Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 8610 July 2023
Welcome to the 86th 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.
Delfante v Allianz Australia Insurance Limited  NSWPIC 227
Member: Elizabeth Medland
MOTOR ACCIDENTS—claims assessment application—liability and quantum of damages in dispute.
The claimant was the driver of a sedan that was involved in a collision with an oversized truck. The claimant alleged that the insured truck overtook her on the right and swerved into her vehicle travelling in lane one of two. The insured driver alleged the claimant “undertook” his vehicle on the left. The two version of events were considered dramatically different.
The matter proceeded to two assessment conferences. Both the claimant and insured driver were called upon to give evidence. The Member ultimately determined that she preferred the version of events provided by the insured driver. The claimant was noted to present as a difficult and unreliable witness whose evidence was not straightforward.
Notably, the Member found the suggestion that the insured driver overtook the claimant to be implausible. She accepted the insured’s evidence that as an experienced driver he was driving in a cautious manner, carrying a wide and heavy load. The Member also accepted his evidence that he was partially straddling lane one when he stopped at the lights and when he accelerated as this was an acceptable way to travel in such circumstances, and indeed preferable to safely navigate the roadway.
The Member concluded that the only plausible explanation for the accident occurring was consistent with the insured driver’s version of events; the claimant attempted to undertake the insured truck on the left and in doing so put herself at risk. The Member believed it was a conscious and deliberate act.
Findings: The Member held that the insured driver did not breach his duty of care and that the “no fault” accident provisions of the Act did not apply. It followed that the claimant had no entitlement to damages. Accordingly, costs were not awarded in the claimant’s favour.
Denny v Allianz Australia Insurance Limited  NSWPIC 228
Member: David Ford
MOTOR ACCIDENTS—reduction of statutory benefits payable—contributory negligence.
A dispute was brought before the Commission as to whether for the purposes of s 3.38 of the Act, the insurer was entitled to reduce statutory benefits payable in respect of the accident. The claimant was a pedestrian and was attempting to cross Phillip Street, Newtown. Whilst doing so, he was struck by the insured vehicle, which was attempting to reverse back down Phillip Street. The insurer alleged 50% contributory negligence for the claimant’s failure to keep a proper lookout.
The Member found that the insured driver was not keeping a proper lookout when reversing her vehicle and if she had been keeping a proper lookout, she would have seen the claimant attempting to cross the road, regardless of the fact he was wearing dark clothing. However, the Member found that the claimant, although having taken the proper precautions before attempting to cross the road, should still have continued to ensure there were no vehicles approaching from either his left or right, and if he had done so, he would have observed the insured driver reversing her vehicle.
The Member determined that the claimant had contributed to his injuries to the extent of 10%.
Findings: For the purposes of s 3.38, the insurer was entitled to reduce statutory benefits payable in respect of the motor accident by 10%.
Review Panel Determination
AAI Limited t/as GIO v Hoblos  NSWPICMP 210
Principle Member: John Harris
Medical Assessors: Michael Hong and Atsumi Fukui
MOTOR ACCIDENTS–review panel determination–threshold injury dispute–psychological injuries–prior psychological history–causation and apportionment–multiple motor vehicle accidents.
A dispute was brought before the Commission in relation to an accident on 19 December 2020. It was the second accident the claimant was involved in that day. In total, the claimant was involved in three accidents in December 2020, and one in January 2021. Medical Assessor Parmegiani provided a Certificate dated 6 May 2022 wherein he concluded that the claimant sustained a non-minor psychological injury attributed to both accidents. The insurers pursued a review of this decision accordingly. The issue of causation was therefore a central focus of the Panel.
The Panel relied on Briggs v IAG Ltd, which held that the definition of causation in Part 6 of the Motor Accident Guidelines (Guidelines), although focused on permanent impairment, can also be applied to the assessment of threshold injuries. The Panel noted that cl 6.6 refers to the occurrence or the worsening of a condition, with cl 6.7 providing the closest approach to a ‘test’ for causation.
The insurers put forward the argument that the worsening of a condition cannot be accepted as an injury in the Commission as the DSM-5 did not refer to the “aggravation” or “exacerbation” of a condition. The Panel rejected this on the basis that the DSM-5 is a diagnostic tool only, which was consistent with the findings in Federal Broom Co Pty Ltd v Semlitch. The exception was the diagnosis of adjustment disorders and PTSD, which require causative elements, however DSM-5 would still not require any definitions of aggravation or exacerbation as its purpose is the identification of illness, not causation.
The Panel agreed that when establishing whether an injury has been sustained when more than one accident has occurred, the motor accidents must be considered separately. However, the Panel noted that common law recognises there may be multiple causes for a single injury, and relied on March v Stramare (E & MH) Pty Ltd. Therefore, the Panel determined that motor accidents should not be aggregated, but rather the effects from a particular accident should be considered and evaluated in determining whether the motor accident caused or materially contributed to the psychiatric condition.
Ultimately, the Panel determined that the claimant sustained, if anything, an acute stress disorder of short duration. The Panel determined that the accident was not life threatening in nature, as compared to the subsequent accident, and therefore the injury arising from the subject accident was a threshold injury.
Findings: The Panel revoked the Certificate of Medical Assessor Parmegiani and certified that the psychological injury caused by the motor accident was a threshold injury.
Review Panel Determination
Djekic v AAI Limited t/as GIO  NSWPICMP 211
Principle Member: John Harris
Medical Assessors: Mohammed Assem and Rhys Gray
MOTOR ACCIDENTS–review panel determination–permanent impairment dispute–physical injuries–transverse process fractures.
A dispute was brought before the Commission in relation to whether the claimant’s physical injuries gave rise to permanent impairment over 10%. Medical Assessor Woo provided a Certificate dated 16 October 2022 which assessed the degree of permanent impairment at 5% relating to the lumbar spine. He otherwise found that the claimant sustained fractures of the transverse processes at L2, L3 and L4 which had healed and were stable, neck symptoms without clinical signs and normal range of movement of the left hip. He also held that there was no rotator cuff tear to either shoulder and that any restriction of movement of either shoulder was pre-existing.
A successful application for review was lodged by the claimant. On re-examination, the Panel assessed the claimant’s Whole Person Impairment (WPI) at 4% in relation to the bilateral shoulders. As her shoulder movements were found to be disproportionate, she was assessed by way of analogy; that is:
- mild crepitations of the right AC joint giving 10% joint impairment,
- multiplied by 15% WPI to obtain 1.5% WPI
- rounded to 2% WPI.
She was expected to have a similar impairment in left shoulder motion giving 2% WPI. The Panel otherwise adopted the examination findings of Medical Assessor Assem, though assessed any impairment in relation to the lumbar spine as the fractures of the transverse process did not include displacement and there was no radiculopathy.
Findings: The Panel revoked the Certificate of Medical Assessor Woo and issued a new Certificate due to the different assessments of impairment.
Merit review determination
Zahoor v Insurance Australia Limited t/as NRMA Insurance  NSWPICMR 28
Member: Maurice Castagnet
MOTOR ACCIDENTS—merit review—request for particulars—dispute about whether the insurer is entitled to issue a direction under s 6.26.
The claimant made an application to the Commission to have his claim reinstated pursuant to s 6.26 of the Act. The claimant took this action because the insurer maintained that the claimant was taken to have withdrawn the claim by virtue of s 6.26(3) for failing to comply with a direction issued by the insurer to provide relevant particulars of his claim as required by s 6.25 of the Act.
The Member was satisfied that the insurer had full details of the motor accident concerned and associated injuries, well before the direction was issued, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
It followed that the claimant was not taken to have withdrawn his claim.
Findings: The Member found that the insurer was not entitled to issue a direction to the claimant under s 6.26 of the Act.
Lee v Allianz Australia Insurance Limited  NSWPIC 232
Member: Brett Williams
MOTOR ACCIDENTS—determination of Member—contributory negligence—mostly or wholly at fault.
A dispute was brought before the Commission as to whether for the purposes of ss 3.11 and 3.28 the accident was caused wholly or mostly by the fault of the claimant; the insurer had alleged contributory negligence of 65%. The accident occurred in the early morning on a country road with single lanes in each direction. The claimant failed to activate his right-hand indicator, and commenced a right hand turn into the path of the insured driver’s vehicle, that he knew was travelling in the southbound lane.
Relying on Vairy v Wyong Shire Council, the Member noted that a driver of a motor vehicle must take reasonable care having regard to all the circumstances. Relying also on Manley v Alexander, the Member noted that a driver must control the speed and direction of the vehicle in such a way that a driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.
The Member was satisfied that the claimant failed to exercise reasonable care in the driving of his vehicle. It was the Member’s view that the claimant ought to have activated his right-hand indicator when he reduced speed, and ought to have waited for the insured driver to pass him before making a right-hand turn. However, the Member determined that the insured was aware that for some time, the claimant was looking to make a right turn, and the claimant was slowing down repeatedly to look for the correct driveway. Accordingly, the Member found that the insured driver should have provided sufficient distance between himself and the claimant and should have reduced his speed.
The Member determined that a reasonable person in the position of the claimant and insured would know the risk of not taking the above precautions was foreseeable and not insignificant. Accordingly, the Member found the accident was caused by the fault of both parties.
Relying on Podrebersek v Australian Iron & Steel Pty Ltd, the Member highlighted that apportioning liability involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage. Ultimately, when considering the culpability and importance of acts and omissions, the Member found that a finding that the claimant’s contributory negligence was greater than 61% would not be just and equitable, and therefore the claimant was not mostly at fault.
Findings: The accident was caused neither wholly nor mostly by the fault of the claimant.
Saliba v Allianz Australia Insurance Limited  NSWPIC 236
Member: Maurice Castagnet
MOTOR ACCIDENTS—damages assessment—claim not ready for assessment—pending medical dispute—threshold injuries—dismissal.
A dispute was brought before the Commission in relation to proceedings commenced by the claimant to refer his claim for damages for assessment. The claimant requested to refer the proceedings to the stood over list because of a pending medical dispute. The claimant’s physical injuries were assessed by the Commission as threshold injuries, though he intended to file a separate application for medical assessment of his psychological injury. The insurer instead argued that proceedings should be dismissed as there was no medical dispute on foot.
The Member considered that at the time the claimant commenced these proceedings to have his claim for damages assessed, it was determined that he sustained only threshold injuries. Pursuant to s 4.4 of the Act, the claimant had no entitlement to damages.
The Member accepted the insurer’s submission that the claimant had no entitlement to claim damages until an application for medical assessment was made and if the Commission ultimately found that the claimant sustained more than a threshold injury.
Findings: The Member held that the proceedings should be dismissed under s 54(b) of the Act because the proceedings were misconceived or lacked substance.
Merit Review Determination
Stojanovski v Allianz Australia Insurance Limited  NSWPICMR 30
Panel Member: Katherine Ruschen
MOTOR ACCIDENTS – merit review – dispute about payment of weekly benefits – pre-accident weekly earnings (PAWE) calculation.
A dispute was referred to the Commission about the amount of weekly benefits payable under Division 3.3 of the Act. The claimant was a self-employed tiler operating as a sole trader business.
The claimant submitted that only the costs of goods sold should be deducted from gross business profit to produce his gross earnings from the business. The claimant also submitted that other expenses should not be deducted as they are part of the “proceeds of the business” and therefore his gross earnings for the purpose of PAWE. He argued that PAWE was $1,418.33. However, the insurer calculated PAWE in the sum of $516.81, that being the net profit of the business after deducting all business expenses.
The Member concluded that the claimant’s earnings were to be calculated based on the individual earnings he received from the business, after deducting all business expenses (not just costs of sales) in the period. On review of the information, the Member was satisfied that the claimant’s PAWE was $668.23.
Findings: The reviewable decision was set aside.
Brannigan v AAI Limited t/as GIO  NSWPIC 237
Member: Belinda Cassidy
MOTOR ACCIDENTS—statutory benefits—mostly at fault—pedestrian—contributory negligence.
A dispute was brought before the Commission as to whether the claimant was mostly at fault. The claimant was a pedestrian hit at 4am on dark country highway. The insurer driver was travelling under the speed limit, however with headlights on low not high beam. There were issues of proper lookout, where the claimant was standing and whether the claimant had been taking drugs and his judgment impaired as a result. While the insurer conceded fault on the part of the driver, the insured submitted that the claimant’s contributory negligence be assessed at 75%, and as a result, statutory benefits stopped.
The Member held that the insured driver travelling below the speed limit but without headlights on high beam was not reasonable in the circumstances. However, it was noted that the claimant was situated in the middle of the lane attempting to wave down traffic and saw the insured vehicle approaching. She further held that in the circumstances a reasonable person would have stood to the side of the road not in the middle of the road and would have moved further off the road on seeing the approaching vehicle. The claimant’s contributory negligence was thereby assessed at 70%. No finding was made in relation to impaired judgment as the evidence on drug taking and intoxication was untested, and hence unreliable.
Findings: The Member found that the motor accident was caused mostly by the fault of the claimant.
We hope you find this publication of some interest and would be delighted to assist you on any queries you may have. Please feel free to contact Monique Essey, Sheila Said or any one of the CTP Partners below.