Cic Allianz Insurance Limited v Leighton
[2024] NSWPIC 102
•8 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | CIC Allianz Insurance Limited v Leighton [2024] NSWPIC 102 |
| CLAIMANT: | Tomas Leighton |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 8 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; the claimant alleges injury in a motor vehicle accident on 22 December 2018; insurer sought exemption of claim under section 7.34(1)(b) on the basis it is alleged the claimant has made a false or misleading statement in a material particular; alleged false or misleading statement in respect of reasons for termination of employment; inability to drive and substance abuse; Held – application relates to credibility of claimant; Insurance Australia Limited t/as NRMA v Banos cited; not satisfied assessment process would afford both parties a hearing which in a practical sense is fair; as per IAG Ltd t/as NRMA Insurance v Abiad it is appropriate that the insurer’s claims be tested in a courtroom where evidence is given under oath and the rules of evidence apply; recommend claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
The claim arises out of a motor vehicle accident on 22 December 2018.
The insurer 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 Motor Accident Injuries Act 2017 (the MAI Act) and rule 99(3)(e) of the Personal Injury Commission Rules 2021 (the PIC rules).
Section 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, 2021 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:“(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 damages sustained by the claimant in the accident giving rise to the claim.”
The insurer submits Tomas Leighton (the claimant) has made a false or misleading statement in a material particular in relation to the injuries, loss and damage allegedly suffered by him as a result of the accident.
The claimant opposes the application.
TELECONFERENCE ON 26 FEBRUARY 2024
The matter was listed for a teleconference on 26 February 2024. The claimant was represented by Mr Ryan Brown of Turner Freeman Lawyers and the insurer was represented by Ms Johanna Ellem of Moray & Agnew Lawyers.
The insurer sought an opportunity to file submissions in reply to the claimant’s submissions. Otherwise, both parties indicated they were happy for the application to be determined on the papers.
I directed the insurer to upload to the portal any submissions in reply by 11 March 2024 and indicated I would determine the matter on the papers and issue a decision on the application for exemption on or before 1 April 2024.
DOCUMENTS CONSIDERED
The insurer has uploaded submissions dated 30 January 2024 and a bundle of documents paginated from pages 1 to 1,028.
The claimant uploaded submissions dated 19 February 2024 and the claimant’s statement dated 9 September 2022.
The insurer uploaded submissions in reply dated 7 March 2024.
THE INSURER’S SUBMISSIONS
In his Application for personal injury benefits dated 27 September 2019 the claimant described the following injuries as caused by the accident:
· T12 wedging of the spine;
· fractured mid back;
· open head wound requiring stiches;
· constant headaches;
· post-traumatic stress disorder, and
· anxiety/fear/nightmares & fear of driving in particular near trucks.
The insurer submits the false or misleading statements made by the claimant in a material particular in relation to the injuries, loss and damage allegedly suffered as a result of the accident not only calls into question the claimant’s credit but also the affects the insurer’s ability to investigate the claim and complicates the assessment of quantum.
The insurer relies upon the authorities of Allianz Australia Insurance Limited v Tarabay,[1] Insurance Australia Ltd t/as NRMA Insurance v Taylor[2] and Insurance Australia Limited t/as NRMA Insurance v Banos[3] where the courts confirmed the task for the insurer in applying for a discretionary exemption is not to prove that a false or misleading statement has, in fact, been made but rather, to satisfy the assessor (in this case the member), of the basis of an allegation, reasonably put, of false or misleading statements so that the matter is not one that should be determined by assessment in the Commission.
[1] Allianz Australia Insurance Limited v Tarabay [2013] NSWSC 141.
[2] Allianz Australia Insurance Limited v Taylor [2017] NSWSC 507.
[3] Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519.
The insurer also referred to the decision of Beech-Jones J in Insurance Australia Ltd t/as NRMA v Milton where he held it was only necessary to evaluate whether the insurer’s allegations of false or misleading statements may have some substance, and if so, whether the allegations can fairly be tested at CARS (Claims Assessment and Resolution Service).[4]
[4] Insurance Australia Ltd t/as NRMA v Milton [2016] NSWSC 1521.
The insurer also refers to the decision in IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422 at [76]-[77] as follows:
“It is not the role of a claims assessor to second guess an insurer’s allegations that a claimant has made a false or misleading claim. Section 92(1)(b) and cl 14.16.11 implicitly recognises the fact that in an appropriate case an insurer’s claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide...
The simple proposition is that a claims assessor’s task when an application has been made is to assess the allegation and whether it is not suitable for assessment under the relevant Part. The assessor’s role is not to determine the truth or even the strength of the insurer’s allegations…
The question … was whether the claims were not suitable for assessment on the basis that there was an allegation that the first or second defendants had made false or misleading statements in a material particular in relation to their injuries.”
The insurer noted In IAG Limited t/as NRMA Insurance v Khaled Bellew J stated:
“There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way.”[5]
[5] IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320.
The insurer also referred me to the decision of Wilson J in IAG Ltd t/as NRMA v Qianxia Lou where he quashed a refusal of an application for exemption based on an allegation of false or misleading statements as to injures, loss and damage as well as the complexity of the matter.[6] Wilson J stated that factors such as whether the issues raised by the insurer were “regularly ventilated” in CARS assessments, were “a common issue” in such assessments, and “can be dealt with in the assessment process” were irrelevant to determining whether a matter was suitable for assessment.
[6] IAG Ltd t/as NRMA v Qianxia Lou [2019] NSWSC 382.
The insurer provided further submissions dated 7 March 2024. The insurer submits the false or misleading statements made by the claimant are not limited to a single head of damage but affect the assessment of the entire claim and call into question the claimant’s credibility.
Where the claimant’s credit is in question the insurer submits the claim should be determined in a forum where he is required to give evidence under oath or affirmation and where the rules of evidence apply.
Economic loss
The claimant was employed by Pioneer Pest Control as a pest control technician.
In response to particulars the claimant advised he attempted to return to work, however this caused an aggravation of his injuries and he has not worked since February 2019.
The insurer disputes the claimant’s assertion he ceased working due to his accident related injuries but rather, was terminated due to his misconduct. The insurer relies upon the following:
· in a letter from Pioneer Pest Control dated 28 June 2019 titled “Private and Confidential: Termination of your employment” concerns were noted regarding the claimant’s attitude, punctuality, reliability, misuse of company vehicle and repeated harassing text messages. These concerns had been raised with the claimant, he had received a written warning and the behaviour was held to constitute serious misconduct warranting immediate dismissal and termination of employment;
· the claimant informed Dr Lagaida on 6 September 2019 he missed a job and was sacked. Between April and being sacked he was working normally;
· on 2 September 2020 Dr Casikar reported the claimant advised he returned to work after six weeks, but after five days found he could not cope and left and thereafter had been made redundant from his pest control job;
· on 26 November 2020 Dr Miller reported the claimant advised attempted to return to work six weeks after the accident but left four days after his return. His employment was reportedly terminated in February 2019;
· on 11 February 2021 Dr Rastogi reported the claimant advised he had six weeks off work after the accident, was forced to return full time but did not cope with the demands of the role and only lasted five days. He reported the claimant was terminated in February 2019 and has been unable to work since;
· on 14 June 2022 Mr Levi psychologist reported the claimant advised he returned to work for five days, he could not handle the physical demands of the role and was terminated from his employment as they were unable to provide him with light duties;
· on 18 August 2022 Dr Muratore reported the claimant advised he returned to work after six weeks, supposedly working reduced hours but his employer wanted him to complete his normal work. He worked five days, however, was terminated as he was struggling with his normal duties;
· on 5 October 2023 Medical Assessor Friend reported the claimant advised that he was placed under pressure to return to work, he lasted five days and was terminated as he missed one job, and
· on 9 September 2023 Medical Assessor Fitzsimmons reported he had not returned to work except for a brief trial due to post-traumatic stress disorder and his back injury.
Inability to drive
The insurer submits the claimant has consistently reported that he is unable to drive, has not driven since the accident and that he has specific fear and voidance of driving.
The insurer notes the clinical notes of Workers Doctors records:
(a) 24 January 2020 – “he has not driven after the date of injury”;
(b) 5 June 2020 – unable to drive;
(c) 18 August 2020 – unable to drive – dad takes him around;
(d) 1 September 2020 – unable to drive – dad takes him around;
(e) 10 November 2020 – unable to drive – dad takes him around, and
(f) 8 December 2020 – continued avoidance of driving, dad drives him around.
Dr Miller psychiatrist described an avoidance of driving. Dr Rastogi reported the claimant advised he had ceased driving as of February 2019 and was reliant on his father for transportation. Dr Anand reported the claimant advised he has not been able to drive or take public transport and his father drives him most places. Dr Saboor reported the claimant advised he stopped driving since the accident and could not drive anywhere. Medical Assessor Friend reported the claimant informed him he did not drive and relied upon his father or relatives for transportation.
Contrary to these assertions the insurer relies upon surveillance footage which it asserts demonstrates:
· on 7 February 2023 the claimant is seen to chase a dog including completing laps around a vehicle and bending down to look under the vehicle before entering the driver’s side of a black Holden Rodeo Utility and departed from an address in St Clair;
· on 14 March 2023 the claimant left his address at St Mary’s as the driver and sole occupant of the Holden Rodeo. At St Clair an unidentified male, believed to be the claimant’s father entered the passenger seat. The claimant drove to St Marys where he and his passenger entered a café. The same date the claimant was seen to push a shopping trolley laden with grocery bags which he loaded into the tray of the utility. He then drove to the St Clair address where the passenger alighted from the vehicle and returned to the St Mary’s address;
· on 21 March 2023 the claimant departed from the St Mary’s address and drove to the St Clair address where he picked up a male passenger;
· on 23 September 2023 the claimant drove from the St Mary’s address to a 7 Eleven were he filled up the vehicle;
· on 27 September 2023 the claimant departed the St Mary’s address as the driver and sole occupant of the Holden Rodeo, and
· on 15 November 2023 the claimant drove to a service station in St Mary’s and filled his vehicle with fuel.
The insurer submits whilst the claimant asserts he is reliant on his father for transportation the surveillance footage demonstrates the claimant attending a residential address on a regular basis and picking up an unidentified elderly male suggesting it is the elderly male who is reliant on the claimant for transportation.
The insurer submits the surveillance footage is inconsistent with the claimant’s report that he has not driven since the accident.
The insurer also notes the claimant informed both Medical Assessor Friend and Dr Saboor that he does not do his grocery shopping as he does not drive. However, the insurer highlights that on 14 March 2023 the claimant was observed pushing a shopping trolley laden with grocery bags.
The insurer also submits, with respect to the alleged physical injuries, the claimant’s presentation in the surveillance footage is discordant with his presentation during formal medical examination. For example, on 7 February 2024 which chasing a dog the claimant can be seen running, crouching, and bending with no sign of apparent limitation. However, the insurer notes that six months earlier Dr Muratore reported the claimant stated his back pain was aggravated by walking for longer than five minutes and that all movements, any exercise and bending, he is “unable to do anymore”. Dr Muratore reported the claimant presented in a debilitated state, although his presentation was fraught with inconsistencies. Following a review of the surveillance footage Dr Muratore opined that the claimant was not as debilitated as he made out.
Substance abuse
The insurer alleges the claimant has made false or misleading statements regarding his substance abuse, which the insurer submits is relevant to the assessment of his psychiatric injuries.
The records of Nepean Hospital demonstrated the claimant’s longstanding issues with substance abuse dating back to 2007. On 6 May 2019 the claimant presented at the Emergency Department with a behavioural disturbance. It was noted he was agitated, anxious and paranoid and acknowledged he has smoked ICE in the previous 24 hours. Further, on 18 February 2020 NSW ambulance personnel attended on the claimant and noted he had taken ICE two days prior.
The insurer notes at various medico-assessments the claimant reported as follows:
· when assessed by Dr Saboor in February 2022 he denied the use of any drugs;
· when assessed by Dr Miller in February 2022 he categorically denied a history of illicit substance abuse;
· at the assessment with Dr Anana in February 2022 he denied the use of any illicit drugs;
· at the assessment with Dr Muratore in August 2022 he advised he did not use any illicit substances although he may have done “on one occasion, while at school”, and
· in October 2023 Medical Assessor Friend noted the claimant’s account of substance abuse was inconsistent. Medical Assessor Friend reported the claimant said following the accident, substance use was intermittent and never on a weekly basis.
The insurer asserts that the allegation that the claimant has made misleading statements has been reasonably put and that on a proper examination of the evidence, the credibility of the claimant is required by way of cross examination, in open court and under oath.
THE CLAIMANT’S SUBMISSIONS
Employment
The claimant asserts the insurer’s submissions regarding the claimant’s employment history and termination from Pioneer Pest Control are misleading and fail to accurately portray the circumstances surrounding his departure from the company. It is submitted the allegations remained unsubstantiated and that the accident related injuries affected the claimant’s ability to do his job effectively which could have contributed to the termination.
The claimant asserts his statement during the assessment with Dr Miller regarding termination of his employment may have been an oversight or due to a misunderstanding. Further it is submitted that the claimant’s ability to recall specific details accurately may have been impacted by the trauma and stress caused by the accident.
Inability to drive
The claimant submits that any observed behaviour should be critically evaluated within the context of the documented medical history and the claimant’s reported inability to drive.
The claimant disputes the accuracy of the identification of individuals seen to be accompanying him in the surveillance footage and suggests assumptions regarding the relationship between the claimant and the unidentified male passenger are speculative at best.
The insurer also submits the surveillance lacks context and fails to consider potential mitigating factors or challenges the claimant may face while driving.
The claimant submits the surveillance footage is a brief snapshot of the claimant’s activities and does not consider the fact that the claimant’s symptoms can fluctuate and that his ability to perform certain activities on occasion does not negate the existence or severity of his underlying medical condition.
Whilst noting the inconsistencies reported by Dr Muratore the claimant submits that factors such as stress, anxiety or variations in pain levels can contribute to inconsistencies in the description of symptoms and limitations.
Substance abuse
The claimant submits that substance abuse issues are complex and multifaceted and a single instance of drug use does not necessarily reflect a pattern of ongoing substance abuse or addiction.
The claimant also notes that it is well documented that individuals struggling with substance abuse may under-report or deny their usage due to stigma, shame or fear of legal consequences. Therefore, caution should be exercised when interpreting self-reported information, especially in the context of substance abuse.
The claimant submits a more nuanced and comprehensive approach, considering the broader clinical context and factors contributing to substance abuse, is necessary to accurately assess the claimant's condition and its relevance to the claim.
The claimant submits a Member of the Commission is perfectly capable of assessing the claim despite the insurer’s challenge to the claimant’s credibility.
CONCLUSION
It is not a matter for me to determine whether the claimant has made a false or misleading statement as that can only be determined after a full hearing on the merits and where the claimant is given a fair opportunity to meet those allegations.
I find that the assertion by the insurer that the claimant has made false or misleading statements in relation to the cessation of his employment, his inability to drive and in relation to his substance abuse means that his credit is in issue. The claimant’s submissions attempt to deny, explain or justify any inconsistencies in the claimant’s evidence. However, as stated in Milton I am not required to do any more than evaluate whether the insurer’s allegations may have some substance and, if so, whether the allegations can be fairly tested in the assessment process.[7]
[7] Milton [2016] NSWSC 1521.
As in Banos the matters relied upon by the insurer in support of the application for discretionary exemption relate to the claimant’s credibility and honesty as an accurate historian, which will be fundamental to the determination of the nature and extent of the injuries sustained by the claimant in the accident.
I refer to the oft quoted passage of Campbell J in Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43]:
“When deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. I do not mean to be exhaustive:
(a)the Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court;
(b)however, the consideration that s.92 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be ‘redirected’ to the court system at an early time by way of preliminary determination;
(c)a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised;
(d)a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant's reliability into question;
(e)as it is clear the claimant's credit will be called into question, a consideration of whether it is in the public interest that such an examination occur in open court;
(f)Finally, but by no means least, the consideration that it is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment under Part 4.4.”
Notably in Taylor Davis J also stated:
“[36] It can be reasonably inferred from the mandatory exemption in relation to a fraudulent claim that the absence of sworn compellable evidence with a right of cross examination in the CARS process meant that neither truth nor fairness to the parties was likely to be achieved other than in a court hearing, where, additionally, the rules of evidence apply. That is a relevant consideration where it is alleged a false and misleading statement has been made.”
Having regard to the nature of the allegations raised I am not satisfied the assessment process would afford both parties a hearing which, in a practical sense, is fair.
A court hearing will facilitate evidence being given on oath in a forum where the strict rules of evidence apply, a relevant consideration where it is alleged the claimant has made a false or misleading statement. As the Court said in Abiad it is appropriate that the insurer’s claims be tested in a courtroom where they can be exposed to the type of forensic examination that is not available in the assessment process.
Exemption of the claim from assessment will permit a better opportunity for proper and fair cross-examination of the claimant, whose credit has been impugned, and permit the cross-examination of medical experts or other witnesses on the material which may call into question the claimant’s reliability.
RECOMENDATION
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.
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 21 March 2024, approved Member McTegg’s recommendation that the claim is not suitable for assessment.
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