Azzi v Allianz Australia Insurance Limited
[2024] NSWPIC 459
•21 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Azzi v Allianz Australia Insurance Limited [2024] NSWPIC 459 |
| CLAIMANT: | Joshua Azzi |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Terrence Broomfield |
| DATE OF DECISION: | 21 August 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; application for exemption pursuant to section 92(1)(a); claimant claiming nervous shock as a first responder police officer to a fatal motor vehicle accident, claim lodged over 6 years from date of accident with claim accepted by insurer as a late claim; inability to obtain inquest material to determine claimant’s involvement at the scene without the force of a subpoena; Insurance Australia Limited t/a NRMA Insurance v Banos applied; Held – limitations of the Commission without subpoena powers prevented obtaining essential material resulting in the matter being not suitable for assessment in addition to the claim involving issues of liability and potential non CTP parties; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
The claimant is a 30-year-old former police officer who was a first responder to a fatal motor vehicle accident on 22 July 2017.
On 19 December 2023 the claimant made a claim for nervous shock against the Nominal Defendant due to the vehicle causing the accident being unidentified. The claim was allocated to Allianz for management pursuant to the Nominal Defendant scheme. Allianz however obtained a police accident report that revealed the registration details of the truck that collided with the pedestrians which was insured with Allianz resulting in Allianz maintaining the claim.
The claimant has referred the claim to the Personal Injury Commission (the Commission) for assessment of damages after which the insurer filed submissions seeking a discretionary exemption.
BACKGROUND
I conducted an initial Preliminary Conference on 8 May 2024 at which time the claimant’s solicitor requested an adjournment to permit him to obtain material from the Coroners Court relating to the Inquest surrounding the death of the victims of the accident. The insurer provided a response to its request of the Coroners Court who refused in the circumstances to produce any material.
Given the restrictions contained within s 49 of the Personal Injury Commission Act 2020 (PIC Act) and the Coroners Court previous response a Direction for Production to the Coroners Court to obtain this information would have been futile and accordingly was not pursued.
The accident occurred when a tipper truck crossed double white dividing lines onto the incorrect side of the roadway side swiping a vehicle travelling in the opposite direction before mounting footpath and colliding with two pedestrians. One pedestrian was dragged approximately 10m across an intersection. A second pedestrian was apparently severely injured before the tipper truck collided with other vehicles and eventually a house before coming to rest.
The claimant as a first responder at the accident scene, witnessed the decapitated body of the deceased as well as apparently the severely injured second pedestrian that had been struck by the tipper truck. However, there is contained in the claimant’s statutory declaration, a reference that both pedestrians were deceased upon the claimant’s arrival at the scene.[i] The impact of what the clamant witnessed at the scene caused him to suffer a panic attack that the resulted in him needing to leave the scene and return home that was sanctioned by his supervising inspector.
The claimant and the claimant’s solicitor have filed extensive statutory declarations to which are annexed numerous documents that were designed to have the insurer sanction this late claim that was first commenced almost 6.5 years after the accident. I was advised at the second Preliminary Conference on 13 August 2024, that the insurer has now accepted that the claimant has provided a full and satisfactory explanation for the delay in making the claim in accordance with s73 of the Motor Accidents Compensation Act 1999 (MAC Act).
What now falls to be determined is the insurers discretionary application.
STATUTORY FRAMEWORK
The insurer’s application for exemption is made pursuant to s 92(1)(b) of the MAC Act. Such relevantly is in the following terms:
‘’ 92 Claims exempt from assessment
(1)A claim is exempt from assessment under this Part 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 Part.
(2)If a claim is exempt from assessment under this Part, the President must, as soon as practicable, issue the insurer and claimant with 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 (‘PIC Rules’) applies to the insurer’s application. That rule 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 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 and 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.”
The procedure of determining a discretionary exemption is dealt with in Procedural Direction MA5 and hence is applicable to this matter.
THE INSURER’S APPLICATION
The insurer provided written submissions as well as oral submissions at the second Preliminary Conference the latter of which in part addressed matters contained within the sentencing judgement of the driver of the tipper truck that apparently occurred on
21 July 2021. Whilst the insurer has been provided a copy of the transcript of the sentencing judgement by the claimant’s solicitor, a copy has not been uploaded onto the Portal. Having been told of the content of the sentencing judgement, I do not feel it necessary for me to be provided with a copy of it to determine the issues associated with the insurer’s discretionary exemption application.The insurer essentially submits that the claimant has no entitlement to bring his claim pursuant to ss 30, 31 and 32 of the Civil Liability Act 2002 (CL Act) In particular, there is no duty of care owed by the insured driver in the circumstances of this case. Further the claim involves complex legal and factual issues and issues of liability with potentially one or more non-CTP parties being involved in the proceedings. Further there are concurrent s 151Z recovery proceedings that should be heard at the same time and there are likely allegations of negligence against the claimant’s former employer the NSW Police Force.
Finally, the insurer submits that there appears to be no causal connection between the purported psychiatric status of the claimant and the fatal motor vehicle accident with there being various explanations as to what might have contributed to his current psychiatric diagnosis.
The insurer also noted that the claimant’s oral submissions at the second Preliminary Conference now alleges that the claimant sought to restrain the driver from further harming the victim at the scene with the claimant further submitting that the injured victim had at that time also been potentially ‘’put in peril` in accordance with the CL Act. The insurer submits in those circumstances such potentially falls outside the purview of a compensable claim pursuant to the CTP policy provisions.
The insurer also submits there are cogent reasons that the documents and information from the coronial enquiry are important to resolve the various issues in this matter.
THE CLAIMANT’S RESPONSE
The claimant submits that he is a first responder and with the severely injured pedestrian still alive as referred to in the sentencing judgement of the insured, that person was still ‘’ in peril’’ and hence falls within s32 of the CL Act, as referred to by the High Court in Wicks v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010). Further, by assisting to restrain the insured the injured pedestrian continued to remain ‘’in peril’’. It was submitted that the claimant attended to and witnessed the severely injured pedestrian ‘’in peril’’ and assisted paramedics providing rescue from the situation. As such the claimant falls squarely within s30 (CL Act).
DETERMINATION
The parties agreed that the ultimate decision-maker in respect to whether s30 of the CL Act was engaged to permit the claimant to recover damages would be dependent upon findings of the factual matrix surrounding the claimant’s involvement whilst he was at the scene of the accident.
The parties further agreed that it is likely that findings of fact in respect to the claimant’s involvement at the scene of the accident could potentially only be made after the benefit of the material from the Inquest was available. Whilst the claimant has suggested recently of a greater involvement than what perhaps can be gleaned from his statutory declaration sworn 22 March 2024, there is, in the absence of the material from the Inquest, no corroborative evidence. Accordingly, whoever ultimately makes findings of facts in this matter, would be currently reliant upon a six to seven year old memory of events that are potentially affected by the psychiatric response suffered by the claimant at the scene and subsequent. The claimant’s solicitor suggested that a further application to the Police Department may result in more contemporaneous statement becoming available from the claimant. I note however in response to the GIPA application made by the claimant, it was indicated there was no such statement made at the time in relation to the accident.[ii]
Accordingly, it would appear inevitable that the material from the Inquest that will require the force of the subpoena is the only avenue in which the full circumstances of the claimant’s involvement at the accident may be revealed to permit the necessary findings of fact to be made and determine whether the claimant falls within sections 30 and 32 of CL Act.
As was identified by Justice Campbell the mode of hearing that will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitation and advantages of assessment on the one hand, and a court hearing on the other is highly relevant to my determination of whether this claim is not suitable for assessment.[iii]
Subject to whatever findings of fact are made in relation to the claimant’s actions at the accident scene, this matter is likely to involve complex legal issues in relation to liability in the application of the principles enunciated in the High Court’s decision of Wicks v State Rail Authority of New South Wales.[iv] Whilst the High Court provided an analysis and interpretation of the relevant provisions pursuant to s 30 of the CL Act, it remitted both matters back to the Court of Appeal for further consideration which would include aligning the factual findings made with the interpretation the Justices of the High Court placed on the relevant statutory provisions. There is no subsequent decision of the Court of Appeal that would have provided useful guidance in this matter.
Further, it may be there are other non-CTP parties to be joined to the proceedings involving these parties however at this stage such remains conjecture as does the potentially concurrent s 151Z recovery proceedings.
It is unnecessary to determine all the potential grounds that the insurer submits makes this claim not suitable for assessment as the obtaining of the Inquest material I agree with the parties, is essential for the findings of facts to be made relating to the claimants’ actions at the scene of the accident.
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 s 92(1)(b) of the Motor Accidents Compensation Act1999 and I recommend to the President that it be exempt from assessment.
In accordance with 92(1)(b) of the Motor Accidents Compensation Act 1999, the Division Head (Motor Accident Division) as Delegate of the President, on 27 September 2024, approved Member Terrence Broomfield‘s recommendation that the claim is not suitable for assessment.
[i] paragraphs 10 and 11 claimant’s Statutory declaration [page 10] in the claimant’s bundle
[ii] [page 194] claimant’s bundle
[iii] Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43]
[iv] Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)
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