Dennis v Transport Accident Commission

[2024] NSWPIC 288

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dennis v Transport Accident Commission [2024] NSWPIC 288
CLAIMANT:	Karren Dennis
INSURER:	Transport Accident Commission
MEMBER:	David Ford
DATE OF DECISION:	14 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; recommendation claim not suitable for assessment; claimant’s son sustained a severe traumatic brain injury with multiple orthopaedic injuries whilst a passenger in a motor vehicle; claimant has commenced a mental harm claim; the son’s claim has been exempted from the Commission based on lack of legal capacity and has been commenced in the jurisdiction of the District Court; claimant will be acting as the tutor for the son in those proceedings; submitted the two related claims should be determined together by the District Court; submitted on behalf of the claimant the matter should be exempted on discretionary grounds; Held – the matter be exempted under section 7.34 (1)(B) on the grounds the claim involves issues of liability, including contributory negligence, fault or causation; Rule 99(3)(b) of the Personal Injury Commission Rules 2021; a claimant or witness considered by the Commission to be a material witness resides outside the State; Rule 99(3)(c); recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT

BACKGROUND

1. On 23 January 2021, the son of the claimant, Robert Brennan- Dennis, sustained a severe traumatic brain injury and multiple orthopaedic injuries in a single vehicle accident in which he was a passenger in the vehicle. The claimant has commenced this mental harm claim, as she has experienced psychological injury because of the serious injuries sustained by her son. A claim has been commenced by Robert Brennan- Dennis and the claimant has been certified as  the appointed representative by the Personal Injury Commission in relation to that claim. Since Robert Brennan- Dennis is suffering from a traumatic brain injury, an application was made to the Commission for the exemption of his claim based on lack of legal capacity. The insurer, the Transport Accident Commission, consented to the application and the Commission issued an exemption certificate on 25 January 2024. I have been advised by Senior Counsel for the claimant, proceedings will shortly be commenced in the District Court, if not already issued and the claimant will be acting as the tutor for those proceedings, ...

2. Senior counsel for the claimant has submitted the 2 related claims should be determined together by the District Court. Senior counsel submits there may be allegations of contributory negligence and it is sensible for all such allegations arising from the same accident, to be heard together in the same forum. Accordingly Senior counsel submits the matter should be exempted on discretionary grounds.

3. I stated in my preliminary conference report dated 25 March 2024, the solicitor for the insurer advised she was no longer instructed to proceed with the application for dismissal pursuant to the submissions regarding non-compliance with section 7.32(3) of the Act. Furthermore, on 27March 2024, the solicitor for the insurer lodged a message on the portal stating the insurer consented to the claimant’s discretionary exemption application.

4. I note the matter can be exempted under section 7.34(1)(b) of the MAI Act on the following grounds:

   (a) the claim involves issues of liability, including contributory negligence, fault or causation
   (rule 99(3)(b) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules)); and

   (b) a Claimant, or witness, considered by the Commission to be a material witness, resides outside the State (rule 99(3)(c) of the PIC Rules).

5. I recommend the matter be exempted because in the interest of justice, both claims should be determined concurrently in the jurisdiction of the District Court. I agree with the submission by Senior counsel,  having regard the claimant's son’s gross level of disability, the claimant will be a substantive witness in the son’s proceedings in the District Court and, having regard to her own psychiatric condition, the claimant should not be put through the trauma of giving evidence ,once in the Commission, and again in the District Court in her son’s proceedings,.

Relevant Legislation

1. Sub-section 7.34 (1)(a) provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.

2. Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.

3. Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:

4. 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.

1. In this case a number of considerations listed in clause 99 are relevant.

2. The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the PIC Act and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be:accessible, professional and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.

1. In making my findings, I am also mindful of other relevant consideration listed in rule 99 including that the claim potentially involves:

   ·complex legal or factual issues;

   ·issues of liability, including issues of contributory negligence, fault or causation; and

   ·whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State.

2. Although I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.

Determination

1. In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:

   ·the objects of the PIC Act set out in section 3 which include the quick, cost effective, just, and informal resolution of disputes;

   ·the claim involves potential issues of about liability or contributory negligence and conflicting evidence about how the accident occurred ;and

2. I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI  Act.

3. I recommend that the claim be exempt from assessment by operation of sub-section 7.34(1)(b) of the MAI Act and clause 99 of the PIC Rules.

4. 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 5 June 2024, approved Member Ford’s recommendation that the claim is not suitable for assessment.