Dagher v QBE Insurance (Australia) Limited

[2022] NSWPIC 714

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Dagher v QBE Insurance (Australia) Limited [2022] NSWPIC 714
Claimant:	Mark Dagher
insurer:	QBE Insurance (Australia) Limited
Member:	David Ford
DATE OF DECISION:	7 December 2022
CATCHWORDS:	MOTOR ACCIDENTS -  Application for exemption on the basis this is a mental harm case; the father of the claimant suffered catastrophic injuries as a pedestrian when struck by a motor vehicle on 26 July 2019; the insurer has admitted breach of duty of care but alleges 25% contributory negligence which will impact upon the claimant’s mental harm claim; mental harm claims have also been brought by two of the siblings of the claimant who are under the age of 18 years and these proceedings have been commenced in the jurisdiction of the District Court at Sydney; the solicitor for the insurer has consented to the application for exemption as is appropriate all three matters should be determined at the same time in the same jurisdiction; complex issues of liability; “just” resolution of proceedings means claim not suitable for assessment; exemption recommended; Held – this claim is not suitable for assessment under section 7.34(1)(b) of the Motor Accident Injuries Act 2017.
determinations made:	RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. This is a mental harm case. The father of Mark Dagher (the claimant), Georges Dagher suffered catastrophic injuries as a pedestrian when struck by a motor vehicle on 26 July 2019.

2. The insurer has admitted breach of duty of care but alleged 25% contributory negligence which will impact upon the claimant’s mental harm claim.

3. Mental harm claims have also been brought by two of the siblings of the claimant who are under the age of 18 years and these proceedings have only just been commenced in the District Court at Sydney.

4. Both parties have submitted they wish to make an application for exemption of this matter on the basis the issue of liability should be determined by a District Court Judge and having regard to the nature of the claims, being mental harm claims, is appropriate all three matters should be determined at the same time in the same jurisdiction.

5. I was also informed by the solicitor for the claimant at the teleconference on 17 November 2022 that the father of the claimant is presently in a serious condition in intensive care.

6. The claimant and insurer have now referred the claim to the Personal Injury Commission (the Commission) seeking an exemption from assessment.

reasons

1. I accept the submission from both parties that this matter should be exempt from the jurisdiction of the Commission pursuant to the provisions of rule 99 of the Personal Injury Commission Rules 2021 (NSW).

2. In this regard I refer to rule 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. In particular I refer to Rule 99(3)(b) which states as follows:

   “Rule 99(3)(b) – Whether the claim involves issues of liability, including contributory negligence, fault or causation.”

4. Having regard to the fact this is a mental harm case and two of the siblings of the claimant have obtained an exemption on the basis they are under the age of 18 years and proceedings have already been commenced on their behalf in the jurisdiction of the District Court, I consider it appropriate this claim is not suitable for assessment and should be exempt from assessment in the jurisdiction of the Commission to enable proceedings to be commenced on behalf of the claimant in the District Court at Sydney.

CONCLUSION

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment and I recommend to the Division Head that it be exempt from the assessment.