NSW's Personal Injury Commission (PIC) tribunal has upheld an insurer’s decision to stop statutory benefit payments to a motorist who sustained catastrophic injuries after he swerved to avoid two deer and ended up colliding with a vehicle.

The crash on August 1 2021 was a “no fault accident” and Ivar Karklins had been receiving payments from QBE after the insurer accepted liability for statutory benefits to continue past 26 weeks after the date of the collision.

Under the state’s Motor Accident Injuries (MAI) Act 2017, an injured person is entitled to receive weekly statutory benefits for a maximum of 104 weeks unless the injury is the subject of a pending claim for damages.

His benefits were set to expire at 104 weeks and on May 23 this year his legal representative lodged an unsuccessful application with QBE seeking damages under common law.

He took his case to the NSW tribunal after his request to QBE for an internal review led to the same outcome.

PIC Merit Reviewer Terence O’Riain, who handed down his decision last month, says Mr Karklins had to establish he had a pending claim for damages to support his case for the benefit payments to extend beyond 104 weeks.

If he had succeeded the benefit payments would continue until the damages claim was resolved.

“To establish that he had a pending claim for damages it would require him to be able to argue that he was owed an existing tortious duty,” Mr O’Riain said.

“That is not the case here, as his injuries were suffered when he took evasive action to avoid a collision with deer. There is no one to sue and therefore no damages liability to be resolved.”

He says Mr Karklins’s injuries were “suffered in a no-fault accident” as defined under the MAI Act and “accordingly, the claimant cannot establish a claim for negligence against himself, as stated in [section 5.4 the ACT].”

QBE had based its decision on section 5.4 after Mr Karklins first lodged his application for damages under common law on May 23 this year. Section 5.4 states there is no entitlement to recover damages “if the motor accident concerned was caused by an act or omission of that driver”.

A QBE case manager later confirmed the decision on July 7, saying the collision was a “blameless accident”.

On the same day of the confirmation Mr Karklins applied for an internal review of the decision and the outcome remained the same.

He subsequently took his dispute to the PIC where he applied for a merit review in an attempt to reverse the insurer’s decision.

Click here for the decision.