Dryden v Transport Accident Commission - [2025] NSWPIC 363

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Dryden v Transport Accident Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWPIC 363
Decision Date: 2 July 2025

CaseChat Overview and Summary

The case of Dryden v Transport Accident Commission concerns a claim for damages arising from a motor vehicle accident. The claimant, Dryden, filed an application for assessment of damages in the Personal Injury Commission (Commission), seeking compensation for injuries sustained. The Transport Accident Commission (TAC), the insurer, sought dismissal of the claim, arguing that Dryden did not use "best endeavours" to settle the claim before it was referred for assessment. The TAC contended that Dryden had not made sufficient efforts to settle the claim prior to filing the application in the Commission. The dispute was heard in the Personal Injury Commission.

The central legal issues before the court were whether Dryden had complied with the statutory requirement to use "best endeavours" to settle the claim before it was referred for assessment and whether Dryden's actions were in line with what a prudent, determined and reasonable person would take to achieve a settlement. Specifically, the court had to determine whether Dryden's failure to particularise the claim, provide evidence in support of the claim, and give the insurer an opportunity to participate in a settlement conference constituted a breach of the mandatory requirement under section 7.32(3) of the Motor Accident Injuries Act 2017.

The court found that the term "must" in section 7.32(3) of the Act was mandatory and that Dryden had not taken the steps required to achieve a settlement. The claimant did not particularise the claim, did not serve evidence in support of the claim, and did not provide the insurer with an opportunity to participate in a settlement conference before filing the application. These omissions were considered inadequate efforts by the claimant to settle the claim, which did not align with the expectations of a prudent, determined and reasonable person acting in their own interest. Consequently, the court concluded that Dryden had not complied with the mandatory requirement, and the proceedings were dismissed in accordance with section 54(b) of the Personal Injury Commission Act 2020.

The final orders of the court were to dismiss Dryden's application for assessment of common law damages. The court determined that Dryden had not taken sufficient steps to settle the claim before proceeding to the Commission, thereby breaching the mandatory statutory requirement to use "best endeavours" to settle. As a result, the claim was dismissed, and Dryden's application for damages was not proceeding further in the Personal Injury Commission.

Orders