Davies v Allianz Australia Insurance Limited

[2024] NSWPIC 208

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davies v Allianz Australia Insurance Limited [2024] NSWPIC 208
CLAIMANT:	Scott Anthony Davies
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Susan McTegg
DATE OF DECISION:	17 April 2024
CATCHWORDS:	MOTOR ACCIDENTS - The claimant sustained injury in a motor vehicle accident at a workplace on 20 September 2021; liability denied by the insurer due to insufficient information; claimant sought exemption under rule 99(3) of the Personal Injury Commission Rules 2021 where the claim involves issues of liability including contributory negligence, fault or causation and where a material witness resides outside the State; Held – no power to compel the attendance of witnesses in the Personal Injury Commission; complex issues of liability; court hearing provides subpoena power to secure attendance of witnesses including interstate witness; utilise subpoena power to access records; permit cross examination of witnesses; assessment process will not afford both parties a fair hearing; claim not suitable for assessment; exemption recommended; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT INTRODUCTION

1. Scott Anthony Davies (the claimant) asks that I refer the claim to the President of the Personal Injury Commission (Commission) with a recommendation that the claim be exempted from assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the MAI Act) and rule 99(3)(b) of the Personal Injury Commission Rules 2021 (the PIC rules).

2. Section 99 of the PIC Rules provides that in determining whether a claim is suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act, 2021 (PIC Act) and the circumstances of the claim.

3. In determining whether a claim is not suitable for assessment for the purposes of s 7.34(1)(b), matters the Commission may consider under rule 99(3) of the PIC Rules include the following: (a) whether the claim involves issues of liability, including contributory negligence, fault or causation, and (b) whether a claimant or witness, considered by the Commission to be a material witness resides outside the state.

THE BASIS OF THE APPLICATION

1. The claimant sustained injury on 20 September 2021. In the Application for personal injury benefits the claimant provided the following description of the accident: “I was standing at the back of the work truck in front of the back tire, working on the hydraulics. I saw the truck driver Luke walking up ahead with another work colleagues Justine. The truck then drove forward. I tried to jump out of the way but the tire ran over both my lower legs. Gael was the one who was driving it, I didn’t know he was in the truck”.

2. The insurer is still investigating liability where they are still awaiting receipt of records held by SafeWork NSW in respect to the circumstances of the accident. Liability has been denied where the insurer holds insufficient information to make a determination.

3. On 21 March 2024 the solicitor for the insurer, Holman Webb wrote to Wotton Kearney Lawyers on the basis the latter act for the claimant’s employer, capital Lines and Signs Pty Ltd. That letter states: “We also note that the SafeWork NSW (SafeWork) investigation into the circumstances of the subject accident is ongoing, and as such, SafeWork has to date declined our GIPA Applications for their records. Our client has denied liability in respect to the claimant’s claim for common law damages in view of the outstanding records from SafeWork. We take this opportunity to put you on notice that in circumstances where our client is found liable for the subject accident it will seek contribution from the employer.”

4. The claimant estimates that the hearing of the claim will take at least three days if liability and quantum are in issue between the parties.

5. The claimant anticipates the involvement of expert witnesses who will be required to give evidence and be available for cross examination.

6. The insured driver may be required for cross-examination. He lives outside the State, in the Australia Capital Territory.

7. The attending police officer/s may be required for cross examination.

8. The subpoena process may be required to obtain records from the NSW Police Force, SafeWork Australia and the workers compensation insurer.

9. Having regard to these matters the claimant submits in accordance with the objects of the Commission as set out in s 3 of the PIC Act which is to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible the claim should be exempt from assessment by the Commission.

10. The insurer has indicated it consents to the application for exemption.

CONCLUSION

1. Whilst there is no suggestion either party has made a false and misleading statement it is clear from the line of authority dealing with those cases that in determining whether a claim is suitable for assessment the question to be determined is whether both parties will be afforded a hearing which is fair having regard to the issues in dispute.

2. There is no power to compel the attendance of a witness in the Commission. A court hearing will give the claimant an opportunity to utilise the subpoena power to secure the attendance of witnesses including the insured driver and the police officer if required and will facilitate evidence being given on oath in a forum where the strict rules of evidence apply.

3. A court hearing will also permit the parties to utilise the subpoena process to secure the production of records relevant to issues of liability.

4. Having regard to the complex issues of liability and the possibility not only lay witnesses but also expert witnesses may be subject to cross examination and where the hearing may take up to three days, I am not satisfied the assessment process would afford both parties a hearing which, in a practical sense, is fair.

RECOMMENDATION

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 under s 7.34(1)(b) of the MAI Act and I recommend to the President that it be exempt from assessment.

2. I vacate the teleconference listed on 30 April 2024 at 10.30am.

3. 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 23 April 2024, approved Member McTegg’s recommendation that the claim is not suitable for assessment.