Gordon v QBE Insurance (Australia) Limited
[2024] NSWPICMP 730
•9 October 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Gordon v QBE Insurance (Australia) Limited [2024] NSWPICMP 730 |
| CLAIMANT: | Joshua Gordon |
| INSURER: | QBE Insurance (Australia) Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 9 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant’s sister died in a motor vehicle accident; claimant advised of death; the dispute related to whether the claimant sustained threshold injuries and the extent of any permanent impairment; prior history of psychological symptoms; Medical Assessor found no psychological injury caused by motor accident; Medical Review Panel (Panel) required to re-examine to determine issue; claimant failed to attend medical examinations, failed to explain his non-attendance and did not respond to direction from Panel; claimant’s solicitor advised that they had lost contact; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; Held – application for review of the medical assessment dismissed pursuant to section 54 of the Personal Injury Commission Act due to the failure to prosecute the proceedings with due dispatch. |
| DETERMINATIONS MADE: | 1. The claimant’s application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act 2020. |
REASONS
BACKGROUND
Mr Joshua Gordon (the claimant) alleged that he suffered psychological injury caused by a motor accident on 28 September 2018.
The claimant’s sister and another occupant were killed in the motor accident. The claimant was informed of the death of his sister by his parents whilst in a rehabilitation facility.
The insurer is liable to pay to Mr Gordon any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
THE MEDICAL DISPUTE
The issues in dispute are whether the claimant suffered a threshold psychological injury within the meaning of the MAI Act and the extent of the degree of permanent impairment. Pursuant to Schedule 2, cl 2(a) and (e) of the MAI Act, various matters are declared to be a medical assessment matter including “the degree of permanent impairment of the injured person caused by the motor accident” and “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. There was no change by the MAI Amendment Act to the definitions of threshold injury and minor injury.When the medical dispute was determined by the original Medical Assessor, the term was “minor injury” rather than “threshold” injury.
THE MEDICAL ASSESSMENT
The medical assessment matters were referred to Medical Assessor Samuell who issued a Medical Assessment Certificate dated 21 December 2022 (the medical assessment certificate).
The Medical Assessor noted that the claimant suffered a significant pre-existing history of psychological disorder but that “there was no suggestion from those contemporaneous records that there was any new condition attributable to the subject accident”.
Medical Assessor Samuell opined that the claimant suffered from chronic schizophrenia that was in remission and there was no psychological injury caused by the accident. As there was no finding of injury, there is no need to undertake an assessment of permanent impairment.[2]
[2] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161.
THE REVIEW
An application for referral of the medical assessment to a review panel was made by the claimant on 17 January 2023, that is within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate then referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act; determination dated 16 February 2023.
The Panel issued a direction dated 30 October 2023 calling for bundles of documents. These were provided by the parties.
On 5 March 2024 the Panel advised the parties that the claimant would be examined by both Medical Assessors on 3 June 2024.
The claimant did not attend the medical examination.
Subsequently the claimant’s solicitors wrote to the Panel advising that they had been unable to contact the claimant. The insurer wrote to the Panel on 18 July 2024 and 29 August 2024 requesting an update on the progress of the review.
On 3 September 2024 the Panel wrote to the parties noting the claimant’s failure to attend the medical examination on 3 June 2024 and the recent notification of the loss of contact with the claimant. The claimant was directed to reply by 8 September 2024 as to the future conduct of the matter and, in the absence, the matter would be referred to the Personal Injury Commission (Commission) for dismissal under s 54 of the PIC Act.
On 11 September 2024 the claimant’s solicitors advised that they were “still making further attempts to contact the claimant” and requested that the matter not be dismissed “so we can do everything within outer power to protect our client’s rights”.
There was no further communication from the claimant’s solicitors.
The matter was then referred to me in late September 2024 and the following direction was issued on 1 October 2024:
“The application for review has been forwarded to me for determination of whether the application should be dismissed because the claimant has failed to prosecute the proceedings with due dispatch. pursuant to s 54(c) of the Personal Injury Commission Act, 2020 (PIC Act) and Rule 77(b) (iii) of the Personal Injury Commission Rules.
The parties are referred to the email from the Panel dated 3 September 2024 and the response from the claimant’s solicitors dated 11 September 2024 stating that they were ‘still making further attempts to contact the claimant’.
The claimant is to file any submissions and/or evidence by close of business 7 October 2024 why the application for review should not be dismissed pursuant to s 54 of the PIC Act including responding to the factual contentions of delay raised in the Panel’s previous email.”
The claimant did not respond to this direction.
FINDINGS
Section 54 of the Personal Injury Commission Act 2020 (the PIC Act) applies to panel review proceedings[4] and relevantly provides that that the proceedings may be dismissed if:
“(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
[4] See Rule 127 (1)(d) of the PIC Rules.
Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due dispatch”.
Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
I am conscious that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the applicant’s case is taken at its highest: General Steel Industries Inc v Commissioner for Railways (NSW).[5] General Steel was applied in Perera v Genworth Financial Mortgage Insurance Pty Ltd[6] when Leeming JA stated:[7]
“But for present purposes, two matters are clear. One is that common to all the various formulations is the need for ‘exceptional caution’, as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.”
[5] [1964] HCA 69; (1964) 112 CLR 125 (General Steel) at [129].
[6] [2017] NSWCA 19.
[7] (at [30], Macfarlan and Simpson JJA agreeing).
Those comments were in part directed to dismissal where the claim lacked substance. However, I accept that similar caution should be applied in dismissing an application for failing to prosecute.
The claimant, who was represented by solicitors at all material times, has failed, without any explanation, to attend a medical examination in June 2024. Since that time the claimant has not adequately responded to directions concerning the prosecution of the review application. The claimant was given a further opportunity by the Panel in early September 2024 and by me last week.
I am satisfied that the application for review of the medical assessment cannot proceed given the claimant’s lack of compliance. There has been significant non-compliance with directions from the Panel and me extending over several months. The claimant was at all times represented by a firm of solicitors who indicated that they could not contact the claimant.
I am satisfied that applicant has breached Rule 77(b)(ii) and (iii) of the PIC Rules by failing, without reasonable excuse, to comply with a direction (attend the medical examination) and has failed to prosecute the proceedings with due dispatch.
The claimant was on notice that the proceedings may be dismissed due to the failure to prosecute the proceedings with due dispatch. The claimant was also given a further opportunity to place evidence before me as to the prosecution of the review. Given the extensive delay and the failure by the claimant to respond to recent directions indicating an availability and readiness to prosecute the review, I conclude that the proceedings should be dismissed.
0
4
0