Abid v AAI Limited t/as GIO
[2023] NSWPIC 188
•28 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Abid v AAI Limited t/as GIO [2023] NSWPIC 188 |
| Claimant: | Maheen Abid |
| insurer: | AAI Limited t/as GIO |
| Member: | Terence O’Riain |
| DATE OF DECISION: | 28 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Injuries Act 2017; section 6.14; claimant self-represented; did not attend teleconferences and did not engage with the Personal Injury Commission’s attempts to contact her; application for assessment of damages made before claim for damages; dismissal of application to assess damages; dismissed under section 54 of the Personal Injury Commission Act 2020 and rule 77 Personal Injury Commission Rules; Held – application to assess damages is misconceived and dismissed. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. The claimant’s application to assess damages filed with the Personal Injury Commission on 8 June 2022 is dismissed. 2. The parties made no submissions as to costs. 3. The claimant is not entitled to costs in respect of the application. |
REASONS
BACKGROUND
This determination relates to s 54 of the Personal Injury Commission Act 2020 and rule 77 of the Personal Injury Commission Rules 2021 (the Rules).
The claimant was involved in a motor vehicle accident on 21 June 2019.
The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant has not lodged a claim for common law damages.
On 8 June 2022, the claimant’s solicitors, Gajic Lawyers, lodged an application to assess a claim for damages with the Personal Injury Commission (the Commission).
On 8 August 2022, Gajic Lawyers advised that they no longer act for the claimant.
On 25 November 2022, a teleconference was listed but the claimant did not attend.
I directed the Commission’s registry staff to attempt to contact Ms Abid.
The dispute officer(DO) assigned to this matter has provided details of five attempts to contact Ms Abid :
·9 January 2023 at 2:35 pm
Contact with the claimant. The DO called and told Ms Abid who she was and the reason for calling. Ms Abid asked if the DO could call back in a few minutes. The DO did try to call Ms Abid back five times but the phone just either rang out or asked the DO to send an SMS.
·6 April 2023 at 12:50 pm
The DO called the mobile number but was only able to leave a phone number. The DO sent an email to the claimant requesting she call me if she has any questions regarding the teleconference on Friday 28 April 2023
·21 April 2023 at 8:35 am
The DO called the claimant twice since 6 April 2023 but was only able to leave a text of her contact number.
The insurer request a teleconference to conclude this matter. It was listed for this day, being 28 April 2023, but the claimant did not respond to the Commission’s efforts to engage her.
Insurer’s submissions
Section 7.32 of the MAI Act provides that the claimant or the insurer may refer a claim for damages for assessment to the Commission under Division 7.6.
As no claim for damages had been made when the proceedings were commenced, there was no claim for damages capable of being referred to the Commission to assess under Division 7.6 of the MAI Act.
In those circumstances, the insurer submits that the proceedings are misconceived and lacking in substance and should be dismissed under s54 of the Personal Injury Commission Act 2020 (the PIC Act).
In the alternative, it is noted that a claim for damages must be made within 3 years after the date of the accident unless the claimant provides a full and satisfactory explanation for the delay: section 6.14(2) (3) and (5) of the MAI Act.
The relevant aspects of the section follow:
6.14 Time for making of claims for damages
(cf ss 72 and 73 MACA)
(1) …
(2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the date within which the claim must be made.
(3) A claim for damages may be made after the time required by subsection (2) (a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
(4) …
(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless—
(a) the insurer has lost the right to reject the claim on the ground of delay, or
(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or
(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.
(6) The insurer loses the right to reject a late claim on the ground of delay if the insurer—
(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or
(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.
(7) …
(8) In this section, insurer includes the person against whom a claim for damages is made.
In light of the above, the insurer submits that the application for claim assessment ought to be dismissed.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply as well as the further submissions.
REASONS
I refer to the powers to dismiss proceedings in the Commission as prescribed at s 54 of the Personal Injury Commission Act 2020 (the PIC Act) and rule 77 of the Rules.
That reads: rule 77 Dismissal of proceedings:
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch,
(b) for proceedings by an application made under the motor accidents legislation—
(i) if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due despatch, or
(iv) there is no jurisdiction to determine the dispute to which the application relates, or
(v) the application is being used for an improper purpose or is otherwise an abuse of process, or
(vi) the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.
Note—
Section 54 of the PIC Act provides that the Commission may at any stage dismiss proceedings before it—
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
Section 54 of the PIC Act also applies to medical assessment proceedings, merit review proceedings and panel review proceedings. See rules 107, 114 and 127.
The Commission does not have the power to dismiss any application unless it falls within one of the listed items.
Unlike applications to strike out pleadings in court, for example under the Uniform Civil Procedure Rules r 14.28, where the court is concerned solely with the form of the pleading and where, if the application is successful, leave may be granted to amend to plead in proper form, in applications for assessment of damages the Commission is limited to a consideration of whether there is a claim to be referred for assessment.
Section 6.14(5) of the MAI Act does not allow a claim lodged after the third anniversary of the accident to be referred for assessment unless the insurer has lost the right to challenge the claim (it has not) or the Commission has determined that the claimant has a full and satisfactory explanation for the delay (it has not) or the claim is being referred for exemption from assessment (it is not).
The Commission cannot, of its own motion, amend the application to assess damages to include a miscellaneous assessment to assess whether the claimant has made a full and satisfactory explanation for lodging the claim for damages after the third anniversary of the accident, or place it in the Stood Over list while the explanation for the late claim is assessed.
The application to assess damages cannot be vindicated after the fact if it was filed before the claimant lodged the claim.
There is no claim to be referred for assessment until that explanation is made out and the insurer accepts the explanation or a miscellaneous assessment is decided in the claimant’s favour.
As the claimant has not engaged with the Commission it is probable that this application could have been dismissed on the ground it had been abandoned even if the damages claim was lodged before the 3rd anniversary of the accident.
I dismiss the current application for assessment of damages as the application is misconceived at this time because Ms Abid had not made a claim for damages when the application to assess damages was lodged.
CONCLUSION
The claimant’s application to assess damages filed with the Commission on 8 June 2022 is dismissed.
The parties made no submissions as to costs.
The claimant is not entitled to costs in respect of the application.
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