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Welcome to the 78th 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.

Review Panel Determination

Insurance Australia Limited t/as NRMA Insurance v BKA [2022] NSWPICMR 450

Review Panel Member: Ray Plibersek

MOTOR ACCIDENTS – review panel determination – psychiatric injury – permanent impairment dispute – various treatment disputes.

The claimant was involved in two motor accidents ten months apart. The claimant was diagnosed with chronic severe post-traumatic stress disorder and major depressive disorder caused by the first accident. The second one occurred on a country road and was considered a ‘near miss’.

There was a dispute about whether the degree of permanent impairment sustained by the claimant as a result of psychological injury caused by an accident was greater than 10%. Medical Assessor Doron Samuell issued a Certificate dated 6 July 2021 assessing 21% whole person impairment (WPI). A successful application for review was lodged by the insurer.

The claimant was re-examined by Medical Assessor Fukui and Medical Assessor Mason on 1 August 2022. The Review Panel concluded that the claimant had developed a chronic and severe post-traumatic stress disorder along with an equally chronic and severe major depressive disorder. The Review Panel determined the claimant’s WPI at 26% and caused by the first motor accident. The principles in State Government Insurance Commission v Oakley were applied, namely category one, being that the injury or impairment resulting from a subsequent incident was treated as caused by the first motor accident.

The Review Panel otherwise noted that the claimant had a probable pre-existing adjustment disorder with depressed mood, however WPI assessment indicated she was unimpaired.

There were also forty-eight treatment disputes before Medical Assessor Samuell. He concluded all treatments other than pain management treatment related to the motor accident and were reasonable and necessary. The Review Panel considered all previous psychiatric, psychological, pharmacological and general practitioner treatments did relate to the first motor accident and were reasonable and necessary in the circumstances. However, there was disagreement regarding the frequency of psychiatric attendance. The Review Panel further considered that the hours of care claimed were excessive but believed some gratuitous domestic assistance (varying hours) had been and continued to be necessary as a consequence of her psychological symptoms.

Findings: The Review Panel revoked the Certificate of Medical Assessor Samuell and issued a Replacement Certificate determining that the claimant suffered psychological injuries in the first accident which gives rise to WPI greater than 10%.

View decision

Merit Review

Oh v Allianz Australia Insurance Limited [2022] NSWPICMR 65

Merit Reviewer: Katherine Ruschen

MOTOR ACCIDENTS – merit review – recovery of costs and expenses in relation to claims for statutory benefits – whether interpreter fees reasonable and necessary.

The claimant made a claim for statutory benefits under the Act, including for payment of certain interpreter fees to form part of her treatment. A few months later, the claimant’s entitlement to statutory benefits ceased and the insurer refused payment of interpreter fees incurred after this time. The insurer also declined to conduct an internal review on the basis it did not have jurisdiction.

The claimant referred the dispute to the Commission.

The claimant’s sought payment of interpreter fees on the basis they were either costs of treatment and care under s 3.24 of the Act or costs of the claim for statutory benefits under s 8.10 of the Act. The insurer maintained that the payment of interpreter fees as interpreter services did not fall within the definition of treatment and care under the Act.

The Merit Reviewer was satisfied that she had jurisdiction to determine the dispute.

It was said the claimant had the onus of proof and must establish on the balance of probabilities that interpreter fees were both reasonable and necessary for the delivery of the subject treatment. As nothing was known about the circumstances in which interpreter services were provided other than the name and practice area of the treatment provider and the date of attendance, the Merit Reviewer was not satisfied on balance that the interpreter services were both reasonable and necessary on each occasion, as required by s 3.24 of the Act. It follows that interpreter fees in connection with the treatment provided by the claimant’s various practitioners were not payable under s 3.24 of the Act.

The Merit Reviewer also held that the interpreter fees in connection with solicitor consultations were not payable by the insurer. Further reference was made to s 8.10(3) of the Act, which provides the claimant is entitled to legal costs only if they are permitted by Regulation or the Commission. It was noted that the claimant provided no information upon which one could assess whether the interpreter fees were reasonable and necessary. Instead, she adopted a rudimentary approach that is, if the costs were incurred, they must be reasonable and necessary. Though it was held that this is clearly not the measure of whether costs are reasonable and necessary under the Act or the Legal Profession Uniform Law (NSW) 2014.

Additionally, the claimant sought payment of legal costs for “exceptional circumstances” under s 8.10 of the Act, as well as a costs penalty under s 6.21 of the Act. Both these arguments were not accepted.

Findings: The Merit Reviewer held that the interpreter fees incurred in connection with treatment provided by various practitioners and solicitor consultations were not payable by the insurer under s 3.24 or s 8.10 of the Act. The reviewable decision was affirmed.

Further, the claimant’s entitlement to costs of this merit review were nil.

View decision

Miscellaneous Claims Assessment

ACV v The Nominal Defendant (No 2) [2022] NSWPICMR 634

Member: Belinda Cassidy

MOTOR ACCIDENTS—claim for damages; separate assessment of liability assessment undertaken on the papers—accident occurred during a medical (psychotic) episode—single vehicle motor accident—damages claimed under the no-fault accident provisions.

The claimant was driving his Commodore sedan when it left the road and collided with a power pole. The claimant’s evidence was that he did so to avoid persecution by non-human beings he thought were pursuing him, but they were hallucinations as part of an intense psychotic episode. The insurer denied liability for the claim for damages against the Nominal Defendant, which was affirmed on internal review.

The matter was referred to the Commission for determination.

The statutory benefits claim had previously been before the Commission on the same basis. At that time, the Member was satisfied that the claimant was, in the lead up to the accident, in a psychotic state and not responsible for his actions. The Member ultimately determined that the claimant was not wholly nor mostly at fault, and thereby considered his statutory benefits should continue beyond the first 26 weeks after the accident.

For the purposes of this application in relation to his damages claim, the claimant stated his “accident falls within an interesting lacuna in the Act where it cannot be said that any act or omission of the Claimant caused the accident, nor could it be said that an involuntary act on his part caused the accident.”

The insurer submitted that the claimant could not recover damages because:

  • if his driving was not a cause of the accident then the accident is not a motor accident, the Act does not apply, and the Nominal Defendant does not respond to the claim
  • if the claimant’s driving was a cause of the accident then, as there was no other vehicle, his only claim is against himself and there is no available claim in negligence for which fault can be deemed, and
  • he is barred from recovery in any event by s 5.4.

The Member considered by operation of s 5.2 of the Act, the claimant’s injuries are “deemed to have been caused” by his own fault as the driver of his own vehicle. However, it was noted that whilst this provision deems fault it does not deem liability, which requires proof of three elements: duty, breach of duty and loss. The Member agreed with the insurer that the claimant did not have an available claim because he could not have an action in negligence or any other basis against himself. Therefore, liability could not be deemed in a situation where no duty of care exists.

Alternatively, if the claimant did not have an action in negligence or on some other basis under the  Act and the no-fault provisions apply, the Member was of the view that he was prevented from recovering damages by the operation of s 5.4 of the Act, which says that the driver of a motor vehicle has no entitlement to recover damages under the no-fault provisions if the motor accident was caused by an act or omission of that driver. In this instance, there was no denying he was psychotic at the time and was not responsible for what he was doing but emphasis was placed on the act of driving his car that resulted in the accident.

Findings: The Member held that the insurer had no liability to pay the claimant any damages. No costs were awarded to the claimant accordingly.

View decision

Claims Assessment

BBX v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMR 635

Member: Susan McTegg

MOTOR ACCIDENTS—assessment of damages—head on collision at 80kmph—question of impairment of economic loss—loss of career trajectory to senior management role.

On 15 May 2019, the claimant was involved in a head on collision at about 80 kmph when the insured crossed onto the wrong side of the road. She sustained multiple physical and psychological injuries, some of which were considered to have resolved. The claim was listed for assessment conference in November 2022. The only real issue in dispute was whether the accident had resulted in an impairment of the claimant’s earning capacity entitling her to an award of damages for economic loss.

By way of background, the claimant had been employed as a Senior Analyst for Transport for NSW since February 2021 earning $146,988 per annum or $4,010.03 per fortnight.

The claimant provided an excel spreadsheet setting out leave taken from the date of accident until 3 January 2020 (when she resumed her pre-injury duties) totalling 486.5 hours—318.5 hours or 9.1 weeks was considered accident related. The claim for past economic loss was calculated at $1,713 net per week for 9.1 weeks in the sum of $15,588.30 plus loss of superannuation benefits calculated at 11% in the sum of $1,714.71. The insurer submitted that the claimant had taken leave totalling 64.42 days in accordance with leave records produced by Transport NSW, but only conceded half the annual leave and sick leave as being accident related, being 7.45 weeks. There was no dispute as to the weekly earnings figure between the parties. The insurer therefore advanced a claim of $12,761 plus loss of superannuation benefits calculated at 11% in the sum of $1,403. Ultimately, the Member was satisfied as to the reliability of the claimant’s evidence and accepted her claim accordingly.

The Member declined to assess damages for past economic loss for the period April 2021 to date. She was not satisfied that the claimant’s psychological symptoms were the reason she did not secure a full-time role as an Acting Interface Manager, which was offered between June 2020 and April 2021, particularly as no corroborative evidence was provided.

Fox v Wood was agreed at $1,556.

The claimant further submitted a claim for future economic loss of a buffer of $400,000. The insurer argued that the claimant should not be awarded any damages as she was working full time and had been doing so since 9 December 2019. The Member was satisfied the claimant had sustained a significant impairment of her future earning capacity. Most notably, it was considered that her ongoing psychological symptoms mean she is unlikely to secure a senior management role. The Member allowed an appropriate buffer of $150,000 inclusive of superannuation benefits.

Findings: The Member assessed damages in the total sum of $168,859.01. The insurer was to have credit for statutory payments pursuant to s 3.40 of the Act in the sum of $12,715.89.

Costs were also assessed in the total sum of $38,038.57 inclusive of GST.

View decision

District Court Decision

Rafiqul Islam v Transport Accident Commission of Victoria and Heather Worldon v Transport Accident Commission of Victoria [2022] NSWDC 582

Before: Weber SC DCJ

CONSTITUTIONAL LAW—Federal Jurisdiction—judicial power - proceedings before State tribunal involved matter between parties of different states – Necessity Principle - inability of administrative tribunal to determine matters where federal judicial power is being exercised – whether the Personal Injury Commission a Court of the State.

The proceedings concerned two summons for which relief was sought to bring proceedings in the District Court of NSW. This was on the basis that the matters involved the exercise of federal jurisdiction for the purposes of s 26(3)(b) of the Personal Injuries Commission Act 2020 (PIC Act). The position had been previously considered in Searle v McGregor [2022] NSWCA 213.

The possibility of the potential exercise of federal jurisdiction by the Commission arose from the fact that the Plaintiff in each case was involved in a motor vehicle accident in NSW and the other driver was driving a vehicle registered in Victoria.

The summons had previously come on for mention before Philips DCJ on 24 June 2022. At this time his Honour made the following directions for written submissions on three preliminary questions being:

  1. Is the Commission a Court of the State?
  2. Is the Commission decision-maker in this case exercising judicial or administrative power?
  3. What is the proper characterisation of the First Defendant and is it a part of the State of Victoria?

The Attorney General for the State of New South Wales intervened to assist the Court in answering the three questions. The Attorney put on submissions, which the other parties subsequently adopted.

His Honour agreed with the Attorney’s assertion that in the circumstances of this case, the only question that was necessary to be determined is the second, namely, “whether the Commission’s decision in this case was exercising judicial or administrative power?”.

In response to this question, his Honour concluded that in making decisions in respect of damage assessments or a medical dispute involving residents of different states, the Commission was exercising administrative, and not judicial power. His Honour found that the Commission was in error when it considered that it was lacking in jurisdiction to determine the questions before it in both matters. It followed, as agreed between the parties, that leave should not be granted to the Plaintiffs to bring their respective matters before the District Court of NSW.

Findings: The following orders were made in each case:

  • That the summons in hearing be dismissed.
  • No order as to costs.

View decision

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