Condon v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 247
•3 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Condon v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 247 |
| CLAIMANT: | Daniel Condon |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | David Ford |
| DATE OF DECISION: | 3 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment; whether the claim is not suitable for assessment under Division 7.6; insurer made an application matter be exempted on discretionary basis under section 7.34(1)(b) on the grounds that the claim involves complex legal or factual issues and that the claimant made threats against persons associated with the management and assessment of his personal injury damages claim; in the application a schedule of damages was not lodged on the portal; insurer submitted the matter ought to be exempted and allowed to proceed in the appropriate forum where the legal and factual complexities can be properly considered, where a binding decision can be made, and where non-party witnesses can be compelled to give evidence; Held – determined the claim is not suitable for assessment under Division 7.6; recommended the claim be exempt from assessment by operation of subsection 7.34(1)(b) and clause 99 of the Personal Injury Commission Rules 2021; recommendation subsequently approved by the Division Head, as the President’s delegate. |
Recommendations Claim Not Suitable for Assessment
Issued under s 7.34 of the Motor Accident Injuries Act 2017
My preliminary assessment of the claim and I recommend to the President that:
(a) this claim is not suitable for assessment under Division 7.6, and
1.(b) this claim is exempt under sub-s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and cl 99 of the Personal Injury Commission Rules 2021.
BACKGROUND
The insurer has made an application the matter be exempted on a discretionary basis under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act) on the following grounds:
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim Rule 99 (3)(a) of the Personal Injury Commission Rules 2021(NSW), and
(b) the claimant forwarded an email to both the insurer and a dispute officer of the Personal Injury Commission (Commission) on 1 May 2025 at 5.45pm, in which he stated, inter alia, the following,
“Stop delaying and make a decision anything that's insulting leaves me with no options.
Stop F……. ing with peoples Life’s!!!
All this system does is spin money for everyone except the claimants!!!
Do I need to kill someone for justice? Because you leave me with no choice…
Dan…”
The claimant was involved in a motor vehicle accident on 9 March 2021 and the insurer admitted breach of duty of care for the purposes of the common law damages claim. The solicitor for the claimant lodged the application for damages assessment on 5 March 2024. In the application, the solicitors for the claimant did not serve or lodge on the portal a detailed schedule of damages.
The matter was referred to me and I held an initial preliminary conference on
21 October 2024. I made directions requiring the claimant to serve and lodge on the portal an updated schedule of damages, submissions on damages, statements upon which the claimant would seek to rely. The matter was set down for an assessment conference on
24 March 2025.It was necessary to hold a further preliminary conference on 19 December 2024, wherein it was agreed to suspend the timetable, as set out previously in my preliminary conference report dated 21 October 2024, whilst the parties continued settlement negotiations. There were further preliminary conferences held on 4 February 2025 and 24 March 2025. At the preliminary conference on 24 March 2025, the solicitor for the claimant advised he no longer acted on behalf of the claimant in this matter. There was a further preliminary conference on 6 May 2025 in which the claimant appeared self-represented, and at that time, I advised the parties I had determined I would make a recommendation to the Division Head of the Commission this matter be exempted on a discretionary basis.
I made directions that on or before 13 May 2025, the insurer was to serve on the claimant and lodge on the portal, submissions regarding an application for discretionary exemption.
I further directed on or before 20 May 2025, the claimant was to serve on the insurer and lodge on the portal, submissions in reply. The solicitor for the insurer lodged submissions on 12 May 2025. I allowed a further extension of time for the claimant to lodge submissions on or before 28 May 2025.
On the 21 May 2025, I received a message on the portal from the claimant’s former solicitor, advising the claimant was unable to make a decision with regard to the application and corresponding submissions regarding discretionary exemption. The former solicitors requested I consider revising the current timetable, as the parties had arranged for a mediation on 10 June 2025. However, I determined I was not prepared to revise the timetable in the circumstances of this claim, and in any event, if the matter is exempted on a discretionary basis, then this will not inhibit further negotiations between the parties if they wish to seek resolution of the matter.
The insurer consents to and joins the application for discretionary exemption. I refer to the following paragraphs of the insurer’s submissions:
“5. The insurer notes that the claimant has made a threat against persons associated with management and assessment of his personal injury damages claim, including members of the PIC.
6. Similar threats have been conveyed against officers of the insurer, NRMA.
7. The insurer consents to the matter being exempted from assessment in the PIC on the basis, that the Personal Injury Commission is not adequately equipped to deal with matters where such threats have been made.
8. Rather is appropriate the matter be exempted and heard in the District Court where secure courts and additional security are available.
9. The insurer additionally submits that the matter has a high degree of complexity.
10. This includes the nature of the claimant’s residual injuries and disabilities particularly his psychiatric injuries and disabilities. This may require a need to call or cross examination the claimant’s treating doctors.
11. Additionally, the claimant makes a significant claim for past and future economic loss. Competing forensic accounts reports have been obtained.
12. It is expected there is likely to be further accounting evidence adduced. It is likely that the parties will require the respective accounts to be available for cross examination on their reports at the ultimate hearing of the matter
13. It is admitted that these injuries give rise to a high degree of complexity such that the matter is one that is any event not suitable to remain with the PIC for assessment.”
I determine the matter can be exempted under s 7.34 (b) of the MAI Act on the following grounds:
“Rule 99(3)(a) ‘Whether the claim involves complex legal or factual issues or complex issues in the assessment of the amount of the claim’.”
I also determine, in view of the contents of the said email from the claimant dated
1 May 2025, the Commission is not adequately equipped to deal with matters where such threats have been made by the claimant and it is appropriate the matter be exempted and heard in the jurisdiction of the District Court with secure courts and additional security is available.
Relevant legislation
Sub-section 7.34 (1)(a) of the MAI Act provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.
Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:
“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.”
In this case a number of considerations listed in cl 99 are relevant.
The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be: accessible, professional, and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
In making my findings, I am also mindful of other relevant consideration listed in Rule 99 including that the claim potentially involves:
· complex legal or factual issues.
Although I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.
Determination
In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:
· the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes, and
· the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
I also determine in view of the contents of the said email from the claimant, the Commission is not adequately equipped to deal with matters where such threats have been made by the claimant and it is appropriate the matter be exempted and heard in the District Court where there are secure courts and additional security is available.
I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
I recommend that the claim be exempt from assessment by operation of sub-s 7.34(1)(b) of the MAI Act and cl 99 of the PIC Rules.
22.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 17 June 2025, approved Member David Ford’s recommendation that the claim is not suitable for assessment.
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