Allianz Australia Insurance Limited v Maddison - [2024] NSWPIC 476

CERTIFICATE OF DETERMINATION OF MEMBER

CITATION:

Allianz Australia Insurance Limited v Maddison [2024] NSWPIC 476

CLAIMANT:

Jake Maddison

INSURER:

Allianz

MEMBER:

David Ford

DATE OF DECISION:

27 August 2024

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 7.34(1)(b); recommendation; claimant was a rider of a motorcycle who sustained injuries in a single motor vehicle accident when he collided with wooden posts which were placed over the roadway; whether the accident was no fault; contributory negligence; causation; whether matter should be exempted from assessment on basis of legal and factual complexities; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

DETERMINATIONS MADE:

Recommendations Claim Not Suitable for Assessment

Issued under s 7.34(1)(b) of the Motor Accident Injuries Act 2017

My preliminary assessment of the claim and I recommend to the President that:

This claim is not suitable for assessment under Division 7.6.

This claim is exempt under sub-section 7.34(1)(b) of the Motor Accident Injuries Act and cl 99 of the Personal Injury Commission Rules 2021.

BACKGROUND

On 25 January 2022, Jake Maddison (the claimant) sustained injuries in a single vehicle accident in which he was riding his motorcycle in Appin when he collided with wooden posts which were placed over the roadway.
The claimant made an application for common law damages dated 3 May 2023 and a dispute arose as to whether the accident was no fault under part 5 of the Motor Accident Injuries Act 2017. The insurer denied the accident was no fault.
The claimant made an application for miscellaneous claims assessment and subsequently Member Castagnet determined the accident was no fault in his Certificate dated
11 March 2024. The insurer maintained the accident is not no fault, but states, if it is no fault, the claimant has no entitlement to damages under the MAI Act because fault cannot be deemed upon the owner of the vehicle.
The insurer submits the matter ought to be exempted from assessment and allowed to proceed in an appropriate forum, where the legal and factual complexities can be properly considered and where a binding decision can be made and where non-party witnesses can be compelled to give evidence.
I note the matter can be exempted under s 7.34(1)(b) of the MAI Act on the following grounds:
the claim involves issues of liability, including contributory negligence, fault or causation (rule 99(3)(b) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules).
The insurer lodged detailed submissions dated 9 July 2024 and at the preliminary conference the solicitor for the claimant advised he would not be lodging written submissions in reply, but by way of oral submissions, he submitted the insurer had not provided information whether the non-party witnesses would be available to be questioned at an assessment conference.
The claimant was not the owner of the insured motorcycle according to vehicle and registration searches. The insurer submitted the claim involves the following significant complexities relating to fault:
(a) The subject accident was a single vehicle motorcycle accident, and the claimant was the driver and sole occupant he was not the owner of the insured motorcycle, that was Tynesha Leigh Baker according to the vehicle and registration search.
(b) To bring damages claim under the Act this claimant would have to establish that there was causal fault of the owner in the use or operation of the insured vehicle because the Claimant cannot sue himself as the driver as noted in the insurance liability notice dated 4 August 2023. There is no allegation of a mechanical issue with the vehicle so that the owner was not at fault for the accident in any way.
The insurer submits there must be causal fault in the use or operation of the vehicle by the owner or driver upon which fault can be deemed in order for the accident to be a no-fault accident under part 5 of the Act. It is submitted in this accident there was no causal use or operation by the owner of the vehicle (given there was no mechanical fault, and the owner was not otherwise involved in the accident at all) and the claimant cannot sue himself as the driver. Therefore, there cannot be any no fault claim arising from this accident.
I note the following paragraph in the insurer submissions
“26. Respectfully the insurer admits that the issues would most adeptly be heard by a court which can make a final determination such issues are complex to the extent contemplated by PIC Rule 99(3)(a).”
The decision of Member Castagnet relating to a claim for damages is not binding. The insurer submits the issue or whether the accident is a no-fault accident involves significant factual and legal complexities which the insurer submits beyond the anticipated remit of the Commission
The insurer relies upon AAI Ltd v Singh (2019) NSWSC 1300 which confirmed a no-fault accident cannot be a no-fault accident, if it was not caused by the fault of the owner or driver or the “fault of any other person.” Fault is defined in the act as negligence or any other tort. In this regard I note paragraph 32 of the insurer submissions
“32. In the present matter, the insurer says that the accident was caused by the fault all the unidentified persons who placed the wooden posts over the roadway. In doing so the insurer relies on the compelling evidence that the wooden posts were purposely placed over the roadway and that children had been witnessed in the vicinity. There is a clear inference as to how the wooden posts came to be placed on the road. The insurer has relied upon that evidence to assert that the placing of the wooden posts on the road constitutes negligence or any other tort including under the Civil Liability Act, as well as the doctrine of res ipsa loquitor, that permits and an inference of negligence by an unexplained fact.”
The insurer admits there is at least one non-party witness who will be required to give evidence, Mr Brodie Deans and perhaps another witness, Mr David Camilleri. I consider the evidence of Mr Brodie Deans to be important regarding the circumstances surrounding this accident. Mr Deans was driving his motor vehicle along the same road at an earlier time to the claimant’s accident and noticed some timber had been placed in the same vicinity very shortly before the claimant’s accident. It appears this observation was made approximately 10 to 15 minutes before the claimant’s accident. Mr Deans stopped his vehicle, pulled over to the side of the road, removed the timber from the road, and then continued his journey.
Mr Deans noticed ‘some kids ' in the immediate vicinity off the road at a skate park.
Having regard to the definition of no-fault accident in s 5.1 of the Act and in particular the words “not caused by the fault of any other person”, I determine the evidence of
Mr Deans and perhaps Mr Camilleri is crucial to properly determining the facts in issue and their attendance at an assessment conference cannot be assured. In District Court proceedings, the attendance of such non-party witnesses can be facilitated by way of a subpoena, which is an effective method of compelling such attendance.
I note the definition of a “party” in s 7.3 of the Act which extends to the “claimant and insurer only. Accordingly under the current Commission mechanisms, the only parties who can be compelled to give evidence are the claimant and the insured owner, whilst there are otherwise penalty units for a failure to comply under s 51 of the PIC Act there is not the equivalent of a bench warrant for arrest for the failure to comply with a summons, as is the case for the failure to comply with a subpoena in the District Court. Accordingly, for the matter to remain in the Commission, it cannot be certain that all relevant witnesses with this evidence will be adduced, whereas the District Court provides the ability to issue subpoena to attend to give evidence.
I recommend the matter be exempted for the reasons I have stated above regarding the requirement to subpoena Mr Brody Deans and Mr David Camilleri to any future hearing in the District Court and this requirement cannot be achieved if the claim remains in the jurisdiction of the Commission.

Relevant Legislation

Sub-section 7.34 (1)(a) provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.
Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:
“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.”
In this case a number of considerations listed in cl 99 are relevant.
The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the PIC Act and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be: accessible, professional and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
In making my findings, I am also mindful of other relevant consideration listed in rule 99 including that the claim potentially involves:
(a)    complex legal or factual issues.
(b)    issues of liability, including issues of contributory negligence, fault or causation, and
(c)    whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State.
Although I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.

DETERMINATION

In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:
(a) the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes, and
(b) the claim involves potential issues of about liability or contributory negligence and conflicting evidence about how the accident occurred.
I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
I recommend that the claim be exempt from assessment by operation of sub-section 7.34(1)(b) of the MAI Act and cl 99 of the PIC Rules.
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 9 September 2024, approved Member David Ford’s recommendation that the claim is not suitable for assessment.