Golding v NRMA - [2021] NSWPIC 98

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Golding v NRMA Insurance Limited [2021] NSWPIC 98
Claimant:	Courtney Golding
insurer:	NRMA Insurance Limited
Member:	Susan McTegg
DATE OF decision:	13 December 2021
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment application; whether claimant had used “best endeavours’ to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act, 2017; meaning of “best endeavours”; prior offer conveyed by insurer indicated sufficient evidence to make assessment of claim; claimant put insurer on notice of need to protect limitation period; Foster v Hall considered; Held- “best endeavours” not mean necessary for offers to be exchanged; duty not impose an obligation on claimant to disregard her own interests; “best endeavours” places obligation on claimant to facilitate an opportunity for settlement discussions; claimant did what she reasonably could in circumstances to settle the claim; application to dismiss application declined.

INTRODUCTION

Courtney Golding (the claimant) is a 31-year-old woman who sustained injury in a motor vehicle accident on 11 September 2018.
The claimant filed an application for common law damages in the Personal Injury Commission on 10 September 2021.
Liability for the common law claim was admitted by the insurer on 22 March 2021.
I am asked by the insurer to dismiss the application on the basis the claimant had filed the application in an attempt to preserve the three-year limitation period, but in doing so had failed to discharge her obligations pursuant to s 7.32 of the Motor Accident Injuries Act 2017 (MAI Act) . Section 7.32(3) states that parties to a claim must use their best endeavours to settle the claim before referring it for assessment.
The claimant opposes the application for dismissal.

TRANSITIONAL PROVISIONS

The Personal Injury Commission (PIC) commenced operation on 1 March 2021, and I am a member of the Motor Accidents Division of the PIC.
Clause 14A(1) of the Personal Injury Commission Regulation 2020 designates this application pre-establishment proceedings and cl 14D empowers me to assess the claim.
Because of the date of the accident, cl 14D(3)(b) provides that the MAI Act), the Motor Accident Injuries Regulation and Chapter 7 of the Motor Accident Guidelines continue to apply.

THE RELEVANT LAW

Division 7.6 of the MAI Act relates to claims assessment.
Section 7.32(3) of the MAI Act provides:
“Parties to a claim must use their best endeavours to settle the claim before referring it for assessment under this Division.”

PROCEDURAL HISTORY OF THE CLAIM

In submissions dated 4 October 2021 the insurer provided a chronology of events. The claimant provided a chronology of events in submissions uploaded to the portal on 29 November 2021.
It is agreed arrangements were made for the parties to engage in settlement discussions on 21 April 2021. On that date the insurer asserts the claimant’s legal representative made one attempt to contact their office and thereafter failed to engage or return any of the insurer’s phone calls and no offers of settlement were exchanged. The claimant on the other hand states the insurer…

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.

Continue reading Golding v NRMA

Details

AGLC: Golding v NRMA Insurance Limited [2021] NSWPIC 98
Case: [2021] NSWPIC 98
Decision Date: 13 December 2021

CaseChat Overview and Summary

In the matter of Golding v NRMA, the claimant sought to have her motor accident claim assessed under section 7.32 of the Motor Accident Injuries Act, 2017. The defendant insurer, NRMA, argued that the claimant had not used her best endeavours to settle the claim before seeking assessment, and thus the application should be dismissed. The dispute was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was the interpretation of the phrase "best endeavours" as it appears in section 7.32(3) of the Act. The court was required to determine what efforts the claimant was obliged to make to settle the claim before referring it for assessment. The court considered whether the phrase "best endeavours" imposed a requirement for offers to be exchanged or if it simply required the claimant to facilitate an opportunity for settlement discussions.

The court found that "best endeavours" did not mean that offers needed to be exchanged. Rather, it placed an obligation on the claimant to facilitate an opportunity for settlement discussions. The court held that the claimant had done what she reasonably could in the circumstances to settle the claim. The insurer's prior offer provided sufficient evidence for the court to make an assessment of the claim and the claimant's actions put the insurer on notice of the need to protect the limitation period. The court considered the decision in Foster v Hall, which held that the duty of best endeavours does not impose an obligation on the claimant to disregard their own interests. The court declined the application to dismiss the claimant's application for assessment.

In conclusion, the court held that the claimant had satisfied the requirement of "best endeavours" and that the application to dismiss the assessment application should be declined. The court found that the claimant had acted reasonably in the circumstances and that the insurer's prior offer provided sufficient evidence for the court to make an assessment of the claim. The court did not impose an obligation on the claimant to disregard her own interests and held that the phrase "best endeavours" placed an obligation on the claimant to facilitate an opportunity for settlement discussions.

Orders