El-Dehaibi v AAI Limited t/as GIO

[2022] NSWPIC 569

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	El-Dehaibi v AAI Limited t/as GIO [2022] NSWPIC 569
Claimant:	Shaymah El-Dehaibi
insurer:	AAI Limited t/as GIO
Member:	Brett Williams
DATE OF DECISION:	13 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Proceedings purporting to refer a claim for damages for assessment were commenced by the claimant on 14 October 2021; claimant then made a claim for damages on AAI Limited t/as GIO (the insurer) on 5 November 2021, after the proceedings had been commenced; insurer submits that the proceedings ought be dismissed as there was no claim to be referred for assessment at the time of the purported referral; section 7.32 of the Motor Accident Injuries Act 2017 considered and applied; Held – as there was no claim for damages capable of being referred to the Commission on 14 October 2021 the proceedings cannot be maintained; the subsequent making of a damages claim can overcome this fact; found that the proceedings are misconceived and lacking in substance; proceedings dismissed under section 54(b) of the Personal Injury Commission Act 2020.
determinations made:	1. The proceedings are dismissed under s 54(b) of the PIC Act.

Background

1. Shaymah El-Dehaibi (the claimant) was injured in a motor accident on the Hume Highway at Bass Hill on 14 October 2018 (the accident). These proceedings, by which the claimant purported to refer a claim for damages arising from the accident to the Commission for assessment, were commenced on 14 October 2021. The claimant made a claim for damages on AAI Limited t/as GIO (the insurer) on 5 November 2021, after the proceedings had been commenced.

2. In its reply, the insurer submitted that the proceedings should be dismissed as, when the proceedings were commenced, there was no claim for damages capable of being referred to the Commission for assessment in accordance with s 7.32 of the Motor Accident Injuries Act 2017 (MAI Act).

3. The proceedings were referred to me on 10 August 2022. A preliminary conference was held on 6 September 2022. The insurer pressed its submission that the proceedings should be dismissed (the application). The parties agreed that, subject to further written submissions being provided, the application should be determined on the papers.

4. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that the application can be determined on the papers. I am satisfied that sufficient information is available in connection with the application to allow me to determine it without holding a formal hearing.

claimant’s submissions

1. The claimant’s submissions confirm that the proceedings were commenced on
   

   [1] Section 7.33 states that a party to a claim cannot refer a claim for assessment under Division 7.6 of the MAI Act more than three years after the motor accident concerned unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules.

   14 October 2021 and that a claim for damages in relation to the accident was made on the insurer on 5 November 2021. She submits that the proceedings should not be dismissed as, if they are, she would be ‘statute barred’ as a consequence of s 7.33 of the MAI Act[1].

2. The claimant submits that to dismiss the proceedings would mean that new proceedings would need to be commenced and an explanation for the delay in referring the claim for assessment provided, as required by s 7.33.

3. The submissions refer to the objects of the PIC Act, specifically s 3(c), which states that one of the objects of the PIC Act is to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. Reference is also made to the objects of the MAI Act, specifically s 1.3(2)(g), which states that an object of the MAI Act is to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.

4. The claimant submits that dismissal of the proceedings would result in her incurring unnecessary legal fees and cause an overall delay in her case.

insurer’s submissions

1. The insurer’s submissions refer to s 7.32(1) of the MAI Act, which provides that a claim for damages may be referred to the Commission by the claimant or the insurer, or both, for assessment under Division 7.6. In the insurer’s submission, the proceedings ought to be dismissed in circumstances where the claimant had not made a claim for common law damages at the time the proceedings were commenced and, accordingly, there was no claim to be referred for assessment.

Determination

1. Section 7.32 of the MAI Act is in the following terms:

   “7.32 Reference of claim

   (1)A claim for damages may be referred to the Commission by the claimant or the insurer, or both, for assessment under this Division.

   (2)(Repealed)

   (3)Parties to a claim must use their best endeavours to settle the claim before referring it for assessment under this Division.”

2. The parties agree, and I find, that these proceedings were commenced by the claimant on 14 October 2021. The parties also agree, and I find, that the claimant made a claim for damages on the insurer on 5 November 2021.

3. A claim may be referred to the Commission for assessment under Division 7.6 of the MAI Act: s 7.32(1) MAI Act. The claimant purported to refer a claim for damages in respect of the accident to the Commission on 14 October 2021.

4. The practical difficulty for the claimant is that on 14 October 2021 there was no claim for damages capable of being referred to the Commission for assessment in accordance with s 7.32(1), a claim for damages not having been made on the insurer until 5 November 2021.

5. I am conscious of the delay between the proceedings being commenced and the matter being allocated to me. I am also mindful of the objects of both the PIC Act and the MAI Act, and the effect of s 7.33 of the MAI Act. However, s 7.32(1) is in clear and unambiguous terms. I do not think that the objects of either Act, or considerations arising from the operation of s 7.33, can cure the fundamental problem that there was no claim for damages capable of being referred to the Commission for assessment on 14 October 2021. I do not think that the subsequent making of a damages claim can overcome this problem.

6. Further, s 7.32(3) of the MAI Act stipulates that parties to a claim must use their best endeavours to settle the claim before referring it for assessment under Division 7.6. When the proceedings were commenced, there was no claim in existence with respect to which the parties could use their best endeavours to settle. Accordingly, this provision, which is in mandatory terms, was not, and could not be, complied with prior to the proceedings being commenced.

1. As there was no claim for damages capable of being referred to the Commission for assessment under s 7.32(1) on 14 October 2021, I find that the proceedings are misconceived and lacking in substance.

2. The proceedings are dismissed under s 54(b) of the PIC Act.