Attard v QBE Insurance (Australia) Limited
[2024] NSWPIC 207
•22 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Attard v QBE Insurance (Australia) Limited [2024] NSWPIC 207 |
| CLAIMANT: | Paul Attard |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 22 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; complex causation issues; accident involving a forklift and a truck at claimant’s workplace; claimant instructed by a supervisor to recover a truck that had become stuck on a gutter by attaching a chain to the forklift the claimant was operating; the chain snapped under tension and whipped into the forklift striking the claimant in the face causing injury; whether the motor accident fell within the definition of “motor accident” in section 1.4; whether the motor accident was a result of any fault on the part of the owner of the relevant vehicle within the requirements of section 4.1 or whether it was related to the system of work; in respect of the forklift subject to an unregistered vehicle permit, whether the motor accident occurred in the use or operation of a vehicle on “any road or related area”; sections 2.3(b) and 4.1(1); likely that lay witnesses and liability expert witness will be required to give oral evidence; claimant seeks to proceed against a non-CTP party (his employer); Insurance Australia Limited t/as NRMA Insurance v Banos, IAG Limited t/as NRMA Insurance v Khaled, IAG Limited t/as NRMA Insurance v Qin, and IAG Limited t/as NRMA Insurance v Xie considered and applied; Held – a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties; the claim is not suitable for assessment; recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
This dispute relates to an assessment of the issue of liability and the amount of damages for that liability under Division 7.6, s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act) for determination by a Member of the Motor Accidents Division of the Personal Injury Commission (Commission) in respect of an alleged motor accident that occurred on 25 March 2019 (the motor accident).
Mr Paul Attard (the claimant), is a 46-year-old man, who alleges he suffered injuries in the motor accident which involved a forklift registered number 371 17D (the forklift) and an Isuzu truck registered number AM8 9MU (the truck).
The forklift and the truck were both owned by Minley Investments Pty Limited t/as Tara Forklifts (Tara Forklifts) and they were both insured by QBE Insurance Australia Limited (QBE) under compulsory third party policies of insurance. The forklift was subject to conditional registration.
The motor accident occurred at or near the premises of Tara Forklifts at Wetherill Park. It is alleged that the truck became stuck on a gutter outside the premises of Tara Forklifts. The claimant, an employee of Tara Forklifts, was allegedly instructed by a supervisor to recover the truck by attaching a chain to the forklift the claimant was operating. The chain subsequently snapped under tension and whipped into the forklift striking the claimant in the face. As a result, the claimant was required to undergo an enucleation of the right eye and sustained a psychiatric injury.
The claim for statutory benefits and the claim for damages was originally lodged with the Nominal Defendant and allocated to another insurer. The claims were subsequently transferred to QBE following vehicle registration checks.
On 24 June 2021, the claimant made an application for damages under common law.
QBE denied liability for the payment of statutory benefits up to and after 26 weeks in a liability notice dated 14 September 2022.
On 22 March 2022, the claimant lodged an application for an assessment of a claim for damages in the Commission.
At the preliminary conference before me in the Commission on 12 May 2023 the matter was stood over for a further preliminary conference because QBE had experienced difficulties in obtaining the necessary information in respect of the circumstances of the motor accident from the claimant’s employer.
On 6 September 2023, QBE issued a liability notice in respect of the application for damages under common law denying liability on the following grounds:
“1. The MAIA does not apply to your claim, because contrary to the definition of ‘motor accident’ in s 1.4 MAIA and the requirements of s 1.9 MAIA, the alleged injury was not caused during:
a.the driving of the vehicle, or
b.a collision, or action taken to avoid a collision, with the vehicle, or
c.the vehicle’s running out of control, or
d.a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
2. The MAIA does not apply to your claim for damages because, contrary to the requirements of s 4.1 MAIA, any fault on the part of the owner of the vehicle (which fault is not admitted) did not occur in the use or operation of the vehicle but was related to the system of work.
3. Alternatively, if the claim falls within the above statutory requirements:
a.The forklift was subject to an unregistered vehicle permit.
b.By operation of s 2.3(b) MAIA, QBE’s third party policy only responds if the forklift is being used or operated on the road.
c.Road is relevantly defined in s 1.4(1) MAIA to mean ‘a road, or road related area (within the meaning of s 4(1) of the Road Transport Act 2013’.
d.The accident occurred in an area which does not fall within the definition of a road or road related area.
e.Accordingly, QBE’s third party policy does not respond to the claim.”[1]
[1] Application for discretionary exemption at pages 10.
At the preliminary conference on 11 December 2023, QBE maintained its denial of liability and advised that it intended to lodge an application for a discretionary exemption. I issued directions in this regard, including directions for written submissions.
On 21 December 2023, QBE lodged an application for a discretionary exemption. The claimant did not lodge a reply to the application but did lodge written submissions.
DOCUMENTARY EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) the claimant’s application for an assessment of a claim for damages dated 22 March 2022 and supporting documents identified in the Commission’s portal as “A2” (the claimant’s documents);
(b) QBE’s reply to the application for an assessment of a claim for damages dated 22 September 2022 and supporting documents identified in the Commission’s portal as “R1” (QBE’s documents);
(c) QBE’s application for a discretionary exemption and supporting documents (application for discretionary exemption), and
(d) the claimant’s written submissions dated 23 February 2024.
SUBMISSIONS
Insurer’s submissions
The insurer’s submissions accompanying the application for exemption are summarised below.
QBE denied liability on the basis that the MAI Act does not apply and asserts that the claimant’s injury arose as a result of the system of work. In this regard, QBE’s position is consistent with the approach taken by the High Court of Australia in Nominal Defendant v GLG Australia Pty Ltd.[2]
[2] Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529.
The claimant has a concurrent workers compensation claim against Tara Forklifts and continues to receive workers compensation benefits.
The claimant maintains that he suffers from severe disabilities which greatly restrict his ability to work and seeks substantial damages.
QBE submitted that the matter is unsuitable for assessment in the Commission on the following grounds, which it submitted was somewhat inter-related:
(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, and
(c) whether a claimant or insurer seeks to proceed against one or more non-CTP parties.
QBE submitted that the injuries arising from the motor accident did not fall within the ambit of the MAI Act. The matter will involve complex arguments of fact and law.
QBE submitted that, as the forklift was not being used on a road or road related area, it contemplated a claim based on the negligence of the operator of the forklift. The claimant had since clarified the basis of the claim as only relating to an allegation of negligence on the part of the driver of the truck.[3] Accordingly, this engaged grounds 1 and 2 in QBE’s liability notice dated 6 September 2023 and the contention that any fault that may be established lay in the system of work. This position was conveyed to Tara Forklifts by letter dated 6 September 2023.[4]
[3] Application for discretionary exemption at pages 100-101.
[4] Application for discretionary exemption at pages 98-99.
QBE submitted that its position clearly raised the question of whether the allegations fell within the coverage of the third party policy of insurance. The Commission only has jurisdiction to determine the matter if it falls under the MAI Act. If, as QBE contends, the claim does not engage the MAI Act, it should not be before the Commission. In such circumstances, it is appropriate that the matter be exempted and dealt with in the District Court of New South Wales where no jurisdictional issue can arise.
QBE submitted that its position necessarily impacted on Tara Forklifts’ workers compensation insurer, given that the natural extension of QBE’s argument is that any available remedy lies in a claim for work injury damages. There is potentially an argument that any determination by the Commission on the position expounded by QBE could give rise to an estoppel or otherwise affect unrepresented parties. The workers compensation insurer does not have any standing to be heard in the Commission.
QBE noted that the workers compensation insurer of Tara Forklifts had sought an indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 in respect of payments made to the claimant as a result of the motor accident. Such indemnity would be resisted by QBE in another forum. Depending on the outcome of the contest, there are potential arguments as to double insurance between QBE and the workers compensation insurer of Tara Forklifts.
QBE submitted that there are clearly matters of real complexity and issues that the Commission is neither attuned nor empowered to determine. Therefore, s 7.34(1)(b) of the MAI Act is satisfied on the basis of the criteria set out in reg 99(3)(a), (b) and (c) of the Personal Injury Commission Rules (PIC Rules).
QBE submitted that, as well as there being a number of affected parties, there is the real potential for a number of witnesses to give evidence that go to the categorisation of the activities and conceivably, there is the potential for expert evidence, given the subject matter of the claim and circumstances of the motor accident.
QBE submitted that it is likely that subpoenas to produce to Tara Forklifts will be required to obtain further documentation, including documents relevant to the system of work and contemporaneous accounts and investigations of the incident. Likewise, it can be expected that subpoenas to attend and give evidence will be required. The PIC Rules provide for limited circumstances in which oral evidence may be tendered from a witness who has not provided a signed statement. The Commission does not have the power to compel people that are not a party to the proceedings to attend to give evidence in the Commission. As a result, QBE may be disadvantaged forensically in the calling of witnesses and in the presentation of its case.
QBE submitted that the above considerations also warranted exemption as they take this case outside the type of cases contemplated by the legislation as appropriate for determination by the Commission.
QBE submitted that, based on the current information available, any assessment of the claimant’s entitlement to damages, including a determination in respect of liability, is likely to exceed two to three hearing days. The complexity of the claim means that there will be significant oral evidence required to supplement any written reports and records.
QBE submitted that this matter is not suitable for assessment on the basis of the matters referred to above and on the basis of the relevant case law. Accordingly, a certificate of exemption should be issued.
Claimant’s submissions
The claimant’s written submissions were lodged in the Commission on 23 February 2024.
In consideration of the insurer’s submissions in respect of dual insurance, the claimant took the position that he neither consents, nor opposes the insurer’s application for exemption and defers to the Commission’s determination.
RELEVANT LEGISLATION
Section 7.30 of the MAI Act defines “claims assessment” as an assessment of a claim by the Commission under Division 7.6.
Section 7.31 of the MAI Act provides that Division 7.6 applies to a claim whether or not the insurer admits or denies liability.
Section 7.36 of the MAI Act provides that in conducting a claims assessment, the Commission is to make an assessment of the issue of liability for the claim (unless the insurer has admitted liability) and an assessment of the amount of damages for that liability (being the amount of damages that a court would be likely to award).
Regulation 99(1) of the PIC Rules provides that a claimant or insurer may apply for a discretionary exemption from a claims assessment under s 7.34(1)(b) of the MAI Act.
The Commission’s Procedural Direction MA5 applies to the application for exemption.
Section 7.34(1)(b) of the MAI Act provides that a claim is exempt from assessment if 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 Division 7.6 Subdivision 2.
Regulation 99(2) of the PIC Rules provides that, in determining whether a claim is not suitable for assessment for the purposes of s 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the Personal Injury Commission Act 2020 (the PIC Act) and the circumstances of the claim.
Section 3 of the PIC Act refers to the objects of the Act. Relevantly, s 3(3)(c) of the Act identifies one of those objects as enabling the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
Section 42(1) of the PIC Act provides that the guiding principle for the PIC Act and PIC 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.
Section 42(2) of the PIC Act provides that 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 PIC Rules or when it interprets any provision of the PIC Act or PIC Rules.
Regulation 99(3) of the PIC Rules, without limiting the matters that may be considered, refers to the matters the Commission may consider. Relevant to the present application for discretionary exemption, are reg 99(3)(a), (b) and (d).
Regulation 99(3)(a) of the PIC Rules provides that one of the matters the Commission may consider is whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
Regulation 99(3)(b) of the PIC Rules provides that one of the matters the Commission may consider is whether the claim involves issues of liability, including contributory negligence, fault or causation.
Regulation 99(3)(d) provides that one of the matters the Commission may consider is whether a claimant or insurer seeks to proceed against “one or more non-CTP parties”.
Section 7.34(2) of the MAI Act provides that if a claim is exempt from assessment under the 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.
RELEVANT LEGAL PRINCIPLES
In IAG Limited t/as NRMA Insurance v Khaled,[5] when considering the meaning of “suitable” in the context of s 92(1)(b) of the Motor Accidents Compensation Act 1999 (the MAC Act), Bellew J found that the word is to be given its natural and ordinary meaning. His Honour relied on the Macquarie Dictionary definition of “suitable”, namely “[s]uch as to suit; appropriate, fitting, becoming”. This is the meaning that I have applied to “suitable”.
[5] IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320 at [27].
In IAG Limited t/as NRMA Insurance v Qin,[6] Harrison AsJ found that whether a matter is not suitable for assessment at the then Claims Assessment Resolution Service (CARS), a claims assessor was entitled to compare the advantages of a CARS assessment and a court hearing, including the capacity for the issues raised by the party seeking the exemption to affect the capacity of CARS to provide the parties with a fair hearing.
[6] IAG Limited t/as NRMA Insurance v Qin [2020] NSWSC 1025 at [75].
In IAG Limited t/as NRMA Insurance v Xie,[7] Campbell J confirmed that capacity was not to be focused on at the expense of suitability and that the experiences of the assessment process are permissible so long as they do not trump or unseat the statutory question of non-suitability.
[7] IAG Limited t/as NRMA Insurance v Xie [2020] NSWSC 1112 at [34].
Although the cases referred to above related to the MAC Act and the now defunct CARS scheme, the principles enunciated in them can be used as a guide in proceedings under the MAI Act in the Commission.
CONSIDERATION AND REASONS
Discretionary exemption
Pursuant to reg 14 of the Motor Accident Injuries Regulation 2017, this matter is not one of the kinds of claims exempt from assessment under Division 7.6 of the MAI Act.
Accordingly, an exemption from a claims assessment can only be granted at my discretion, pursuant to s 7.34 (1)(b) of the MAI Act, if I make a preliminary assessment of the claim and determine, with the approval of the President, that the claim is not suitable for assessment by the Commission.
Preliminary assessment of the claim
The basis of the application for a discretionary exemption relates to issues concerning complex legal or factual issues, or complex issues in the assessment of the amount of the claim; issues of liability, including contributory negligence, fault or causation; and the claimant’s proceedings against a non-CTP party (Tara Forklifts).
In a statement dated 26 May 2020, the claimant described the mechanism of the motor accident that occurred during the course of his employment as follows:
“11. On this day I was working in the shop doing repairs on a forklift.
12. At the same time, the company tilt tray (the truck) was being backed into the car park when it got stuck in the gutter.
13. The truck was still on the road and traffic was backing up.
14. Barry Clarke, my manager, was frantic and running in and out of the workshop.
15. I went out to see if I could help.
16. Barry had attached a chain to the truck and told me to get into the forklift and back up.
17. Barry then attached the chain to the forklift and told me to drive it and pull it.
18. I tried and it didn’t work.
19. I tried telling Barry that it wasn’t working but he cut me off and kept telling me to keep going, to reverse again and pull on it.
20. I did what he said when suddenly, the chain snapped and swung around, smashed the forklift and hit me in the head.
21. I was taken to Liverpool Hospital as I suffered severe injuries to my head and right eye.
22. I have undergone a number of surgeries that were attempting to save my eye, but unfortunately they did not.”[8]
[8] The claimant's documents at page 49.
On 25 March 2019, an inspector from SafeWork NSW attended the subject accident site and subsequently prepared an inspection report.[9]
[9] The claimant's documents at pages 60-63.
On 11 June 2020, Dr Michael Delaney, ophthalmic surgeon, engaged by the claimant’s lawyers, opined that the claimant had suffered a severe penetrating injury to his right eye in the accident at work on 25 March 2019, which was the main contributing factor to his loss of vision and the loss of his right eye. Dr Delaney noted that the claimant had a prosthesis fitted and that he had also sustained facial and scalp scarring in the accident. He further opined that the accident was the direct cause of the claimant’s ongoing symptoms of impairment of depth perception and stereopsis and his significant ongoing symptoms of pain in and around the right eye socket.[10]
[10] The claimant's documents at page 22.
On 12 August 2020, the claimant resolved his entitlement to permanent impairment compensation under s 66 of the Workers Compensation Act 1987 for 35% whole person impairment in respect of the motor accident.[11]
[11] The claimant’s documents at pages 17-19.
On 24 June 2021, the claimant lodged an application for personal injury benefits.[12] In the application, he provided details of the motor accident including the date, time, location and particulars of the vehicles involved. In response to the question asking him to identify the registration number of the vehicle he believed to be most at fault, the claimant responded by ticking the box that indicated that he was unsure.
[12] The claimant's documents at pages 8-13.
On 17 February 2022, the claimant gave notice of his intention to bring a work injury damages claim against Tara Forklifts under s 282 of the Workplace Injury Management and Workers Compensation Act 1998.[13]
[13] The claimant’s documents at pages 3-7.
On 22 March 2022, the claimant served the Nominal Defendant with copies of the application for personal injury benefits dated 24 June 2021 and the application for damages under common law dated 30 June 2021 together with other supporting documents giving notice of his intention to claim damages under the MAI Act.[14]
[14] The claimant's documents at pages 1-2.
On 6 September 2023, QBE issued a liability notice in respect of the application for damages under common law denying liability as set out in [10] above.
On my preliminary assessment, the issues that remain for determination in respect of liability include:
(a) whether the motor accident fell within the definition of “motor accident” in s 1.4 of the MAI Act;
(b) whether the motor accident was a result of any fault on the part of the owner of the relevant vehicle within the requirements of s 4.1 of the MAI Act or whether it was related to the system of work, and
(c) in respect of the forklift subject to an unregistered vehicle permit, whether the motor accident occurred in the use or operation of a vehicle on “any road or related area”: ss 2.3(b) and 4.1(1) of the MAI Act.
Whether the claim is not suitable for assessment by the Commission
It is apparent from the provisions of s 7.36 of the MAI Act that in conducting a claims assessment, the Commission has jurisdiction to assess issues of liability.
It is important to bear in mind that the question required to be addressed when determining whether to grant a discretionary exemption is not whether the Commission is capable of assessing these issues, but whether the claim is “not suitable for assessment” by the Commission.
The consideration of whether or not a claim involves complex factual, legal or quantum issues is an evaluative determination, which must necessarily involve a determination of the relative factual, legal or quantum issues as compared with the norm. The word “complex” should be given its ordinary meaning in the context of reg 99(3)(a) of the PIC Rules and is used in the sense of complicated, not simple, difficult to analyse, understand and explain.
The issue of causation that arises in these proceedings is complex. It is likely that either or both parties will seek to call oral evidence from lay witnesses, liability experts and medical experts. The ability to compel lay witnesses, liability experts and medical experts to give evidence may be critical in a claim in which there is a dispute between the parties in relation to causation of injury. The evidentiary difficulty that would arise if either party were not able to compel relevant lay and expert witnesses to give evidence under oath in the Commission would not arise in court proceedings.
On the available evidence, I am satisfied that the claim involves complex legal and factual issues relating to liability and contributory negligence.
The consideration of issues of liability is not about whether the Commission has jurisdiction to assess those issues but whether the processes, practice and procedure available to the Commission to determine the issues, would render the claim not suitable for assessment by the Commission.
In its Motor Accidents Division, the Commission’s processes, practice and procedure do not require the parties or witnesses to provide evidence under oath or by way of affirmation. Non-parties to the proceedings cannot be compelled to attend to give evidence. A court hearing has the advantage of compelling the attendance of witnesses to attend a hearing by way of subpoena and affording the parties a better opportunity for proper and fair cross-examination of liability experts, medical witnesses and lay witnesses.
The consideration of whether a claimant or insurer seeks to proceed against one or more non-CTP parties involves a determination based on the available evidence.
I accept QBE’s advice (not disputed by the claimant) that the claimant has a concurrent workers compensation claim against Tara Forklifts and continues to receive workers compensation benefits.
On the available evidence, whilst it is unclear whether the claimant has yet commenced legal proceedings against Tara Forklifts in a court, I am satisfied that the claimant seeks to proceed against a non-CTP party, namely, Tara Forklifts as well as QBE in the MAI Act proceedings.
I agree that QBE’s position necessarily impacts on Tara Forklifts’ workers compensation insurer, given that the natural extension of QBE’s argument is that any available remedy lies in a claim for work injury damages. I agree that there is potentially an argument that any determination by the Commission on the position expounded by QBE could give rise to an estoppel or otherwise affect unrepresented parties to these proceedings. The workers compensation insurer does not have any standing to be heard in these proceedings in the Commission.
Accordingly, I consider that the forum that will resolve the dispute more justly, efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment in the Commission on the one hand, and a court hearing on the other, is the latter: Insurance Australia Limited t/as NRMA Insurance v Banos.[15]
[15] Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43].
Accordingly, I consider that a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under Division 7.6 of the MAI Act.
CONCLUSION
Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under Division 7.6 of the MAI Act and I recommend to the President that it 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 29 May 2024, approved Member Scarcella’s recommendation that the claim is not suitable for assessment.
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