Dryden v Transport Accident Commission
[2025] NSWPIC 363
•2 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dryden v Transport Accident Commission [2025] NSWPIC 363 |
| CLAIMANT: | Jasper Dryden |
| INSURER: | Transport Accident Commission |
| SENIOR MEMBER: | Susan McTegg |
| DATE OF DECISION: | 2 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant sustained injury in a motor vehicle accident; application for assessment of damages filed in Personal Injury Commission (Commission); insurer sought dismissal of claim on basis claimant did not use “best endeavours” to settle claim before referred for assessment; claim for damages served on TAC; claimant served schedule of damages and request for settlement conference; same day application for assessment of common law damages filed in Commission; Held – term ‘must’ in section 7.32(3) was mandatory; where claimant had not particularised claim, had not served evidence in support of claim, and where insurer not given opportunity to participate in settlement conference before application filed, the claimant had not taken steps which a prudent, determined and reasonable person acting in his own interest would take to achieve a settlement; proceedings dismissed in accordance with section 54(b) of the Personal Injury Commission Act 2020. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 7.32(3) the claimant has failed to use his best endeavours to settle the claim before referring it for assessment. 2. The proceedings are dismissed in accordance with 54(b) of the Personal Injury Commission Act, 2020. |
reasons for decision
INTRODUCTION
Jasper Dryden (the claimant) sustained injury on 11 April 2022. He was injured in a work accident when in the course of his employment, he was standing in the back of a tipper truck loading site fencing. It is alleged that the driver commenced moving the truck while he was still in the tray, causing 640kg of fencing to crush him against the wall of the tray.
The claimant has received workers compensation payments.
The claim for damages was lodged on 22 February 2025. The claimant filed an Application for an assessment of common law damages on 8 April 2025 to protect the three-year limitation period. The claimant asks that the matter be referred to the Stood Over List.
Transport Accident Commission (TAC) (the insurer) is the relevant insurer with liability to pay any common law damages to the claimant under the Motor Accident Injuries Act, 2017 (MAI Act).
The insurer submits that the Application for Assessment of Damages should be dismissed as the claimant has not complied with s7.32(3) of the MAI Act.
THE RELEVANT LEGISLATION
Section 7.32(3) of the MAI Act provides:
“(3) Parties to a claim must use their best endeavours to settle the claim before referring it for assessment.”
TELECONFERENCE ON 26 MAY 2025
Mr Dawod appeared for the claimant and Ms Miller appeared for the insurer.
The insurer submits whilst the claimant has provided broad particulars of the claim, he has not served medical evidence, financial records or statements. The information is insufficient to enable the insurer to determine liability or consider making an offer of settlement.
In discussion it became apparent that the claimant was not aware that documentary evidence which may have been served on either the insurer in the statutory benefits claim, or the insurer in the workers compensation claim had not come to the attention of TAC, the common law insurer. Whilst the claimant had provided a Schedule of Damages totalling more than $1.7 million no supporting evidence had been served other than one medical certificate.
The insurer submitted it is well settled that the Personal Injury Commission (Commission) has power to dismiss claims for non-compliance with s7.32(3) of the MAI, which mandates that parties to a claim must use their best endeavours to settle the claim before referring it for assessment under Division 7.6.
I directed the claimant on or before 16 June 2025 to upload submissions in response to the insurer’s submissions seeking to dismiss the application for non-compliance with s 7.32 of the MAI Act.
I indicated thereafter I would determine the dispute on the papers. I informed the parties if the application is not dismissed, I will refer the matter to the Stood Over List.
INSURER’S SUBMISSIONS
The insurer uploaded submissions dated 28 April 2025 with the Reply.
In the context of this claim, in order to advance settlement, the insurer submits a prudent person in the position of the claimant could, and should, have:
(a) lodged the compulsory third party (CTP) claim in a timely matter;
(b) organised any necessary medico-legal examinations in a timely matter, and
(c) provided full particulars of the claim to enable an offer of settlement to be made.
The insurer submits the dismissal power is found in s 54(b) of the Personal Injury Commission Act, 2020 (PIC Act) which provides the commission may at any stage dismiss proceedings if it is satisfied that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”.
The insurer notes it is possible that non-CTP parties are wholly or partly liable for the accident, given the circumstances. The insurer submits the claim for damages was lodged on 22 February 2025 and other than providing broad particulars of the claim the claimant has not served medical evidence, financial records of statements. The insurer argues the information is insufficient to enable the insurer to determine liability or consider making an offer of settlement.
The insurer submits that s 7.32(3) mandates that parties to a claim must use their best endeavours to settle the claim before referring it for assessment under Division 7.6
The insurer submits that the obligation to use best endeavours is measured by what is reasonable in the context and refers to the summary provided by Member Williams in Mammone v Insurance Australia Limited trading as NRMA[1] and again in Leary v AllianzAustralia Insurance Limited[2] where he stated:
“The insurer contends for a construction of s 7.32(3) on the basis that the obligation to use ‘best endeavours’ requires a party to act honestly, reasonably and make a positive effort to settle the claim before referring it for assessment even where success is unlikely.
I agree with the construction of s 7.32(3) contended for by the insurer. In my view, it allows the flexible application of the provision on a case by case basis and in a manner that is consistent with the objects of the MAI Act. In particular, I consider that this construction furthers the stated object of encouraging the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes. It does this by requiring the parties to take reasonable steps to settle the claim before referring it for assessment.”
[1] Mammone v Insurance Australia Limited t/as NRMA [2021] NSWPIC 501.
[2] Leary v Allianz Australia Insurance Limited [2022] NSWPIC 436.
The insurer referred to Joseph Street Pty Ltd v Tan[3] where the court interpreted “best endeavours” as requiring a party to:
(a) do all it can reasonably do to act in the same manner as a reasonable and prudent party would act if it was acting in its own interests to achieve a certain object;
(b) do the acts required to achieve the object with the same vigour expected of a party attempting to secure its own interests until the party reasonably considers that further attempts to achieve the object of the obligation would have a remote chance of succeeding, and
(c) within reason, act in a manner so as to leave no stone unturned to achieve the object.
[3] Joseph Street Pty Ltd v Tan [2012] VSCA 113; (2012) 38 VR 241.
The insurer submits that nothing in s 42(5) of the PIC Act:
“…requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation and in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions”.
Given the use of the word “must” in s 7.32(3) the insurer submits the legislature clearly considered the requirement to use best endeavours to resolve a claim prior to lodgement to be integral to the scheme.
The insurer submits the scheme is designed to operate to ensure the risk of not being able to bring proceedings by encouraging the early resolution of claims by way of timely preparation and negotiation.
CLAIMANT’S SUBMISSIONS
The claimant provided submissions dated 16 June 2025.
The claimant outlines the following background to the application:
· the file was transferred to the solicitor for the claimant Mr Dawod on 11 February 2025;
· the claimant has a concurrent workers compensation claim;
· on 11 February 2025 the claimant sought advice from counsel regarding the appropriate jurisdiction for the proceedings given the vehicle involved bore Victorian registration plates, albeit the accident occurred in New South Wales;
· on 11 February 2025 counsel confirmed jurisdiction lies within New South Wales;
· on 11 February 2025 the claimant was provided with the relevant forms, namely, an Application for Personal Injury Benefits and an Application for Damages under Common Law;
· on 18 February 2025 the Application for Personal Injury Benefits and the Application for Damages under Common Law were lodged via email on CTP Assist;
· on 25 February 2025 Mr Dawod received advice the claim had been transferred to QBE Insurance (Australia) Limited (QBE);
· on 2 March 2025 Mr Dawod received an email confirming TAC would manage the common law claim and that the Application for Damages under Common Law should be lodged directly through [email protected];
· on 6 April 2025 the Application for Personal Injury Benefits and an Application for Damages under Common Law were served on TAC via email;
· on 7 April 2025 TAC requested details of the vehicle’s registration number and the location of the incident. Those details together with the workers compensation claim details, were provided the same day;
· on 8 April 2025 the claimant served a Schedule of Damages together with a letter requesting available dates for a settlement conference with TAC and QBE. The claimant’s lawyer advised the limitation period was nearing expiry and that an Application was to be filed in the Personal Injury Commission seeking to have the matter referred to the Stood Over List, and
· on 9 April 2025 TAC advised a determination on the claim was due by 7 July 2025.
The claimant submits the matter is factually and legally complex with early consideration given to a potential public liability claim against the occupier of the warehouse.
The claimant submits that no prejudice has been suffered by TAC. However, dismissal of the Application would prejudice the claimant particularly in the context of the limitation period and where TAC is yet to determine liability.
The claimant submits he acted reasonably in filing the Application to protect his position and in seeking referral to the Stood Over List to enable the parties time to prepare the claim properly.
CONSIDERATION
In accordance with s 52(3) of the PIC Act and Procedural Direction PIC2 I am satisfied that sufficient information has been supplied to the Commission and I consider it appropriate to determine the matter on the papers.
I am satisfied s 54(b) of the PIC Act provides the power to dismiss claims for failure to comply with s7.32(3) of the MAI Act on the basis the proceedings “are otherwise misconceived or lacking in substance”. To conclude otherwise would make s 7.32(3) futile. That is clearly not the intention of the legislature.
In considering what is meant by best endeavours I agree with the approach taken by Senior Member Williams in Mammone[4] and Leary,[5] that is, that the provision should be considered on a case-by-case basis and in a manner consistent with the objects of the MAI Act including encouraging the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
[4] Mammone v Insurance Australia Limited t/as NRMA [2021] NSWPIC 501.
[5] Leary v Allianz Australia Insurance Limited [2022] NSWPIC 436.
As I said in Golding v Insurance Australia Limited trading as NRMA Insurance[6] what was required of the claimant was that he do all he reasonably could in the circumstances to attempt to achieve a settlement of his claim, or to take steps which a prudent, determined and reasonable person acting in his own interests and desiring to achieve a settlement would take.
[6] Golding v Insurance Australia Limited trading as NRMA Insurance [2021] NSWPIC 98.
The use of the term ‘must’ in s 7.32(3) means that it was mandatory for the claimant to use best endeavours to resolve the claim before referring it for assessment.
Unfortunately, other than service of a schedule of damages conveying broad particulars of the claim the claimant had not served any medical evidence (other than one medical certificate), financial records or statements. The information was insufficient to enable the insurer to determine liability or to consider making an offer of settlement.
Whilst relevant evidence may have been served on the workers compensation insurer the common law claim for damages was against TAC. This meant the claimant was required to attend to preliminary matters relating to claims in accordance with Divisions 6.3 and 6.4 of the MAI Act. The obligation to act in good faith in s 6.3 required the claimant to disclose all relevant information (including reports by health professionals) in a timely manner and a duty to do all things reasonably necessary to facilitate the resolution of any dispute. Section 6.25 required the claimant to provide all relevant particulars about his claim for damages. Providing particulars requires more than service of a schedule of damages but also requires the provision of particulars of the claim the insurer is required to meet, and the evidence relied upon by the claimant in support of that claim.
The claimant wrote to TAC on 8 April 2025 requesting dates for a settlement conference without having particularised the claim and where the insurer had not determined liability and, in fact, was not required to determine liability until 7 July 2025, whilst on the same date the claimant filed an Application for an assessment of common law damages. Not only had the claim not been particularised but the insurer was not given an opportunity to enter into settlement discussions before the claim was referred for assessment as required by s 7.32(3).
Whilst the claimant argues the insurer is not prejudiced on the basis the claim may be referred to the Stood Over List, prejudice is not a relevant consideration given the mandatory nature of the term ‘must’ as it appears in the provision.
I understand the claimant was concerned to protect the limitation period but note the provisions of s 6.32 of the MAI Act provides an opportunity for a claimant to commence court proceedings after the three-year limitation period has expired subject to the requirements set out in s 6.32(3).
Whilst I support a flexible application of the provision on a case-by-case basis as proposed by Senior Member Williams it is still necessary to establish that the claimant, acting in the same manner as a reasonable and prudent party would act had done all he could reasonably do to achieve settlement of the claim.
In failing to particularise the claim and to serve on TAC the evidence relied upon in support of the claim it is clear the claimant has not taken steps which a prudent, determined and reasonable person acting in his own interest would take to achieve a settlement.
It is not necessary that settlement be achievable to establish that the requirement to use ‘best endeavours’ has been met but it is necessary that the claimant has taken reasonable steps to particularise the claim including the service of evidence with a view to resolving the claim before referring it for assessment.
CONCLUSION
For the purposes of s 7.32(3) the claimant has failed to use his best endeavours to settle the claim before referring it for assessment.
The proceedings are dismissed in accordance with s 54(b) of the PIC Act.
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