Dameshghi v QBE Insurance (Australia) Limited

[2024] NSWPIC 480

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dameshghi v QBE Insurance (Australia) Limited [2024] NSWPIC 480
CLAIMANT:	Pejman Dameshghi
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Terence O'Riain
DATE OF DECISION:	29 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for discretionary exemption from assessment under section 7.34(1)(b); complex issues relating to liability and multiple non-CTP parties; insurer consents to application to exempt claim from assessment; preliminary assessment of claim; Held – a court hearing is more likely to result in the just, quick and cost-effective resolution of the real issues in dispute between the parties; claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the Delegate of the President.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

Background

1. Mr Pejman Dameshgi was injured in an accident on 13 May 2023 at Wilson Carpark in the Queen Victoria Building in Sydney.

2. Mr Dameshgi lodged a claim with QBE Insurance (Australia) Limited, who is the CTP insurer of vehicle registration CX08MQ which was allegedly at fault in this accident. Sydney Plumbing Professionals Pty Ltd owned that vehicle at the time of the accident on
   13 May 2023.

3. The claimant alleges that he slipped on the floor as it was contaminated with water and was slippery. The claimant alleges motor vehicle CX08MQ collided into a water sprinkler fixture in the car park which caused water to spill and contaminate the floor.

4. The claimant intends to pursue a common law claim against the following prospective Defendants subject to advice:

   (a)    Wilson car park (a common law public liability claim);

   (b)    the driver of the abovenamed NSW registered vehicle (a motor vehicle accident claim or a common law public liability claim);

   (c)    the employer of the driver of the abovenamed motor vehicle (a motor vehicle accident claim or a common law public liability claim), and

   (d)    the CTP insurer of the abovenamed motor vehicle (a motor vehicle accident claim or a common law public liability claim).

5. Mr Whetu James Patrick Hynes-Heke was the driver. The registered owner employed
   Mr Hynes-Heke.

6. The driver states that there was no impact/collision between the car and the sprinkler and was not involved in Mr Dameshgi’s fall.

7. The CTP insurer denied liability for Mr Blakeney’s common law damages claim by a notice dated 22 June 2023 on the basis that the insured driver did not owe the claimant a duty of care and that he denies that he breached any duty of care he owed the claimant.

8. On 22 March 2024, the insurer denied liability for the common law damages claim on the basis that the incident as alleged does not satisfy the definition of a motor accident pursuant to s 1.4 of the Motor Accident Injuries Act 2017 (MAI Act).

9. The claimant referred his claim for damages to the Personal Injury Commission (Commission) for assessment, and now is seeking an exemption from assessment under s 7.34(1)(b) of the MAI Act. The claimant has made submissions as follows:

   (a)    as a result of the alleged accident, the claimant fractured the right wrist. The claimant submits it is likely that the claimant would satisfy the definition of a non-threshold injury and as such he would be likely qualified to receive common law damages in connection to the CTP claim;

   (b)    the claimant's view is that the matter should be determined to be unsuitable for assessment so that he can commence proceedings in the District Court of New South Wales against the multiple defendants;

   (c)    the circumstances of the incident also give rise to a complex legal issue which will be unsuitable to be dealt with in the Commission. The number of defendants would involve multiple expert liability and medical witnesses. The claim would benefit from the court’s jurisdiction to obtain subpoena documents, and

   (d)    furthermore, there is likely to be an overlap in damages as a public liability claim as the claimant would seek damages for past and future treatment expenses, past and future economic loss, past and future domestic assistance, and pain and suffering while the CTP claim will enable the claimant to obtain past and future economic loss and potentially noneconomic loss if he is assessed at over 10% whole person impairment.

10. The insurer consents to the application to exempt this claim from assessment.

Statutory framework

1. This is set out in Appendix A. The relevant legislation and rules are s 7.34(1)(a) MAI Act and rule 99 of the Personal Injury Commission Rules (PIC Rules).

Determination

1. My task is to make a preliminary assessment of the claim and determine whether the claim is not suitable for assessment under Div 7.6 of the MAI Act: s 7.34(1)(a). The word “suitable”, in this context is to be given its natural an ordinary meaning, namely: such as to suit; appropriate, fitting, becoming.[1] 

   [1] IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J at [27].

2. On the available evidence to which I have referred to above, I am satisfied that the claim involves complex issues relating to liability, and damages.

3. The application for exemption satisfies PIC Rule 99 considerations because it is complex, and the claimant seeks to proceed against one or more non-CTP parties.

4. I consider that in these circumstances a court hearing is more likely to result in the just, quick, and cost-effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under Division 7.6 of the MAI Act.

5. Not being able to summon witnesses or apply the rules of evidence would also hamper assessing this claim in the Commission. A court hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment with a court hearing.[2]

   [2] Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43].

6. I have made a preliminary assessment of the claim, taken into consideration the objects of the Personal Injury Commission Act 2020 (PIC Act), and considered the claim’s issues. I conclude that the claim is not suitable for assessment under Division 7.6 of the MAI Act and recommend that the President exempt this claim from assessment.

7. 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 12 September 2024, approved Member Terence O’Riain’s recommendation that the claim is not suitable for assessment.

Appendices

Appendix A

The application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision is, relevantly, in the following terms:

“7.34 Claims exempt from assessment

(1) A claim is exempt from assessment under this Division if—

(a) ..., or

(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.

(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”

Rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules) applies to the application. The rule is in the following terms:

“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.”

Procedural Direction MA5 applies to the application for exemption.