Arthur v Allianz Australia Insurance Limited
[2024] NSWPIC 618
•23 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Arthur v Allianz Australia Insurance Limited [2024] NSWPIC 618 |
| CLAIMANT: | Darren Paul Arthur |
| INSURER: | Allianz Australia Insurance Limited |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 23 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant’s application for exemption under section 7.34(1)(b); application not opposed by insurer; liability for claim denied; contest between the parties with respect to the circumstances in which the accident occurred; parties propose to call oral evidence from a number of lay witnesses, together with experts; Held – determination of the claim by a court is more likely to result in the just, quick and cost effective resolution of the real issues in the proceedings; claim is not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
Darren Arthur (claimant) was injured in a motor accident at Chichester Dam Road, Brandon Grove, on 13 September 2020 (accident). He has made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer) in relation to the accident. Liability for the claim has been denied.
The claim has been referred to the Personal Injury Commission (Commission) for assessment. In the course of the assessment the claimant has made an application for the claim to be exempt from assessment in accordance with s 7.34(1)(b) of the MAI Act. The application is not opposed by the insurer.
On 17 September 2024 I dispensed with the requirement for the claimant to lodge and application for exemption and for the insurer to lodge a reply. The parties were directed to lodge joint submissions in support of the application.
The parties agree that the application can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.
STATUTORY FRAMEWORK
The application for exemption is made under s 7.34(1)(b) of the MAI Act. Section 7.34 is relevantly in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, 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).”
Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:
“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.”
Procedural Direction MA5 applies to the application. I have dispensed with various requirements under the Procedural Direction.
In determining whether the claim is not suitable for assessment I must consider the objects of the PIC Act. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules, or interprets any provision of the MAI Act or the Rules: s 42(2) PIC Act.
EVIDENCE
The evidence in the application and reply has been considered, as has the material produced under direction by NSW police. The material produced by police includes body worn camera footage recorded at the scene of the accident. The footage includes brief interviews with Mr Flett, the driver insured by Allianz, and other witnesses.
The material relied on by the claimant includes his statement and reports from Mr Byrnes, a forensic consultant. Mr Byrnes report of 21 February 2022 contains versions of events provided by Mr Flett, the driver insured by Allianz.
To illustrate the factual disputes that arise in relation to the circumstances in which the accident occurred, and provide context for my recommendation, I have set out below extracts from both the claimant’s and Mr Flett’s statements.
The claimant’s statement dated 10 October 2023 contains the following version of events:
“10. The weather was fine. We were travelling along Chichester Dam Road (the road) heading in a northerly direction. The road was a narrow, country road with no shoulder and no marked lines. The road was in moderate condition. Notably, it had several potholes along the way. Largely though I was able to avoid all such potholes.
11. While travelling north on the road in or near Bandon Grove, I was travelling on, if the road had marked lines, the left-hand side of the road. I was travelling on the correct side of the road.
12. I was riding about 50 or so metres behind Greg and Andrew. I was travelling at only around 50kmph. I believe the legal speed limit in the area was 80kmph. I was riding at around 50kmph because of the condition of the road and because the road was narrow and there were no lines marked.
13. I saw Greg and Andrew negotiating a left-handed bend ahead of me. I saw Greg in particular, negotiate the bend. He came out of shape a little bit. As Greg is an experienced rider I thought this was odd.
14. By “come out of shape” I mean that Greg pulled his bike sharply to the left. When that happened I immediately thought something was coming towards him. Instinctively, I became aware of where I was on the road. I was to the left of the imaginary centre line. Even so having seen Greg move sharply to the left, I began to pull my bike further to the left edge of the road.
15. Suddenly, I saw a motor vehicle towing something coming towards me. I now know that the motor vehicle was a Toyota 4WD vehicle and it was towing a caravan.
16. I saw the vehicle as it negotiated a left-hand bend dodge potholes in the road by veering right then veer sharply left to avoid hitting Greg. It then began to negotiate a right-hand bend but the driver lost control and the caravan almost jack-knifed back to my side of the road.
17. I remember as the motor vehicle passed me just before I collided with the front of the caravan seeing the driver’s eyes. He looked really worried to me. He lost control of his vehicle as he was coming down the hill. He appeared to try to correct his poor position on the road by moving to his left however he was unable to do so in time and that is what caused the collision.
18. The car and caravan were partially on my side of the road. I remember thinking that I had nowhere to go and that a collision with the vehicle and/or the caravan was impossible to avoid.
19. I kept trying to pull the bike as hard left, or away from the direction of the vehicle and caravan, as I could. However, despite this, I was unable to avoid colliding with the caravan as it was coming straight towards me.
20. The right-hand side, of my bike and my body, collided with the very front of the caravan and stayed in contact with [the] caravan as I travelled the length of its righthand side. When I no longer had any contact with the van, I was essentially flipped away from it and towards my left…”
In his statement dated 27 October 2020, Mr Flett provided the following version of events:
“…I was driving from Chichester Dam to home in Vacy.
The weather was sunny. The road condition was narrow, no lines marked, windy and sealed bitumen. The traffic was light.
I was driving south on Chichester Dam Road, Bandon Grove and the accident occurred on the road. I was travelling in Lane 1 of 1.
The speed limit for the area is 80 km/h and I was travelling at about 35 km/h because I was driving down a hill towing the van.
I had just driven through some S-bends and then it opened up a bit and then were approaching another right bend.
I saw 2 motorcycles ride towards and past me and they were coming around the bend and up the hill. The third rider came around the corner really wide and crossed on to my side of the road and I tried to pull the van over as much as I could, but there was no space and he came around the corner and collided with our van. They were not speeding.
The motorcycle and rider sideswiped the side of our van from the very front to the very back. I thought he was dead.
I had tried to pull my van over to miss the rider, but there was nowhere to go. He didn't seem to take any evasive action, he just seemed to come straight at us…”
Mr Flett also provided the following version to police on 5 February 2021:
“We were only going about 40km/h, I had just come around a left hand bend and into the straight when I saw 2 motor bike riders come around the right hand bend in front of us, I made sure I was all the way to the left. The first rider past us on the straight followed by the second rider as we got closer to the right-hand turn. They weren't speeding only going about 50km/h.
The third bloke on the bike came wide on the turn he just came straight at us, he wasn't leaning into the turn like you do. I said to Carol, "Shit he's wide." I then tried to pull the car onto the gravel edge but couldn't go any further as there is a ditch. I saw him go past and just miss my car and looked in the side mirror and saw him hit the van and run down the side, I saw him just rag doll it up the road and he fell off his bike…”
Mr Byrnes’ report also contains versions provided by other witnesses, including Mrs Flett, and Mr Taylor. Mr Byrne observed that there is “significant disconnect” between the claimant’s version of the accident and the version provided by Mr Flett. Mr Byrne stated that it was “reasonable to assume” that the point of impact was on or in close proximity to the nominal centre of the carriageway, that Mr Flett’s vehicle and caravan were entirely on the “travelway proper” at the time of impact, and it was more likely that the nearside alignment was not on the grass to the east of the travelway pavement as recounted by Mr Flett.
SUBMISSIONS
The parties have lodged joint submissions dated 18 October 2024 in support of the application for exemption. The submissions record that:
(a) the insurer has conceded the claimant’s injuries exceed the 10% threshold;
(b) the insurer has denied liability for the damages claim;
(c) expert liability reports have been served by each side. The significant matter in issue will be the location of the accident with respect to the nominal centreline of the roadway;
(d) evidence will need to be given by the claimant, Mr and Mrs Flett, and other lay witnesses which may include the motorcycle riders who were travelling in front of the claimant;
(e) all lay witnesses will need to be cross-examined;
(f) the experts will need to give evidence and be cross examined;
(g) the claimant will submit that some of the conclusions of the expert relied on by the insurer are outside his area of expertise;
(h) the expert engaged by the insurer likewise makes comments about the qualifications of the expert relied on by the claimant, and
(i) the evidence and hearing will take several days, possibly a week.
The parties argue that, given the complex factual issues, and the issues relating to liability, the claim is not suitable for assessment by the Commission.
CONSIDERATION
Liability for the claim is in dispute. There is a clear contest between the parties with respect to the circumstances in which the accident occurred. The parties propose to call oral evidence from a number of lay witnesses, together with experts. The witnesses will all be cross examined. The case will take a number of days. An expert conclave may be required.
Other than the claimant, the witnesses cannot be compelled to give evidence in the Commission. The parties should be in a position to compel the attendance of witnesses at the hearing, and should be able to cross-examine the witnesses under oath.
These considerations, together with the other matters referred to at [17], support a conclusion that the claim is not suitable for assessment by the Commission. Likewise, the objects of the PIC Act, and the guiding principle for the PIC Act and the Rules support that conclusion.
Determination of the claim by a court is more likely to result in the just, quick and cost effective resolution of the real issues in the proceedings than if the proceedings were assessed by the Commission.
Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim 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 7 November 2024, approved Senior Member Brett William’s recommendation that the claim is not suitable for assessment.
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