A NSW motorist who has been receiving payments after he crashed his vehicle while trying to avoid deer, leaving him with catastrophic injuries, has failed to prove he has a case for extending the compensation beyond the mandated 104-week period. 

The Personal Injury Commission (PIC) upheld QBE’s decision to stop the payments to Ivar Karklins, who took his case to the tribunal after the insurer rejected his application seeking damages under common law. 

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 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 August 2021 in a “no-fault accident” as defined under the state’s Motor Accident Injuries (MAI) Act 2017. “Accordingly, the claimant cannot establish a claim for negligence against himself.” 

QBE had based its decision on section 5.4 of the Act 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”. 

Under the MAI Act, 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. 

A QBE case manager later confirmed the insurer’s decision on July 7, saying the collision was a “blameless accident”. On the same day Mr Karklins applied for an internal review of the decision and the outcome remained the same. He subsequently took his dispute to the PIC. 

Click here for the decision.