Fasanella v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fasanella v AAI Limited t/as GIO [2024] NSWPIC 162
CLAIMANT:	Anthony Fasanella
INSURER:	AAI Limited trading as GIO
MEMBER:	Susan McTegg
DATE OF DECISION:	26 March 2024
CATCHWORDS:	MOTOR ACCIDENTS - The claimant sustained catastrophic injury in a motor vehicle accident on 1 September 2020; liability denied by the insurer; quantum of claim agreed; dispute as to liability listed for assessment on 4 April 2024; claimant sought attendance of insured driver; insured driver refused to give evidence at the assessment conference; rule 99(3) of the Personal Injury Commission Rules includes whether the claim involves issues of liability including contributory negligence, fault or causation; 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 insured driver; assessment process 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

This matter is listed for an assessment conference on 4 April 2024.
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).
Rule 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 2020 (the PIC Act) and the circumstances of the claim.
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:
“(b) whether the claim involves issues of liability, including contributory negligence, fault or causation.”

BACKGROUND

The claimant sustained catastrophic injury including traumatic brain injury and tetraplegia in a motor vehicle accident on 1 September 2020. The claimant is a participant in the Lifetime Care and Support scheme.
The insurer has denied liability for the common law claim in a notice dated 14 June 2023.
The parties have reached agreement as to the quantum of the claim. The dispute as to liability remains.
The matter was listed for a teleconference on 6 December 2023 when the matter was listed for an assessment conference on 11 March 2024. It was agreed the expert witnesses could give evidence by video link noting one of the experts is based in Melbourne. The claimant asked that the insured driver be present for questioning.
On 13 December 2023 and by consent the assessment conference was rescheduled to 4 April 2024 on the basis the claimant’s expert was not available on 11 March 2024.
On or about 6 March 2024 the insured uploaded a message to the portal indicating the insured driver Mr Michael Con had difficulties attending the assessment conference in person and seeking leave for him to give evidence by AVL.
On 6 March 2024 without ascertaining the position of the claimant I indicated I had no objection to the insured driver giving evidence by AVL.
On 12 March 2024 the claimant noted I had made a determination without giving the claimant an opportunity to respond. The claimant stated:
“The insurer has not provided any reasoning as to why the insured driver is unable to attend the assessment conference in person, particularly when ample notice has been given.
We note the facts of the matter in relation to liability are complex in this case, and in order for effective examination and cross-examination to take place, it is paramount that both the claimant and the insured driver attend the assessment conference in person.
The claimant, who is confined to a wheelchair, will be attending in person, and therefore we submit there is no reason why the insured should be afforded the luxury of providing his evidence via AVL especially when no valid explanation or reasoning has been provided to allow this occur.
We therefore strongly urge the Member to re-consider the decision to allow the insured driver to give evidence via AVL, and instead issue a Direction which requires the insured driver to be available in person.
Should the Member not be prepared to make a Direction to have the insured driver be available in person for cross-examination, then we would request the matter be set down for an urgent further teleconference with a view of re-scheduling the liability hearing to a mutually suitable date to all parties so as to ensure the insured driver is available at the Hearing.”
On 12 March 2024 I indicated I would reconsider my decision that the insured driver could give evidence via AVL instead of in person. I directed the parties to confer regarding the availability of the insured driver to attend and give evidence in person. I stated if the insured driver remained unable to attend in person I would list the matter for an urgent teleconference to discuss the reason for the inability to attend in person and to determine if it was necessary to reschedule the assessment conference.
On 15 March 2024 the claimant uploaded a message to the portal stating the claimant had been catastrophically injured and in order to receive a fair and just hearing it was of the upmost importance that both he and the insured driver attend in person for questioning. The claimant asked that a summons be issued requiring the attendance of the insured driver in accordance with s 51 of the PIC Act.
In response the insurer sought the matter be listed for an urgent preliminary conference. The insurer submitted the Commission had no power to compel the insured driver to attend the Commission and no power to issue a summons to the insured driver.
The insurer quite correctly stated:
“Whilst we agree there is the ability to issue a Summons upon an attendee under rule 56 of the PIC Rules, under s 51(2) of the PIC Act the Summons can only be issued upon a party to the proceedings, as follows:
(2) If the proceedings are allocated to the Motor Accidents Division, a summons may be issued only to a party to the proceedings.
In this respect, the insurer notes the definition of a ‘party’ under s 7.30 of the MAI Act, extends to the ‘claimant’ or ‘insurer’ only.
Accordingly, the only parties who can be compelled to give evidence by summons are the claimant and the insurer, not the insured.”
The matter was listed for teleconference on 18 March 2024. I informed the parties that the insurer had correctly stated the position; that I had no power to compel the attendance of the insured driver. I stated where the attendance of the insured driver is required it may be necessary to make an application for a discretionary exemption so the matter can proceed to a hearing in the District Court where a subpoena can be issued to compel the attendance of the insured driver.
Mr Thomson stated the insurer had an address for the insured driver Mr Con but did not have his contact details. A letter was sent to Mr Con’s address. Mr Thompson spoke to Mr Con’s daughter who asked if he had to attend for questioning. Mr Con’s daughter stated Mr Con was very traumatised by the accident and additionally he lost his wife seven months ago. When advised the insurer wished Mr Con to attend his daughter asked if he could give evidence by AVL on the basis she would be available to support him. Mr Con’s daughter was not prepared to provide his contact details and the insurer had not been able to speak to Mr Con in person.
I recommended the insurer should attempt to contact Mr Con directly to find out whether he intended to be available to give evidence in person or by AVL. If not I suggested the claimant may wish to make an application for exemption.
I made the following directions:
(a)
Mr Thomson on behalf of the insurer is to advise by close of business

19 March 2024 whether the insured driver, Mr Con agrees to give evidence at the assessment conference and whether it will be in person or by AVL, and
(b) If the claimant considers it appropriate to make an application for discretionary exemption, any application is to be uploaded to the portal by close of business on Monday 25 March 2024.
On 20 March 2024 the insurer uploaded a message to the portal stating the insured driver was not willing to participate in the assessment conference.
On 25 March 2024 the claimant uploaded submissions dated 21 March 2024 seeking the matter be exempted from assessment.
The claimant submitted the facts as they relate to liability are complex and to ensure the young claimant who has been catastrophically injured receives a fair and just hearing it is paramount that both the claimant and the insured driver be available to give evidence.
The claimant also notes both parties have commissioned reports from liability experts who have also produced a joint report. It is submitted cross examination of the expert witnesses will also be required.
The insurer has indicated it neither consents nor opposes the application for exemption.

CONCLUSION

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.
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 will facilitate evidence being given on oath in a forum where the strict rules of evidence apply.
Having regard to the complex issues of liability and the claimant’s wish to cross examine the insured driver I am not satisfied the assessment process would afford both parties a hearing which, in a practical sense, is fair.

RECOMMENDATION

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.
I vacate the assessment conference listed on 4 April 2024 at 10am.
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 4 April 2024, approved Member McTegg’s recommendation that the claim is not suitable for assessment.

[2024] NSWPIC 162

26 March 2024