AAI Limited t/as GIO v Amos
[2024] NSWPIC 608
•17 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAI Limited t/as GIO v Amos [2024] NSWPIC 608 |
| CLAIMANT: | Jesse Amos |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 17 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for discretionary exemption from assessment pursuant to rule 99 of the Personal Injury Commission Rules 2021; insurer submitted that the evidence suggests the claimant may have made false and misleading statements in respect of his claim for damages, including conflicting evidence as to economic loss, and taxation returns for prior financial years lodged after the motor accident without primary evidence provided to substantiate the earnings set out in the taxation returns; claimant is also said to have provided incorrect and incomplete information in respect of his criminal history; claimant submits this is not relevant and has been found as such by Medical Review Panels; Held - the issue of credit is a matter for the decision maker of the claim as a whole (Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Centre); the inconsistencies in the evidence and the likely requirement for evidence to be given by third parties, mean that the matter is not suitable for assessment and recommendation made to the Division Head that the matter be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
Mr Jesse Amos, (the claimant) was involved in a motor accident on 26 July 2018.
He subsequently lodged a claim for statutory benefits and a claim for damages upon the compulsory third party insurer of the motor vehicle considered at fault – AAI Limited t/as GIO (the insurer). The claims are governed by the provisions of the Motor Accident Injuries Act 2017 (MAI Act).
The claim for damages is the subject of separate proceedings in the Personal Injury Commission (Commission) – matter number: M10421087/21.
The damages matter has been set for an assessment conference to occur on 4 December 2024. There have been significant delays in that matter owing to a protracted medical dispute that has been the subject of a judgment of the Court of Appeal of New South Wales.
Subsequent to the damages matter being set down for assessment conference, the insurer has lodged a separate application with the Commission seeking a discretionary exemption from assessment. This determination is made in respect of those proceedings.
At the teleconference held with the parties the claimant’s representative indicated that further information/submissions would likely need to be made in addition to the submissions lodged with the claimant’s reply. I determined that the most efficient way forward was to hold an assessment conference so that any additional submissions from the parties could be given orally.
The assessment conference occurred on 24 September 2024 via audio visual link. Helene Thretheway of Moray & Agnew Lawyers appeared on behalf of the insurer, and Mr Robalino of Allsworth Lawyers appeared on behalf of the claimant.
SUBMISSIONS
Insurer’s written submissions dated 9 August 2024
The insurer seeks a discretionary exemption pursuant to r 99(3)(a), (b) and (e) of the Personal Injury Commission Rules 2021 (PIC Rules).
Rule 99 of the PIC Rules provides that when considering whether a claim is suitable for assessment by the Commission the objects of the Personal Injury Commission Act 2020 (PIC Act) are to be considered along with the circumstances of the claim. The relevant sub clauses relied upon are as follows:
“(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,
…
(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.”
The insurer refers to the case of IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320, where Bellew J found that the wrong question was posed by the decision maker by asking whether the claim could be dealt with by the Claims Assessment & Resolution Service (CARS) (jurisdiction now with the Commission) as opposed to asking whether the claim was suitable for assessment at CARS.
The insurer notes that Bellow J found that a number of factors are relevant such as whether parties can be afforded a hearing that is fair and practical having regard to the nature of the allegation raised. In addition to what mode of hearing will resolve the dispute more efficiently and effectively, which is to factor in considerations such as the opportunity to cross examine witnesses when credit is in issue.
The case of IAG Ltd t/as NRMA v Qianxia Lou [2019] NSWSC 382 is also referred to where Wilson J quashed a decision of a CARS Assessor who refused an insurer’s discretionary exemption application on the basis that issues raised by the insurer (including alleged false and misleading statements made by the claimant) were “regularly ventilated” in CARS assessments and were a common issue. It was found that such considerations were irrelevant in determining the question of whether a claim was suitable for assessment.
In respect of false and misleading statements the insurer summarises a number of alleged issues that emerge from the evidence that call into question the claimant’s credit. It is stated that “…the claimant has arguably made what could be considered to be false and misleading statements.”
The insurer sets out a summary of evidence in respect of alleged inconsistent statements regarding the claimant’s past employment history. I do not propose to transcribe the entire content of that summary, however, note the following issues raised, as examples only:
(a) the claimant’s tax returns that reflect pre-accident earnings were lodged after the accident.
(b) Despite earnings disclosed of $75,000 for the 2018 financial year through self employment, the claimant has apparently never registered for GST.
(c) Supporting material to the taxation returns has not been provided, such as profit and loss statements.
(d) The claimant contracted with Sydney Wide Tree Cutting and the documents supplied by that company under direction for production, includes a letter of a Mr Eddie Katieh that suggests the claimant had been working for the business since 2012, yet the Australian business number (ABN) suggests that the company was only registered from January 2015. In addition, invoices from April 2018 onwards are only provided.
(e) The insurer sets out a number of histories recorded by medico-legal experts in respect of prior work and then compares that to the claimant’s statutory declaration dated 22 September 2016 that notes that the claimant was “in custody” and “unemployed” once released as no one would employ him. The statement appears to be made in respect of a barring of his phone by Vodafone due to an unpaid account.
(f) Despite the above statement, it is noted the claimant’s taxation return for the 2016/2017 financial year suggested that he was working at the time and had business income reportedly of over $53,000. It is noted that such tax return was lodged after the motor accident.
(g) The insurer also refers to some police documentation that suggests the claimant was a full time carer of his mother and receiving Centrelink benefits accordingly.
(h) The insurer refers to evidence suggesting the claimant operated a supplement business in the past, yet no details of the business are provided in any particulars or taxation records. In this regard, it is noted that the claimant’s ABN referenced on invoices issued to Sydney Wide Tree Cutting trades as the business name “Padstow Health and Nutrition”, which was cancelled on 20 April 2018.
(i) The insurer refers to recently received bank statements of the claimant that apparently reveal no evidence of any payments from Sydney Wide Tree Cutting in the pre-accident period, but do demonstrate carer payments from Centrelink. It is noted that whilst the claimant asserts that he was paid in cash between 30 April 2018 and June 2018 in particular, the claimant issued invoices totalling close to $28,000.
(j) The insurer notes that evidence suggests that the claimant continues to receive a carer’s pension post accident, until at least 30 June 2020 and this is inherently contradictory for the claimant. In this regard, on the one hand he asserts that he is incapacitated from employment, when on the other hand he continues to receive a benefit for care that he says he provides to his mother. The insurer asserts that either the claimant no longer provides that care and is therefore fraudulently receiving payments from Centrelink, or failed to disclose a change in circumstances. Otherwise, he still provides the care and has not disclosed the full extent of his post accident capacity.
The insurer relies on a report of Vincents Accountants (Vincents). It is noted that the accountants have been unable to corroborate the earnings detailed in the 2017 and 2018 financial years taxation returns with any verifiable evidence. It is suggested that such declared earnings, in the absence of verifiable evidence, are not a truthful representation of business related income and expenses as a sole trader.
The insurer also refers to statements made in respect of the claimant’s criminal history. The insurer notes the content of the claimant’s criminal history as deducted by the records produced under Direction for Production by NSW Police, Bankstown Local Court and Sutherland Local Court. Such history is cross referenced with histories recorded by doctors that include suggestions by the claimant that the claimant had never been incarcerated. In addition, Dr Allnut (report dated 2 January 2020) recorded the claimant asserting that he had no legal or financial difficulties leading up to the subject accident.
The insurer also notes histories provided to medico-legal doctors that suggest the claimant is fear avoidant when it comes to driving, yet the police records suggest the claimant was spoken to by police on numerous occasions whilst driving from February 2019 to August 2021. The insurer asserts this is evidence of inconsistent statements
Previous medical complaints are also referred to by the insurer. The insurer refers to the claimant’s particulars provided in response to the insurer’s request dated 14 July 2020 which includes the claimant denying any previous impairment or injury. The insurer notes a denial of prior issues when giving histories to medico-legal experts. The insurer notes that the records of general practitioner (GP) Dr Voutos demonsrates a history of anxiety, back pain, neck pain, shoulder pain. This includes an admission to Bankstown Hospital in January 2018 for severe back pain.
In addition to the issues of “false and misleading” statements the insurer also notes significant complexity when it comes to the issue of causation. It is suggested that the complexity from the medical perspective alone, is such that any hearing is likely to be quite lengthy and would likely involve evidence from a number of medical experts.
It is noted that the Commission does not have the power to compel a witness and that a summons can only be issued to a party to the proceedings, as provided for by s 51(2) of the PIC Act. The insurer contends that at the very least evidence would be required from the claimant’s former employer, Eddie Katieh and previous attempts to obtain a statement from him have come with non-cooperation.
Claimant’s written submissions dated 3 September 2024
The claimant denies there are any complex factual issues in respect of the claim, quantum, causation that makes the claim unsuitable for assessment. The claimant states the Commission has objective and expert evidence to assist in assessment of the claim.
It is noted that the issue of causation has been well established after “…lengthy and costly proceedings in Personal Injury Commission (PIC) Review Panels, NSW Supreme Court and NSW Court of Appeal proceedings.”
The claimant suggests that any witnesses can be issued with a Summons as per Practice Direction 9 of the Commission.
It is suggested that to delay the determination of the claimant would be against the objects of the MAI Act. In this regard, the claimant refers to PIC Act, s 3 that sets out the objects of the Act. The claimant specifically highlights the object of encouraging early dispute resolution, and to resolve the real issues in proceedings justly, quickly and cost effectively. It is also noted the objects include that decisions of the Commission are timely, fair and consistent and that knowledge and experience of Members are used.
The claimant refers to case law, most notably Insurance Australia Limited v Banos [2013] NSWSC 1519 where Campbell J noted a number of relevant considerations. The claimant specifically highlights considerations such as having regard to the nature of the issues, both parties can be afforded a fair hearing in a practical sense. In addition, which mode of hearing will resolve the dispute most efficiently noting the advantages and limitations of an assessment conference versus a court hearing. In addition, noted that it was found that it is not mandatory when a credit issue is raised to decide the claim is not suitable.
In respect of credit issues, the submissions note the insurer has ventilated the question to “set the claimant in a bad light in numerous submissions…” It is submitted that “factual matters in this case are suitable for the Commission to be dealt with based on evidence available at the assessment.”
The issue of delay is raised in that a court proceeding is more formal which results in delay and legal costs, in circumstances where the claim has been on foot for six years.
It is noted that the claim has been the subject of assessments by medical assessors, review panels, the Supreme Court and the Court of Appeal, which made findings to issues related to credibility or consistency of presentation, In such circumstances, these findings are already available to the Commission to consider.
It is submitted that there is sufficient evidence to resolve the issue of economic loss and therefore the issues do not make the matter unsuitable for assessment.
The submissions address the issues set out by the insurer in respect of the claimant’s earnings and it is submitted that they do not amount of complex issues that make the claim unsuitable for assessment.
The claimant suggests that Vincents Accountants report is not from a “partial [sic] independent expert but that of a paid advocate for the insurer”.
In respect of criminal history issues raised by the insurer, it is submitted that the “records of unrelated apprehended violence orders and driving while disqualified” are both issues that do not go towards the capacity to work or quantum but to issues of credit. It is suggested that Commission Members and Review Panel members have already considered these issues as having no relevance to the disputes in the claim.
Various medical evidence documents are referred to and it is submitted that the medical history reported to doctors is substantiated by the objective evidence. Therefore, the claim is not unsuitable for assessment. It is suggested that there is no inconsistency in medical history.
In response to the insurer’s assertion that witnesses are not compellable by the Commission in these proceedings it is refuted that the claimant and his employer would not be available. It is also stated that the insurer has taken no steps to make an application for cross-examination Rules 34(1) and 35(1) of the PIC Rules.
Oral submissions
It was noted that the insurer had relied upon the 2018 taxation return in assessing the claimant’s pre-accident weekly earnings for the purposes of statutory benefits. It was submitted that there is no evidence that substantiates that the claimant did in fact receive business income as disclosed in that taxation return, as set out in the Vincents report.
It was also submitted on behalf of the insurer that the evidence of the claimant and the claimant’s employer ought to be given under oath in court as it would be the fairest way for the evidence to be provided given there would be potential implications for both parties.
The claimant’s representative noted the case of Banos, and noted that there was sufficient evidence for me to consider and make an assessment. It was noted that it is the claimant that bears the onus in proving his case, in particular economic loss.
It was submitted that the issue regarding criminal history has already been considered numerous times during the medical dispute process. It was also noted that the issue of causation has been ventilated at length with ample information before me to assess the issues.
On behalf of the insurer, it was reiterated that a summons cannot be issued on a non-party in the proceedings. In addition, it was stated that one of the object of the MAI Act is to deter fraud, which is a relevant consideration where credibility is at play and where this is a matter where false and misleading statements are made.
It was also pointed out that the issue of causation is one that is still at play in the claim for damages and the medical certificates are only binding in respect of the findings of whole person impairment and not the issue of causation.
A criticism was raised as to the delay in making the exemption application. The insurer noted that it had been contemplating the application for some time, but ultimately reserved the decision awaiting the accounting report of Vincents received in May 2024.
REASONS
Despite assertions to the contrary, the material before me, on a preliminary assessment, leaves open real issues of credibility. The evidence is such that there is reasonable cause to suspect that the claimant has made false and misleading statements.
The claimant has been recorded as providing histories to doctors in these proceedings that he has suffered no prior injury or disability. Moreover, his particulars forwarded to the insurer on his behalf explicitly deny any previous injury. The GP records clearly document significant back pain and psychological issues that predate the motor accident.
The claimant is recorded as having denied legal or financial issues prior to the accident, whereas the NSW police and Court documentation suggest that this is untrue. The claimant has a documented extensive criminal history. Whilst the claimant’s submissions refer to apprehended violence orders and driving offences, the documented offences go beyond that scope and include charges related to supply of drugs, possession of prohibited weapons and assault charges. Whilst it is submitted that these are unrelated and not relevant to the claim, I tend to disagree. It would appear that credit is very much in issue which is relevant to the assessment of damages, especially in a situation where there is a lack of supportive evidence to the economic loss claims made.
Whilst it may be the case that medical Review Panels have made findings that the criminal history material is not relevant, those findings were made insofar as they were relevant to the issues in dispute in those specific proceedings. Namely, those matters to which the medical certificates dealt with. That does not extend to the claim as a whole. It is well established that ultimately findings of credit are for the adjudicator of the claim as a whole (see: Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Centre [2024] NSWSC 1019).
The claimant’s evidence in respect of his economic loss claim contains a number of inconsistencies on the face of the material to hand. I accept the conclusions of Vincents that the taxation return disclosed earnings are not supported by the objective evidence provided to date. This raises issues of credit and I consider that the evidence is insufficient in its current form to make a proper assessment of economic loss. I accept the submission that to properly test the claimant’s assertions as to economic loss, evidence from his former employer will be required. I accept the insurer’s submission that the Commission is not able to compel his attendance at the assessment conference and it would appear reasonable that his evidence is required.
There is sufficient doubt as to the veracity of the claimant’s assertions in respect of his claim, that in order to properly test the claims made procedural mechanisms such as evidence under oath, and the ability to compel witnesses would be preferable in order to decide the case effectively.
Whilst the issue of causation in respect of injuries is a large issue in this matter, it is not one that on its own that would warrant the matter being unsuitable for assessment. However, it is certainly a real issue that requires ventilation and would add considerably to the length of time required for an assessment conference to proceed. I accept the insurer’s submission that the medical certificates by the Commission issued are not binding on the issue of causation.
Noting the above issues, I consider that there are real issues relating to whether the claimant has made false and misleading statements and there exist complex factual issues such that it renders the matter as being unsuitable for assessment.
CONCLUSION
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 MAI Act and I recommend to the President that it 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 1 November 2024, approved Member Elizabeth Medland’s recommendation that the claim is not suitable for assessment.
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