Blanco v Allianz Australia Insurance Limited
[2024] NSWPIC 597
•25 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Blanco v Allianz Australia Insurance Limited [2024] NSWPIC 597 |
| CLAIMANT: | Sergio Blanco |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 25 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); claimant’s application for discretionary exemption from assessment under s 7.34(1)(b) of the MAI Act; complex liability issues and non-CTP parties; insurer consents; preliminary assessment of claim; 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; recommend exempting the claim; recommendation subsequently approved by the Division Head, as the President’s delegate. |
PRELIMINARY CONFERENCE REPORT
Recommendation to exempt the claim
Damages
BACKGROUND
I refer to the preliminary conference report dated 21 June 2024.
The claimant was injured on 14 October 2019. The accident occurred at the claimant’s work. The claimant has been receiving workers compensation payments and has commenced a work injury damages claim.
There are disputes about who owned the truck at the relevant time, whether the claimant’s employer was negligent, and whether the claimant is entitled to damages under the Motor Accident Injuries Act 2017 (MAI Act).
Enhanced Concreting and Landscaping Pty Limited employed the claimant to drive a tipper truck registered number BX 00 XT (truck), with a bobcat loaded at the rear, to a building site on Murrang Way, Castle Hill.
The claimant was in the process of removing the straps that secured the bobcat when the truck began to roll from its parked position. The claimant attempted to stop the truck and entered the cabin. He could not stop the truck, but he managed to direct it into bushland where it collided with a tree. The collision injured the claimant.
The claimant alleges the truck’s owner negligence caused the accident. The claimant alleges:
(a) the truck’s braking system was defective;
(b) his employer being the truck’s owner did not properly train and instruct the claimant in how to use and operate the truck;
(c) the owner failed to provide the claimant with chocks or similar equipment that would have prevented the truck from running out of control;
(d) the owner failed to implement and maintain a traffic management system in relation to the parking and unloading of the truck;
(e) the owner failed to properly analyse risk in the claimant’s work duties;
(f) the owner failed to have due regard for the claimant’s safety and well-being, and
(g) in the alternative, if the owner reasonably responded to the foreseeable risk of injury so as to discharge its duty of care to the claimant, the claimant alleges that the insurer is still liable in damages under Part 5 of the MAI Act on the basis that the owner of the subject vehicle is deemed to have been at fault pursuant to s 5.2(2).
The insurer’s liability notice dated 23 September 2024 denied liability for common law damages. That notice discloses the following issues:
(a) first, the defendant denies there was any defect in the truck, and
(b) second, the insurer contends there was the insured owner of the vehicle was not at fault because there was no causal use or operation by the owner, such as a discoverable mechanical defect.
In its notice, the insurer distinguishes the facts of this case from the facts in Adlawan v Recochem Inc [2021] NSWSC 223, which arose out of the operation of a forklift.
The insurer has raised a further issue between the parties as to the identity of the truck’s owner. The insurer contends that the truck’s registered owner, Marts Holdings (NSW) Pty Limited, owned the truck at the relevant time. The insurer contends this was a different entity from the employer, so any fault on behalf of the employer does not give rise to liability under the MAI Act.
The claimant submits his employer owned the truck at the relevant time and referred to supporting authority.
EML, the workers compensation insurer (a non-CTP insurer) is responding to the work injury damages claim.
The claimant submits that the MAI Act claim is not suitable for assessment and that the Personal Injury Commission (Commission) should be exempted from assessment pursuant to s 7.34(1)(b) of the MAI Act, having regard to rule 99 of the Personal Injury Commission Rules 2021. The claim is not suitable for assessment for the following reasons:
(a) the claim involves complex issues of liability, contributory negligence, fault, and causation;
(b) more than five years have already elapsed since the accident occurred and the claim should be resolved expeditiously;
(c) the Commission disposing of the liability dispute will not be binding on either party and as such, it is highly likely that the unsuccessful party in an assessment will commence (or require the claimant to commence) court proceedings to redetermine liability. There it is inefficient if the matter remains in the Commission. There may be further cost and delay;
(d) Liability experts will adduce evidence, and it would be more efficient and more appropriate for that evidence to be adduced before the court rather than the Commission which does not routinely receive evidence of this kind, particularly oral evidence from experts, either jointly or separately. Furthermore, it would be costly for the parties to incur significant expert costs in the Commission only to have to incur those costs again in the likely event the matter proceeds to a hearing before the court, and
(e) the Commission cannot determine the alternative claim for damages assessed under Part 5 of the Workers Compensation Act 1987, while a court can.
Further, cl 14(e) of the Motor Accident Injuries Regulation 2017 mandates the exemption. The insurer’s liability notice is to the effect that it will not indemnify the alleged owner under the third-party policy.
The insurer replied that it concurs with the claimant’s submissions and consents to the application to exempt this claim from assessment.
Statutory framework
This is set out in Appendix A. The relevant legislation and rules are s 7.34(1)(a) of the MAI Act and rule 99 of the Personal Injury Commission Rules (PIC Rules).
Determination
My task is to make a preliminary assessment of the claim and determine whether the claim is not suitable for assessment under Div 7.6 of the MAI Act: s 7.34(1)(a). The word “suitable”, in this context is to be given its natural an ordinary meaning, namely: such as to suit; appropriate, fitting, becoming.[1]
[1] IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J at [27].
On the available evidence to which I have referred to above, I am satisfied that the claim involves complex issues relating to liability, and damages.
The application for exemption satisfies PIC Rule 99 considerations because it is complex, and the claimant seeks to proceed against one or more non-CTP parties.
I consider that in these circumstances 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.
Not being able to summon witnesses or apply the rules of evidence would also hamper assessing this claim in the Commission. A court hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment with a court hearing.[2]
[2] Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43].
I have made a preliminary assessment of the claim, taken into consideration the objects of the Personal Injury Commission Act 2020 (PIC Act), and considered the claim’s issues. I conclude that the claim is not suitable for assessment under Division 7.6 of the MAI Act and recommend that the President or his delegate exempt this claim 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 11 November 2024, approved Member Terence O’Riain’s recommendation that the claim is not suitable for assessment.
Appendices
Appendix A
The Commission’s Procedural Direction MA5 is the relevant direction when applying for an exemption.
An application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision 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 (PIC Rules) applies to the application. The 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, 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.”
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