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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.

All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.

Merit Review

AAV v AAI Ltd t/as GIO [2021] NSWPICMR

Merit Reviewer: Ray Plibersek

MOTOR ACCIDENTS—Whether claimant failed to comply with a direction pursuant to s 6.26 to provide particulars—direction made in compliance with the form approved by State Insurance Regulatory Authority (SIRA)—claim made for damages—liability for damages denied as injury was minor—whether claimant has to provide particulars when liability denied. Findings: The direction was validly made—the insurer’s decision that the claim was deemed to be withdrawn was affirmed. It was noted that any reasons for the inability to obtain particulars should have been conveyed as early as possible. Whilst this would not have prevented the claim being deemed withdrawn pursuant to s 6.26, it may assist in a future application to re-instate the claim.

The claimant made an application for damages on 12 February 2020. The insurer issued a notice admitting fault but denying liability on the basis that the injuries were minor. The insurer served a direction for the claimant to provide particulars pursuant to s 6.26 on 24 September 2020. No response was received within the prescribed three month timeframe. The insurer asserted that the claim was deemed to be withdrawn. The claimant asserted that they had no obligation to provide particulars whilst liability was denied, and the minor injury dispute had to first be resolved. The claimant lodged an application for merit review.

The claimant relied on s 4.4 in stating that as the claimant had no entitlement to damages due to the insurer determining that his injuries were minor, they had no obligation to provide particulars. At the teleconference the claimant’s solicitors stated that they had difficulty obtaining instructions due to COVID restrictions.

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AAS v NRMA Ltd [2021] NSWPICMR 11

Merit reviewer: Roohi Koya

MOTOR ACCIDENTS—Merit review—Application for statutory benefits received more than 28 days after accident—whether claimant entitled to weekly payment of statutory benefit from date of accident. Findings: Both s 6.13(2) and clause 4.15 of the Motor Accident Guidelines state that to be entitled to payment of statutory benefits from the date of accident, the application must be made within 28 days of the accident. There is no discretion afforded to an insurer to make payment from the date of accident if the application is lodged more than 28 days after the accident. Clause 4.9 of the Guidelines allows for a “friend” to assist the claimant in making an application when the claimant is unable to do so themselves.

The claimant was injured in an accident on 27 September 2020. An application for statutory benefits was received on 1 January 2021. The insurer accepted liability for payment of statutory benefits from 1 January 2021. The claimant sought review of the insurer’s decision not to pay statutory benefits from the period 28 September – 31 December 2020.

The claimant submitted that he was unable to make an application for statutory benefits earlier due to his injuries. The insurer submitted that it had discretion to accept a late claim under s 6.13(1), but not to make back payments of statutory benefits in a late claim pursuant to s 6.13(2).

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AAW v GIO Ltd [2021] NSWPICMR 10

Merit reviewer: Kriesen Seeneevassen

MOTOR ACCIDENTS—Merit review—Claimant receiving Jobseeker payments at time of accident—Claimant self-employed—whether earnings from a business are earnings from personal exertion—whether claimant had demonstrated a loss of earnings. Findings: Income earned as a director of a company constitutes income from personal exertion pursuant to Schedule 2, clause 3 of the Act. However, the financial and business records provided by the claimant showed only that she had derived earnings prior to the accident, not that those earnings were attributable to her alleged employment. A reduction in Jobseeker payments on its own is not evidence of income, because the reduction in payments could be due to a number of factors such as an increase in a partner’s earnings. Insurer’s decision affirmed.

The accident occurred on 9 June 2020. The claimant was receiving Jobseeker payments at the time of accident. She was also a director of a business, and claimed that she had suffered a loss of earnings from the business as a result of the accident.

The insurer accepted that she was an “earner” but denied that she was entitled to weekly benefits as she had not demonstrated a loss of earning due to the accident.

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Merit reviewer: Michael Sofoulis

MOTOR ACCIDENTS—Merit review—Assessment of post-accident earning capacity—Claimant lost employment after accident—Insurer made Earning Capacity Decision that the claimant was not entitled to weekly payment of statutory benefits post-78 weeks—Claimant was actively job seeking at the time—Review of Earning Capacity Decision. Findings: The insurer’s assessment was conducted in accordance with Schedule 1, Clause 8 of the Act. The insurer’s decision was affirmed.

The accident occurred on 19 February 2019. At the time the claimant was employed as a graphic designer. It seemed that he subsequently lost this employment. The claimant suffered a fracture to his left distal radius requiring surgery. The claimant regularly furnished the insurer with certificates of capacity. From 25 March 2019 these certificates assessed the claimant as having some capacity. From 17 May 2019 the certificates certified the claimant as having capacity to work eight hours per day, five days per week, with lifting restrictions. From 4 March 202020 the claimant was certified fit to work without restrictions. The insurer obtained a Labour Market Assessment report on 20 July 2020.

On 18 August 2020 the insurer made an Earning Capacity Decision determining that the claimant was not entitled to weekly payments of statutory benefits post-78 weeks. The claimant sought review of this decision.

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Miscellaneous claims assessment (liability)

AAU v GIO Ltd [2021] NSWPIC 127

Member: Stephen Boyd-Boland

MOTOR ACCIDENTS—Miscellaneous claim—whether claimant was mostly at fault—Competing versions from claimant and insured driver—Neither claimant nor insured driver called to give evidence at assessment conference—Expert liability reports obtained by bother parties—Accident occurred during or shortly after lanes change—regulation 148 of Road Rules 2014 applied.  Findings: The claimant failed to give way to the insured vehicle when the claimant was changing lanes. There was no negligence on the part of the insured driver. The claimant was wholly at fault. Insurer’s decision affirmed.

The claimant was driving an ebike on King Street, Newtown. The Member found that both vehicles were stopped alongside each other at red traffic lights. Both vehicles were at the head of queued traffic. Subsequent to the traffic lights turning green, the claimant was hit from behind. The insurer asserted that the accident occurred whilst the claimant was changing lanes. The claimant asserted that she had completed the lane merge prior to the accident.
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