Insurance Australia Limited t/as NRMA Insurance v Cahill

[2024] NSWPIC 619

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Cahill [2024] NSWPIC 619
CLAIMANT:	Raymond John Cahill
INSURER:	NRMA
MEMBER:	Gary Victor Patterson
DATE OF DECISION:	4 November 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for discretionary exemption from assessment pursuant to rule 99 of the Personal Injury Commission Rules 2021; the claimant was a pillion passenger on an unregistered and uninsured dirt bike being driven on a public dirt road in NSW; the driver of the bike lost control and crashed into an embankment; claimant was not wearing a helmet; rider of the bike was not licensed; claimant suffered severe traumatic brain injury; rider admitted to Police that he was under the influence of alcohol and cannabis; claimant, uninsured bike rider and bike owner all reside outside NSW; all relevant witnesses need to be compelled to give evidence; insurer’s application for discretionary exemption from assessment; application supported by claimant who conceded that a Court is the proper forum to determine the complex factual legal and medical issues for determination; no evidence that claimant lacked capacity; Held – recommendation that claim be exempted from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

1^ST TELECONFERENCE REPORT – GENERAL ASSESSMENT

BACKGROUND

This determination relates to an application for discretionary exemption from claims assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the Act).

1. The application for discretionary exemption is made by the insurer and is supported by the claimant.

2. The claimant is a male aged 37 years who was injured on 4 October 2020. He was the pillion passenger on an unregistered racing motocross, or dirt bike, ridden by Dylan Summerell (the insured driver) eastwards on Stewarts Crossing Road, Marlo NSW, a public dirt road, when Mr Summerell lost control of the bike, crossed to the incorrect side of the road and collided with an embankment.

3. The bike was unregistered and uninsured. The insurer submits, based upon Police material, the bike was not designed to carry a pillion passenger. Mr Summerell, then aged 17 years, had never been licensed and admitted to Police he had consumed alcohol and was smoking cannabis, of which the claimant was aware.

4. The claimant was not wearing a helmet. He sustained a severe traumatic brain injury causing hemiplegia on the left, and injuries of the cervical and lumbar spine, as well as significant lacerations, particularly of the right arm.

5. The claimant had experienced a number of traumatic injuries prior to the accident, including traumatically induced blindness, and another pre-accident head injury. The treating records note he has disclosed a strong history of Motor Neurone Disease on both sides of his family which may be genetic.

6. The claimant, the insured driver and the owner of the dirt bike all reside in the Australian Capital Territory. The claim is brought in New South Wales as the accident occurred in this State. All of the relevant witnesses will need to be compelled to give evidence.

7. Mr Edmonds said there is no evidence the claimant lacks legal capacity. There is no Guardianship order in place. Mr Edmonds says that the claimant can properly instruct him with assistance. Mr Edmonds is comfortable to proceed without a Tutor being appointed.

8. Nevertheless, for the reasons that had been summarised, the claimant supports the insurer’s exemption application. The claimant agrees that this claim is not suitable for damages assessment by the Commission and should be exempted on discretionary grounds. The claimant further concedes that a Court is the proper forum to determine the complex, factual, legal and medical issues in this case.

CONCLUSION

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment. I recommend to the Division Head that it be exempted from assessment.

2. 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 7 November 2024, approved Member Gary Victor Patterson’s recommendation that the claim is not suitable for assessment.