Horton v AAI Limited t/as GIO
[2024] NSWPIC 382
•25 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Horton v AAI Limited t/as GIO [2024] NSWPIC 382 |
| CLAIMANT: | John Horton |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 25 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Personal Injury Commission Act 2020 (PIC Act); application for damages; dismissal; best endeavours; guiding principle; claimant sought referral to stood over list; Personal Injury Commission (Commission) required to give effect to guiding principle to facilitate the just, quick and cost effective resolution of the real issues in the proceedings; insurer asked for proceedings to be dismissed; insurer still investigating liability; parties have not used best endeavours to settle claim before referring for assessment; Held – Commission has jurisdiction and functions conferred on it by MAI Act which requires parties to use best endeavours to settle claim before referring for assessment; claim not ready to proceed; no need to protect limitation period where proceedings not filed within three years of date of accident; proceedings dismissed under section 54 of the PIC Act. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36 of the Motor Accident Injuries Act 2017 1. The proceedings are dismissed in accordance with s 54 of the Personal Injury Commission Act 2020. |
STATEMENT OF REASONS
INTRODUCTION
The claimant sustained injury in a motor vehicle accident on 27 December 2020.
The claimant lodged an application for common law damages on 10 January 2024. The insurer issued a liability notice dated 9 April 2024 denying liability while investigations were pending.
The application for an assessment of damages was filed in the Personal Injury Commission (Commission) on 22 April 2024.
INSURER’S SUBMISSIONS
The insurer uploaded submissions dated 9 May 2024 with the Reply.
The insurer submits the application for assessment of damages was lodged prematurely and ought to be dismissed.
The insurer points out that liability is yet to be determined due to outstanding investigations.
The insurer notes that outstanding material includes replies to further and better particulars and property damage records to be furnished by the claimant.
Neither party has served or obtained medico-legal evidence.
The insurer submits that s 7.32 of the Motor Accident Injuries Act 2017 (MAI Act) provides that parties to a claim must use their best endeavours to settle the claim before referring it for assessment. The parties have not done so as the insurer is still investigating liability.
The insurer submits the application filed in the Commission was already outside the three year limitation period and if ultimately court proceedings were sought to be commenced the claimant would be required to seek leave of the court pursuant to s 6.32 of the MAI Act.
Accordingly, the insurer submits it would be appropriate to dismiss the proceedings and for the claimant to recommence the proceedings once the matter is ready to proceed.
PRELIMINARY CONFERENCE ON 6 JUNE 2024
Mr Yassine appeared for the claimant. He was standing in for Mr Chen who was unavailable.
Ms Woodward appeared for the insurer.
Mr Yassine asked for the matter to be referred to the stood over list on the basis investigations were ongoing and the insurer was still to decide liability. He indicated the decision as to liability was to be made by 10 July 2024.
I indicated to Mr Yassine that I was considering dismissing the application as proposed by the insurer in submissions dated 9 May 2024. Unfortunately, Mr Yassine had not seen those submissions and had not been briefed by Mr Chen about the basis of the insurer’s application.
Mr Yassine was unable to advise me whether the claimant had provided a statement, obtained any medical evidence or evidence in support of the claim for economic loss in preparation of the claim. Ms Woodward indicated no evidence had been served on the insurer.
I informed Mr Yassine s 54(b) of the Personal Injury Commission Act 2020 (PIC Act) permits proceedings to be dismissed if satisfied that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”.
Rule 77(b)(v) of the Personal Injury Commission Rules 2021 permits proceedings to be dismissed where the application is being used for an improper purpose or is otherwise an abuse of process.
I informed Mr Yassine that I would give the claimant an opportunity to file submissions in reply to the submissions filed by the insurer before deciding if it is appropriate to dismiss the proceedings.
I informed the parties if I decide not to dismiss the proceedings I will refer the matter to the stood over list.
CLAIMANT’S SUBMISSIONS
The claimant uploaded submissions dated 21 June 2024.
The claimant submitted that the matter was not ready to proceed as the insurer was yet to determine liability and where there is a pending threshold injury dispute awaiting assessment in the Commission.
The claimant refers to the guiding principle of the Commission as set out in s 42 of the PIC Act, which is to facilitate the just, quick, and cost effective resolution of the real issues in the proceedings and submits that the Commission must give effect to that guiding principle when exercising any power given to it by the PIC Act or the Commission Rules.
The claimant asks for the matter to referred to the stood over list for three months.
DETERMINATION
Whilst the guiding principle for the Commission is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings s 42(3) of the PIC Act imposes a duty on a party to proceedings in the Commission and on an Australian legal practitioner who is representing a party in proceedings in the Commission “to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission”.
Section 24 of the PIC Act provides that the Commission has the jurisdiction and functions that may be conferred or imposed on it by inter alia, the enabling legislation and under s 5 of the PIC Act enabling legislation includes the MAI Act.
Accordingly, in co-operating with the Commission to give effect to the guiding principle in s 42 of the PIC Act, parties are required to comply with the enabling legislation, in this case, the MAI Act.
Whilst the stood over list is available for referral of a matter for the following reasons:
(a) the medical dispute has not yet finalised;
(b) the claimant’s injuries have not yet sufficiently recovered to enable the claim to be quantified and the claimant is not yet ready for medical assessment;
(c) the claimant is not available to participate in medical and/or claims assessment at this time due to reasons beyond their control, for example, due to being overseas, or due to being imprisoned, and
(d) any other reason the Commission considers as relevant to the proceedings being unable to continue;
the Commission is required to take into consideration the circumstances of the claimant, the claim and the submissions of the parties when deciding to refer a matter to the stood over list.
I find that s 42 of the PIC Act does not require the Commission to refer a matter to the stood over list where the referral is not required to protect the limitation period where it had already expired at the time the application for an assessment of damages was filed in the Commission.
The MAI Act requires the parties to use their best endeavours to settle the claim before referring it for assessment and this presupposes the claim is ready and capable of assessment before referring it for assessment. In this matter the claim is clearly not ready noting the following:
(a) the application for common law damages was only lodged on 10 January 2024, even though the accident occurred on 27 December 2020;
(b) liability is yet to be determined by the insurer;
(c) the claimant is yet to reply to the insurer’s request for particulars;
(d) the insurer is awaiting receipt of the property damage file;
(e) neither party has served or obtained any medico-legal evidence, and
(f) there is a pending threshold injury dispute in the Commission.
Whilst I raised these matters with Mr Yassine on 6 June 2024 and addressed them in my preliminary conference report of the same date I have not received any confirmation that any of the following preparatory steps have been taken:
· service of the claimant’s statement;
· service of evidence in support of the claim for economic loss;
· service of any medical evidence, and
· service of any evidence at all by the claimant on the insurer.
I find that referral of the matter to the stood over list in circumstances where there is no need to protect the limitation period and where, due to the current state of preparation of the claim, it is not possible for the parties to use their best endeavours to settle the claim in accordance with the MAI Act would not facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
I note the expiry of the limitation period will not prevent the claimant from filing a further application for assessment of damages in the Commission although any subsequent court proceedings will require leave of the court pursuant to s 6.32 of the MAI Act. However, the claimant will require leave in any event where these proceedings were not filed within three years of the date of accident.
I am satisfied that these proceedings are misconceived and should be dismissed. The claimant can lodge a further application when the proceedings are ready and the parties are in a position to comply with s 7.32 of the MAI Act.
CONCLUSION
I dismiss these proceedings under s 54 of the PIC Act.
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