AAI Limited t/as GIO v BDJ

Case •

[2022] NSWPIC 637

•

19 October 2022
CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

AAI Limited t/as GIO v BDJ [2022] NSWPIC 637
Claimant: BDJ
insurer: AAI Limited t/as GIO
Member: Belinda Cassidy
DATE OF DECISION: 19 October 2022
CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application by insurer for exemption on basis claim not suitable for assessment; claimant opposes exemption; insurer has surveillance film that indicates claimant has been working contrary to statements and histories giving to doctors; insurer alleges false or misleading statements made in connection with the claim; claimant says he has done volunteer work but has fallen out with person he has volunteered with; Held – claim not suitable for assessment due to the allegations made by the insurer, the nature of the evidence required to meet the allegations and the necessity to have a hearing in open court.
RECOMMENDATIONS made: CLAIM NOT SUITABLE FOR ASSESSMENT

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

  1. BDJ (the claimant) was involved in a motor accident on 17 February 2019. The claimant was riding his motorbike and collided with the GIO’s insured vehicle as it exited a car park. The claimant broke his tibia and fibular in the accident. The claimant also alleges injuries to both shoulders and his lower back along with a psychological injury.

  2. On 5 June 2019, BDJ made a claim against GIO (the insurer) for statutory benefits and later he made a claim for damages.

  3. The insurer has now referred the claim to the Personal Injury Commission (the Commission) seeking an exemption of that claim from assessment in the Commission.

LEGISLATIVE FRAMEWORK

  1. BDJ’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The Act continues the scheme of compulsory insurance of registerable motor vehicles in NSW and provides a scheme of benefits and compensation for people injured in car accidents in NSW.

  2. Under the MAI Act, a person injured on or after 1 December 2017 is entitled to make two claims:

    (a)a claim for statutory benefits under Part 3, and

(b)a claim for damages under Part 4.

  1. GIO’s application to the Commission concerns BDJ’s claim for damages.

  1. Section 7.32(1) of the Act provides that a claim for damages may be referred to the Commission by the claimant or the insurer, or both, for assessment under this Division. BDJ has referred his claim for assessment (proceedings numbered M10487084/22) but it is not yet ready to be assessed.

  2. Section 7.34 provides:

“(1)    A claim is exempt from assessment under this Division if—

(a)    the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division, 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).”

  1. GIO does not say that BDJ’s claim must be exempt from assessment under

    s 7.34(1)(a). It is GIO’s application that the claim is not suitable for assessment under s 7.34(1)(b).

  2. Rule 99(2) of the Personal Injury Commission Rules says that in determining whether a claim is not suitable for assessment the Commission must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim. Rule 99(3) also provides:

    “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.”

  3. In this application, GIO relies on Rule 99(3)(a)(b) and (e).

SUBMISSIONS FROM THE PARTIES

Insurer’s submissions

Preliminary matters

  1. The insurer notes the claimant is 60 years of age who says he was a self-employed bricklayer before the accident.

  2. The insurer appears to accept that the accident occurred as alleged but appears to dispute the injuries other than the fractured leg. The insurer says it has paid approximately $100,000 in statutory benefits.

  3. The insurer notes there is a dispute as to the claimant’s entitlement to non-economic loss which is before the Commission awaiting medical assessment.

  4. The essence of the insurer’s argument as to suitability is found at [9] which says:

“ … surveillance evidence obtained in November 2020, December 2020 and June 2021 strongly suggests that the Claimant’s post-accident capacity for work is far greater than has been alleged by the Claimant and that there has been a deliberate attempt by the Claimant to conceal or at least minimise his post- accident work activities.”

  1. The insurer says that the claimant told Mr Ting, Dr Verma, Dr Assem, Dr Rastogi and Dr Haig, that he had difficulty with his pre-accident duties, he had tried to return to work but was unable to do so for more than three days or that he had not returned to work at all since the accident. The insurer points to the claimant’s statement which says that he did some volunteer work for a builder friend but ceased this work after three days.

  2. The insurer says that the surveillance film shows the claimant:

(a)attending a work site on 7 and 10 December 2021 at West Gosford;

(b)attending a work site on 4 June and 7 June 2021, in Gledswood Hills, and

(c)attending a work site at Watson’s Bay on 15 June 2021 wearing a “Better Walls Bricklaying” shirt.

  1. The insurer also notes that the claimant gave a history to Benchmark Rehabilitation of working for a landscaper friend for two hours on Saturdays which has not been  disclosed to other practitioners.

  2. The insurer says that as a result its experts, Dr Haig and Dr Vickery have expressed concern as to the credibility of the claimant and the accuracy of his histories.

  3. The insurer says it has provided the surveillance to the claimant who has responded by asserting he has been volunteering and that his solicitor made an error in the drafting of the statement.

False or misleading statements

  1. The insurer cites s 6.40 of the MAI Act which provides for a maximum penalty of

    $50,000 or imprisonment for two years or both for someone who commits an offence of making a statement knowing that it is false or misleading. The insurer refers to some of the cases and suggests all that is needed is an allegation by the insurer of a false or misleading statement and the insurer cautions me against deciding whether the statement is false or misleading.

  2. The insurer also cites the cases that suggest the Court is in a better position that the Claims Assessment and Resolution Service (CARS) (the predecessor of the Commission) to deal with allegations of false or misleading statements.

  3. The insurer formally alleges at paragraph 32 that the claimant has made various false or misleading statements within the meaning of s 6.40 of the MAI Act.

Complexity

  1. The insurer also argues that as a result of the false or misleading statements made by the claimant, there is a degree of complexity that has emerged and that GIO:

    (a)will require all the doctors who have taken a history from the claimant about his work to give evidence;

    (b)the surveillance operatives will be required to give evidence;

(c)the claimant’s bank statements will be required along with his tax returns and notices of assessment;

(d)the claimant’s phone records will be required to enable the insurer to establish his whereabouts with respect of work activities, and

(e)will seek to obtain details of the claimant’s criminal record.

  1. The insurer says it has not alleged fraud within the meaning of ss 6.41 and 6.42 but

    reserves the right to do so.

Not suitable

  1. The insurer says the matter should be exempted so that the false and misleading statements and the complexities associated with that can be properly and fairly deal with in Court where witnesses and documents can be compelled and give sworn evidence, professional transcript is available, and the Court can allow the parties appropriate time to properly put their respective cases.

  2. The insurer says the hearing of the case would likely take four days in Court or two at the Commission.

Preliminary conference report

  1. At the preliminary conference in this matter held on 5 October 2022, the claimant had not yet provided any submissions. I was advised that the claimant opposes the exemption of the claim.

  2. I asked the claimant’s solicitor whether the claimant had volunteered with one person or several persons. I was advised it was only one person. I asked if that person was from “Better Walls Bricklaying” and whether that person was willing to give evidence at the Commission. I was told that the claimant had a falling out with the person he volunteered for, and that the claimant could not approach him directly but communicated with him through a friend.

  3. I indicated that this person’s reluctance to be involved might be an additional matter relevant to my determination of the suitability of the claim for assessment.

Claimant’s submissions

  1. The claimant notes the insurer has admitted breach of duty of care, that the claimant has sustained frank non-minor injuries and causation is not in issue. The claimant notes in the damages claim the insurer had admitted liability.

  2. The claimant sets out in full paragraph [43] of Justice Campbell’s decision in Insurance Australia Limited t/as NRMA Insurance v Banos1 and paragraph [38] of Justice Davies’ judgment in Insurance Australia Limited t/as NRMA Insurance v Taylor2 and says:

    (a)the insurer has failed to demonstrate the matter is “suitable for exemption” and that a fair hearing “can be achieved by both parties through the

1 [2013] NSWSC1519 (Banos).

2 [2017] NSWSC 507 (Taylor).

assessment process”;

(b)the claimant has consistently told his doctors and others that he has been volunteering which has been demonstrated in the certificates of capacity;

(c)the claimant’s psychologist and exercise physiologist were aware of the volunteering work and recommended it as being good for his mental health;

(d)the claimant’s statement was in draft, is not signed, was based on previous instructions and the claimant was not able to review and sign it, and

(e)the claimant struggles with concentration and did not intend to mislead the insurer.

MY CONSIDERATION OF THE ISSUES

  1. There have been many cases involving judicial review of a Claims Assessor’s decision concerning the suitability of a claim for assessment and the exercise of the discretion to recommend exemption. Some of these cases are as follows:

    (a)Allianz Australia Insurance Ltd v Tarabay3;

(b)the Banos and Taylor cases referred to earlier;

(c)Insurance Australia Limited t/as NRMA Insurance v Milton4;

(d)IAG Ltd t/as NRMA Insurance v Abiad5;

(e)IAG Ltd t/a NRMA Insurance v Khaled6;

(f)IAG Limited (t/as NRMA Insurance) v Lou7;

(g)AAI Limited v Feng8;

(h)IAG Limited t/as NRMA Insurance v Qin9, and

(i)IAG Limited t/as NRMA Insurance v Xie10.

  1. All of the above cases concern applications made under s 92(1)(b) of the Motor Accidents Compensation Act 1999 whereas I am considering an application made under s 7.34(1)(b) of the 2017 Act.


3 [2013] NSWSC 141.

4 [2016] NSWSC 1521.
5 [2018] NSWSC 1422.

6 [2019] NSWSC 320.

7 [2019] NSWSC 382.

8 [2019] NSWSC 535.

9 [2020] NSWSC 1025.

10 [2020] NSWSC 1112.

  1. All of the cases concern whether claims were suitable for assessment at CARS which has of course been abolished with the passage of the PIC Act. In relation to

    BDJ’s claim I am looking at the suitability of the claim for assessment at the Commission, which is a different entity with different powers, processes and procedures to those available in CARS.

  2. Despite the differences in the Acts, the forums for dispute resolution and the allegations made by the insurer, the above cases are a guide for the approach I should take in determining whether Mr Gergory’s case is not suitable for assessment at the Commission and whether I should recommend it be exempt from assessment.

  3. The Banos and Tarabay cases are authority for the proposition that it is not a matter for me to determine in this application at this time, whether BDJ has told false or misleading statement or whether he has explained the inconsistencies between his evidence and histories to doctors and the surveillance footage.

  4. The Khaled case suggests I should ask myself the question “is this claim not suitable for assessment” at the Commission considering the facts and circumstances of the claim, the objects of the Act and the matters listed in Rule 99. The more recent cases including Lou, Feng, Qin and Xie note the error of asking the question about whether the claim is capable of being assessed at CARS (or as I am required to consider, the Commission).

  5. In the Xie case, Justice Campbell summarised the task at hand [at 32]:

“The question posed by s 92(1)(b) requires the claims assessor to make a decision about the choice of forum for a particular claim in circumstances where claims generally are dealt with by assessment under Pt 4.4 of the Act. However, as Mr Romaniuk argued the statute does not create a “more appropriate forum test” or even a “clearly inappropriate forum” test: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55. These concepts from private international law need not be introduced into this area of discourse. The statutory test focusses on the assessment process and whether it is not suitable for the claim at hand. The question is not whether court processes are more suitable for the particular claim. As I said in Banos an important part of the context in which the question arises is that “the Act contemplates that the great majority of disputes would be resolved by the assessment process and not in court”. To my mind this is why the syntax adopted by the legislative drafter casts the central concept in the negative, as not suitable.”

  1. The claimant’s submissions pose the question of whether the claim is suitable for exemption. As the cases have made clear, that is the wrong question to ask. The question is whether the claim is not suitable for assessment.

  2. The clamant also submits that a fair hearing can be achieved at the Commission but

again the cases make it clear that whether a fair hearing can be provided at the Commission is not the correct question to ask. The claim could be assessed at the Commission, but the issue is whether it should be assessed at the Commission and requires consideration of whether the claim is not suitable for assessment.

  1. In my view, BDJ’s case is not suitable for assessment for the following reasons:

(a)the insurer has made a formal allegation that BDJ has made false or misleading statements about his capacity to work;

(b)that is a serious allegation punishable by imprisonment or a substantial fine or both;

(c)one of the objects of the MAI Act is to deter fraud11 and therefore that suggests a hearing should occur in open court where evidence can be given and recorded;

(d)BDJ should be afforded the opportunity of having a hearing in public so that he can openly defend the allegations;

(e)while doctors can and have given evidence at MAC Act and MAI Act hearings, again their attendance cannot be compelled, and

(f)the documentary evidence is likely to be voluminous.

  1. In explaining the alleged inconsistency between the claimant’s evidence or histories and the surveillance film, the claimant says he volunteered for a person. The claimant’s solicitor could not confirm whether this person operated the “Better Walls Bricklaying” business which appeared on the claimant’s clothing while he attended a work site. The claimant’s solicitor did say the claimant only volunteered for one person and that this person had a falling out with the claimant. It is this information that in my view is of significance to the suitability of this claim for assessment. It is, in my view critical for the operator of the business for whom the claimant says he volunteered to give evidence and it is likely his pay or other wage records will need to be obtained by the insurer in order to test the claimant’s explanation for the allegedly false or misleading statements.

  2. In the light of the falling out between the claimant and this person it is likely that the person for whom the claimant volunteered will need to be compelled to give evidence and produce records.

  1. I am mindful of the words of Justice Campbell in paragraph [43] of the Banos case


11 See s 1.3(2)(f).

“that appropriate cases should be ‘redirected’ to the Court system at an early time by way of preliminary determination”. It is not certain that the person for whom the claimant volunteered would willingly attend a claims assessment and produce all his records and it is also not known whether the doctors involved in BDJ’s case would refuse to come to a claims assessment to give evidence. In my view recommending the exemption of this claim is preferred over waiting for an assessment to commence, difficulties to arise and then find the matter not suitable.

CONCLUSION

  1. 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.

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Cases Citing This Decision

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Cases Cited

10

Statutory Material Cited

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Insurance Australia Ltd t/as NRMA Insurance v Taylor [2017] NSWSC 507
Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521
IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422