AAI Limited t/as AAMI v Zahr
[2024] NSWPIC 571
•11 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as AAMI v Zahr [2024] NSWPIC 571 |
| CLAIMANT: | Hassan Zahr |
| INSURER: | AAI Limited t/as AAMI |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 11 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application by insurer for exemption under section 7.34(1)(b); opposed by claimant; whether claim suitable for assessment; liability denied; factual disputes about the circumstances in which the accident occurred; multiple lay witnesses; each party proposes to rely on evidence from an accident re-construction expert; experts (including medico-legal experts) likely to be required for cross examination; subsequent accident; Held – experts (and witnesses other than the claimant) cannot be compelled to give evidence in the Commission; the parties should be in a position to compel witnesses to attend the hearing; damages claimed are substantial; the assessment of damages will be complicated by a subsequent motor accident; proceedings arising from both accidents are likely to be heard together; hearing likely to take a number of days; claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
Hassan Zahr (claimant) was injured in a motor accident at Rockdale on 11 March 2022 (accident). He subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer). Liability for the claim was denied by the insurer on 5 January 2024. A further denial was issued on 5 April 2024.
The insurer referred the claim to the Commission for assessment under Div 7.6 of the MAI Act. It now seeks to have the claim exempted from assessment in accordance with s 7.34(1)(b) of the MAI Act. On 5 August 2024 I:
(a) dispensed with the requirement for the insurer to lodge an application for exemption and for the claimant to lodge a reply;
(b) directed the insurer to lodge and serve submissions in support of its application for exemption, and
(c) directed the claimant to lodge submissions in reply.
Neither party objected to the preliminary assessment of the claim, for the purposes of s 7.34(1)(b), being undertaken on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.
STATUTORY FRAMEWORK
The application for exemption is made under s 7.34(1)(b) of the MAI Act. Section 7.34 is relevantly in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, or
(b) 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.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:
“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.”
Procedural Direction MA5 applies to the application. I have dispensed with a number of requirements under the Procedural Direction.
In determining whether the claim is not suitable for assessment I must consider the objects of the PIC Act. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules, or interprets any provision of the MAI Act or the Rules: s 42(2).
EVIDENCE
The evidence before the Commission is contained in the application lodged by the insurer. The only document attached to the reply filed by the claimant is written submissions dated 12 July 2024.
The evidence discloses that liability for the claim was denied in a notice dated 5 January 2024. In that notice, the insurer asserted that the insured driver did not breach their duty of care, and was not at fault, because they had a green arrow light and the claimant failed to give way.
An application for personal injury benefits dated 9 February 2024, completed by the claimant, records that he was involved in a motor accident at Rockdale on 24 January 2024.
A report from NSW police dated 31 March 2022 records the date, location, and circumstances of the accident on 11 March 2022.
In his statement of 21 March 2022, the claimant provided the following description of the accident:
“About 7:45pm on Friday the 11th of March 2022, I was travelling on Bay St heading towards Rockdale from Brighton Le Sands. As I was approaching the intersection of Bay St and West Botany St, I came to a stop as the traffic light was red.
After my light went green, I put my bike into gear and took off from the line. I was almost out of the intersection and a lady came from Bay St, turning right onto West Botany St. I believe she ran a red arrow and then she collided with me head on…”
The claimant stated that a “male that was known to the other driver, came up to me and asked me why I ran the read [sic] light…”. The statement refers to the injuries sustained by the claimant as a result of the accident, and the treatment he has undergone.
The evidence includes photographs of the accident scene that depict the claimant’s motorcycle where it came to rest. There are also photographs of the intersection and the damage to the vehicle driven by the insured driver.
The Procare report of 3 June 2022 has been considered. Among other matters, the report refers to attempts made to contact a witness to the accident, Mr Wehby. A statement from the insured driver dated 6 May 2022 records as follows:
“I saw the traffic lights at the intersection were all red, so I moved into the right turn only lane and stopped at the stop line. I was the front vehicle, and I was aware that there was at least one or more cars behind my car.
I saw traffic opposite me in Bay Street that was also stationary.
I waited for a while, but I cannot say how long. It was at least 30 seconds or maybe a minute or more. Then I saw the green arrow allowing me to commence my turn. I saw the round traffic light stayed red and that is the way the cycle works.
I moved out into the intersection at no more than 10km/h and I was looking towards West Botany Street where I was heading. There was nothing ahead of me.
Next thing I became aware, while I was attempting to turn right, of a bang sound on my left front passenger side of my vehicle. I then looked quickly into my rearview mirror and I saw a motorcycle on the ground at the intersection.
I did not see the rider at all prior to hearing the bang noise of the impact.”
The Procare report contains a transcript of interview with Constable Pendergast on 18 May 2022. Among other things, the Constable refers to statements she took from the insured driver. The evidence was to the effect that she turned right onto West Botany St when the light changed from red to a green arrow. The transcript also refers to a statement taken from Mr Wehby. His evidence was that:
“… I was driving on Bay Street headed towards Brighton-Le-Sands. I was the fifth car back in the middle lane. I was waiting as I had a red light I noticed the right arrow was orange. I saw a silver Toyota Camry speed up to try and beat the orange light but it turned red as they crossed the line to turn the corner. The Toyota hit a motorcycle which made the rider come off the bike…”
The Constable also obtained a statement from the claimant that was read onto the transcript of interview. Relevantly, he stated that:
“…I was travelling on Bay Street heading towards Rockdale from Brighton-Le-Sands. As I was approaching the intersection of Bay Street and West Botany Street I came to a stop as the traffic light was red. After my light went green I put my bike into gear and took off from the line. I was almost out of the intersection and a lady came from Bay Street turning right onto West Botany Street I believe she ran a red arrow and then she collided with me head on. This caused me to flip over my handlebars…”
The Procare report includes a number of photographs of the accident scene, and a daily rainfall record for Sydney Airport.
A second report from Procare dated 22 July 2022 refers to enquiries made to contact Mr Wehby, records details of the light phasing at the intersection, and includes footage of the phasing. Procare’s third report dated 28 November 2023 refers to further enquiries undertaken, and attaches documents from NSW police obtained under a GIPA application.
The documents from NSW police include the police report. The report has been significantly redacted. Copies of statements contained in police notebooks are produced, together with photographs taken at the accident scene. The statements in the notebooks accord with the versions read onto the transcript of interview by Constable Pendergast.
There is also a Transport for NSW intersection phasing report dated 7 February 2024.
INSURER’S SUBMISSIONS
The insurer relies on written submissions dated 19 August 2024. The insurer notes that the claimant was involved in a subsequent motor vehicle accident on 24 January 2024. The submissions also record that the insurer has served an accident reconstruction report from a mechanical engineer, and the claimant has briefed a liability expert to provide an opinion about the accident.
The insurer argues that the claim is not suitable for assessment for the following reasons:
(a) liability for the claim is fully denied and the claim involves complex factual and liability issues requiring a number of witnesses to give evidence at the hearing;
(b) determination of liability by the Commission is not binding on the parties;
(c) causation of the claimant’s injuries are disputed due to similar injuries being sustained in both accidents;
(d) both claims may need to be assessed consecutively with damages apportioned.
(e) both claims are unlikely to be ready to proceed to assessment within the next 12 months;
(f) the parties are likely to require at least five witnesses to give evidence at the hearing on the issue of liability alone. Between the claimant and two CTP insurers, each party is likely to rely on at least two to three medico-legal opinions. The medico-legal experts may be required for cross-examination, and
(g) assessment of the claim is likely to take two to three days and potentially three to four days if both claims are assessed consecutively.
The insurer also refers to the significant claim for economic loss that has been particularised by the claimant. In the insurer’s submission, the claim involves complex issues of fact, liability, causation of injury, and damages, and should be exempted from assessment.
CLAIMANT’S SUBMISSIONS
The claimant relies on written submissions dated 5 September 2024. He opposes the insurer’s application for exemption. The submissions refer to the circumstances in which the accident occurred, together with various aspects of the evidence. The submissions confirm that the claimant is in the process of commissioning an expert report as to liability, including the traffic light operation. It is also confirmed that the claimant was involved in a further motor accident on 24 January 2024 in which he suffered injuries to his back.
The claimant argues that the dispute between the parties “suits the Commission, is appropriate for the Commission, is fitting for the Commission, and is becoming of the Commission” because the Commission has “the necessary skill set to deal with the issues that arise in the dispute”. In his submission, the dispute is not so complex, and the liability dispute is not of such a character, that it is “beyond the skill set of the Commission”.
In the claimant’s submission, the mode of hearing that will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment by the Commission on the one hand and a Court hearing on the other, is not a Court hearing.
He argues that the Commission is “as efficient in terms of time frame, and probably quicker”, and that proceedings in the Commission are more efficient, “which means less costly”. There are, in his submission, no issues that arise in the case that are “degraded” if conducted in the Commission.
The claimant submits that while a liability finding by the Commission is not binding on the parties, “it should not be assumed that the insurer would reject the merits determination of the Commission, particularly as this case is largely a factual dispute”.
He argues that the Commission should not be satisfied that the dispute between the parties is “not suitable” for assessment in the Commission.
CONSIDERATION
The question I am required to determine, having made a preliminary assessment of the claim, is whether the claim is not suitable for assessment under Div 7.6 of the MAI Act.
In IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320, Bellew J reasoned at [27] that, in accordance with general principles of statutory interpretation, the word "suitable" is to be given its natural and ordinary meaning. His Honour referred to the Macquarie Dictionary definition of "suitable" namely: "[s]uch as to suit; appropriate, fitting, becoming”, and adopted that definition. At [28] his Honour reasoned as follows:
“…There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of section 92(1)(b) required the Assessor to consider and focus upon the latter question…”
The following matters, when taken together, satisfy me that the claim is not suitable for assessment by the Commission:
(a) liability for the claim has been denied;
(b) there are factual disputes between the parties about the circumstances in which the accident occurred;
(c) the claimant, the insured driver, and Mr Wehby will be required to give evidence, and will be cross examined;
(d) each party proposes to rely on evidence from an accident re-construction expert;
(e) each party is likely to require the experts for cross examination;
(f) Medico-legal experts are likely to be required for cross examination;
(g) the experts cannot be compelled to give evidence in the Commission;
(h) witnesses other than the claimant cannot be compelled to give evidence in the Commission;
(i) the insurer has experienced difficulties making arrangements to interview Mr Wehby;
(j) the parties should be in a position to compel witnesses to attend the hearing;
(k) the damages claimed are substantial;
(l) the assessment of damages will be complicated by the subsequent motor accident on 24 January 2024;
(m) proceedings arising from both accidents are likely to be heard together, and
(n) the hearing is likely to take a number of days.
The parties should be in a position to compel witnesses to give evidence. That cannot be done in the Commission, but can be done in a court. Given the contest on the facts, evidence should be given under oath. That cannot be done in the Commission. If both claims are heard together, there will be additional parties, additional witnesses, and additional legal representatives. The assessment of damages is likely to be complicated by the subsequent accident. The case will likely take the best part of a week to hear. In my assessment, the mode of hearing the will further the just, quick, and cost effective resolution of the issues in dispute is a court hearing.
Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim be exempt from assessment.
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 October 2024, approved Senior Member Brett Williams’s recommendation that the claim is not suitable for assessment.
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