The following motor accident cases of note have been handed down:

Professional stuntman fails to prove injury caused any economic loss (QLD)

A 30-year-old professional motorcycle stuntman who was injured when he was knocked off his bicycle by a motor vehicle, and was awarded $104,791 in damages, was unsuccessful in seeking leave to appeal. The court found no error in the primary judge’s finding that there was no causal link between the injury from the accident and the loss of employment nor any diminution in earning capacity.

Source: Saul v Machalek & Anor [2021] QCA 7, 29 January 2021.

30% contributory negligence finding against injured cyclist was reasonable (WA)

A cyclist who was injured when a motorist collided with her and was awarded more than $800,000 damages with a reduction of 30% on account of her own contributory negligence in riding her bicycle in front of the car, was unsuccessful in her appeal of the primary judge’s findings. The court found that a reduction of 30% was within a reasonable range.

Source: Wreford v Lyle [No 3] (2021) Aust Torts Reports ¶82-615; [2021] WASCA 20, 11 February 2021.

Seriously injured delivery driver failed to use handbrake (VIC)

A delivery driver was found to have caused his own accident by failing to apply the handbrake. The court found that the inured man was aware of the need to secure the van where he parked it. He was in the driver’s seat and had the means immediately available to achieve that outcome. The inured man’s failure to properly apply the handbrake, combined with the choice of where he parked the van, caused the accident.

Source: Acciarito v Anthony Parcel Services Pty Ltd [2021] VSC 78, 25 February 2021.

Reduced damages for atypical psychotic disorder that would have occurred in any event (NSW)

A young woman who was involved in a motor vehicle accident and who claimed to have suffered a severe and atypical psychiatric illness as a response, was awarded damages of $43,983.70, substantially less than what was claimed. His Honour Abadee DCJ found that the woman suffered an atypical psychotic disorder and established causation in accordance with s 5D of the Civil Liability Act 2002 (NSW). However, the motor accident could have been seen as accelerating a psychotic condition that would have happened anyway.

Source: Joldzic (bht Joldzic) v Patrick (2021) Aust Torts Reports ¶82-617; [2021] NSWDC 55, 9 March 2021.

Intoxicated driver found negligent; intoxicated passenger found contributorily negligent in failing to wear a seatbelt (ACT)

An intoxicated passenger in a vehicle driven by an intoxicated driver, and who suffered injury when the vehicle veered to left and collided with a tree killing another passenger, successfully sued the driver in negligence. The driver’s breach of duty of care in driving while intoxicated caused the accident, however damages were reduced by 35% on account of the passenger’s contributory negligence in failing to wear a seatbelt.

Agony of the moment still an agony (ACT)

A driver who was found liable in negligence for an agony of the moment decision to reverse away to escape the driver and passenger of another vehicle, and in the process reversed into the vehicle behind him, unsuccessfully appealed the lower court finding against him. The court found that even though the driver was acting in the agony of the moment and escaping a situation of danger, he could have reversed and made good his escape without having to collide with the vehicle behind him.

Source: Reardon v Seselja (2021) Aust Torts Reports ¶82-618; [2021] ACTCA 4, 11 March 2021.

Failure to instruct was a fault in the use of or the operation of a forklift (NSW)

A forklift operator who suffered a severe leg injury that ultimately led to a leg amputation after a forklift he had been operating collided with him, successfully sued his employer in negligence and pursuant to the Motor Accidents Compensation Act 1999 (NSW) (MACA). The court found that ss 3A and 122 of the MACA were satisfied. Damages were awarded in the total sum of $3.7 million, reduced by 20% on account of the employee’s contributory negligence in failing to fully engage the handbrake.

Source: Adlawan v Recochem Inc (2021) Aust Torts Reports ¶82-619; [2021] NSWSC 223, 11 March 2021.

$2.4 million in damages following high speed head-on collision (QLD)

A man who was driving with his 3 children and was involved in a high-speed head on collision and suffered catastrophic injuries as a result, was awarded more than $2.4 million in damages, including $959,040 for future economic loss.

Source: Allen v O’Donnell & Anor (2021) Aust Torts Reports ¶82-627; [2021] QSC 63, 25 March 2021.

Psychological injury ceased when physical injury resolved (NSW)

A man who suffered physical and psychological injuries as a result of a motor vehicle accident in 2016, and successfully sued the driver of the other vehicle in negligence, had his damages award dramatically reduced on appeal. The court found that the primary judge erred in finding that the psychological injury continued after the physical injury had resolved, as evidence established that the adjustment disorder was “secondary to” the pain caused by the physical injury.

Source: Dungan v Padash (2021) Aust Torts Reports ¶82-649; [2021] NSWCA 66, 23 April 2021.

Driver not required to anticipate in any and all circumstances that a pedestrian might suddenly stray onto the road (VIC)

A driver who was found partially liable in negligence for hitting a pedestrian as she walked behind a taxi and out on to the roadway, was successful on appeal. The court found the primary judge erred in finding that it was incumbent on the driver to travel at a speed at which he could stop so as to avoid a collision of the type which occurred.

Source: Simmonds-Thatcher v Kamari (2021) Aust Torts Reports ¶82-648; [2021] VSCA 133, 14 May 2021.

Insurer found liable for accident caused by stolen vehicle (ACT)

A man who was injured in a motor vehicle accident after a car that had been stolen the day before collided with the rear of his vehicle, successfully sued the insurer in negligence. Despite the insurer putting the driver’s credit in issue, and denying the accident occurred as pleaded, the court found that the accident did occur in the manner as claimed by the injured driver and assessed damages in the total sum of $181,500.

No error in primary judge refusing leave to commence common law proceeding (VIC)

A woman who sustained fractures in her spine after she was struck by a motor vehicle while riding her bicycle and was refused leave to commence common law proceedings under s 93(4)(d) of the Transport Accident Act 1986 (Vic), was unsuccessful on appeal. The court found that the primary judge did not adopt an erroneous approach and that the various consequences alleged by injured woman were each assessed individually and were then considered and dealt with in combination.

Source: Randhawa v Transport Accident Commission (2021) Aust Torts Reports ¶82-647; [2021] VSCA 135, 17 May 2021.

Driver who collided with and ran over motorcyclist failed to prove causation in psychiatric injury claim (NSW)

A driver who suffered psychiatric injury as a result of colliding with a motorbike rider and subsequently running over him, and who unsuccessfully sued the motorbike rider in negligence, was unsuccessful on appeal. The court found no error in the primary judge’s finding on causation, that despite a finding of negligence against the motorbike rider, the driver failed to prove that the motorbike rider’s breach of duty of care was a cause of the “forceful collision” and the other driver driving over him.

Source: Yebdoo v Holmewood (2021) Aust Torts Reports ¶82-663; [2021] NSWCA 119, 3 June 2021.

Injuries to unconscious woman were not caused by or arising out of the use of a motor vehicle (VIC)

A 19-year-old woman who suffered catastrophic injuries after she was given heroin and left unconscious in a car for more than 2 days, was unsuccessful in seeking a declaration from the court that the Transport Accident Commission indemnify the driver on the basis that the injuries arose out of the use of a motor vehicle. The court found that the woman remained in the vehicle because she was abandoned, unconscious and immobile, by the driver and that the relationship between the man driving the vehicle and parking it and the woman’s injuries was merely coincidental.

Source: RBK v Montague & Anor (2021) Aust Torts Reports ¶82-662; [2021] VSC 336, 10 June 2021.

Valiant attempt at a “systems” claim was still a motor accident claim (NSW)

A truck driver who was injured while driving his truck when he hit a pothole and bounced in his seat, had his negligence claim against the owner of the truck dismissed. The court noted that the driver’s pleadings were a valiant attempt to plead a case outside the bounds of the Motor Accidents Compensation Act 1999 (NSW) (the MACA), however the facts pleaded made it plain that the claim fell squarely within the bounds of a “claim” as defined in the MACA and not a “systems” case. The case was one which fell within the legislative net of the MACA and as no certificates had ever been issued under the MACA, the driver was prohibited from commencing court proceedings by s 108 of the MACA and the proceedings were a nullity.

Source: Chase v Blue Op Partner Pty Ltd & Ors (2021) Aust Torts Reports ¶82-669; [2021] NSWDC 249, 16 June 2021.

Injured woman granted leave to commence proceedings nearly 10 years out of time (VIC)

A woman who was injured in a motor vehicle accident in 2005 and went on to commence common law proceedings well out of time in 2017, successfully sought an order extending time, with the County Court of Victoria finding that it was just and reasonable to extend time and that the prejudice to the defendant driver was not such that a fair trial could not be held.

Motorcycle rider successfully sued unidentified vehicle (NSW)

A young man who was injured when he came off his motorcycle after he claimed to have been hit by an oncoming car that crossed on to his side of the road, successfully sued the Nominal Defendant for damages. Damages were reduced by 10% on account of contributory negligence in failing to take evasive action.

Source: Itskos v The Nominal Defendant (2021) Aust Torts Reports ¶82-671; [2021] NSWDC 244, 17 June 2021.

Train does not fall within the Motor Accidents Compensation Act (NSW)

A firefighter who attended the scene of a train derailment near Waterfall Station in January 2003 and suffered psychiatric injury some 15 years later after attending a work training session, successfully sought leave to commence proceedings against the State of New South Wales. The Supreme Court of New South Wales found that a train does not fall within the Motor Accidents Compensation Act 1999 (NSW) and so the limitation period was governed by ss 50C and 62A of the Limitation Act 1969 (NSW). The date of discovery was not before 20 September 2018, the date Mr Watson attended the training session, when he suffered severe and incapacitating sequalae.

Industry news

Updated Guidelines to reflect changes in response to Personal Injury Commission (NSW)

The Motor Accident Guidelines (Version 7) have been updated to reflect how claims are managed following commencement of the Personal Injury Commission Act 2020 (NSW). From 1 March 2021, SIRA’s Dispute Resolution Service, Claims Assessment and Resolution Service and Medical Assessment Service ceased operation, and the Personal Injury Commission was established.

Source: State Insurance Regulatory Authority, “Updated Claims Assessment and Medical Assessment Guidelines”, [media release], accessed 25 February 2021.

New Personal Injury Commission officially opens (NSW)

The new Personal Injury Commission (PIC) commenced operation on 1 March 2021.

The Personal Injury Commission merges the dispute resolution processes of the workers compensation and CTP insurance schemes into a single, independent tribunal. The reforms do not change the compensation, benefits and entitlements in the original workers compensation and CTP schemes, ensuring minimal impact to insurance premiums and will offer certainty with business continuity. The functions of the Workers Compensation Commission, SIRA’s Dispute Resolution Service (DRS), the Motor Accidents Claims Assessment (CARS) and the Motor Accidents Medical Assessment Service (MAS) have been transferred to the PIC.

Source: Victor Dominello Minister for Customer Service, Mark Speakman Attorney-General, “New personal injury commission officially opens”, [joint media release], 1 March 2021.

Webinar with Judge Gerard Phillips, President of the Personal Injury Commission (NSW)

A Q&A session with Phillips J, President of the Personal Injury Commission of NSW, is available in the Motor Accidents Law practice area on Pinpoint. The session was hosted by Jackie Waugh, Senior Content Management Analyst (Torts) at Wolters Kluwer. The webinar can be accessed here.

Independent file review of the first 1,000 claims in the 2017 motor accidents scheme (NSW)

The State Insurance Regulatory Authority (SIRA) engaged 2 independent research institutions to conduct a file review of the first 1,000 claims that entered the Motor Accident Injuries Act 2017 scheme. The files were reviewed at regular intervals over a 2-year period focusing on insurer injury management processes, minor injury threshold for soft tissue and psychological injuries, and opportunities for data collection to improve ongoing scheme monitoring. The JWCRR final report and the AIHI final report are now available.

Source: State Insurance Regulatory Authority, “Independent file review of the first 1,000 claims in the 2017 motor accidents scheme”, [Bulletin — Issue 21], 15 April 2021.

Motor Accidents and Workers Compensation Legislation Amendment Bill 2021 introduced in parliament (NSW)

The Motor Accidents and Workers Compensation Legislation Amendment Bill 2021 has been introduced into the Legislative Assembly by the Hon Victor Dominello Minister for Customer Service.

The amendments seek to clarify rights and entitlements, and improve the regulation, administration and efficiency of the compulsory third party insurance (CTP) and workers’ compensation schemes.

Source: The Hon Victor Dominello, Minister for Customer Service, second reading speech, “Motor Accidents and Workers Compensation Legislation Amendment Bill 2021”, [Legislative Assembly Hansard], 9 June 2021, accessed 16 June 2021.

Statutory review of the Motor Accident Injuries Act 2017 (NSW)

The scheduled statutory review of the Motor Accident Injuries Act 2017 (NSW) (the 2017 Act) is now underway. Under the Terms of Reference, the review will assess whether the policy objectives of the 2017 Act as outlined in s 1.3 remain valid, and whether the terms of the 2017 Act, the Motor Accident Injuries Regulation 2017 and the Motor Accident Guidelines remain appropriate for securing those objectives.

Source: State Insurance Regulatory Authority, “SIRA bulletin – Issue 28”, [bulletin], 18 June 2021.

Explore further: See Torts – Motor Accidents practice area on CCH Pinpoint.