Conti v AAI Limited t/as GIO
[2024] NSWPIC 309
•14 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Conti v AAI Limited t/as GIO [2024] NSWPIC 309 |
| CLAIMANT: | Mario Conti |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Terence Stern OAM |
| DATE OF DECISION: | 14 June 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; member’s recommendation; application for exemption from assessment; the claim involves complex legal or factual issues, including evidence of the nature of the relationship between claimant and the deceased, and the implications of the claimant’s financial position; Held – claim not suitable for assessment; 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
On 28 February 2021, Mario Conti (the claimant) was riding his motorcycle in an easterly direction in the side lane of Picton Road, travelling towards the Hume Highway, with Ms Jasmina Blazevska (the deceased) as his pillion passenger.
As Mr Conti was riding along Picton Road, a person driving a Ford Utility in the opposite direction turned right into his lane, causing the collision with the result, he and Ms Blazevska were thrown from the motorcycle.
Ms Blazevska was ejected after what Mr Conti describes as a great distance, from the motorcycle, as a result of which she sustained injuries, which resulted in her being placed on life support, dying on the third or fourth day after the accident.
Mr Conti was seriously impacted by the accident, in terms of the personal injuries he sustained.
Marija Blazevska, the daughter of the deceased born in March 2000 also claims an entitlement to compensation for the death of her mother, by way of dependency, for financial and non-financial assistance (and she also claims personal injury damages).
Angela Blazevska, the younger daughter of the deceased, also has made a claim under the Compensation to Relatives Act, on the basis that at the time of the death of the deceased, Angela was a school student dependant on her mother.
THE SUBMISSIONS
GIO’s submissions
On 9 March 2024, GIO made submissions with respect to this Exemption Application, which I summarise by reference to the paragraph numbers:
[17] The claim ought to be exempted under Regulation 99 of the Personal Injury Commission Rules 2021 (‘The Rules’) on the basis that it involves complex legal and factual issues, including complex issues in the assessment of the amount of the claim.
[18], [19] and [20] GIO then sets out the legislative framework for an application for discretionary exemption.
[21], [22] and [23] The submission then refers to a number of leading cases, including; Insurance Australia Limited v Banos [2012] NSWSC 845 and at [23] IAG Limited t/a NRMA v Khaled [2019] NSWSC 320 and citing what Bellew J said at [28] as to the distinction between capability and suitability.
At [24] under the heading ‘Complex Issues’, the submission went on to deal with the problems which arise from multiple parties, multiple legal representatives and multiple sets of proceedings. Referring to the subject cases:
(a) there are three alleged dependents, each represented by different solicitors;
(b) there is factual controversy about the composition of the deceased household at the time of the accident and GIO believes that there is controversy as to the existence and extent of the dependency.
[26] Mario Conti in his application, named himself as de-facto Partner, but did not provide details of any other dependent, nor did he include either of the deceased’s daughters.
[27] In February 2023, Angela Blazevska notified GIO that she an interest in the Compensation to Relatives Claim and that she was represented by Patrick Heath (solicitor)
[28] In February 2024, Marija Blazevska notified GIO of an interest in the Compensation to Relatives Claim.
[29] Mr Conti has made a Compensation to Relatives Claim and is represented by Mr Eddie Fahd.
[30] Mr Conti does not advance any claims for either Marija or Angela.
[32] Marija Blazevska, who claimed to be part of the deceased’s household at the time of the accident questioned whether the deceased’s relationship with Mr Conti was either one of dependency or had an enduring character. Angela Blazevska also contends her sister was part of the deceased’s household.
[33] The involvement of three separate alleged beneficiaries, all with separate legal representatives and a significant factual controversy at least between two of the parties, about the composition of the deceased’s household before and at the time of her death, and the extent of the dependency of the deceased, renders the claim unsuitable for determination in the Comission.
[34] summarises some of the competing statements made by each of the three alleged dependents in the table which appears.
[37] An exemption would permit court proceedings to be commenced, and the different ‘camps of the beneficiaries to be named as separate plaintiffs in the proceeding, to advocate their (in some respects conflicting) claims, and for each to provide full particulars of the extent of their alleged dependency.
[38] Mr Conti has provided particulars that he is not in possession of the details of the deceased’s two daughters, beyond their names and their relationship to the deceased.
[39] records are required to assess the household composition and income requested on GIO’s behalf, but which remain outstanding.
[40] By exemption of the claim, allowing the filing of one set of proceedings in the Court in which all three allege dependants are named as plaintiffs, GIO may issue notices to produce or subpoenae relevant to the particular ‘camp’ or to a ‘non- party’, to facilitate production of documents, and assessment of appropriate damages.
[44] Many aspects of Mr Conti’s income and financial position remain opaque. GIO needs access to financial records, including the partnership between Mr Conti and his brother.
[45] There were outstanding requests for financial material including income tax returns.
[50] Due to the potential for actual conflicts of interest, the claim for assessment should be exempted as it is unsuitable.
There was a further set of submissions on 5 March 2024, which to some extent are duplicatory.
[12] Letters of Administration were issued to Mr Conti, sealed 22 November 2022.
[13] Angela and Marija may wish to be heard about the extent of Mario Conti’s fiduciary duty.
[14] Whichever claim proceeds, it should be exempted under Rule 99.
GIO’s submissions of 18 April 2024
I summarise the submissions by reference to the paragraph numbers, except where they are no more than a duplication of what has previously been summarised.
[37] The Application is made pursuant to s 7.3.4 (1)(b) of the Motor Accident Injuries Act 2017.
[38] The Rules provide that the commission must consider the objects of the Act and the circumstances of the claim in determining the application.
[41] Refers to what Campbell J said at [41] in Banos, and in particular to the Claims Assessment Guidelines at clause 14.16.
[42] Refers to what would give the better opportunity for proper and fair cross examination of witnesses.
[43] Refers to what Bellew J said in IAG Limited t/a NRMA v Khaled [2019] NSWSC 320 at [28] (capability versus suitability).
[44] Refers to complexity.
[54] Summarises competing statements of each of the three alleged dependants.
[55] Potential for conflict of interest
[56] Inconsistent statements may create the need for cross- examination of a number of independent witnesses. The power to issue a Summons under s51 of the PIC Act is limited to parties within the proceedings.
[60] Independent witnesses will be required to clarify the anomalies to which the submission refers at [58] – [59], including for example, Branko Blazevska, the father of Marija and Angela.
Submissions by Mario Conti
On 9 May 2024, the solicitor for the claimant made the following submissions:
M20526/24: the claimant's application for damages under the Compensation to Relatives Act 1897 (NSW) (CTR Act)
“The claimant accepts the uncontroversial proposition that only one claim can be made for damages pursuant to the CTR Act. That much is clear from s 5 of the CTR Act.
Section 4(1) of the CTR Act provides, inter alia, that an action under the CTR Act shall be brought by and in the name of the executor or administrator of the person deceased. Section 7(2) of the CTR Act defines "administrator'' as meaning an administrator within the meaning of the Probate and Administration Act 1898 (NSW). Mr Conti was granted letters of administration by the Supreme Court of this State on 22 November 2022. Mr Conti is therefore the administrator of the person deceased and accordingly he is the person who should bring the action, pursuant to s 4(1) of the CTR Act. This means that the application brought by Marija Blazevska (M20676/24) should be dismissed.
GIO’s exemption submissions
GIO argues that the claim under the CTR Act ought to be exempted from the Personal Injury Commission under rule 99 of the Personal Injury Commission Rules 2021.
Mr Conti agrees with GIO’s recitation of the principles emanating from the case law relating to discretionary exemptions from the assessment process. He makes the following additional submissions.
Rule 99(2) provides that in determining whether a claim is not suitable for assessment for the purposes of s 92(1)(b) of the MAC Act or s ' 7.34(1)(b) of the MAI Act, _the Commission must consider the objects of the PIC Act and the circumstances of the claim. The first object of the PIC Act, specified in s 3 of the Act, is to establish an independent Personal Injury Commission to deal with certain matters under the Motor Accidents legislation. The Commission is therefore considered the 'first stop' when it comes to resolving matters under the motor accidents legislation.
Further, the Commission has been designed to deal with claims justly, quickly, cost effectively and with as little formality as possible, in accordance with the Object in s 3(c) of the PIC Act. There is no doubting that a court proceeding is a much more formal process which results in
significant legal costs. The Commission's informality is intended to reduce such costs.
The decision in Insurance Australia Ltd t/as NRMA Insurance v Banos [2013] NSWSC 1519; 65 MVR 312, upon which GIO relies, was cited in IAG Ltd t/as NRMA Insurance v Xie [2020] NSWSC 1112 at [22]. It is important to emphasise that the non-exhaustive considerations
identified by Campbell J as being relevant to the exercise of the discretion under s 92(1)(b) of the MAC Act arose in the context of the insurer in that case alleging that the claimant had made false and misleading statements. Nowhere in its submissions does GIO allege that the claimant and/or the deceased's daughters have made false and misleading statements in connection with their claims under the CTR Act.
In determining whether a claim is not suitable for assessment the 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: Insurance Australia Ltd t/as NRMA Insurance v Banos at [43] and IAG Ltd t/as NRMA Insurance v Xie at [22].
The claimant submits that none of the matters raised by GIO in its submissions, individually or in combination with each other, establishes that it will not be afforded a fair hearing.
The relevance of the matter raised in (45] of GIO’s submissions is difficult to discern. The claimant accepts that GIO has paid the deceased's funeral expenses.
Paragraphs (46] to [51] of GIO’s submissions are an attempt to cast the claimant in a bad light because his claim under the CTR Act did not provide details of any other dependent other than himself (GIO's submissions at [46]). The submission ignores the fact that when the
claim was lodged the claimant was aware that the deceased's daughters would be separately represented, with the consequence that each of their claims under the CTR Act would be prosecuted. The claimant refutes what appears to be an implicit assertion by GIO that he
has deliberately sought to exclude the deceased's daughters from claiming damages under the CTR Act.
The gist of the GIO’s application for a discretionary exemption appears to be that the claim is not suitable for assessment because of the competing statements made by Mr Conti and the deceased's daughters, identified at [54] of its submissions. There is no impediment
to the Commission resolving these competing statements. The Commission will resolve factual issues in the same way a Court does; by having regard to the evidence in deciding where the truth lies.
There is no substance to GIO’s submissions at [55] to [56]. The Commission is being called upon to determine the damages were occasioned to each party as a result of the death of Jasmina Blazevska. Contrary to GIO’s submission at [56], the fact that the dependents are
separately represented does not create complexities with assessing both the fact and extent of the dependency of each alleged dependent. Even if it did, GIO does not explain how the Commission is not suited to dealing with the said complexities. Indeed, it could be said that the fact
that each dependent is separately represented will assist the Commission in determining the damages to be awarded to each
Whilst the Commission is not able to compel witnesses to give evidence at an assessment conference, apart from a party to proceedings, where non-party witness statements are presented, it is not uncommon for a party to request the attendance of the witness for cross-examination. If the witness does not attend, the Commission will no doubt be inclined to draw the Jones v Dunkel inference from the failure to make the witness available for cross examination, absent a sufficient explanation for the failure to make the witness available.
In the end, the burden rests on each dependent to establish the extent of his or her dependency on the deceased, financially and domestically. In discharging this burden, it is expected that each dependent will marshal any documentary evidence proving their dependency. If GIO believes that there are documents relevant to the assessment of damages which the dependants have not produced, it is entitled to ask the Commission to direct the dependents to produce such documents.”
Submissions on behalf of Angela Blazevska
On 7 May 2024, Patrick Heath (solicitor) made the following submissions on behalf of Angela Blazevska:
“…we have not been provided access to the portal by the Commission, indeed, we have been specifically advised by the Commission (email from Maureen Patap, Acting Team Leader dated 2 May 2024 that we will not be able to have access to the portal. This is despite the Directions made by Member Stern.
..
Angela Blazevska is in the position of now having to rely upon other parties to access material and provide information to the portal… It is in effect denying access to our client to the legal process... With no access to the portal and no ability to properly prosecute our client’s claim, Angela Blazevska submits the matter is not suitable for assessment by the Personal Injury Commission.
…
Taking into account the matters which GIO has raised, and the fact that we are not effectively able to represent our client in these proceedings if they are maintained before the Commission, the Claimant Angela Blazevska supports GIO’s application for an exemption.”
Mr Conti’s particulars of / Submissions of Damages
On 14 November 2023, the claimant alleges:
[4] At the time of the accident, the deceased was employed by M.S.S Aviation at Sydney Airport, earning about $1600 a week after tax.
[5] The claimant and the deceased resided (the two of them) at the time of the accident with the deceased, contributing $1300 per month towards paying off the mortgage.
[6] At the time of the accident, the claimant was responsible for paying the utilities whilst the deceased paid for the groceries, fuel, and road tolls with respect to her car.
[7] The deceased also paid for other incidental expenses such as cooking and cleaning equipment.
[8] The claimant had a reasonable expectation of receiving continued financial support from the deceased.
[9] The claimant, Mr Conti, claims $950 per week for past loss of financial support in a total amount as at the date of the submission of $123, 500.
[10] Mr Conti claims for loss of future financial support, at the present value of $950 per week for 42 years. The claim is put at $885 020 (noting that no deduction was made for vicissitudes).
[11] Mr Conti claims that he was living with the deceased at the property in West Hoxton, with her daughter Angela, who was 18 years at the time, and in Year 12.
[12] Mr Conti claims that he was responsible for the outdoor tasks and home maintenance, gardening and lawn mowing and for cleaning the pool.
[13] The deceased was responsible for domestic chores.
[14] The deceased spent time on domestic chores as noted in paragraph 14.
[16] Mr Conti claims for loss of past domestic assistance of 20 hours per week at $35 per hour for 130 weeks, in the amount of $91 000 (as of 14 November 2023).
Statement of Marija Blazevska
In her statement of 19 February 2024, Marija Blazevska relevantly alleges:
[18] At the time of my mother’s accident, I was living with her and my younger sister. My parents were together until I was 13 or 14. My mother was a stay-at-home mum until that time. After my parents separated my mother started working. At the time of my mother’s accident my mother had been in an on / off relationship with her friend, Mario Conti for about 3 years. I no longer have a relationship with my mother’s friend Mario Conti since the accident. I have a younger sister who is currently 20.
[19] Mario Conti was in an on and off relationship with my mother for several years and was not financially dependent on my mother. Mario is the joint owner of Conti Plumbing and is financially wealthy he owns 15 plus investment properties, and luxury motor vehicles including a Lamborghini. Mario resides in his own house and would visit my mother once or twice a week.
Statement of Angela Blazevska
Angela Blazevska provided a statement made 2 January 2024. Relevantly she says:
[4] In February 2021, I was living with my mum and her then partner, Mario Conti, at their home. This was at 158 Second Avenue, West Hoxton NSW 2170. I understand that mum was a Joint owner of the property with Mario as tenants In common.
[11] At the lime, both my sister and I were living with my mother and Mario. As I understand the arrangement between my parents, they wore both equally contributing to the school fees for William Carey Christian School where I was enrolled In Year 12.
[16] I was wholly supported by my mother in the home.
[27] After mum passed away, in mid-March 2021 my sister and I moved back to live with my dad at 139 Kendall Drive, Casula. This Is a relatively small home. My father, Branko, does his best but he does not have the financial ability to support me or to provide the care and assistance that my mother gave.
Statement of Mario Conti (undated)
[47] In 2018 Jasmina and I purchased a double storey house at 158 Second Avenue, West Hoxton NSW 2171.
[48] At the time of the accident, I was living with Jasmina at the West Hoxton property (the property), along with Jasmina's daughter, Angela, who was 18 years of age and in year 12.
[49] After the accident I was not able to bring myself to return to the property.
[50] At the time of the accident, I was responsible for attending to the outdoor tasks and home maintenance. I was responsible for doing the gardening and lawn mowing, which I did about once per week during the warmer months and a few times each month during the colder months. I was also responsible for cleaning the pool.
[51] At the time of the accident, Jasmina was responsible for the internal domestic chores.
[52] Jasmina worked in aviation security at Sydney Airport for MSS Security. Her usual hours of work were 2am to 2:30pm, five to six days per week.
[53] When Jasmina arrived home at about 3pm, her routine was to do the internal domestic chores.
[54] Jasmina was a 'clean freak'. She kept the home in a very clean and tidy state. The approximate time Jasmina took doing the various domestic chores, at the time of the accident, was as follows:
(a) Vacuum cleaning - about 2 hours per week.
(b) Polishing the floorboards - about 2 hours per week.
(c) Cleaning the bathrooms - about 2 hours per week.
(d) Cooking and washing up - about 1.5 hours per day.
(e) Clothes washing and ironing - about 2 hours per week.
(f) Shopping - about 1.5 hours per week.
[55] On the weekend, Jasmina would often spend half a Saturday or Sunday doing the internal domestic chores, especially if she had not been doing the chores during the week because of her work commitments.
[56] Jasmina was in a fit and healthy state leading up to the accident. On my observation, she certainly had no trouble undertaking the internal domestic chores.
[57] Jasmina earned around $1,600 per week after tax from her employment with MSS Security.
[58] We had a mortgage on the property. I think the property was held by Jasmina and I as tenants in common in equal shares.
[59] Jasmina contributed $1,300 per month towards the mortgage. I contributed $1,350 per month.
[60] At the time of the accident I was responsible for paying all the home utilities, such as gas, water, electricity and council rates. Jasmina paid for the weekly groceries and for the fuel and road tolls in respect of her car. The grocery bill probably came to around $200 per week.
[61] Jasmina also paid for other incidental expenses, such as cooking and cleaning equipment.
[62] Before the accident, I would provide Angela with money for things that she required. Jasmina would do the same.
[63] The mortgage on the property, at the time of the accident, totalled about $720,000. The property was sold for $1.15m. From the net proceeds I paid $290,000 to Jasmina's daughters. I kept the balance of around $140, 00. I was not obliged to do this, but thought it was fair and appropriate in the circumstances.
Letters of Administration
The Supreme Court of NSW granted Letters of Administration to Mr Conti of the Estate of the Late Jasmina Blazevska on 22 November 2022.
The inventory of property discloses that the deceased had one- half share of 158 Second Avenue, West Hoxton, with an estimated value of $550, 000.
REGULATORY FRAMEWORK AND LEGISLATION
Clause 12 of the Procedural Directions refers to Section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (‘the Act’) which provides a claim is exempt from assessment if the member has made a preliminary determination of the claim and has determined, with the approval of the President, that the claim is not suitable for assessment.
[25] The Direction continues the assessment of the application must be dealt with in a way that best supports the Objects of the (Act), given the facts and circumstances of the claim. The assessment of the application for exemption may be on the papers.
The objects of the Personal Injury Commission Act 2020 are set out in section 3:
‘3 OBJECTS OF ACT
The objects of this Act are as follows—
(a) to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation and motor accidents legislation and provide a central registry for that purpose,
(b) to ensure the Commission—
(i) is accessible, professional and responsive to the needs of all of its users, and
(ii) is open and transparent about its processes, and
(iii) encourages early dispute resolution,
(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
(f) to ensure that the Commission—
(i) publicises and disseminates information concerning its processes, and
(ii) establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission,
(g) to make appropriate use of the knowledge and experience of members and other decision-makers.”
CASE LAW
The case law developed under the Motor Accidents Compensation Act 1999 (‘MACA’) is helpful as the issues under that legislation and the current legislation are much the same.
In Zurich Australia Insurance Limited v MAA [2006] NSWSC 845 Hoeben J said:
[39]‘…..the intention of the Act that the primary means of…resolution of disputed claims…is the claims assessment system…Absent the criteria prescribed under section 92(1)(a) it is for the claim assessor with the concurrence of the PCA to determine what is not capable of resolution within that system.
[53]...Most claims will be assessed in accordance with Part 4.4...There will be some claims which are exempt...but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt…’
In Insurance Australia Limited v Banos [2013] NSWSC 1519 Campbell J at [43] dealt with the relevant considerations where there was an allegation of a false and misleading statement:
(a) the Act contemplates that the great majority of disputes will be resolved by assessment and not in court
(b) s 92 provides a clear legislative guidepost that appropriate cases should be redirected to the court by way of preliminary determination
(c) a primary question will be whether having regard to the nature of the issue both parties can be afforded a fair hearing in a practical sense
(d) which mode of hearing will resolve the dispute more efficiently bearing in mind the comparative limitations and advantages of an assessment conference on the one hand and a court hearing on the other. The judge lists some of the advantages of a court hearing including better opportunity for proper and fair cross-examination of medical experts
(e) the public interest
(f) it is not mandatory when a credit issue is raised to decide that the claim is not suitable
In IAG Limited t/a NRMA Insurance v Khaled & Ors [2019] NSWSC 320 (21 March 2019), Bellew J said (at [27]):
“Bearing in mind the terms of section 92(1)(b) of the Act, the question that the Assessor was required to ask herself was whether the claim was not suitable for assessment in CARS. In accordance with general principles of statutory interpretation, the word “suitable” is to be given its natural and ordinary meaning. The Macquarie Dictionary defines the word “suitable” as meaning:
“Such as to suit; appropriate, fitting, becoming.”
AAI Limited v Feng [2019] NSWSC 535, Adamson J said [at 59]:
“In paragraph [14] the Claims Assessor outlined the jurisdiction and experience of CARS as a “specialist Tribunal” and what, in his experience, had occurred in such assessments. Although this paragraph was relied upon by the Insurer as an indication that the Claims Assessor had fallen into the same error as the claims assessors in Khaled and Lou, I do not consider this paragraph to have that effect in the present case. Although the ultimate question turns on suitability (or lack thereof), capacity will commonly, if not invariably, be a relevant factor in determining suitability. In paragraph [15], the Claims Assessor again used the words “properly determined”, which, in my view, is sufficient to indicate that he was addressing suitability rather than purely addressing capacity. The reference in paragraph [15(ii)] to the potential for the issue of suitability to be revisited implies that the question of suitability was being addressed in the reasons. The words “particularly complex” in paragraph [15(v)] also imply that an evaluative judgment is being made. The highlighted words in paragraph [17] in the passage from the reasons extracted above suggest that the Claims Assessor was not engaged in a rudimentary exercise of determining whether CARS had the capacity to determine the dispute but rather that the Claims Assessor had not been persuaded by the Insurer’s arguments that the claim was unsuitable for CARS assessment.”
In Insurance Australia Limited trading as NRMA v Howard [2019] NSWCA 224 Adamson J [37] noted that there did not appear to be any express requirement that reasons be given where an Application for a Discretionary Exemption was refused.
At [56] Adamson J held:
‘A claims assessor’s reasons are to be read fairly as a whole and given beneficial construction. They contain an evident justification for the exercise of power: that he was not satisfied that the claim was unsuitable for assessment because a fair and just hearing could still be had at an Assessment Conference.’
In IAG Limited trading as NRMA Insurance Ltd v Qianxia Lou [2019] NSWSC 382 [23] held that:
‘The frequency with which a particular type of issue is ventilated and dealt with in the CARS assessment process is irrelevant to determine whether a claim is “not suitable for assessment”.
The relevant question is not “whether the issues raised by the Insurer were commonly dealt with and thus could be dealt with by assessment?” but rather “whether the issues made the matter not suitable for assessment within CARS.’
In IAG Limited t/a NRMA Insurance v Qin [2020] NSWSC 1025, Harrison As J said at [75]:
“In my view, it is plain from the claim assessor’s reasons that he understood the overriding question to be one of suitability, not capacity. In determining whether the matter was not suitable for assessment at CARS, the claims assessor was entitled to compare the advantages of a CARS assessment and a court hearing, including the capacity for the issues raised in the insurer’s submissions to affect the capacity of CARS to provide the parties with a fair hearing. As such, his reasons reveal that he gave a proper, genuine and realistic consideration of the correct question. This ground of review fails.”
IAG Limited t/a NRMA Insurance v Abdelrazek [2020] NSWSC 773, Adamson J said:
"[38] The effect of the wording of s 92(1)(b) and cl 14.16 of the Guidelines is that, apart from the circumstances of the claim at the time of its consideration, it is a matter for the Assessor to decide what ought to be taken into account and what weight to give particular factors in determining whether the claim is suitable for assessment. As long as the legislation does not, by necessary implication, make any of the matters taken into account by the Assessor irrelevant, the Assessor will not be in error in taking them into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 (Mason J); [19861 HCA 40 (PekoWallsend).
General principles relating to the Assessor's obligation to give reasons
[39] The Assessor's reasons are not to be construed minutely or finely with an eye attuned to the perception of error: see the summary of authorities in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan a, Toohey, McHugh and Gummow JJ); [1996] HCA 6 (Liang).
[43] ... it is plain from the Assessor's reasons (and, in particular [6]) that he appreciated that the overriding question was one of suitability, not capacity, and understood the distinction between the two concepts. Indeed, it was common ground that the claim was one which fell within the discretionary exemption in s 92(1)(b) and not within the mandatory exemption in s 92(1)(a). In these circumstances, it must have been accepted that the claim could have been dealt with by a CARS assessment and would only not be dealt with in that way if it were exempted by the Assessor on discretionary grounds. In determining whether the matter was "not suitable" for CARS assessment, the Assessor was entitled to compare the relative advantages and disadvantages of a CARS assessment and a court hearing.
[47] It may be that the underlying policy behind Chapter 8 of the Guidelines is the assumption that such matters concerning liability are better determined in courtrooms than by CARS. However, this policy is expressed neither in the legislation or the Guidelines. Nor, even if this policy can be discerned, can it be extrapolated into assessments of damages to give rise to a general proposition that all matter which relate to the credibility of a claimant or a witness are better determined in a courtroom than in a CARS assessment.
[48] Indeed, it will be few cases (sic) where the credibility (in the sense of reliability) of a claimant is not sought to be tested, at least to some extent, by an Insurer, whether in the course of a CARS assessment or a court hearing. As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431:
"It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.11
[52] ... Matters of credibility, though relevant under s 92(1)(b), are not determinative.
[57] ... The Assessor was entitled to envisage the way in which the assessment would be conducted, on the basis of present information, when deciding whether to grant an exemption under s 92(1)(b) of the Act."
The decision of Campbell J in IAG Limited t/a NRMA Insurance v Xie [2020] NSWSC 1112 (Campbell J 21 August 2020) arose out of a challenge to the validity of a decision of a Claims Assessor who refused the GIO's Application for Exemption.
GIO had argued that the claim was not suitable for assessment because the Claimant had made false or misleading statements about matters relevant to past and future economic loss.
Campbell J held that the case had not been shown to be unsuitable for a CARS assessment.
CONSIDERATION
The fundamental principle is not whether or not the claim is suitable for assessment but whether or not it is unsuitable.
The objects of the Motor Accident Injuries Act 2017 are set out in section 1.3 and relevantly:
“(2)(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes
(5) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.”
The basis of the application is that this claim involves:
(a) complex legal issues and,
(b) complex factual issues.
The primary grounds for unsuitability
GIO submits that the primary grounds for unsuitability are:
(a) Competing and conflicting interests of the parties;
(b) The number of parties;
(c) Many aspects of Mario Conti’s income and financial position remain opaque and require further investigation;
(d) The factual controversy about the composition of the deceased’s household at the time of the accident and,
(e) The fact that there are separate legal representatives for each of the three
If one accepts what Marija Blazevska alleges, it is likely that there will be a significant dispute as to the nature of the relationship between Mr Conti and the deceased, and whether or not they were de- facto partners, and the nature and the extent of the dependency, and indeed the nature of the relationship between Mr Conti and the deceased. Was it at the relevant time, an on and off relationship as Marija Blazevska alleges?
At [36], of the submissions of 16 April 2024, GIO submits that the case should be exempted as it involves complex legal and factual issues, including complex issues in the assessment of the amount of the claim.
At [54], GIO summarises some of the competing statements, made by each of the three alleged dependents:
Mr Conti says that (only) the deceased’s 18 year old daughter, Angela, was living with him and the deceased at the time of the accident (paragraph 11, Submissions commencing at page 13 of the bundle of material annexed to PIC application M20526/24)
Ms Angela Blazevska says that “at the time [of the subject accident], both my sister and I were living with my mother and Mario” (paragraph 11, Statement dated 1 January 2024, provided to the insurer by her solicitor, Mr Heath and annexed as document R9 in M20526/24)
Ms Marija Blazevska says that she was living with her mother and younger sister (only). She says that at the time of the accident, she (her mother) “had been in an on / off relationship with her friend, Mario Conti for about 3 years… Mario resides in his own house and would visit my mother once or twice a week” (paragraphs 18 and 19, Statement dated 19 February 2024, commencing at page 3 of the bundle of material annexed to PIC application M20676/24, and annexed as document R10 in M20526/24).
Mr Conti says he was “responsible for paying all the home utilities such as gas, water, electricity, and council rates”, and he listed items she was allegedly funding prior to her death (paragraph 6, Submissions commencing at page 13 of the bundle of material annexed to PIC application M20526/24)
Marija says that her mother was “responsible for the mortgage payments, paying the utility bills at home, council rates, electricity, water, gas etc” (paragraph 23, Statement dated 19 February 2024, commencing at page 3 of the bundle of material annexed to PIC application M20676/24, and annexed as document R10 in M20526/24)
Mr Conti says that he “was responsible for doing the gardening and lawn mowing, which he did about once per month during the warmer months and a few times each month during the colder months. He was also responsible for cleaning the pool” (paragraph 12, Statement commencing at page 17 of the bundle of material annexed to PIC application M20526/24)
Angela also says that prior to the accident, her mother “looked after the home” (paragraph 15, Statement dated 19 February 2024, commencing at page 3 of the bundle of material annexed to PIC application M20676/24, and annexed as document R10 in M20526/24), including “the pool… the backyard and driveway…” (paragraph 22, Statement dated 19 February 2024, commencing at page 3 of the bundle of material annexed to PIC application M20676/24, and annexed as document R10 in M20526/24)
Mr Conti says he “would provide Angela with money for things that she required”, and that the deceased would do the same (paragraph 62, Statement commencing at page 17 of the bundle of material annexed to PIC application M20526/24)
Angela says that she “was not paid any pocket money”, but if that she ever needed any assistance, she “did get occasional help from [her] mother” (paragraph 23, Statement dated 19 February 2024, commencing at page 3 of the bundle of material annexed to PIC application M20676/24, and annexed as document R10 in M20526/24). She says that her mother and biological father (not Mario) were equally contributing to school fees (paragraphs 11 and 26, Statement dated 19 February 2024, commencing at page 3 of the bundle of material annexed to PIC application M20676/24, and annexed as document R10 in M20526/24)
GIO submits at [56] that there is potential for conflict of interest between the various persons claiming dependency, and damages in the Compensation to Relatives application. These potential (or indeed, actual) conflicts cannot, GIO respectfully submits, be managed in a single proceeding before the Commission.
The multiplicity of separately represented potential dependants creates complexities with assessing both the fact and extent of dependency of each alleged dependant.
Further at [58], the inconsistent statements may also create a need to cross-examine a number of independent witnesses. Section 51 of the Personal Injury Commission Act 2020 (‘PIC Act’) empowers the Commission to compel, via summons, a party to proceedings, to give evidence at an assessment conference. Independent witnesses/third parties cannot, however, be compelled to give evidence. There would accordingly be no way to challenge the veracity of the various inconsistent statements as to varying levels of dependency in the usual assessment conference forum.
At [60] Branko Blazevska, the father of Marija and Angela Blazevska, will be required to clarify the inconsistencies in a number of respects.
DETERMINATION OF RECOMMENDATION AS TO EXEMPTION
In making the determination on whether or not I should recommend exemption, the decision maker is entitled to compare the advantages of a Personal Injury Comission assessment and a Court Hearing.
“…Including the capacity for the issues raised in the Insurer’s submissions to affect the capacity (of PIC) to provide the parties with a fair hearing”
The factual issues as to what precisely was the nature of the relationship between Mr Conti and the deceased may give rise to some difficulty, but it seems clear enough that he and the deceased did own a property together. I have not been provided with the details of the tenancies, whether tenants in common or joint. That will obviously be a relevant factual matter.
There is a clear and material conflict in what is likely to be the evidence of Marija and Angela as to the nature of the relationship between Mr Conti and the deceased. Marija Blazevska that Mr Conti was a wealthy man with multiple properties, that issue will have to be investigated and the implications of Mr Conti’s financial position carefully considered as it is clearly relevant to any dependency issue.
Mr Conti claims an entitlement to domestic assistance. With respect to the Compensation to Relatives Act 1897 No 31, there is authority in the Supreme Court of NSW in Coote v Kelly [2016] NSWSC 1447 that damages for loss of domestic services that were not provided by the deceased are not recoverable by a dependent on correct interpretation of s 15 of the Civil Liability Act 2022.
In Coote v Kelly [2016] NSWSC 1447, Davies J considered the issue of loss of domestic services. He referred to s 15 of the CLA – Damages for gratuitous care services, and commented on the definition of ‘personal injury’ at [175]:
“It may be noted that whilst the definition of personal injury damages includes damages that relate to the death of a person the definition of injury does not include death.
Davies J continued at [176] and said:
“[176] What the Plaintiff was claiming was damages for gratuitous attendant care services as defined in s 15(1). Such services included services of a domestic nature by virtue of sub-s (1)(a). However, sub-s (2) excluded damages arising from the death of a person because paragraphs (b) and (c) related the need for the services to “injury” which did not include death. If it was intended that gratuitous attendant care services damages could be awarded in compensation to relatives action reference would need to have been made in sub-s (2) to death in addition to injury.
[177] Counsel for the Plaintiff submitted that s 15 had nothing to say about damages in a compensation to relatives claim. Because s 15 does not talk about personal injury damages the section cannot be considered to relate to damages payable upon death by reason of the definition in s 11. Counsel submitted further that in a compensation to relatives claim a claimant is not seeking damages for services that have been or are to be provided to another person after the commission of the tort. They are simply making a claim for services in the nature of material benefits.
At [178] he held that:
[178] In my opinion, the Defendant’s submissions should be accepted. Section 11A makes clear that Pt 2 of the Act (which includes s 15) applies to and in respect of an award of personal injury damages, which damages include damages in respect of death. The High Court held in Nguyen v Nguyen, at least for children, that services of a domestic nature could be claimed in a compensation to relative’s action.
…
[179] This head of damages is governed by s 15. However, sub-s (2) has the effect of excluding it because that sub-section defines the limited circumstances in which damages for gratuitous attendant care services can be provided. Those circumstances do not include a claim where the provider of the services has died.”In Hintz v Illawarra Shoalhaven Local Health District [2021] NSWSC 999, Adamson J considered whether loss of services was compensable. She said at [8]:
“[8] …the parties have referred me to the decision of Davies J in Coote v Kelly; Northam v Kelly[2016] NSWSC 1447 (Coote) in which his Honour held that damages were not available for loss of services provided by the injured party in an action brought pursuant to the Compensation to Relatives Act because of the exclusion in s 15(2).
[9] In order to appreciate the effect of Coote, it is necessary to give some background to the genesis of a claim for loss of services, such as that which is included in the plaintiffs’ claim for damages. In Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9 (Nguyen), the High Court held that compensation may be recovered in a claim under the Compensation to Relatives Act for lost domestic services, the value of which is to be assessed in accordance with the principles in Griffith v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45.
[10] The question arose whether the dependants’ right to damages in accordance with Nguyen was altered by the Civil Liability Act… “
Adamson J further noted that Sections 15 and 15B of the CLA were relevant to this question. She continued at [12]:
“[12] The general prohibition in s 15(2) would appear to apply in the present case as the need for the services did not arise solely because of the injury (sustained by the deceased) and they would have been provided anyway. Further, s 15B would not appear to apply since the claimant in that section is the provider of the services, not the recipient. The statutory scheme is anomalous in that it is difficult to discern a reason why, if the deceased had survived and yet been unable to look after his children, he would have been entitled to damages referable to the care which he was no longer able to provide for them, but that, as he died, his children are not entitled to such damages in a claim under the Compensation to Relatives Act.”
This interpretation point is likely to end up in the Court of Appeal at some stage and in the meantime, the consideration for the entitlement will require significant care by the court or tribunal that deals with it.
It is relevant that the parties are independently represented, and it is clearly likely that additional expense will be incurred for multiple legal representatives.
It may become necessary to deal with the nature and extent of the dependency, the relationship between Mr Conti and the deceased, although Angela does state that the two of them were living together at the time of the accident.
I refer to what his Honour Justice Hoeben said in Zurich Australian Insurance Limited v Maa and Anor [2006] NSWSC 845 at [39] –
[39] “… the intention of the Act that the primary means of… resolution of disputed claims… is the claims assessment system… Absent the criteria prescribed under section 92(1)(a) it is for the claim assessor with the concurrence of the PCA to determine what is not capable of resolution within that system.”
[53] “... Most claims will be assessed in accordance with Part 4.4… There will be some claims which are exempt… but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purposes of the Act) strict requirements are imposed before a claim is exempt…”
The issue is not whether one forum is preferable or more suitable, but rather whether the Commission is unsuitable as the forum
I consider that taking all things into account this is a case where there is a significant potential for complex factual and legal issues, and I will therefore recommend to the Principal Member that this case should be exempted.
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 7.34(1)(b) of the Motor Accident Injuries Act 2017 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 11 July 2024, approved Member Terence Stern’s recommendation that the claim is not suitable for assessment.
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