Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 9

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 Personal Injury Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on Australasian Legal Information Institute (AustLII) website. 

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

Claims assessment

AAX v QBE Insurance Ltd [2021] NSWPIC 141 

MOTOR ACCIDENTS—Claim assessment—settlement approval—claimant 54 years old at time of accident, and was working as a sales assistant, earning cash in hand—claimant struck by vehicle when attempting to cross the road—insurer alleged contributory negligence to extent of 50%— insurer’s evidence did not suggest claimant was entitled to non-economic loss—claims for past and future economic loss resolved for $100,000—settlement did not include reduction of damages for contributory negligence—Commission recommended claimant obtain legal representation but she did not wish to do so. Findings: based upon evidence available, claimant unlikely to establish entitlement to non-economic loss—no reason to reject experts qualified by insurer—settlement falls within the likely range of damages to be awarded if matter proceeded to assessment—settlement approved. 

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AAY v QBE Insurance (Australia) Limited [2021] NSWPIC 142

MOTOR ACCIDENTS—Miscellaneous claims assessment—whether accident caused wholly or mostly by the fault of the claimant—claimant and insured both driving aggressively prior to collision and engaged in a driving “duel”—claimant driving alongside kerbside lane, moved into outside lane in order to avoid a parked car and in doing so collided with insured’s vehicle—insurer asserted claimant mostly at fault as she was speeding, and it was incumbent upon her to give way to the insured when merging. Costs—whether parties entitled to recover legal representation fee at assessment conferences in statutory benefits disputes in miscellaneous claims assessment matters. Findings: as the insured knew the claimant had to merge lanes because of parked cars in front of her, it was incumbent upon the insured to adjust her driving accordingly, and slow down to account for the possibility that the claimant would not give way to her—the claimant was wrong to assume that the insured would allow her to merge into the lane—insufficient evidence to conclude that the accident was caused wholly or mostly by the fault of the claimant—parties not entitled to recover legal representation fee for assessment conferences as maximum fee recoverable set out in Sch 1, Pt 1, Cl to the Act. 

The claimant and the insured driver were both driving southbound on a road in Lethbridge Park. The insured driver was stationary at a red light on the intersection when the claimant pulled aside the insured driver in the left lane. The claimant expressed her frustrations with the insured driver regarding her purportedly speeding in a school zone and insulted the insurer. After the lights turned green, both parties moved through the intersection. 

Upon noticing a gap in the outside lane, the claimant attempted to merge into that lane, but the insured sped up, preventing her from doing so. The claimant accordingly merged back into the inside lane. After some distance, the claimant noticed parked cars in that lane. The claimant sped up and again attempted to merge into the second lane ahead of the insured driver, but in doing so, collided with the insured’s vehicle. The insurer alleged that the claimant, in driving at an excessive speed, in an aggressive manner, and by failing to keep a proper lookout for the insured who she knew was in the outside lane, was wholly at fault for the accident.

The Commission found that both the claimant and the insured were driving in excess of the speed limit, aggressively, and engaged in a “duel” of sorts. It considered that the insured, who knew full well that the claimant had to merge lanes given the presence of parked cars, should have slowed down and potentially let the claimant merge into her lane. However, the Commission also found that the claimant was contributorily negligent for operating on an erroneous assumption that the insured driver would have given way to her.
 
Ultimately, the Commission was not convinced the accident was wholly or mostly caused by the fault of the claimant. 

On the issue of costs, the insurer argued in addition to the regulated fee for the dispute, both it and the claimant were entitled to recover a fee for legal representation at the assessment conference, as the regulations do not specify that the legal representation fee applied only damages assessment matters. However, the Commission disagreed, noting that the Sch 1, Pt 1, Cls 3(d) and (e) explicitly sets out the maximum fees recoverable for this dispute. 

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ABA v NRMA Insurance Ltd [2021] NSWPIC 143 

MOTOR ACCIDENTS—Miscellaneous claims assessment—whether accident caused wholly or mostly by the fault of the claimant—claim against Nominal Defendant—claimant alleges he was forced off the road by an unidentified vehicle—insurer said claimant lost control of vehicle and that there was no evidence of an unidentified vehicle—evidence given by independent witness supporting insurer’s position—whether exceptional circumstances exist to justify costs order in excess of regulated fees. Findings: weight of evidence supported claimant’s position—claimant gave contemporaneous account to Police officer who was on scene minutes after accident occurred—claimant’s evidence consistent across statements—witness’ evidence not accepted due to internal inconsistencies and time that has passed since accident and making of statement—lengthy procedural history and cross-examination of multiple witnesses gave rise to complexity in case and to justify exceptional costs order—costs awarded of $13,995, which is greater than the regulated fee—Commission has no jurisdiction to make costs orders in connection to insurer’s costs. 

The claimant was driving along the M4 with his son as a passenger. He asserted that another vehicle attempted to change lanes into his lane. Fearing a collision, he attempted to avoid an accident, but in doing so, veered off the road and collided into a tree. As he could not identify the other vehicle, he lodged a claim against the Nominal Defendant. 

The insurer obtained evidence from an independent witness, who said that there was no other vehicle involved, and that the claimant lost control of his vehicle. 

A Police officer, who was nearby, attended the scene within minutes of it occurring. In an interview with the claimant’s representatives, the Police officer said that the claimant told her, at the scene, that another vehicle caused the accident. 

The Commission accepted the claimant’s evidence. In doing so, it noted that the claimant’s evidence was supported by his son’s evidence, and the Police officer’s recollection that the claimant contemporaneously reported the presence of an unidentified vehicle to her. The Commission rejected the independent witness’ evidence as it was provided several years after the accident, was not consistent with the weight of the evidence, and also because he was not available for questioning. 

On the issue of costs, the Commission found that the history of the dispute and the complexity of the evidence, wherein multiple witnesses gave evidence, warranted an order for costs in excess of the regulated fee. The Commission allowed recovery of 25 hours of legal fees, and 20 hours of counsel’s fees. Although the claimant was represented by senior counsel, the Commission considered the complexity of the claim did not warrant senior counsel, and thus only permitted recovery of counsel’s fees at junior counsel’s rates. 

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ABB v AAI t/as AAMI [2021] NWPIC 145 

MOTOR ACCIDENTS—Miscellaneous claims assessment—whether accident caused wholly or mostly by the fault of the claimant—insured was turning left at a roundabout and alleges the claimant, riding a bicycle, rode from the footpath, onto the road, into the insured’s path—claimant said he had been stationary on a pedestrian island for some time before the insured collided into him—insurer asserted claimant was 70% contributory negligent. Findings: claimant’s evidence internally inconsistent—not accepted he was stationary on median strip when accident occurred—insured saw the claimant riding on footpath prior to collision—insured was driving at 10 kph—insured failed to keep a proper lookout and turned when unsafe to do so—claimant also failed to keep a proper lookout and failed to ride safely—claimant found not to be wholly or mostly at fault—no specific finding made but Commission considered parties equally at fault.

The claimant asserted that he was stationary on his bicycle on a pedestrian island when the insured collided into him. The insured gave evidence that prior to the accident, the claimant was riding his footpath perpendicular to her, and assumed he would be turning left on the footpath. The insured turned left at a roundabout and instead of turning left, the claimant rode onto the roadway, into the path of her vehicle. The insurer alleged that the claimant was contributorily negligent to the extent of 70%, and asserted the accident was caused mostly by the fault of the claimant. 

The Commission found the claimant’s evidence to be internally inconsistent and refused to accept that he was already stationary on the roadway when the accident occurred. However, given the insured’s reports to Police officers shortly after the accident that she had seen the claimant on the footpath, the Commission found that the insured had failed to continually keep a proper lookout for the claimant.
 
Whilst the Commission also found that the claimant failed to keep a proper lookout, and was thus contributorily negligent, it did not consider the accident was caused mostly by his fault. The parties asked the Commission not to specify a percentage for the claimant’s contributory negligence, it did express a view that the parties were equally negligent. 

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Maloney v NRMA Insurance Ltd [2021] NSWPIC 144 

MOTOR ACCIDENTS—Claims assessment—settlement approval—claimant 84 years old at time of accident—claimant suffered fracture of left medial femoral condyle after a vehicle collided into her when she was crossing the road—liability admitted—claimant active prior to accident but had not been able to return to pre-injury lifestyle following, despite rehabilitation and treatment—claimant suffered from Parkinson’s disease prior to accident and evidence suggested condition worsened because of accident—parties agreed to resolve claim for damages, for non-economic loss only, for $200,000—as claimant not legally represented, settlement required Commission approval. Findings: proposed settlement approved—settlement just, fair and reasonable, and within the range of likely potential damages to be awarded if matter proceeded to assessment. 

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Oliver v IAG t/as NRMA Limited [2021] NSWPIC 146

MOTOR ACCIDENTS—Claims assessment—settlement approval—claimant suffered brain injury following accident—claimant 86 years old at time of settlement approval—liability admitted—ability to lead pre-accident lifestyle compromised—no longer able to drive—claim for non-economic loss only—claim initially settled for $145,000—no allowance for travel expenses under s 4.5(1)(b) of the Act (an economic loss)—Commission initially not willing to approve settlement—insurer allowed additional $50,000 to compensate for travel expenses. Findings: settlement of $195,000 for non-economic loss and travel expenses just, fair, and reasonable—settlement approved. 

The claimant, who was 86, sustained multiple cerebral contusions with extra-axial haemorrhages as a result of a vehicle vs pedestrian accident. The insurer admitted liability for the accident and the parties initially resolved the claim for $145,000, for non-economic loss only. As the claimant was not legally represented, the settlement required approval by the Commission under s 6.23 of the Act. 

The claimant gave evidence in the approval process that before the accident, she would drive 1.5 hours by herself to visit her son and participated heavily in CWA activities. However, her license had been taken away following the accident, and she had become heavily dependent upon her son. 

The Commission was initially unwilling to approve the settlement as it did not include a damages component for travel expenses under s 4.5 of the Act. In view of the Commission’s comments, the insurer offered a further $50,000 for travel expenses (calculated at $50 per trip, four trips per week, and applying the actuarial tables).

This case is a timely reminder that damages for economic loss encompass not only loss of earnings or deprivation of earning capacity, but also costs for accommodation and travel, not being the cost of treatment and care (s 4.5(1(b)), funds management (s 4.5(1)(c)), and Fox v Wood entitlements (s 4.5(1)(d)). 

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ABC v CIC-Allianz Ltd [2021] NSWPIC 147

MOTOR ACCIDENTS—Miscellaneous claims assessment—whether accident caused wholly or mostly by the fault of the claimant—the extent to which the insurer can reduce the claimant’s weekly statutory benefits in view of any contributory negligence—claimant drove from side of the road, intending to make a right turn/U-turn into path of the insured’s bus—insured driver asserted insufficient time to react to claimant’s vehicle—CCTV footage showed insured had several seconds to see claimant’s vehicle and react. Findings: based upon CCTV footage, ample time for insured to see the claimant’s vehicle and to apply the brakes—insured there to be seen by claimant—claimant found to have failed to keep a proper lookout and failed to give way to oncoming traffic—insured’s failure to slow down the substantial cause of the accident—insured’s negligence assessed at 65%, claimant’s contributory negligence at 35%—claimant found not wholly or mostly at fault for causing accident—entitlements to weekly statutory benefits to be reduced by 35%. 

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Merit Review 

AAZ v NRMA Insurance Ltd [2021] NSWPICMR 13 

MOTOR ACCIDENTS—Merit Review—dispute as to reasonableness and necessity of treatment claimed, and whether treatment was related to accident (causation)—dispute not relating to reasonableness of cost of treatment—issue referred to Commission as a merit review matter. Findings: issue as to costs of reasonable treatment and care is a merit review matter, but issue as to whether treatment and care is reasonable and necessary is a medical assessment matter—as the dispute concerned whether treatment reasonable and necessary and causation, no jurisdiction to determine dispute via merit review—application dismissed.
 
The claimant was injured in an accident and claimed reimbursement of treatment expenses. The insurer denied liability to make that reimbursement, and the claimant, following an internal review conducted by the insurer which affirmed its earlier decision, lodged a merit review application with the Commission. The parties’ submissions in the Commission centred around the reasonableness and necessity of the treatment and whether there was a causal link between the accident and the treatment.
 
The Commission found that it had no jurisdiction to conduct a merit review of the insurer’s determination that the treatment was not reasonable and necessary, and not related to the accident, as it was a medical assessment matter. The Commission dismissed the claimant’s application. 

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Brewer v Insurance Australia t/as NRMA [2021] NSWPICMR 14

MOTOR ACCIDENTS—Merit review—pre-accident weekly earnings (PAWE)—claimant asserted he had entered into contracts to begin working as a self-employed martial arts trainer as well as to work with Sydney Fire Bricks (SFB) before the accident—claimant said he was to teach martial arts to six individuals and adduced payslips post-dating the accident from SFB—factual investigators obtained evidence from three out of six individuals confirming agreement to begin martial arts training with claimant—no contract of employment available with SFB—parties agreed PAWE to be calculated in accordance with sch 1, cl 2(b)(ii) of the Motor Accident Injuries Act 2017—extent of expenses in self-employment. Findings: sufficient corroborative evidence to demonstrate claimant had entered into contracts for martial arts training—insufficient evidence to find claimant had entered into employment with SFB prior to accident—pre-accident earnings calculated to be $850—expenses calculated at 5% taking into account likely expenses to be incurred with martial arts work—PAWE calculated at $807.50—no costs payable for PAWE dispute matters such as this. 

The claimant was receiving workers compensation benefits at the time of the accident but said he had entered into agreements with six individuals to teach them martial arts and had also signed a contract with Sydney Fire Bricks (SFB). He said that his martial arts work would bring income of $850 per week, and that he earned $675 on average per week with SFB. 

The insurer obtained evidence from three out of the six individuals, confirming they had entered into agreements for martial arts training with the claimant. No evidence of an employment contract with SFB was available. The insurer said that the claimant’s pre-accident weekly earnings (PAWE) should be calculated in accordance with the martial works only. They calculated PAWE to be $765, being $850 less 10% for expenses. The claimant disputed this decision, saying PAWE calculations should include his income with SFB. 

The Commission accepted that evidence from three out of six individuals was sufficient to verify the whole of the claimant’s likely earnings from martial arts training. However, it did not accept that there was sufficient evidence to prove that the claimant had entered into any agreement with SFB before the accident occurred. 
The Commission did not accept the insurer’s accountant’s assumption that 10% would be reflective of the likely expenses to be incurred with martial arts training. It allowed expenses of 5%, giving a PAWE of $807.50. 

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Rahman v AAI Limited t/as GIO [2021] NSWPICMR 15 

MOTOR ACCIDENTS—Merit review—dispute as to extent of costs payable in connection to minor injury and treatment disputes—claimant sought payment of two sets of regulated fees from insurer—insurer asserted only one set of costs payable as only one application lodged and only one medical assessment took place—insurer also asserted that work undertaken by claimant’s solicitor incommensurate the fees payable—itemised bill of work done by claimant’s solicitors not furnished. Findings: Sch 2 to the Act sets out that minor injury and treatment disputes are separate and distinct disputes—determined that two sets of costs payable for the two disputes—determined that amount of work done by claimant’s solicitor did not justify costs at maximum permitted by regulations—costs for both disputes assessed at $2,000, inclusive of GST. 

The claimant lodged an application for assessment of a minor injury dispute and a treatment dispute. A Medical Assessor determined both disputes in the insurer’s favour. Notwithstanding the insurer’s success, the claimant sought payment of his costs. The insurer asserted that because the claimant only lodged one application (for both disputes), and only one medical assessment took place, the claimant was only entitled to recover one set of regulated fees. The insurer also asserted that costs should be assessed at less than the regulated fees considering it was successful in the application, and the work done was not commensurate with the costs claimed.

The Commission found that because Sch 2 to the Act classifies minor injury and treatment disputes as separate and distinct disputes, the claimant was entitled to recover costs in connection to both disputes. However, whilst the Commission accepted that some degree of forensic expertise was required to identify what documents should be put before the Medical Assessor, it did not believe that the claimant’s submissions were sufficiently complex to warrant assessment of costs at the maximum rate. In reaching this determination, the Commission noted that only four out of the 26 paragraphs of submissions made by the claimant were devoted to the medical disputes at hand. 

The Commission went on to assess the claimant’s entitlement to costs to be $2,000, inclusive of GST, being $1,000, inclusive of GST, for each dispute. 

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