AAI Limited t/as AAMI v Cvetkovski
[2025] NSWPIC 54
•10 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Cvetkovski [2025] NSWPIC 54 |
| CLAIMANT: | Danny Cvetkovski |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | David Ford |
| DATE OF DECISION: | 10 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute as to whether the claim is not suitable for assessment under Division 7.6; insurer made an application that the matter be exempted on a discretionary basis under section 7.34(1)(b); on the grounds that the claim involves complex legal or factual issues or complex issues in the assessment of the amount of the claim; Rule 99(3)(a) of the Personal Injury Commission Rules 2021 (NSW) (the PIC Rules); the claimant lodged an application for damages assessment on 28 September 2023; a schedule of damages was not lodged on the portal; from the period 14 June 2024 until 2 February 2025 several teleconferences were held; on each occasion further directions were made requiring the claimant to serve a schedule of damages; continual failure to comply with directions on the part of the claimant; claimant’s employer at the time of the accident has refused to comply with documents sought pursuant to a Notice for Production issued by the insurer; as a result SIRA are in the process of implementing enforcement proceedings against this employer; claimant advised the employer had no intention of complying with the Notice for Production; insurer submitted the matter ought to be exempted and allowed to proceed in the appropriate forum where the legal and factual complexities can be properly considered, where a binding decision can be made, and where non-party witnesses can be compelled to give evidence; Held – determined the claim is not suitable for assessment under Division 7.6; recommended the claim be exempt from assessment by operation of subsection 7.34(1)(b) and rule 99 of the PIC Rules; recommendation subsequently approved by the Division Head, as the President’s delegate. |
Recommendations Claim Not Suitable for Assessment
Issued under s 7.34 of the Motor Accident Injuries Act 2017
My preliminary assessment of the claim and I recommend to the President that:
(a) this claim is not suitable for assessment under Division 7.6, and
1.(b) this claim is exempt under sub-s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and clause 99 of the Personal Injury Commission Rules 2021.
BACKGROUND
The insurer has made an application the matter be exempted on a discretionary basis under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act) on the following grounds:
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim Rule 99 (3)(a) of the Personal Injury Commission Rules 2021(NSW), and
(b) whether the claim involves issues of liability including contributory negligence fault or causation Rule 99 (3)(b) of the Personal Injury Commission Rules 2021 (NSW).
On 1 October 2020, at approximately 10.30am Danny Cvetkovski (the claimant) was driving his motor vehicle along Grand Parade at Brighton Le Sands, when his vehicle ran out of petrol, and whilst the vehicle remained in the right lane, the insured vehicle collided with the rear of his vehicle.
Liability for the common law damages claim was admitted on 16 March 2023.
The solicitor for the claimant lodged an application for damages assessment on 28 September 2023. In the application, the solicitors for the claimant did not serve and lodge on the portal a detailed schedule of damages.
The matter was referred to me, and I held an initial teleconference on 14 June 2024. I made directions requiring the claimant to serve and lodge on the portal updated schedule of damages, submissions on damages, statements upon which the claimant would seek to rely. The matter was set down for an assessment conference 26 August 2024.
It was necessary to hold a further teleconference on 30 July 2024, at which I made further directions upon the solicitor for the claimant requiring the provision of further particulars and documentation. At that stage, I confirmed the general assessment conference for 26 August 2024.
It was necessary to hold a third teleconference on 16 August 2024 because of non-compliance with my directions and the assessment conference date was cancelled. A further timetable was set and the matter was listed for a teleconference on 8 October 2024.
On 8 October 2024, I held a further teleconference. The claimant was represented by a new firm of solicitors as he had withdrawn his instructions from his previous law firms, Law Partners and Monaco lawyers. At this teleconference, I was assured by counsel for the claimant, directions would be complied with and accordingly the matter was set down for an assessment conference on 27 February 2025.
Once again, there was further failure on the part of the claimant to fully comply with my directions and he also failed to provide a schedule of damages. It was necessary to hold a further teleconference on 3 February 2025. The claimant participated in the teleconference as he advised he was now self-represented but intended shortly to engage solicitor to act on his behalf.
I was also advised the insurer, on 2 February 2025, lodged an application for further medical assessment with the Medical Service in respect of psychological injuries. Also, it was necessary to determine the Application for discretionary exemption lodged by the insurer which had also been referred to me for determination. In such circumstances, the assessment conference arrange for 27 February 2025 was cancelled, and I arranged for a further teleconference 27 February 2025 in respect of the damages assessment claim.
Mr John Wilson of counsel, who did appear for the claimant at the teleconference on 8 October 2024, lodged submissions in opposition to the application for discretionary exemption brought by the insurer. The submissions were dated 21January 2025 and are quite comprehensive. I note the submission at paragraph 4 as follows
“4. The insurer maintains that the claimant has systematically failed to comply with directions issued by a Member Ford. However, this allegation fails to recognise,
·the claimant’s documented neurological challenges
·genuine efforts to provide requested documentation
·contextual complexities surrounding document retrieval.”
At the teleconference on 3 February 2025, the claimant, when questioned by me regarding failure to provide documentation and particulars, advised me he had provided all his previous solicitors with all necessary documentation and information which they required from him. He denied withholding information or documentation. I also discussed with the claimant, the fact his employer at the time of the accident, Skyroad Logistics Pty Limited had refused to comply with the documents sought pursuant to a Notice for Production issued by the insurer. I further advised the State Insurance Regulatory Authority (SIRA) were in the process of implementing enforcement proceedings against this employer. The claimant replied he had spoken to the proprietor of Skyroad Logistics Pty Limited, who informed him he had no intention of complying with the Notice for Production, and if necessary, he was content to pay any fine imposed by SIRA.
The Insurer submits the matter ought to be exempted from assessment and allowed to proceed in an appropriate forum where the legal and factual complexities can be properly considered and where a binding decision can be made and where non-party witnesses can be compelled to give evidence.
I determine the matter can be exempted under s 7.34 (b) of the MAI Act on the following grounds:
Rule 99(3)(a) “Whether the claim involves complex legal or factual issues or complex issues in the assessment of the amount of the claim”.
I advised the parties at the teleconference, after hearing both their oral submissions, that I intended to recommend the matter be exempted because in the interest of justice, the documentation must be obtained by way of subpoena from Skyroad Logistics Pty Limited and the claimant should be subject to orders from the District Court compelling either him, or his solicitors, to provide full and proper particulars in relation to the claim and provide a detailed schedule of damages, which, despite several teleconferences ,such schedule has not been forthcoming. Furthermore, the District Court will be in a position to impose cost orders on either the solicitors for the claimant or the claimant himself to ensure prompt compliance with such orders and enable the matter to proceed to a hearing in a timely fashion
Relevant Legislation
Sub-section 7.34 (1)(a) of the MAI Act provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.
Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:
“99 Consideration of discretionary exemption from claims assessment
(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.
(2) In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.
(3) Without limiting the matters that may be considered, the Commission may consider the following—
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,
(b) whether the claim involves issues of liability, including contributory negligence, fault or causation,
(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,
(d) whether a claimant or insurer seeks to proceed against one or more non-CTP parties,
(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.”
In this case a number of considerations listed in clause 99 are relevant.
The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Personal Injury Commission (Commission) must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be: accessible, professional, and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
In making my findings, I am also mindful of other relevant consideration listed in Rule 99 including that the claim potentially involves:
· complex legal or factual issues, and
· issues of liability, including issues of contributory negligence, fault or causation.
Although I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.
Determination
In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:
· the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes, and
· the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
I recommend that the claim be exempt from assessment by operation of sub-s 7.34(1)(b) of the MAI Act and clause 99 of the PIC Rules.
In accordance with s 7.34(1)(b) of the Motor Accident Injuries Act 2017, the Division Head (Motor Accident Division) as Delegate of the President, on 25 February 2025, approved Member David Ford’s recommendation that the claim is not suitable for assessment.
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