Hicks v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 583
•18 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hicks v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 583 |
| CLAIMANT: | Chris Hicks |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 18 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; joint application for the claim to be exempted from assessment in accordance with section 7.34(1)(b); claimant a passenger in vehicle in which driver was killed; deceased driver’s blood toxicology showed the presence of alcohol and other stimulants; contributory negligence alleged; claimant's economic loss claim likely to involve competing forensic accounting reports; forensic accountants likely to be cross-examined on their reports; Held – claim not suitable for assessment due to the factual and legal issues that arise in the context of the contributory negligence allegation, the intention of the parties to call and cross examine lay and expert witnesses in relation to contributory negligence and damages, and the likely length of the hearing; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
Chris Hicks (claimant) was injured in a motor accident near Broken Hill on 17 July 2020 (accident). He subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). Liability for the claim has been admitted. Contributory negligence of 30% is alleged.
The claim has been referred to the Commission for assessment in accordance with s 7.32 of the MAI Act. The claimant is entitled to damages for non-economic loss. He also seeks awards for both past and future economic loss.
At the preliminary conference held on 12 September 2024 the parties made a joint application for the claim to be exempted from assessment under Div 7.6 of the MAI Act: s 7.34(1)(b). I dispensed with the requirement under Procedural Direction MA 5 for an application for exemption and reply to be lodged. I directed that on or before 4 October 2024 the parties were to lodge joint submissions in support of the application for exemption.
Neither party objected to the preliminary assessment of the claim, for the purposes of s 7.34(1)(b), being undertaken on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.
STATUTORY FRAMEWORK
The application for exemption is made under s 7.34(1)(b) of the MAI Act. Section 7.34 is relevantly in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, or
(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:
“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.”
Procedural Direction MA5 applies to the application. I have dispensed with a number of requirements under the Procedural Direction.
In determining whether the claim is not suitable for assessment I must consider the objects of the PIC Act. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules, or interprets any provision of the MAI Act or the Rules: s 42(2) PIC Act.
EVIDENCE
The evidence in the application and reply has been considered, together with the evidence annexed to the joint submissions in support of the exemption application.
The evidence includes claim forms, claim correspondence, the claimant’s statements, the police report, the Broken Hill Local Court file, treating and medico-legal evidence.
The application for personal injury benefits contains the following description of the accident:
“Passenger in motor vehicle rollover with 3 friends in remote location. Vehicle rolled several times, Driver and 1 passenger thrown from car, Driver passed away an hour or 2 after accident, and his wife was seriously injured. Remained on scene for several hours before help arrived Myself and another passenger remained in vehicle during accident…”.
The application records that the claimant suffered both physical and psychological injury as a result of the accident.
A damages claim was made by the claimant on 30 March 2022. Liability for the claim was denied on 30 June 2022, on the basis that the claimant suffered a “minor injury” (now “threshold injury”) as a result of the accident. Liability for the claim was subsequently admitted and contributory negligence alleged.
A police report dated 8 October 2020 contains the following crash summary details:
“At 12:30am July 2020 the deceased is a 47 yo male travelling in with four other persons south on the old Pooncarie road via Kinchega national Park, Menindee. Loss of control of vehicle and rolled several times. [Passenger] with serious head injury and third person with spinal injury flown from scene by RFDS. Four occupant [sic] was not injured”.
Certificates from the claimant’s general practitioner refer to a diagnosis of post-traumatic stress disorder. Dr Whetton, psychiatrist, provided a report to the claimant’s solicitors dated 17 October 2022 in which he diagnosed post-traumatic stress disorder and alcohol use disorder, which were “running a chronic course”. The doctor assessed a permanent impairment of 15% that was attributable to these conditions.
The Local Court file, which contains material associated with the coronial inquiry, has been considered.
The parties have provided signed and unsigned statements from the claimant, together with a statutory declaration. The unsigned statement taken from the claimant by an investigator on 26 August 2020 describes the circumstances leading up to, and the aftermath of, the accident.
In his signed statement dated 13 July 2023 the claimant provided background details, evidence in relation to his accident caused injuries and treatment, and his work capacity.
In his statement of 13 August 2020 Sergent Jones provided the following summary of a statement taken from the claimant:
“I was camp [sic] for the weekend with my wife and children. I have known the deceased since he and his wife took ownership of the …caravan park. I arrived late from work to the van park. Ronnie (the deceased) was already taking [sic] about going for a drive. They were all driving [sic] alcohol. …
We got in the deceased car around 11:30pm. I don’t remember the plan or what we were doing. I just got in the car. The entire trip I thought lasted about 10 to 15 minutes, and it was mostly on dirt roads.
I have no recollection of the roll over. I checked on the welfare of Ronnie and Mel…
In my opinion the cause of the accident was the headlights were very dim, the height of the car the tyres and the corner. Taking the corner too hard. I don’t believe he was being a ratbag. I don’t remember going fast at all. I remember going 110kph at one point. Most of the trip was more like 80-90kph.”
Annexed to the joint submissions is a report of Dr Dauncey, consultant pharmacologist, dated 8 July 2024. Dr Dauncey concluded that:
(a) the driver’s blood alcohol concentration (BAC) at the time of setting out to go for a drive and at the time of the crash was likely to have been about 0.176% and he would have been intoxicated. His capacity to handle the complexities of driving in a vehicle with “woeful” headlights, on a dirt road at night, sometimes at high speeds would have been severely diminished and it is unsurprising that he lost control of the car as he passed through a cattle grid on a corner. His risk of crashing would have increased more than 80-fold;
(b) most if not all of the alcohol induced impairments discussed above were likely to have been present impairing his capacity to drive safely, and
(c) the claimant had been with the driver while he was drinking during the evening and would have had a general idea of how much he’d had to drink and from this, that he would not have been under 0.05g% and that his driving would have been impaired by such a quantity. His own alcohol intake is likely to have made him less careful about his decisions.
SUBMISSIONS
The parties have lodged joint submissions in support of their application for exemption under s 7.34(1)(a) of the MAI Act. The submissions record that:
(a) the claimant was the front seat passenger in a fatal single vehicle accident where the deceased driver's blood toxicology shows the presence of alcohol and other stimulants;
(b) the claimant has served evidence that he was unaware that the driver was adversely affected by alcohol and/or other stimulants;
(c) it is likely the claimant and a number of other witnesses will be cross-examined about this issue at the hearing;
(d) the claimant and other witnesses, including the claimant's spouse, reside in Broken Hill;
(e) the insurer has alleged contributory negligence on the basis that a reasonable sober person in the position of the claimant knew or ought to have known that the insured’s ability to drive was affected by virtue of his intoxication when he agreed to voluntarily travel as a passenger in his vehicle;
(f) the insurer’s solicitors wrote to the claimant’s solicitors on 26 August 2024 and enquired as to whether the claimant accepted that the insured’s blood was tested and returned the results contained in the analytical toxicology report of Dr Allan dated 10 August 2020. The claimant’s solicitors responded on 3 September 2024 that they are not able to make the admission sought;
(g) given the claimant does not concede the analytical toxicology results the insurer is unable to prove the results at the Commission given the rules of evidence do not apply, and
(h) the insurer will require a Notice to Admit Facts in the District Court to progress that dispute.
In addition to the issues associated with the contributory negligence allegation, the joint submissions record that the claimant's economic loss claim is likely to involve competing forensic accounting reports, and that there is a high likelihood that the forensic accountants relied on by each party will be cross-examined on their reports.
For these reasons, the parties submit the claim is not suitable for assessment by the Commission.
CONSIDERATION
I am required to determine, having made a preliminary assessment of the claim, whether the claim is not suitable for assessment under Div 7.6 of the MAI Act.
The word "suitable" in this context is to be given its natural and ordinary meaning, namely: such as to suit; appropriate, fitting, becoming: IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320 at [27].
The following matters, when taken together, satisfy me that the claim is not suitable for assessment by the Commission:
(a) the factual and legal issues that arise in the context of the contributory negligence allegation;
(b) that the parties propose to call and cross examine both lay and expert witnesses in relation to contributory negligence;
(c) that the parties propose to call and cross examine expert witnesses in relation to damages;
(d) that the hearing of the matter is likely to take three to five days (or more), and
(e) the inability of the Commission to compel non-parties to attend to give evidence.
The parties should be in a position to compel witnesses to give evidence and to cross examine those witnesses. That cannot be done in the Commission, but can be done in a court. Given the contest on the facts, evidence should be given under oath. That cannot be done in the Commission. In my assessment, the mode of hearing that will further the just, quick, and cost effective resolution of the issues in dispute is a court hearing.
Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim be exempt from assessment.
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 November 2024, approved Senior Member Brett William’s recommendation that the claim is not suitable for assessment.
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