Battaglia v QBE Insurance (Australia) Limited
[2024] NSWPIC 274
•24 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Battaglia v QBE Insurance (Australia) Limited [2024] NSWPIC 274 |
| CLAIMANT: | Riccardo Battaglia |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 24 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; exemption from assessment; not suitable for assessment; complex issues of liability; complex issues in assessment of damages; rule 99(3)(b) of the Personal Injury Commission Rules 2021; the claimant sustained catastrophic injury in a motor vehicle accident on 1 May 2020 whilst riding a bicycle; liability denied by the insurer and in the alternative contributory negligence; complex claim for economic loss; claim for increased cost of housing, transport and travel; claimant sought exemption under rule 99(3); insurer agreed exemption appropriate; Held – complex issues of liability; complex issues in the assessment of damages; hearing likely to take four days; assessment process would not afford both parties a fair hearing; claim not suitable for assessment; exemption recommended; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
On 1 May 2020 Mr Battaglia (the claimant) states he was riding his bicycle on the sealed shoulder along New Illawarra Road, Menai when a large utility cut in front of him and suddenly stopped in the bicycle lane causing him to collide with the back of the vehicle.
Mr Battaglia has been rendered a quadriplegic.The driver of the utility remained at the scene for a time following the accident but subsequently left without providing his details.
Mr Battaglia has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (MAI Act) against the Nominal Defendant. QBE Insurance (Australia) Limited (the insurer) is the agent for the Nominal Defendant.
Mr Battaglia asks that I refer the claim to the President of the Personal Injury Commission (Commission) with a recommendation that the claim be exempted from assessment under s 7.34(1)(b) of the MAI Act and rule 99(3)(b) of the Personal Injury Commission Rules 2021 (the PIC rules).
Rule 99 of the PIC Rules provides that in determining whether a claim is suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim.
In determining whether a claim is not suitable for assessment for the purposes of
s 7.34(1)(b), matters the Commission may consider under rule 99(3) of the PIC Rules include the following:(a) whether the claim involves issues of liability, including contributory negligence, fault or causation, and
(b) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
THE BASIS OF THE APPLICATION
The claimant provided submissions dated 30 April 2024 in support of the application for exemption of the claim from assessment.
The driver of the utility left the scene of the accident and attempts to identify him have been unsuccessful. No statement has been obtained from the driver of the utility and the claimant’s recollections are the only first-hand account of the accident.
On 25 September 2023 the insurer denied liability for the claim for damages on the basis the claimant did not keep a proper lookout causing him to collide with the rear of a stationary vehicle. The insurer denied the unidentified driver breached his duty of care to the claimant. In the alternative the insurer alleged contributory negligence on the claimant’s part, assessed at 70%.
The claimant has served an expert report of Mr Nigel McDonald, Collision and Safety expert dated 24 January 2024.
The claimant claims the following heads of damages:
· non-economic loss;
· past and future economic loss (including superannuation);
· increased costs of housing;
· increased costs of transport, and
· increased costs of travel.
The claimant has served a report of Travelaw dated 26 February 2024 and makes a complex claim for future travel costs arising out of his catastrophic injures.
The claimant has also made a complex claim for future accommodation expenses in accordance with the report of Dr Susan Rutkowski dated 6 June 2023.
The insurer’s submissions
The insurer provided submissions dated 16 May 2024. The insurer agrees that it is appropriate that this matter be exempted from assessment.
The insurer states it:
(a) denies liability for the claim and in the alternative alleges substantial contributory negligence;
(b) denies that the claimant has an entitlement to increased costs of housing, transport and travel because he is a participant in the Lifetime Care Scheme, and
(c) makes no admissions with respect to the alleged factual circumstances of the accident.
In relation to liability the insurer submits the apparent lack of any direct witnesses to the collision does not mean that the circumstances as alleged by the claimant are the only possible means by which the accident occurred. Specifically, the insurer takes issue with the opinion of Mr McDonald that a “high level of constant vigilance” on the part of the claimant was not needed and his assertion that the claimant’s inattention for several seconds was “not…unacceptable action”. The insurer submits this endorses a view that a bicycle rider need not maintain a proper lookout, in the insurer’s view a difficult position to maintain. The insurer submits the liability dispute is complex.
The insurer also submits the claim for past and future economic loss is complex. A statement of John Bartolotta dated 21 March 2024 suggests the claimant played a central role in looking after operational systems and finance for eight different companies and would have “continued as a major player within the Royale Group”. However, the insurer notes the s 6.25 particulars dated 2 February 2024 only indicate the claimant was the general manager of a single entity, Royale Limousines, although it was asserted that role may had led to an increased earning capacity. Although not particularised it was also stated that the claimant may have received an equitable interest in a driverless tram investment in West Australia. A further claim relates to the assertion that Mr Bartolotta paid for the claimant and his family to go on holidays. The insurer submits not only is it necessary for the claims to be fully particularised but further investigations and expert accounting evidence may be needed.
The insurer submits the claim is not suitable for assessment because:
(a) the circumstances of the accident are factually complex and will be subject to expert evidence;
(b) witnesses both expert and lay are likely to be required to give evidence in respect of the claim for economic loss;
(c) expert witnesses are likely to be required to give evidence in respect of the claims associated with the increased costs of travel, holidays and housing, and
(d) the hearing will likely require four days.
CONCLUSION
In determining whether a claim is suitable for assessment the question to be determined is whether both parties will be afforded a hearing which is fair having regard to the issues in dispute.
There is no power to compel the attendance of a witness in the Commission. A court hearing will give the parties an opportunity to utilise the subpoena power to secure the attendance of witnesses and will facilitate evidence being given on oath in a forum where the strict rules of evidence apply.
Having regard to the complex issues of liability, including contributory negligence, the complex issues in the assessment of damages, the necessity to call lay and expert evidence, and where the hearing may take up to four days, I am not satisfied the assessment process would afford both parties a hearing which, in a practical sense, is fair.
RECOMMENDATION
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 7.34(1)(b) of the MAI Act and I recommend to the President that it be exempt from assessment.
I vacate the teleconference listed on 28 May 2024 at 9am.
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 14 June 2024, approved Member Susan McTegg’s recommendation that the claim is not suitable for assessment.
0
0
0