AAI Limited t/as GIO v BDJ - [2022] NSWPIC 637

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

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

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.
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.

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 637
Decision Date: 19 October 2022

CaseChat Overview and Summary

AAI Limited trading as GIO filed an application in the Supreme Court of New South Wales for an exemption from the requirement to assess the claim of BDJ. The dispute revolves around whether the claimant's injuries are suitable for assessment under the Motor Accident Injuries Act 2017. The insurer, AAI, contends that the claim is not suitable due to allegations of the claimant having made false or misleading statements regarding his activities since the accident. The claimant opposes the exemption, maintaining his position that any work he has done has been volunteer work, and that he has fallen out with the person he volunteered for, which explains his absence from their records.

The court was required to determine whether the claim was suitable for assessment, considering the allegations made by the insurer and the nature of the evidence required to address those allegations. Specifically, the court needed to consider whether a hearing in open court was necessary to resolve the dispute over the claimant's activities post-accident. The key issue was whether the evidence in the form of surveillance film that contradicted the claimant's statements warranted a hearing in open court, as opposed to the claim being resolved through assessment.

The court found that the claim was not suitable for assessment due to the nature of the allegations and the evidence required to meet them. The court acknowledged that the surveillance film presented by the insurer indicated that the claimant had been working, contrary to his statements and histories provided to doctors. This evidence suggested that the claimant may have made false or misleading statements in connection with the claim. The court concluded that a hearing in open court was necessary to resolve the dispute, as the allegations were serious and required a judicial determination. Consequently, the court granted the application for exemption from the requirement to assess the claim.

The final orders of the court were that the claim was exempt from assessment and that the matter be listed for a hearing to determine the truth of the insurer's allegations. The court emphasised the importance of a hearing in open court to address the serious allegations and the need for a judicial determination on the claimant's activities post-accident.

Orders