Conti v AAI Limited t/as GIO - [2024] NSWPIC 309

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 309
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the matter of Conti v AAI Limited t/as GIO, the dispute arose from an application for exemption from assessment under the Motor Accident Injuries Act 2017. The applicant, seeking compensation for injuries sustained in a motor accident, contested the assessment process. The case was brought before the Civil and Administrative Tribunal of New South Wales (NCAT). The applicant argued that the claim involved complex legal and factual issues, including the nature of the relationship with the deceased and the applicant's financial position, which warranted exemption from the assessment process.

The court was required to determine whether the criteria for exemption from assessment were satisfied, particularly considering the complexity of the case as outlined by the applicant. The applicant argued that the claim was not suitable for assessment due to these complexities, and the tribunal needed to assess whether the evidence presented justified the exemption. The primary legal issue was whether the NCAT had the authority to exempt the claim from assessment based on the complexities mentioned.

The tribunal carefully considered the evidence and arguments presented. It was noted that the claim involved complex issues, including the nature of the relationship between the applicant and the deceased, which had implications for the claim's validity and the compensation amount. The tribunal found that the complexity and the specific circumstances presented warranted exemption from the assessment process. Consequently, the tribunal recommended that the claim be exempt from assessment, a decision that was subsequently approved by the Division Head, acting as the President's delegate. This approval confirmed that the exemption was justified under the circumstances presented.

Orders