Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 81
23 February 2023
Welcome to the 81st 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
AAI Limited t/as AAMI v Page [2022] NSWPIC 723
Member: David Ford
MOTOR ACCIDENTS—settlement approval—claimant is self-represented—claim for past and future economic loss—physical injuries.
The claimant was riding a bicycle when the insured vehicle approached a give way sign and slowed down but, failed to stop and collided with the claimant’s bicycle. The claimant was thrown to the roadway and sustained a fracture to the right tibia and right fibula.
At the time of the accident, the claimant was employed as a bank officer for the Commonwealth Bank and has continued in that employment. As a result of the accident, the claimant was absent from work for three months and upon his return to work, he worked on a part time basis before resuming full time duties seven months post-accident. The insurer paid $8,426.47 in statutory weekly benefits.
The insurer conceded entitlement to damages. The claimant did not have a claim for non-economic loss as his injuries did not exceed the impairment threshold. He sought damages for past and future economic loss and Fox v Wood.
As the claimant was not represented by a solicitor, the proposed settlement required approval by the Commission pursuant to s 6.23 of the Act.
Findings: The Member accepted that damages of $13,500 for past economic loss, $50,000 in future economic loss and $2,353 in Fox v Wood was just, fair and reasonable and within the range of damages likely to be awarded if the matter progressed to hearing.
Merit Review
Patton v Allianz Australia Insurance Limited [2022] NSWPICMR 74
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—merit review—dispute about payment of weekly benefits—whether the claimant was receiving earning as an earner in the 12 months immediately before the accident—whether superannuation contributions were earnings received as an earner—whether the monetary amount of leave entitlements were earnings received as an earner.
The claimant claimed statutory benefits in relation to an accident on 11 December 2020. A dispute arose about the amount of weekly statutory benefits and was brought before the Commission.
The insurer initially determined pre-accident weekly earnings (PAWE) as nil, which was adjusted to $391 following the internal review decision.
The claimant lodged an application with the Commission disputing the insurer’s decision.
The claimant submitted he was an employee of Grow Super and received his final earnings from Grow Super on 12 December 2019 (12-month pre-motor vehicle accident (pre-MVA)).
He said that in early 2020 (pre-MVA) he commenced business via a discretionary trust known as The Trustee for Blujay Investment Trust, which distributed the profit of the trust company to beneficiaries including the claimant.
The claimant submitted that he did not obtain earnings during the 12-month pre-MVA period but, received earnings for at least 26 weeks in the first 12 months of the two-year pre-accident period, and therefore PAWE fell under cl 4(2)(1).
In addition, the claimant submitted that superannuation contributions made on his behalf by employers together with the monetary amount of leave entitlements should be included in his earnings when calculating PAWE.
The insurer submitted that the claimant received earnings from an employer during the 12-month pre-MVA period and therefore cl 4(2)(a1) did not apply.
The insurer also submitted superannuation and leave entitlements are excluded from PAWE as they do not fall within the definition of “income from personal exertion”.
Does clause 4(2)(a1) apply?
The Merit Reviewer noted that cl 4(2)(a1) only applies if the claimant did not receive earnings in the 12 months immediately before the accident. It was clear the claimant obtained earnings from the Trust by way of distribution in the 12-month pre-MVA. Accordingly, the Merit Reviewer determined cl 4(2)(a1) did not apply.
Superannuation and leave entitlements
The Merit Reviewer noted that under the Act, “loss” of earnings or earnings “received” are income from personal exertion and do not include superannuation contributions or the monetary amount of annual leave or other leave entitlements.
The Merit Reviewer determined that employer superannuation contributions are not earnings under cl 4(1) and are excluded f from PAWE because:
- contributions are made into a nominated superannuation fund
- contributions are not received by the claimant at the time of payment
- the funds are not capable of being received by the claimant until they are converted into superannuation pension payments, and
- superannuation contributions are not taxable income and are not declared in a tax return.
Similarly, the Merit Reviewer determined the monetary amount of the claimant’s “remaining balance” of annual leave was not income from personal exertion and therefore not earnings.
Findings: Accordingly, the Merit Reviewer determined that superannuation contributions and the monetary amount of leave entitlements received by the claimant were excluded from PAWE.
Habib v QBE Insurance (Australia) Limited [2022] NSWPICMR 73
Merit Reviewer: Katherine Ruschen
MOTOR ACCIDENTS—merit review—dispute about payment of weekly benefits—whether the insurer was entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (CLA).
The claimant made a claim for statutory benefits in relation to an accident on 1 February 2020.
The insurer determined the claimant was not entitled to statutory benefits as she was not eligible to bring a claim for pure mental harm under s 30 of the CLA.
The claimant lodged an application with the Commission seeking a merit review.
The claimant submitted she was an eligible person under s 30 of the CLA because she satisfied the definition of “close member of the family” of the victim under s 30 as she is the grandmother and has parental responsibility for the victim. Further, the claimant submitted she witnessed the victim being put in peril on the basis she arrived at the scene at a point in time when her grandson had been loaded into an ambulance but, had not yet been taken to hospital.
The insurer submitted the claimant did not satisfy the definition of “close member of the family”, as grandparent is not included under s 30 of the CLA and the care to the victim did not amount to parental responsibility. The insurer also submitted the claimant did not witness the victim being put in peril as, by the time the claimant arrived at the scene, the victim had been taken to a place of safety (the ambulance) and was under medical care.
Is the claimant a close member of the family under s 30 of the CLA?
The Merit Reviewer noted that s 30 establishes a clear limitation on those persons who can bring a claim for pure mental harm. Therefore, if the claimant did not satisfy one of the specified categories of the persons under s 30 of the CLA, then she is not entitled to statutory benefits.
The Merit Reviewer stated that grandparent is not expressly included in the categories of persons defined in s 30. The term “parental responsibility” is defined in s 61B of the Family Law Act 1975 (FLA) to mean:
“all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”
The Merit Reviewer noted that given the phrase “parental responsibility” is contained in the CLA, it must be assumed that the intended legal meaning is as defined under the FLA. That is, the ordinary meaning of the phrase “parental responsibility” is:
"having the job or duty of the parent of the child to deal with the child and take decision relating to the child. This implies a permanent, continuing state and not a temporary one and implies that the person with parental responsibility does not need permission or authorisation from any other person in taking long term decisions."
The claimant submitted she was providing care for her grandchild during times the parents were working. However, the Merit Reviewer was not satisfied the claimant was a person who had parental responsibility as she did not have a legal right to make decisions for the child.
Given the claimant did not meet the definition of “parental responsibility”, she was not a “close member of the family” for purpose of s 30 of the CLA.
Did the claimant witness the victim being put in peril at the scene?
The claimant contended she was eligible to bring a claim for pure mental harm because she witnessed the victim being put in peril at the scene.
The Merit Reviewer noted that by the time the claimant arrived the accident scene was cordoned off, the victim was loaded in an ambulance and had received primary care from paramedics for approximately 15 minutes, and had received medical treatment from a doctor for a further 20 minutes. Records said that the paramedics departed the accident scene 24 to 29 minutes prior to arrival of the claimant at the scene. Nevertheless, the claimant contended that she witnessed her grandchild placed in an ambulance.
The Merit Reviewer referred to the Court’s determination and reasons in Wicks v State Rail Authority (NSW) [2010] HCA 22 (Wicks) and noted that “being put in peril” conveys that:
“a person is put in peril when put at risk; the person remains in peril (is ‘being put in peril’) until the person ceases to be at risk”.
According to Wicks, the victim remained at risk until taken to a “place of safety”. The Merit Reviewer noted that in such case, “being put in peril” must be read as directing attention to an event that was happening while the claimant “witnessed” it. The Merit Reviewer noted that whilst it is possible for the claimant’s condition to worsen whilst under care of medical professionals, Wicks clearly states that “being put in peril” focusses on an event happening while the claimant is a witness. Given the claimant arrived at the scene after the victim had been loaded into an ambulance and attended by a doctor, the Merit Reviewer determined the victim was in a place of safety.
The Merit Review determined the claimant did not witness the victim being put in peril for purpose of s 30 of the CLA.
Findings: The Merit Reviewer determined the claimant was not a “close member of the family” and did not witness the victim being put in peril at the scene.
Accordingly, the claimant was not eligible for payment of statutory benefits under the Act. The Merit Reviewer affirmed the reviewable decision.
Miscellaneous Claims Assessment
Cooper v QBE Insurance (Australia) Limited [2022] NSWPIC 731
Member: Belinda Cassidy
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault.
On 10 March 2022, the claimant was riding a bicycle when he was hit by the insured’s vehicle coming out of a KFC driveway. The claimant sustained a broken femur, fractured knee, bruises and low back pain.
The insurer considered the claimant wholly or mostly at fault and said his contributory negligence should be assessed at 70%, and denied statutory benefits post-26 weeks, which was affirmed on internal review.
The claimant referred the dispute to the Commission seeking a determination that he was not mostly at fault.
The claimant accepted he was riding his bicycle on the incorrect side of the road but said the insured driver exited the KFC driveway at an excessive speed without keeping a proper lookout. The claimant submitted his statutory benefits should be reduced by 25% contributory negligence.
The insurer submitted the claimant failed to keep a proper lookout, failed to heed the presence of the insured in the driveway, failed to take precautions, caused a traffic hazard by riding on the wrong side of the road and acting recklessly and dangerously. The insurer submitted that contributory negligence was no less than 70%.
The Member found the claimant was riding on the wrong side of the road and that there was a truck blocking the parties’ views of each other and noted it was difficult to identify the insured’s breach of duty of care.
However, the insurer admitted the insured driver breached his duty of care and that it was the insured driver’s fault that caused the subject accident. The Member also noted the claimant conceded contributory negligence for riding against the traffic. Therefore, the Member accepted the claimant contributed to the accident and his injuries.
The Member referred to Pennington v Norris [1956] HCA 26 and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 to determine the degree of contributory negligence. The Member found that the insured was not speeding. The claimant rode on the incorrect side of the road next to a truck, which would have blocked his view of any vehicle coming out of the homes and businesses.
The Member found contributory negligence greater than 25%, and possibly greater than 50% after questioning both parties, however, the parties had requested assessment on the papers.
Findings: The Member determined the claimant’s contributory negligence should be assessed at 50%.
Lee v Allianz Australia Insurance Limited [2022] NSWPIC 72
Member: Brett Williams
MOTOR ACCIDENTS—miscellaneous claims assessment—whether the claimant wholly or mostly at fault—collision as claimant was emerging from parked position onto the road.
On 18 April 2021 the claimant was involved in a motor vehicle accident when he merged from a kerbside parked position, into traffic. The claimant alleged that the accident was caused by the insured driver. The insurer considered the claimant wholly or mostly at fault.
Proceedings were commenced and at a preliminary conference, the claimant’s solicitor said the claimant had contested a penalty notice issued in connection with the accident and the matter was listed for hearing in the Local Court.
The penalty notice was for failing to give way. The claimant submitted that his version to police was affected by a language barrier.
The claimant maintained that he was not wholly or mostly at fault and he did not fail to give way.
The insurer submitted that inconsistencies in the claimant’s evidence made the claimant’s versions unreliable. The insurer maintained that the claimant was wholly at fault for the accident, due to his failure to give way to the insured driver when merging into Hammers Road from his kerbside park.
Findings: The Member found the collision occurred as the claimant’s vehicle emerged slowly from its parked position on Hammers Road. The Member concluded that at the time of the collision, the front of the claimant’s vehicle was on the roadway and in the path of the insured’s vehicle.
The Member determined the claimant was wholly or mostly at fault as he had failed to exercise reasonable care. Had he been exercising reasonable care he would have been able to stop his vehicle and avoid collision. The Member determined the claimant’s contributory negligence was greater than 61% and therefore he is not entitled to weekly payments of statutory benefits or benefits for treatment and care more than 26 weeks post-accident.
Review Panel Determination
Allianz Australia Insurance Limited v Tenhave [2022] NSWPICMP 527
Panel: Principal Member Susan McTegg, Dr Les Barnsley, Dr Geoffrey Curtin
MOTOR ACCIDENTS—minor injury dispute—pre-accident history of lower back pain—whether the claimant sustained a disc bulge at C5/6 in the accident—whether the claimant suffered an avulsion fracture of the left shoulder.
On 27 March 2020, the claimant sustained injuries as a result of a motor accident. She was the front seat passenger in the insured’s vehicle that was involved in a three-vehicle collision when a garbage truck ran into the rear of a small truck, which then collided with the rear of the claimant’s vehicle.
At first instance, Medical Assessor Wallace diagnosed sprain/strain at the cervical spine, aggravation of degenerative cervical spondylosis, left-sided disc protrusion at C5/6, avulsion fracture at the left shoulder, sprain/strain at the lumbar spine and aggravation of pre-existing symptomatic degenerative lumbar spondylosis.
Medical Assessor Wallace determined the cervical and the left shoulder injuries were non-minor injuries. The insurer referred the dispute to the Commission seeking a review of the certificate and the matter was referred to the Review Panel.
On re-examination, Medical Assessor Barnsley and Curtin noted:
- Lumbar spine - There was significant pre-accident history dating back to 2010. On examination, the Review Panel found no evidence of muscle weakness or sensory loss in a spinal nerve root distribution. The Review Panel was satisfied the claimant sustained a soft tissue injury to her lumbar spine as a result of the accident.
- Cervical spine – The Review Panel noted the absence of complaints of neck pain prior to the accident and the finding on the MRI scan of a small disc protrusion at the C5/6 level. The Review Panel had some doubt as to the significance of the protrusion, given that symptoms were predominantly right-sided. The Review Panel concluded that the disc bulge at C5/6 is not an injury related to the accident as there was no evidence of radiculopathy. The Review Panel was satisfied the claimant suffered a cervical spine caused minor injury.
- Left shoulder – The Review Panel noted the claimant first reported right and left shoulder pain to her GP approximately one-month post-accident, when neck pain was said to radiate to both shoulders associated with reduced range of movement. The Review Panel noted the x-ray of the left shoulder dated 20 May 2020 showed a “suspected” avulsion fracture. The Review Panel also noted a CT scan dated 29 May 2020, which revealed that the imaging abnormality pre-dated the accident. As such, the Review Panel found the suspected diagnosis of a left shoulder avulsion fracture was not caused by the accident. The Review Panel found a soft tissue injury to the left shoulder as a result of the accident.
Findings: The Review Panel revoked the certificate of Medical Assessor Wallace and determined the claimant sustained injuries to her lumbar spine, cervical spine and left shoulder, all of which satisfied the definition of a minor injury.
Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 519
Panel: Principal Member Belinda Cassidy, Dr Geoffrey Stubbs, Dr Drew Dixon
MOTOR ACCIDENTS—minor injury dispute—claimant alleged injury to cervical spine, lumbar spine and thoracic spine— causation— readiness for assessment in light of surgery not yet undertaken.
On 12 October 2020 the claimant was a front seat passenger in the insured’s vehicle when it entered a roundabout and collided with the insured vehicle.
Medical Assessor Assem diagnosed long-standing degenerative changes in the cervical and lumbar spine. Medical Assessor Assem noted that in the absence of radiculopathy, the accident-related injuries were minor injuries.
Following a successful review application by the claimant, the matter was referred to the Review Panel. The claimant alleged a psychiatric injury however, the Review Panel was not advised of any psychiatric assessment undertaken by the Commission.
The Review Panel convened on 9 June 2022 and issued a report on 10 June 2022. It noted:
- the claimant alleged cervical radiculopathy and his neurosurgeon recommended surgery, which the insurer declined to fund. The Review Panel noted there were no proceedings to determine whether surgery was reasonable and necessary or related to the accident
- the insurer obtained pre-accident records but, did not draw attention to pre-accident neck complaints,
- the claimant said he had lumbar spine radiculopathy, and
- the insurer obtained pre-accident records that suggested past lumbar spine symptoms.
The Review Panel referred to David v Allianz Australia Insurance Limited 2021 NSWPICMP 227 and Lynch v AAI Limited t/as AAMI 2022 NSWPICMP 6, noting that if it established at least two signs of radiculopathy at any time in the past caused by the accident, the accident related injuries fall outside the definition of minor injury.
The parties were directed to provide further medical evidence and submissions and the Review Panel determined a re-examination was not required and the matter could be assessed on the papers.
The claimant submitted he had not yet had the cervical surgery but, was scheduled to do so. The claimant submitted that he had no previous neck complaints. The insurer agreed the claimant complained of neck symptoms after the accident but, stated the cervical surgery was not reasonable and necessary due to a lack of clinical findings. The insurer maintained its view that the claimant’s cervical spine injury was minor.
Findings: The Review Panel considered that whilst the claimant would have a non-minor injury in the event he proceeds to surgery, the Review Panel was not satisfied that at the current time, the cervical, thoracic or lumbar spinal injuries fell outside the definition of minor injuries.
The Review Panel confirmed the certificate of Medical Assessor Assem, which certified the claimant’s injuries are minor injuries.
