Review
Lim v AAI Limited t/as GIO [2022] NSWPICMR 61
Merit Reviewer: Ray Plibersek
MOTOR ACCIDENTS – merit review – dispute over payment of interpreter invoices and legal costs.
This matter involved two applications for merit review for disputes between the claimant and the insurer about the payment of cost for the provision of interpreter services and over the payment of legal costs.
The insurer disputed that the invoices were reasonable and necessary and should be paid. The insurer set out a table where it referred to 10 disputes and each invoice. The reasons given in the table varied and different reasons were given for each invoice disputed. The table also referred to some invoices that were claimed more than once.
The insurer submitted that the Commission has no jurisdiction to conduct a review of the dispute. The claimant made a number of arguments that the interpreter costs should be paid because:
- the cost of the interpreters’ invoices were reasonable for the purposes of sub-section 3.24 (1) (a) (Entitlement to statutory benefits for treatment and care)
- the cost of the interpreters’ invoices was payable under s 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries), and
- section 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant were reasonable and necessary.
The Merit Reviewer took the view that the Commission did not have jurisdiction to conduct a merit review of this dispute over interpreter invoices as s 8.10 of the Act provides for an entitlement for the recovery of costs and expenses incurred by a claimant “in connection with the claim”. In the context of s 8.10, the reference to ‘claim’ is a reference to claims for statutory benefits under Part 3 of the Act, that being ‘weekly payments’ and ‘treatment and care’. The subject invoices are therefore not ‘statutory benefits’ under the Act. The Merit Reviewer noted similar analysis was made in ABV v AAI Ltd t/as GIO [2021] NSWPICMR 26.
Additionally, the claimant sought payment of legal costs for “exceptional circumstances” under s 8.10 of the Act, as well as an award of legal costs under s 7.42 of the Act. He also sought a costs penalty under s 6.21 of the Act to be awarded to the interpreter for being imposed for the unreasonable denial of liability. The Merit Reviewer found that exceptional circumstances did not exist in this case, noting in particular AAI Ltd t/as GIO v Moon [2020] NSWCC 714, and the factors of exceptional circumstances that were identified in that case. It was further considered that s 7.42 of the Act could not apply to these merit review disputes to allow for the payment of legal costs as dispute is defined under s 7.40 to mean a dispute between a claimant and an insurer about a miscellaneous claims assessment matter. Finally, the Merit Reviewer noted that the claimant’s solicitor had not provided any detailed submissions, legal argument or evidence to find that there was no reasonable basis for the denial of liability. Accordingly, no costs penalty could be imposed on the insurer in this case under s 6.21.
Findings: The Member held that the Commission did not have jurisdiction to review the disputes over the payment of interpreter invoices referred to in the claimant’s two applications for review.
Further, no legal costs were payable under either s 7.42 or sub-section 8.10(4), and no costs penalty was payable under s 6.21.
Miscellaneous Claims Assessment
O’Donnell v QBE Insurance (Australia) Limited [2022] NSWPIC 597
Member: Terence Stern
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault— motorcyclist following a four-wheel drive towing a horse float—dispute as to braking lights – claimant braked heavily and lost control of the motorcycle.
The claimant was a motorcyclist travelling behind a four-wheel drive towing a horse float. The insured vehicle slowed to turn right. At this time the claimant braked heavily causing loss of control of the motorcycle and it fell on to the road. The dispute pertains to whether the braking lights of the horse float were functioning.
The insurer considered the claimant to be wholly or mostly at fault and denied statutory benefits post-26 weeks, which was affirmed on internal review. The insurer submitted that the accident was caused by the claimant in the way he used and operated his motorcycle; there is no evidence of a malfunction in the ABS system of the motorcycle. In the alternative, it was submitted that if the ABS system was faulty then the claimant failed to adequately maintain it.
The claimant was not legally represented and relied heavily on his own opinion evidence as to the cause of the accident. In his submissions, he alleged to have noticed that the horse float did not have any brake lights or indicators illuminated. He said when he observed the insured vehicle commencing a right-hand turn, he applied his brakes, the front wheel locked totally for a period of approximately 0.5 seconds causing the motorcycle to immediately fall to the right. He further stated that only the front brake locked as there was no skid mark on the roadway from the rear brake. He also detailed his extensive motorcycle riding experience.
The matter was referred to the Commission for determination.
Findings: The Member held on the balance of probabilities, amid other findings of fact, that had there been lights illuminated on the float the claimant would have braked sooner and not as heavily. As to the claimant’s submissions, he stated that to comment about the total braking time is the claimant’s opinion and was not admissible. Nonetheless, the Member accepted apportionment of fault was well under 61% and probably well under 50%.
Accordingly, the claimant was not found to be wholly or mostly at fault for the purposes of ss 3.11 and 3.2A of the Act.
There were otherwise no requirement to determine legal costs as the claimant was unrepresented.
Merit Review
Perras v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 62
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS – merit review – whether costs and expenses incurred by the claimant were reasonable and necessary.
The claimant was injured in an accident on 13 March 2021. On 26 April 2022, he lodged an application to the Commission for a review of the insurer’s internal review decision regarding treatment dated 20 April 2022. He also lodged an application for a merit review in respect of the claim for costs.
The claimant submitted that he was entitled to payment of regulated legal fees in the sum of $1,710 plus GST, which is the maximum payable under Schedule 1, Part 1, Cl 2(1) of the Act. The insurer argued that given the medical assessment had not yet taken place, the request for the payment of costs of the medical assessment was premature and that it will consider such costs following the outcome of the medical assessment.
The matter was referred to the Commission for determination.
In his opening remarks, the Merit Reviewer noted that the claimant’s solicitor was under the misapprehension that the claimant automatically became entitled to payment of maximum legal costs the moment the claimant disputed an internal review decision about a medical dispute, even before costs are incurred in connection with a medical assessment and/or regardless of whether actual costs in connection with a medical assessment reached or exceeded the maximum.
The Merit Reviewer also considered that any costs incurred prior to 20 April 2022 could not be costs incurred in connection with a medical assessment, as the need for a medical assessment had not arisen prior to this time. The application for a medical assessment was lodged just three business days after the internal review decision and it was therefore unlikely that in this three-day period alone, the claimant incurred costs in connection with the medical assessment at or above the maximum.
Findings: The Merit Reviewer held that the claimant had an entitlement to costs in connection with the medical assessment that were reasonable and necessary, up to the maximum prescribed by the Regulations. However, as the medical assessment had not yet concluded any determination as to the extent to which the claimant had incurred reasonable and necessary, entitlement to costs of the medical assessment was premature.
Accordingly, the matter was remitted back to the insurer to consider the claimant’s claim for costs in connection with the medical assessment, upon conclusion of the medical assessment.
Merit Review
Patel v Insurance Australia Limited t/as NRMA Insurance (No 1) [2022] NSWPICMR 63
Merit Reviewer: Maurice Castagnet
MOTOR ACCIDENTS – merit review – dispute about the amount of weekly payments of statutory benefits – calculating claimant’s pre-accident weekly earnings (PAWE) – warehouse assistant from various casual positions sourced through human resources agencies.
The claimant was a warehouse assistance, working in casual positions sourced through various human resources agencies at the time of the accident.
The insurer determined that the claimant’s PAWE was $894.25. The insurer relied on the claimant’s Notice of Assessment for the financial year ending 30 June 2020, which showed a taxable income of $46,501. The claimant sought an internal review and the decision was affirmed.
The claimant then sought a merit review and alleged that his PAWE has been incorrectly calculated by the insurer, stating that his gross earnings were at least $1,000.
Findings: The Merit Reviewer accepted that the claimant’s PAWE should be determined by calculating the weekly average of the gross earnings received by the claimant as an earner during the 12 months immediately before the day of the motor accident.
It was noted that the claimant provided the insurer with his Notice of Assessment for the financial year ending 30 June 2020, which revealed that his ‘taxable income’ was $46,501. However, it was said that without source documents such as the tax return or PAYG payment summaries, it could not be established whether the entire amount represented the claimant’s income from ‘personal exertion’.
It was apparent that the claimant did not provide the insurer with the relevant tax return however, he provided his “Pre-filing report 2020” issued by the ATO. This report showed the claimant’s PAYG Payment Summaries for the financial year 1 July 2019 to 30 June 2020, which was believed to reflect the claimant’s income from personal exertion. The Merit Reviewer considered that it was inexplicable why the insurer did not utilise this document in calculating the claimant’s PAWE.
Nevertheless, the Merit Reviewer went on to consider that for the purposes of cl 4(1) of Schedule 1, it was reasonable to attribute on a pro rata basis, the claimant’s average gross weekly earnings for the period 8 October 2019 to 30 June 2020 from his gross earnings of that financial year. On that basis, he calculated that period to be 38 weeks, which equated to gross earnings of $36,059.
The claimant also provided the insurer with a number of payslips for his gross earnings from various employments through the human resources agencies in the period between 1 July 2020 and 7 October 2020. The claimant’s gross earnings over this period of 14 weeks totalled $18,027.49.
Overall, the Merit Reviewer determined that the claimant’s PAWE was $1,040.11, effective 8 October 2020. The insurer was therefore required to apply this calculation of PAWE when determining the claimant’s entitlements under Division 3.3 of the Act.
The issue of legal costs did not arise as the claimant was self-represented.
Miscellaneous Claims Assessment
Ansari v Allianz Australia Insurance Limited [2022] NSWPIC 604
Member: Brett Williams
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—single vehicle motor accident – whether a dip in the road caused the claimant’s motorcycle to become unbalanced.
The claimant was travelling on a motorcycle crossing an intersection when without warning he encountered a dip in the road. The dip allegedly caused his motorcycle to become imbalanced and resulted in it going up a median strip and colliding with two poles. The claimant entered a guilty plea to a negligent driving charge as a result, though he argued that this was not binding for the purposes of his civil proceedings.
The insurer considered the claimant to be wholly or mostly at fault and denied statutory benefits post-26 weeks, which was affirmed on internal review. The insurer found that the claimant was at fault because he failed to maintain adequate control of his motorcycle. The claimant maintained that the accident was caused by the dip in the road rather than his actions, and that the accident was caused neither wholly nor mostly by his fault.
The claimant referred the dispute to the Commission.
Findings: The Member found that on the balance of probabilities there was a slight dip in the road. He accepted the claimant’s evidence that he was not aware of it nor that he ought to be aware of it, given he had not often frequented the road on which the accident occurred and when he did so, it was in a car. He was satisfied that the dip was slight, and that it was something that he would not have noticed when travelling in a car.
As to fault, the Member determined that the claimant lost control of his motorcycle and was not travelling at an appropriate speed. He was of the view that a reasonable person in the claimant’s position would have approached the driveway with caution, and at a speed of less than 60kph.
Accordingly, the claimant was found to be wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
