Frogson v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 250
•4 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Frogson v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 250 |
| CLAIMANT: | Sandra-May Frogson |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | David Ford |
| DATE OF DECISION: | 4 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute as to whether the claim is not suitable for assessment under Division 7.6; insurer and claimant made an application matter be exempted on discretionary basis under section 7.34(1)(b) on the grounds that the claim involves issue of liability, including contributory negligence, fault, or causation; rule 99(3)(c) of the Personal Injury Commission Rules 2021 (PIC Rules); claimant lodged a claim for common law damages in respect of serious injuries sustained in a motor vehicle accident; claimant was a front seat passenger; insurer has disputed liability and alleged contributory negligence on behalf of the claimant at 30%; the insurer submitted the matter ought to be exempted and allowed to proceed in the appropriate forum where the legal and factual complexities can be properly considered, where a binding decision can be made, and where non-party witnesses can be compelled to give evidence; Held – determined the claim is not suitable for assessment under Division 7.6; recommended the claim be exempt from assessment by operation of subsection 7.34(1)(b) and rule 99 of the PIC rules; recommendation subsequently approved by the Division Head, as the President’s delegate. |
Recommendations claim not suitable for assessment
Issued under s 7.34(1)(b) of the Motor Accident Injuries Act 2017
My preliminary assessment of the claim and I recommend to the President that:
This claim is not suitable for assessment under Division 7.6.
This claim is exempt under sub-section 7.34(1)(b) of the Motor Accident Injuries Act2017 and cl 99 of the Personal Injury Commission Rules 2021.
BACKGROUND
On 17 December 2019, the claimant was a front seat passenger in a motor vehicle being driven by the insured driver, Aaron Muller. There was another passenger in the motor vehicle, Michael Smith, who was sitting in the rear passenger seat.
The said vehicle was involved in an accident and as a result the claimant sustained the following injuries:
(a) fracture of lumbar spine at L1 with retro pulsion of bony fragments.
(b) transverse S5 coccygeal fracture.
(c) cauda equina compression with small focal haemorrhage.
(d) liver laceration.
(e) neurogenic bladder and bowel spinal cord injury, and
(f) shock and sequela.
The insurer has disputed liability and alleged contributory negligence on behalf of the claimant at 30%. The claimant, because of her injuries, is now a paraplegic but continues to reside with the brother of the insured driver.
I refer to the submissions lodged by the insurer dated 16 April 2025, which are as follows:
(a) liability is in dispute. There is a distinct likelihood that witnesses will have to be compelled to attend the hearing.
(b) two key witnesses of the motor accident (Aaron Muller and Michael Smith) were also occupants of the vehicle involved in the subject accident. The giving of evidence by Aaron and Michael may require the provision of a Certificate under s 128 of the Evidence Act 1995, being against self-incrimination and the Personal Injury Commission (Commission) does not have power to grant the certificate, whereas the District Court does.
(c) proceedings will involve various lay and professional witnesses being subpoenaed which will be further complicated due to procedural limitations of the Commission.
(d) the claimant is incontinent and refuses to travel outside of Orange. Exemption will allow proceedings to run easily in the District Court at Orange.
(e) exemption will likely obviate the necessity of a second hearing and further difficulty with logistics.
(f) it is likely that damages alleged will be significant.
(g) the District Court is a more appropriate forum for this matter, and
(h) the insurer agrees that the matter ought to be exempt from the Commission for the reasons discussed above.
Furthermore, in submissions dated 7 May 2025, the solicitor for the insurer has advised Aaron Muller has not cooperated with the insurer and it is unlikely he would attend any hearing without a subpoena.
Counsel for the claimant in further submissions dated 22 May 2025, confirmed there were difficulties in the relationship between the claimant and her partner, and there is now an AVO in place between the claimant and the driver’s brother. It is also submitted the claimant requires assistance with financial management. An order for funds management cannot be sought in the jurisdiction of the Commission.
I note the matter can be exempted under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (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)).
I determine in the interest of justice the passenger and the insured driver may give crucial evidence about the circumstances leading up to and the cause of the accident, which must be before the decision maker.
The solicitor for the insurer consents to the application for discretionary exemption.
Relevant legislation
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.
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.
Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:
“99 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.”
In this case a number of considerations listed in cl 99 are relevant.
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 Personal Injury Commission Act 2020 (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.
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.
I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.
Determination
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 s 3 which include the quick, cost effective, just, and informal resolution of disputes, and
· the claim involves potential issues about liability or contributory negligence and conflicting evidence about how the accident occurred.
I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
I recommend that the claim be exempt from assessment by operation of sub-section 7.34(1)(b) of the MAI Act and cl 99 of the PIC Rules.
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 21 July 2025, approved Member David Ford’s recommendation that the claim is not suitable for assessment.
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