AAI Limited t/as AAMI v Smith
[2024] NSWPIC 19
•8 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Smith [2024] NSWPIC 19 |
| CLAIMANT: | Natasha Smith |
| INSURER: | AAMI |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 8 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; section 7.34(1)(b); recommendation; claim not suitable for assessment; complex factual issues; complex issues of liability, fault, and causation; witnesses out of state; action against non-CTP party; length of hearing; Held – claim is not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
The claimant lodged her application for common law damages on 1 April 2022.
The application before me is an application made by the insurer for the matter to be exempted from the Commission on discretionary grounds.
The claimant in her reply lodged on 18 December 2023 consented to the insurer’s application.
The insurer submissions in support of the exemption were as follows:
“ Established and Agreed Facts
The accident occurred in late-November or the beginning of December 2022 on Young Street in Albury, New South Wales. The claimant was a front seat passenger in an unregistered and uninsured vehicle which lost control and collided with another vehicle while being pursued by police. That is the extent of established and agreed facts at this stage.
The claimant alleges that in the hours prior to the accident (there are differing accident dates and times on various records) she was babysitting at a friend’s home (at an address she either cannot recall or has not provided, despite requests to do so), when three people attended the home and offered to drive her home. She says she had never met these people prior to accepting the lift home. She claims she cannot recall anything about their identities, claiming she doesn’t know their names or why they were there, and although she identified the back seat passengers to be one male and one female, she says she cannot even recall the gender of the driver. She claims she cannot recall the make and model of the car. She admits the vehicle was being pursued by police at the time of the accident, but alleges she cannot recall what precipitated this.
The lack of verifiable and/or agreed facts (or facts at all) gives rise to the complexity of this claim.
Background
The claimant initially lodged a personal injury claim with the Transport Accident Commission (TAC”) in Victoria, apparently as registration plates affixed to the relevant vehicle in which the claimant was passenger, were Victorian plates (XPJ 495).
The claimant described the history in brief terms in her TAC claim lodgement form, which she said occurred at “12:40” on “1 December 2020”:
“The driver we went head on with lined hes (sic) car up so we couldn’t drive past, I guess idea was for us to stop but haven’t and smashed into them’.
The claimant then told Dr James Bodel during an examination on 5 July 2022 that the accident occurred at around 2:00 am on 25 November 2020, that the vehicle in which she was passenger was being pursued by police “on the highway”, that she was wearing a seatbelt, and that she estimated the speed of impact to be around 80 km/hr. These are strange and isolated pockets of memory in light of the general amnesia around the circumstances of the accident.
10.In further particulars of 17 February 2023, the claimant, through her solicitor, describes having accepted a lift from the unnamed driver of the relevant vehicle at approximately 11:00 pm (presumably, 11:00 pm on 24 November 2020, given the date of accident listed on the letter), and states that the journey was from the home of a friend, Kim Closely, to her own home, “roughly a 10-minute drive away”– this places the accident at just after 11:00 pm on 24 November 2020.
11.The TAC obtained a copy of the relevant NSW Police Report for E77364358, which timestamps the accident to be 12:40 am on 25 November 2020. It states:
‘About 00.40am VOI1: XPJ495 (Vic) was travelling south in the northbound lane of Young Street, Albury when the vehicle braked and loss (sic) control causing the vehicle to ‘fishtail’ and collide with the front of VOI2…
Driver 1 sustained unknown injuries…
Passengers 2, 3 sustained unknown injuries…’12.According to the police report, the claimant was not wearing a seatbelt.
13.Police recorded that Mr Raymond Trevor Wade Williams was the driver of the vehicle in which the claimant was a passenger. The report does not provide a contact number or last known address for Mr Williams, nor does it indicate whether he was breath tested at the scene. It notes that he and the other two passengers in the vehicle (aside from the claimant) “sustained unknown injuries”. The implications of the above information are unclear, but it could suggest that the three individuals were not located at the scene of the accident.
14.This is supported by media articles which reported the driver and two other occupants fled the scene of the accident. (Young Street Crash – Albury Woman Injured After Police Pursuit’ by the Herald Sun, 25 November 2020.)
15.Another article reported that the driver, a 32 year old man, exited the vehicle after the collision and assaulted the driver of the Ford Ranger involved in the collision, before fleeing the scene. (‘Police Charge Two After Police Pursuits in Albury’ by the Mirage, 2 December 2020.)
16.According to media articles, the following day, a 32 year old male driver and his 30 year old male passenger were stopped by police while driving a silver Nissan Pulsar (a different vehicle to the one involved in the accident). The vehicle failed to stop and was pursued. Both men fled on foot but a chase ensued, and they were apprehended, arrested and taken to Albury Police Station. The 32 year old driver was charged with a raft of offences.
17.The media articles (which might contain inaccurate information that the insurer cannot test) suggest that the accident occurred around 12.40 am in the morning. Police attempted to stop the Hyundai Excel at the intersection of Crisp Street and Parkway Lane in Albury. After the vehicle failed to stop, a pursuit was initiated. The pursuit reportedly ceased at the intersection of Crisp Street and Young Street (around 240 metres from the starting point) because the Hyundai drove through a red light and crossed onto the incorrect side of the road. Police were then notified that a crash had occurred between the Hyundai and a Ford Ranger at the intersection of Dean Street and Young Street (about 1.2 km from the point the police pursuit commenced).
18.In mid-2022, the TAC purports to have discovered that the registration plates that were on the relevant vehicle in which the claimant was passenger (Vic plates XPJ 495), last belonged to a completely different vehicle (a Ford Utility), and that registration number had not been active since 2012. The TAC purports that the relevant vehicle in which the claimant was passenger (a Hyundai Excel with VIN KMHUA2INPWU299949) had last been registered to licence plates BX4 0MH in New South Wales, but those plates were surrendered in June 2020 (5 months before the accident).
19.It was based on this information that the claim was lodged with the New South Wales Nominal Defendant, and allocated to AAMI.
Complexities
20.It is unclear how the TAC came about the information contained in above paragraph 19 (the TAC claim file, a copy of which is included with this Application, indicates this information was discerned from NSW Police, but no documents have been provided to corroborate this history), and NSW Police are presently unable to release their investigation file, nor divulge any other information to our office, as criminal proceedings relating to the accident were prosecuted by the Office of the Department of Public Prosecutions (“ODPP”). The ODPP has declined to release its file without a subpoena.
21.The only documentation the insurer has been able to obtain in respect of the accident is a redacted copy of the police report, provided by TAC.
22.The claimant has, to date, provided incomplete and at times, inconsistent information about the accident and is either unable or unwilling to provide further details to assist. Whatever the motivation, this prevents the insurer from investigating further what is clearly an unusual and significant accident. Were the claim to be exempted, subpoenas could be issued.
23.It will be necessary for the insurer to obtain complete access to the police and ODPP briefs before it can consider its position on both primary liability and/or contributory negligence, and we anticipate further investigations including but not limited to whether the claimant was wearing a seatbelt, and whether drugs and/or alcohol or any other criminal activity factored into the accident.
24.Further consideration will need to be given to the nature of any investigations once the briefs of evidence become available, but anticipates that witnesses might include but again, are not limited to the following individuals, at least some of whom might reside interstate (in Victoria), given that the accident occurred on the NSW-Victorian border:
(a)driver of the vehicle in which the claimant was passenger (police named Mr Raymond Williams, and whilst we have no contact number nor last known address, it is clear this individual is known to police),
(b)The 2 other passengers in the vehicle in which the claimant was passenger (a male and female, according to the claimant – we do not have names, contact numbers, or addresses of these individuals, but it is likely these individuals are known to police),
(c)The driver and any passengers in the Ford Ranger, the vehicle which the Hyundai in which the claimant was travelling in collided with (we do not have names, contact information or addresses of these individuals noting the TAC redacted this information from the police report provided to AAMI).
(d)Detective Matthew Pete Kelly of the Albury Criminal Investigations Team (as at 25 November 2020) and any other relevant police officers who attended the scene and/or carried on investigations in relation to the subject accident, and
(e)Kim Closely, who the claimant names as the friend for whom she was babysitting on the evening prior to the accident – the claimant has to date, not provided Kim Closely’s address (despite a request to do so).”
Basis of exemption application
25.The legislation provides the circumstances where the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division. s7.34(1)(b).
26.The parties submit that the matter is not suitable for assessment on the following grounds.
27.Section 7.34 of the Motor Accident Injuries Act 2017 (NSW) (‘the Act’) states that the Commission is to exempt a claim from assessment if it is determined at a preliminary assessment (with the approval of the President) that a matter is not suitable for assessment.
28.Rule 99(3) of the Personal Injury Commission Rules 2021 lists the potential factors which might result in a matter being unsuitable for assessment, and these include but are not limited to:
(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 of New South Wales,
(d) Whether a claimant or insurer seeks to proceed against one or more non-CTP parties, and
(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.
29.The parties submits that this matter is unsuitable for assessment within the Commission as it involves:
·complex legal and factual issues;
·complex issues of liability;
·material witnesses reside outside the State.
Findings
30.The facts of this matter and the unusual elements of this claim give rise to the types of complexities contemplated by rules 99(3)(a)-(c) of the Personal Injury Commission Rules. Having regard to the matters raised by the Insurer and the agreement of the claimant, I find this is claim is unsuitable for assessment and warrants exemption from the PIC process.
31.This matter is unsuitable for assessment within the Commission as it involves:
ocomplex legal and factual issues;
ocomplex issues of liability and causation;
omaterial witnesses that reside out of state;
othe necessity of the parties to issue subpoena to NSW Police and The Office of Department of Public Prosecutions.
CONCLUSION
32.Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt from assessment.
33.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 22 January 2024, approved Member Radnan’s recommendation that the claim is not suitable for assessment.
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