Atkinson v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 134
•7 March 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Atkinson v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 134 |
| CLAIMANT: | Brodie Atkinson |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 7 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; clause 99 of the Personal Injury Commission Rules 2021; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; complex issues of causation, fault and liability; accident involving a stolen motor bike colliding with a car driven by insured; insured driver relied on the statutory defences in sections 52 and 53 of the Civil Liability Act 2022 (NSW) that the insured driver was responding to the unlawful taking of a motorcycle, and the insured driver’s actions were carried out in self-defence to protect the motorcycle from unlawful taking, destruction, damage or interference; Held – claim is not suitable for assessment because it involves complex legal and factual issues; issues of liability including contributory negligence; witnesses required to give evidence; witnesses cannot be compelled to attend an assessment at the Commission; recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate. |
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 2017 and cl 99 of the Personal Injury Commission Rules 2021.
BACKGROUND
On 6 September 2020 the claimant, Brodie Atkinson, was injured in a collision while allegedly riding on a stolen motorcycle.
The insurer alleges that prior to the accident the claimant had stolen a motorcycle owned by the insured driver and his son.
On 6 September 2020 the insured saw the stolen motorbike being ridden by the claimant and pursued him onto Molong Street, Condobolin.
The claimant allegedly drove east into Molong Street whilst the insured allegedly drove west into Molong Street. The insured drove diagonally across Molong Street in an attempt to block the path of the claimant with the aim of retrieving the allegedly stolen motorcycle.
The claimant and the insured collied on Molong Street resulting in the claimant being seriously injured and airlifted to Canberra Hospital. He was found to have methamphetamine and other drugs in his system. The claimant was sentenced in Condobolin Local Court on
21 November 2021 for the alleged stolen motor bike and reckless driving.
There have been a number of teleconferences in this matter while medical reports were prepared, Directions for Production issued, particulars requested and responded to and submissions made about whether or not the claim was suitable for assessment under Division 7.6. The matter was listed for teleconferences on 19 September 2023,
16 January 2024, 11 March 2024, 4 June 2024, 10 September 2024 and 12 November 2024.
In a letter dated 12 June 2024 the insurer wrote that it denied liability in this case. The letter indicted that it will rely on the statutory defences in s 52 and s 53 of the Civil Liability Act 2022 (NSW) that:
“… • the insured driver was responding to your unlawful taking of the 2018 KTM motorcycle, ie your conduct was unlawful;
• the insured driver’s actions were carried out in self-defence to protect that property (the motorcycle) from unlawful taking, destruction, damage or interference; and
• the insured’s actions were a reasonable response in the circumstances as he perceived them.”
The insurer made written submission dated 11 February 2025. The insurer submits that the claim is not suitable for assessment and should be exempted under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act) on the following grounds:
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim, and
(b) whether the claim involves issues of liability, including contributory negligence, fault or causation.
The insurer submits that the insured was acting in self-defence to protect property from unlawful taking, destruction, damage or interference and that the insured’s actions were a reasonable response in the circumstances and s 52 operates to preclude the claimant having an entitlement to damages. The insurer further submits that s 53 provides that if s 52 applies, even if the insured’s actions were not a ‘reasonable response’, then the claimant would not be entitled to damages unless the court is satisfied that there are exceptional circumstances and a failure to award damages would be harsh and unjust.
The insurer also argues that s 52 of the Civil Liability Act 2002 prevents an award of damages to the claimant, the Member would also have to consider the claimant’s own contributory negligence. The insurer maintains that the accident would have been avoided if the claimant had slowed or stopped the motorcycle. Further, the claimant’s ability to ride was impaired by the consumption of drugs.
In this case, the insurer submits that the matter involves complex legal or factual issues, including contributory negligence, fault or causation. The insurer contends that the application of s 52 and s 53 of the Civil Liability Act 2002 in MAI Act claims is a novel and complex area of the law. The existing case law from the Supreme Court and Court of Appeal predominantly relate to the tort of assault and battery against the person and not the self-defence of property which is available in this case. Further, the insurer submits that there will be a number of witnesses required to give evidence and those witnesses cannot be compelled to attend an assessment at the Personal Injury Commission (Commission). Finally, the insurer submits that it would be denied procedural fairness if it were unable to issue subpoenas to give evidence for the relevant analysts to establish the chain of custody of the claimant’s the blood sample and prove the authenticity of the results. In view of the complexities in this claim, the novel legal issues and the number of witnesses which will be required, the insurer submits that this matter should be subject of a discretionary exemption.
On 28 February 2025 the claimant’s solicitors wrote to the Commission stating that:
“We write to confirm that the Claimant does not oppose the PIC exemption application and does not wish to be heard on the issue.”
Having considered the written submissions from the insurer and the brief submissions from the claimant, I intend to recommend the matter be exempted because in the interests of justice the claim involves:
· complex legal or factual issues, or complex issues in the assessment of the amount of the claim, and
· issues of liability, including contributory negligence, fault or causation.
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 Personal Injury Commission Rules 2021 (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:
· complex legal or factual issues, and
· issues of liability, including issues of contributory negligence, fault or causation.
In this current matter I find that three of the circumstances listed in rule 99 above are potential issues in the present claim. I have considered the parties written and oral submissions. Having reviewed those submissions, I agree that the potential issues in the case includes complex legal and factual issues; issues of liability, including contributory negligence. I also note the submissions from the insurer submits that there will be a number of witnesses required to give evidence and those witnesses cannot be compelled to attend an assessment at the Commission. Finally, the insurer submits that it would be denied procedural fairness if it were unable to issue subpoenas to give evidence for the relevant analysts to establish the chain of custody of the claimant’s the blood sample and prove the authenticity of the blood test results.
I also note the potential argument involving contributory negligence on behalf of the claimant for his failure to avoid the collision between the motor bike and insured motor car.
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:
· the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes;
· the claim involves potential issues of about liability, fault or contributory negligence, and
· the claim involves the complex questions of law including the interpretation and application of ss 52 and 53 of the Civil Liability Act 2002.
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 April 2025, approved Member Ray Plibersek’s recommendation that the claim is not suitable for assessment
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