Sparke Helmore's MAD (Motor Accidents Division) Weekly - Special Edition - Top 10 of 2023

Welcome to this special edition of Sparke Helmore’s MAD Weekly.

As the year comes to a close, we understand that attention spans tend to shorten. That’s why we have compiled a list of the ‘top ten’ most interesting, wave-making and precedent-changing decisions, which could potentially change the way you practice in 2024.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) unless otherwise noted.

1.  CFD v AAMI Limited t/as AAMI [2023] NSWPIC 592

Miscellaneous Assessment Matter

Senior Member: Brett Williams

If injuries were sustained a motor accident; involved unit was a “motor vehicle” under the Act, application of ss 3.1 and 1.9.

The claimant was the rider of an e-bike who was deliberately pushed by a pedestrian, lost control and collided with a streetlight on 29 July 2022. At the time of the accident, a motor was attached to the rear wheel of the e-bike and was engaged by a throttle located on the right handle of the bike. Other than the e-bike, there were no other vehicles involved in the accident.

The claimant made a claim for statutory benefits under the Act. As her vehicle was not registered or insured, the claim was allocated under the Nominal Defendant scheme.

The Nominal Defendant denied liability for the claim in a decision dated 2 February 2023, concluding that the bike was not a “motor vehicle” as defined by s 1.4 of the Act, that the injuries did not result from a “motor accident” as defined in s 1.9 of Act and that as such, the claimant was not entitled to weekly payments of statutory benefits under s 3.1 of the Act.

The claimant lodged an application in the Commission disputing the Nominal Defendant’s denial of her claim for statutory benefits under the Act. Member Williams concluded that the claimant e-bike was not a “motor vehicle” for the purpose of the Act because:

1. Section 1.4 of the Act requires a motor vehicle to meet the definition of a “motor vehicle or trailer within the meaning of the Road Transport Act 2013”.
2. The definition of a “motor vehicle” under the Road Transport Act 2013 is one that “is built to be propelled by a motor that forms part of a vehicle”.

The intended operation of the vehicle at the time that it was built was of greatest relevance. In this case, it was not clear whether the motor, throttle and battery were added to the e-bike after manufacture. Member Williams stated that it was the status of the e-bike at the time of manufacture that was determinative to the issue.

Member Williams placed weight on the fact that the predominant source of power was the claimant operating the pedals. The motor was used to commence movement, increase speed and ride up hill.

The Member’s decision makes clear that subsequent modifications to an object that at the time of manufacture was not fitted with a motor, by someone other than the manufacturer, do not transform the vehicle into a motor vehicle. The e-bike therefore was not a “motor vehicle” under the Act.

Even if it were established that the e-bike constituted a “motor vehicle” under the Act, the Member further stated that the claimant’s entitlement to statutory benefits was barred because the incident was not a “motor accident” for the purpose of the Act.

To that issue, the Member highlighted that the definition in s 1.9 limited the scope of the Act to incidents that satisfied the three fundamental requirements:

1. causal link (“results from”) between the injury and the use or operation of the motor vehicle
2. casual link (“is a result of”) between the injury and one of the four circumstances in s 1.9, and
3. temporal link (“during”) between the injury and the circumstances.

Applying this to the facts, the Member stated that the claimant’s injuries were not sustained in a motor accident because there was not a temporal connection between the injuries and the use or operation of the e-bike. That was because it was a deliberate push by another individual that caused the collision.

Findings: The Member concluded that the Nominal Defendant was not liable to pay the claimant statutory benefits.

View decision

2.  Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 (23 October 2023)

Given J

Email correspondence to Judge’s Chambers by law clerk – duty of formality before the Court – proposed consent orders at the discretion of Court.

In this short interlocutory decision, his Honour reminded the parties to the matter about the need to maintain formality when corresponding with the Court – be it a Judge, a Judge’s Associate, a registry or otherwise.

Justice Given called the parties before the Court on 19 October 2023 to address:

• the failure of the Respondents to comply with the orders made on 12 September 2023, which appeared to give rise to, and be rectified by, the proposed consent orders being proffered, and
• on what basis, and by which authority, the Court could be directed by a law clerk to make orders and relist proceedings.

The parties addressed the reasons for their failure to comply with the orders made.

With regard to the duty of formality before the Court, his Honour reminded the parties, and the legal profession more generally, that:

1. When exercising a liberty to apply, the terms of that liberty should be observed: it is a liberty to “apply” for relisting, not a liberty to submit alternate orders for automatic processing.
2. Email correspondence to Chambers that will necessarily be read by the Judge isa communication before the Court.
3. The concluding use of “Kind regards” or similar expressions, in correspondence with a Court, is not appropriate, and falls foul of the obligation to avoid informality.
4. Submissions by a represented party should not be made to the Court by anyone other than a legal representative. Non-legal staff in law firms should not write to the Court to make substantive representations and/or seek orders.
5. Conduct or submissions that are not appropriate or permitted in a courtroom are similarly not appropriate in an email to the Court.

No correspondence to the Court should be in terms to the effect that the parties have reached agreement and are simply informing the Court of a change to the orders. No correspondence to the Court should direct the Court to relist a matter, simply because the parties have agreed to a date.

His Honour said that since COVID-19 pandemic restrictions forced a number of Courts to conduct hearings using online technologies, a number of young lawyers lack exposure to proper Court etiquette. It is perhaps more important than ever to ensure formality is maintained in the legal profession whilst continuing to reap the benefits of expediency.

View Decision

3.  Singh v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 39

Merit Review

Merit Reviewer: Katherine Ruschen

Dispute about payment of weekly benefits – whether trust income earnings – separate legal personhood of company and claimant – whether rental income earnings.

The claimant made a claim for statutory benefits in relation to an accident that occurred on 31 October 2022. The matter was brought before the Commission with regard to a dispute between the parties about the payment of the claimant’s pre-accident weekly earnings (PAWE).

The insurer determined the claimant’s PAWE, and the claimant sought an internal review of that decision. On 29 March 2023, an internal reviewer determined that the claimant’s PAWE was $280.07. The insurer made this decision as if the claimant were a sole trader. The claimant was in fact the sole director and shareholder of a company, with the company being the trustee for a discretionary family trust. All income generated by the claimant’s company was held on trust for the beneficiaries in the trust deed. The beneficiaries included the claimant and two other named persons, in addition to various other categories of beneficiaries.

The claimant lodged an application with the Commission disputing the insurer’s decision.

The parties agreed that there was no dispute that the claimant was an earner for the purposes of the Act; the crux of the dispute was the amount of gross earnings received by the claimant in the 12-month pre-accident period.

The claimant submitted two issues with the insurer’s internal review decision:

• The internal reviewer apportioned two thirds of the trust income to the two other named beneficiaries, in circumstances where the claimant’s company would not have paid trust monies to either person.
• Rental income of the trust was incorrectly calculated by the internal reviewer at $204,972, whereas it was $96,000 per annum and should have been included as earnings of the trust in the pre-accident period.

You can read our full analysis of this matter and the findings in MAD 96.

View decision

4.  Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909

Schmidt AJ

Judicial review of Member’s decision — burden of proof regarding payment of statutory benefits and reliance on res ipsa loquitur doctrine

The Plaintiff brought a claim for statutory benefits under the Act for injuries sustained in a motor accident on 21 July 2020.

The Plaintiff was the driver of a motor vehicle, which veered into oncoming traffic and resulted in a head on collision. She was amnesic to the accident but advised Police that her prescription medication may have caused her to experience a microsleep. Witnesses testified that she was not driving erratically before the accident occurred and there was no hazard on the roadway.

The insurer accepted liability for statutory benefits for the first 26 weeks but denied liability thereafter under s 3.11 of the Act on the basis that the Plaintiff was mostly or wholly at fault for the accident.

The Plaintiff applied for the dispute to be determined in the Commission. Member Bridie Nolan issued a Determination on 14 December 2022 wherein she determined that:

1. The motor accident was not wholly or mostly the fault of the Plaintiff because the “accident was a sudden occurrence” where the Plaintiff “unexpectedly found herself in a situation, which was not of her making to which she was forced to react to suddenly and unexpectedly move into the path of the insured driver”.
2. The motor accident was not caused by another person.
3. The defence of res ipsa loquitur (a maxim permitting the inference of negligence to be drawn from a mere fact that an accident occurred, and injury resulted) was not available to the insurer.

Critically, Member Nolan concluded that the burden of proof fell onto the insurer regarding entitlements to statutory benefits paid under ss 3.11 and 3.28 of the Act, stating that the principles of res ipsa loquitur could not be relied upon in circumstances where the reason for the manoeuvre had not been positively identified, notwithstanding that the cause of the accident had been identified.

The insurer filed a Summons seeking judicial review in the Supreme Court of NSW, contending that the decision constituted an error on the face of the record, jurisdictional error and was a constructive failure to exercise jurisdiction.

Schmidt AJ upheld that the onus fell on the insurer to prove that the Plaintiff was mostly or wholly at fault. She referenced a number of positive actions required by the insurer on lodgement of a statutory benefits claim, which signalled a Parliamentary intention to impose that burden on the insurer. Her Honour stated that a finding to the contrary would be “both illogical and contrary to the statutory object of the quick, cost effective and just resolution of disputes”.

Her Honour, however, agreed that Member Nolan fell into an error of law in relation to the doctrine of res ipsa loquitur (‘the thing speaks for itself’), stating that the doctrine may allow negligence to be inferred from an unexplained fact, stating:

”Whilst the burden of proof does not alter, the doctrine may permit negligence to be inferred from a fact which is unexplained, in this case, as the member found, what caused Mrs Richards to drive into oncoming traffic as she did. As explained in Schellenberg at [73], when a car runs off the road, that fact alone and unexplained, provides some evidence of negligence.”

The effect of this decision is that an insurer may rely on the doctrine to deny statutory benefits claims on the basis of wholly or mostly at fault where the cause of the accident is mostly unexplained, if the accident would not otherwise occur in the ordinary course of events absent of negligence and where the involved vehicle was under control of the claimant.

Findings: The Member’s decision was set aside, and the matter was remitted to the Commission for determination by a different Member according to law.

View decision

5.  Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023

Chen J

Judicial review – surgery and its implication for threshold/non-threshold injury determination.

The Plaintiff brought a claim for statutory benefits under the Act for injuries to his right knee and cervical spine sustained in a motor accident on 8 January 2019. A dispute arose between the Plaintiff and the insurer as to whether the injuries sustained were threshold injuries defined by s 1.6 of the Act. Eventually, it was determined by Medical Assessor Raymond Wallace that the claimant had sustained threshold injuries, mainly because:

• the Plaintiff suffered a musculoligamentous strain of his cervical spine and aggravation of pre-existing multilevel degenerative spondylosis in the motor accident, but
• absent of verifiable radiculopathy, that was a threshold injury within the terms of the Act, and
• Any “right knee symptoms [were] due to age related tricompartmental osteoarthritis ... which is constitutional in origin” and were unrelated to the motor vehicle accident.

A Review Panel upheld the decision of Medical Assessor Wallace on 14 April 2020.

On 1 July 2020, the Plaintiff underwent C5/6 foraminotomy surgery.

The insurer maintained the threshold finding in a further decision that considered new documents, finding that: 

1. but the surgery was because of aggravation of his pre-existing injury sustained in a prior motor accident on 1 December 2010 uncovered in the new evidence and was unrelated to the accident, and
2. the symptoms prior to the surgery met the criterion for radiculopathy set out in the Motor Accident Guidelines.

The insurer declined the Plaintiff’s application for internal review that followed this decision.

The Plaintiff then filed two applications for further medical assessment under s 7.24(2) of the Act. The first application was without substance and was declined by the Delegate of the President of the Personal Injury Commission (the President’s Delegate). The second application was approved by the President’s Delegate on 22 November 2021.

Assessor Mohammad Assem conducted a re-examination and affirmed the threshold determination in a Certificate dated 14 June 2022

The Plaintiff accepted the determination in relation to the right knee.

The Plaintiff applied for Panel Review of Assessor Assem’s determination on the grounds that Assessor Assem fell into legal error in considering whether at the time of assessment the Plaintiff had radiculopathy, not at any time since the motor accident.

The critical aspect of this case was first raised in the Plaintiff’s further submissions in response to the insurer’s reply. The Plaintiff repeated his complaints regarding radiculopathy, but also submitted that the surgery involved “removing a small portion of bone”, resulted in a laceration and scarring, all of which was argued to be a non-threshold injury. The submission was that “skin is an organ of the body and therefore a laceration and/or scarring to such structure is a non-threshold injury”.

An application for review was declined by the President’s Delegate and the Plaintiff commenced proceedings in the Supreme Court to challenge the decision of Medical Assessor Assem and the Delegate, arguing that:

1. The Assessor failed to consider whether the Plaintiff’s consequential injury (the surgery) was a threshold injury, and in doing so, effectively failed to exercise jurisdiction.
2. In failing to consider whether the Plaintiff’s consequential injury (the surgery) was a threshold injury, the Assessor “failed to apply the lawful test of causation regarding consequential injury”.
3. The Assessor failed to afford the Plaintiff procedural fairness in failing to respond to the Plaintiff’s submission that the accident created a need for surgery and that this surgery rendered the injuries non-threshold injuries.
4. The Assessor failed to provide legally sufficient reasoning as to why the surgery did not render the injuries non-threshold injuries.

Justice Chen accepted the insurer’s submission that the Plaintiff’s grounds for review were entirely new and therefore were not presented to the Medical Assessor whose decision the Plaintiff sought to impugn.

His Honour concluded that because the Medical Assessor had not been asked to consider the consequential injury argument, there could not be a failure of procedural fairness or of jurisdiction in not considering the argument.

As an aside, however, his Honour commented that just because the surgery was “caused by the accident”, it did not automatically follow that the surgery was “in the nature of a consequential injury” – an accident-related injury creates a need for treatment but is not, in itself, an injury or consequential injury.

View decision  

6.  QBE Insurance (Australia) Limited v Sedger [2023] NSWSC 865

Walton J

Judicial review of Medical Panel Review Certificate – failure to exercise jurisdiction, apply the Guidelines and provide sufficient reasons.

The claimant was injured in a motor accident on 22 August 2017 and brought a claim for damages under the Motor Accidents Compensation Act 1999 (NSW) (MACA).

A dispute arose as to the claimant’s degree of permanent impairment, and therefore her entitlement to non-economic loss damages pursuant to s 131 of MACA. Medical Assessor Hyde-Page assessed 5% whole person impairment (WPI) in a Certificate dated 12 July 2021.

The claimant applied to have the decision referred to a review panel under s 61 of the MACA.

The Review Panel issued a Certificate dated 28 October 2022 revoking the Certificate and assessing impairment at 12% WPI.

On 18 January 2023, the claimant filed submissions in the Commission seeking referral for a further medical assessment on the grounds that:

“There is evidence of a material error and lacuna in the reasoning of the Review Panel as to how they arrived at a 12% WPI and there is no assessment of the lumbar spine. The usual table at the end of their reasons, where one would expect them to set out their WPI calculations is missing.

These errors gives rise to a substantial injustice to both parties by failing to explain to them how the Panel reached the conclusion it did.”

In the meantime, the insurer commenced proceedings for judicial review of the Review Panel Certificate by way of Summons filed on 25 January 2023.

With further reference to the fact that both parties believed there to be an obvious error, Member Cowley highlighted that the Review Panel Certificate was unclear in its assessment. He recommended the matter be referred again for review, but then corrected himself on realisation that rule 112 of the Commission’s Rules directed the Certificate be referred back to the Panel as it was “incomplete”.

The Replacement Certificate was issued, inclusive of amendments for the date and the word “replacement” on the first page and clarification of how the Panel arrived at an assessment of 12% WPI.

Critically, however, the Replacement Review Panel Decision stated, “the right foot shows greater than 10° of ankle dorsi flexion measured along the lateral border of the foot”, but later in that Certificate, the Panel stated “… Right ankle dorsiflexion was restricted to a neutral position (0°). Table 42 provides a 3% whole person impairment based on mild restriction of dorsiflexion (10°- 0°).”

The insurer then filed an Amended Summons so as to include the replacement Review Panel decision in the proceedings and sought review of the whole Review Panel decision and the replacement Review Panel decision, and sought the relief earlier referred to in this judgment.

It was crucial that the Review Panel’s findings of the range of right ankle dorsiflexion were “inconsistent and irreconcilable”. Because the degree of WPI in the right ankle was material to the decision, as it accounted for 3% of the overall WPI and made the difference between exceeding or not exceeding the threshold set out in s 131 of the Act, the errors were considered to be:

1. A failure to comply with the relevant guidelines.
2. Legally unreasonable.
3. A constructive failure by the Medical Assessor to exercise its jurisdiction.

His Honour concluded that the Review Panel’s failure to provide reasons that were internally consistent and expose its actual path of reasoning constitutes a constructive failure to exercise jurisdiction and a failure to expose a path of reasoning, constituting an error of law on the face of the record.

His Honour further stated that, “The appearance of the review panel replacement decision has the earmarks of a panel intent on confirming its existing flawed assessment, with little or no attempt to justify that position. That comes at great expense to the Insurer who was required to bring these proceedings in order to rectify obvious errors.”

Findings: An order in the nature of mandamus was made. The matter was remitted back to the Commission to be heard and decided again.

View decision

7.  Ozcan v QBE Insurance (Australia) Limited [2023] NSWPICMR 54

Merit Review

Merit Reviewer: Katherine Ruschen

Calculation of statutory benefits for earners not earning continuously – migrant worker – insufficient evidence to assess PAWE.

The claimant sustained personal injuries in a motor accident on 19 April 2023. He lodged a claim for payment of statutory benefits under the Act.

Relevantly, the claimant was a Turkish National who arrived in Australia in around March 2023. His source of earnings was self-employment as an Uber driver.

On 27 June 2023, the insurer assessed the claimant’s pre-accident weekly earnings (PAWE) as $462.66. The claimant requested an internal review of this decision on the grounds that:

1. the insurer failed to include all income received in the relevant pre-accident period
2. the insurer made excessive allowances for business expenses compared to actual expenses
3. Goods and Services Tax (GST) paid for services provided by the claimant represents earnings received by the claimant, because he was not registered for GST, and
4. his PAWE fell under sch 1, cl 4(2)(a) of the Act because he was not earning continuously in the 12-month period prior to his accident. He stated that he did not work between October 2022 and 8 March 2023 whilst living in Turkey but gave no further information.

On 13 July 2023 the insurer varied their PAWE decision in an Internal Review Certificate to $664.52, but stated that:

1. Pursuant to Uber B.V v Commissioner of Taxation [2017] FCA 110, the claimant was required to be registered for GST and GST thus does not represent earnings.
2. The claimant was not “earning continuously” and so cl 4(2)(a) does not apply. It was submitted that cl 4(1) applied, requiring an assessment of earnings in the 52-week period preceding the accident.

The claimant applied for merit review of the insurer’s internal review decision dated 13 July 2023.

The matter came before Merit Reviewer Ruschen to determine.

The Merit Reviewer first clarified that the claimant appeared to have included the sum of $424.84 in pre-accident Uber earnings, but earnings received after the accident, even if for work carried out before the accident, were excluded from PAWE.

Similar to that, the Merit Reviewer critiqued the insurer’s calculation of business expenses because “cl 4(2)(a) concerns only earnings received in the pre-accident period in question and anticipated business expenses are not a relevant consideration if they have not yet been incurred”.

The Merit Reviewer rejected the claimant’s argument that because he was not registered for GST; the GST payments he received from Uber were his earnings received as an earner. She stated that, “the act of receiving tax monies and unlawfully withholding those monies instead of remitting the monies to the ATO” does not convert the tax into earnings.”

She further highlighted that GST is not “proceeds of a business” or “earnings” (defined as “income from personal exertion”) simply because “the claimant chose to ignore his legal obligations” to pay this amount to the Government. GST was excluded from PAWE.

Regarding the application of cl 4(2)(a), the Merit Reviewer highlighted that the claimant had failed to comply with his duty to support his contention that he was not earning continuously. Additionally, it was said that there was not sufficient evidence to conclude whether the “earnings the claimant was receiving as an Uber delivery driver were “likely to continue for a period of at least 6 months ... on the same, or a similar, basis...”.

Merit Reviewer Ruschen highlighted that at the time of the accident, the claimant was working approximately 54 hours per week. She stated that because he was on a student visa, he had to also enrol in a full-time course of study and could not work in excess of 48 hours per fortnight in semester.

Because of those restrictions, the Merit Reviewer rejected the submission that the claimant was likely to receive earnings on the same or a similar basis.

Findings: As cl (2)(a) was not applicable, cl 4(1) applied to calculate PAWE but there was no evidence regarding the claimant’s earnings in the preceding 52 weeks whilst he resided in Turkey. Merit Reviewer Ruschen granted the parties opportunity to liaise, discuss evidence to be produced and for the insurer to recalculate PAWE under cl 4(1).

View decision

8.  Alzate v Insurance Australia Limited t/as NRMA [2023] NSWPICMR 51

Merit Review

Merit Reviewer: Katherine Ruschen

Calculation of weekly statutory benefits payments for Claimant commencing new business – insufficient evidence to assess PAWE.

The claimant sustained personal injuries in a motor accident on 18 May 2023. She brought a claim for statutory benefits under the Act and sought payment of weekly wage benefits.

The claimant listed that she was unemployed and in receipt of Centrelink benefits on her claim form. She then advised the insurer that she was taking steps to commence her own business, which included registering as a company 10 days before the accident, obtaining a business name, bank account and mobile phone connection.

The insurer determined that insufficient information was available to determine whether the claimant was an “earner” for the purposes of sch 1, cl 2 of the Act. It was determined that interim payments would be made under s 3.6(5) of the Act until sufficient information was provided by the claimant.

Information was requested on 7 June and 31 July 2023. The claimant did not adequately respond.

On 10 August 2023, the insurer advised the claimant that interim payments would cease on 18 August 2023, being 13 weeks after the motor accident, pursuant to s 3.6 of the Act. She requested internal review of this decision. The insurer conducted an internal review and affirmed that decision.

The claimant then applied for merit review in the Commission.

Merit Reviewer determined that the claimant was not an “earner” for the relevant purpose because:

1. There was no evidence that the claimant had any involvement in the company – whilst her place of business was the same address listed in her merit review application, it was not known who else resided at that address and may have set up the company.
2. Even if there was a sufficient link between the claimant and the registered company, the claimant did not “enter into an arrangement to commence business as a self-employed person” because she and the company were separate legal entities.
3. There was no evidence that the claimant would be employed by the company at a particular time and place.

The Merit Reviewer also agreed with the insurer that there was insufficient financial evidence to estimate the expected revenue so as to calculate PAWE.

The onus therefore rests on a claimant to establish, in circumstances where a claimant was establishing a business when an accident intervenes, that they are (or were to be) employed by that company, and what their earnings would have been, but for the accident.

Findings: The Merit Reviewer affirmed the insurer’s decision to cease interim payments.

View Decision

9.  Amos v AAI Limited t/as GIO [2023] NSWSC 1193

Rothman J

Procedural Fairness – Review Panel under Motor Accident Injuries Act – Failure to provide reasonable opportunity to deal with crucial issue – practical injustice – decision quashed.

The Plaintiff was injured in a motor accident on 26 July 2018. He alleged that he sustained a number of injuries, with the most relevant injury to the Supreme Court case a fracture to the right eye socket.

The fracture itself was not sustained in the motor accident but occurred over one month after the accident, but it was alleged that the Plaintiff sustained a closed head injury in the accident, which caused vertigo and dizziness and which in turn, caused the Plaintiff to fall and to sustain the eye socket injury on 30 August 2018. 

The Plaintiff lodged an application for assessment of permanent impairment in the Commission. The initial assessment was performed by Medical Assessor Steiner. Dr Steiner assessed a permanent impairment of 29% arising from the orbital fracture, consisting of 24% for the impairment to the visual system and 6% for impairment to the nervous system, and concluded that the fracture was caused by the accident.

The insurer applied for review of Assessor Steiner’s Certificate, and it was revoked by a Review Panel on 15 November 2022on the grounds that the right orbital fracture was not caused by the accident. In reaching that decision, the Review Panel accepted the possibility that a closed head injury sustained in the accident led to paroxysmal vertigo but stated that the fall was either accidental or caused by non-specific, pre-existing dizziness. If causation were established, however, it was conceded that this injury would attract 27% WPI. 

The Plaintiff applied for judicial review in the Supreme Court disputing the Panel’s findings on causation and consequent findings on permanent impairment in respect of the right orbital fracture.

The Supreme Court quashed the original decision and the Review Panel’s decision. The Plaintiff was referred back to the Commission assessment by a different Assessor because it determined that the Plaintiff had been denied procedural fairness because:

1. The Review Panel failed enquire whether the Plaintiff felt like the room was spinning around him and whether he needed to reach out for support.
2. Given his history of similar symptoms, the Review Panel ought to have explained the difference to the Plaintiff, a layperson not fully appraised of specific medical distinctions, between “dizziness” and “vertigo”, or “dizziness” and “the room spinning around him”, because this distinction was relevant and crucial to the determination.
3. If the Review Panel considered that there was some distinction between this description and the criteria being utilised by the Review Panel of the environment spinning, it was incumbent upon the Review Panel to enquire with the Plaintiff further, to ensure fairness.

This case makes it clear that where there is a medically complex consideration that is determinative or crucial to a Medical Assessor’s finding, it is incumbent on the decision maker to provide sufficient information to a plaintiff, so they have adequate opportunity to respond in the interests of procedural fairness.

View Decision

10.  QBE Insurance (Australia) Limited v Lay [2023] NSWSC 1433

Harrison AsJ

President of the Personal Injury Commission – President’s Delegate – Motor Accident Compensation – CTP - Single vehicle no fault motor accident.

The Plaintiff was injured in a single vehicle motor accident on 6 September 2019. It was relevant to this decision that the Plaintiff was the owner and driver of a vehicle, which was struck by a falling tree. 

The Plaintiff applied for statutory benefits against the Insurer for personal injuries sustained in that accident under the Act. It was conceded by the Insurer that this was a no-fault motor accident within the scope of Pt 5.  Eventually, statutory weekly payments were ceased by the Insurer on the basis that the maximum weekly payment period had elapsed, pursuant to s.3.12 of the Act. 

The Plaintiff made a claim for common law damages on 31 May 2022, purporting that he had a ‘no fault’ claim. Liability for that claim was rejected by the insurer on 4 July 2022 on the basis that he had no entitlement to recover damages due to an act or omission of the driver/claimant.

On 29 September 2022, the insurer issued a further notice denying liability for the driver’s claim for further weekly payments. The Plaintiff applied for internal review on 3 November 2022.

The insurer issued a further notice on 15 November 2022 advising the Plaintiff that his claim for weekly payments was denied as those payments should, and did, cease at 104 weeks from the date of the accident because the driver has no cause of action for common law damages.

The insurer relied on the decision of Whitfield v Melenewycz, specifically that whilst the no-fault provisions deem fault where there is no fault, there are additional elements that must still be established to establish liability. An insurer was not liable simply because fault was deemed.

The insurer submitted that s 5.1 of the Act was merely definitional and s 4.1 of the Act retained the need to establish fault in the causative use or operation of the vehicle by the owner or driver. It was argued that the damages claim was barred by the fact that the Plaintiff could not sue himself, but even if he could, there was no acts or omissions that contributed to the occurrence of the accident.

That decision was affirmed on Internal Review dated 1 December 2022.

The Plaintiff applied for a further assessment by the Commission regarding a merit review matter under sch 2(1)(b): whether for the purposes of s 3.12 (Cessation of weekly payments to other injured persons after maximum weekly payments period) an injured person's injury is the subject of a pending claim for damages (‘the merit review matter’).

Critically, the Plaintiff submitted that his pending claim for damages had a lawful basis and thus he was entitled to recover weekly payments. He stated that this was notwithstanding whether the Insurer had accepted liability for that claim or not.

The insurer argued that the Plaintiff was not entitled to statutory benefits beyond 104 weeks pursuant to subs 3.12(2)(a) because as owner/driver in a single vehicle accident, the Plaintiff cannot sue himself and therefore the claim cannot be sustained. It was argued that the claim cannot and should not be construed as pending merely because a claim form was lodged and/or was on foot in circumstances where that claim has no prospect of success.

The Member agreed with the Plaintiff, stating that the wording of s 3.12 did not suggest a claim for damages was no longer pending simply on denial of liability. It was further stated that liability for a claim, where that liability was denied by the insurer, that liability was then determined by others – the claim was still pending. In such circumstances, s 3.12(3) directs that the maximum weekly payment period will only end at 260 weeks, or once the claim is finally determined, withdrawn or settled.

The insurer applied for the Member’s decision to be referred to a review panel on the basis that the claim for damages had no basis in common law and that any claim for damages must be founded on a legal cause of action.

The President’s Delegate dismissed the application on 13 June 2023.

The insurer filed a Summons on 13 September 2023 seeking “an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the President’s Delegate and Member Castagnet’s decision” on the grounds that it contained an error of law on the face of the record, jurisdictional error and/or a constructive failure to exercise statutory power.

Ultimately, her Honour agreed with the insurer that Member Castagnet committed an error of law and/or fell into jurisdictional error and/or constructively failed to exercise jurisdiction because:

1. The Member failed to respond to the substance of the substantial argument advanced by the insurer based on established facts that there was no pending claim for damages because there was no lawful basis for the claim at all. A failure to consider the insurer’s argument was a failure to exercise jurisdiction and a denial of procedural fairness.
2. The Member fell into jurisdictional error by asking himself whether the claim for damages was pending because insurer had denied liability – the relevant question should have been whether there was a lawful basis for the claim for damages.
3. Because there was not and could not be a ‘pending claim for damages’ at law, a finding by the Member otherwise was a failure to apply to Melenewycz and an error of law on the face of the record.

The President Delegate’s decision was in turn invalidated because it relied on the existence of an initial decision of the Merit Reviewer. In the alternative, his Honour accepted that the President Delegate’s decision contained a jurisdictional error because it was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” and required the application of legal expertise, which he did not possess, and which did not fall within the scope of his statutory power.

Findings: Decisions of Member Castagnet and the President’s Delegate were set aside.  There was no utility in having the decision remitted back to the Commission because no other conclusion could be reached.

The impact of this decision is that the Court has determined that injured persons involved in a single motor vehicle no fault accident cannot bring a claim for damages against themselves.

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