Insurance Australia Limited t/as NRMA Insurance v Krajniak
[2024] NSWPIC 431
•12 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Krajniak [2024] NSWPIC 431 |
| CLAIMANT: | Peter Krajniak |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 12 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; application for discretionary exemption; claim not suitable for assessment by the Commission; court forum will resolve the dispute more justly, efficiently and effectively; a just, quick and cost effective resolution of the real issues in dispute is in a court where third party witnesses are compelled to give evidence on issues of liability, medical and quantum disputes; Held – claim not suitable for assessment pursuant to section 92(1)(b); recommendation subsequently approved by the Division Head, as Delegate of the President. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
Mr Peter Krajniak, the claimant, was involved in a motor vehicle accident on 7 November 2014.
On 10 May 2024, Insurance Australia Limited t/as NRMA Insurance (insurer) lodged an application for discretionary exemption from claims assessment in the Personal Injury Commission (Commission) which has been referred to me for consideration.
I held a telephone conference on 13 June 2024. There was no appearance on behalf of the claimant. After making enquiries with the Commission and information provided to me by the insurer’s legal representative, it appeared Mr Krajniak may not have been aware of the telephone conference.
In the preliminary conference report dated 24 June 2024, a direction was issued to the Commission to post a letter to his last known address asking him to make contact with the Commission at which time, a further telephone conference will be booked at a time and day suitable to him.
BACKGROUND
On 24 December 2014, Mr Krajniak lodged a personal injury claim form with the insurer made under the Motor Accidents Compensation Act 1999 (Act).
The insurer admitted breach of duty of care and made an allegation of contributory negligence.
The claimant has not uploaded any material to the Commission. The only documentation provided to me in making this determination is the submissions and annexures loaded by the insurer.
I was advised by the insurer that the claimant has had legal representation. However, it appears he is no longer legally represented.
From the material provided to the Commission, it appears Mr Krajniak was riding his bicycle along Carrington Road in Waverly. He was travelling in a southerly direction in the kerbside lane about 100m north of Macpherson Street.
According to the police report, the insured driver was driving along Carrington Road turning right into a side street which leads into a retirement village. The insured driver turned right into the side street over unbroken double lines at the same time the claimant was riding his bicycle south causing a collision.
Mr Krajniak fell onto the bonnet of the insured’s vehicle before falling to the roadway.
Mr Krajniak says he injured his left wrist and right forearm.
He declined an ambulance and after discussions with the insured driver and bystanders, Mr Krajniak rode his bike off towards Prince of Wales Hospital where he told them he was meeting his girlfriend.
Apparently, later in the day of the accident, the claimant attended the insured driver’s workplace and demanded money for repairs to his bicycle. In response, the insured driver suggested they both attend the local police station to report the accident. The claimant became agitated and left the workplace.
The insured driver reported the accident to Waverly Police Station the same day.
On 2 December 2014 according to the police report, Mr Krajniak attended his local general practitioner to seek treatment for his wrist and low back.
The following day, Mr Krajniak attended Paddington Police Station to report the accident. The initial police report was updated on 14 January 2015.
The insurer carried out extensive investigations before admitting breach of duty of care and alleged 20% contributory negligence.
Mr Krajniak lists in his claim form injuries sustained in the accident including left wrist, hand, shoulder low back and both knees. He is a self-employed professional violinist.
As a dispute arose as to the claimant’s entitlement to damages for non-economic loss, Mr Krajniak was referred to the Commission to assess whole person impairment (WPI). The certificate dated 28 June 2021 issued by Medical Assessor Woo determined WPI was 7%.
Law Partners represented Mr Krajniak until April 2022. Since then, he has communicated directly with the insurer and an advance hardship payment was made to him in June 2022 as he intended to return to Europe to care for his elderly mother.
The insurer lost contact with Mr Krajniak until 12 October 2023 when he emailed the insurer acknowledging receipt of their letter dated 11 August 2023 and confirming he would reply as soon as possible.
The insurer has not been able to make any further contact with Mr Krajniak since 12 October 2023.
The Commission has carried out extensive enquiries attempting to locate Mr Krajniak. I called him on the mobile number provided by the Commission on 12 June 2024 at 10.30am which recorded a message saying the number was no longer connected.
The dispute officer with management of the claim called Mr Krajniak on an alternate telephone number which was disconnected. She emailed him on [email protected] and [email protected] but received no reply.
She had been provided with an alternate telephone number for Mr Krajniak’s girlfriend but received no response when she called that number.
The insurer provided the dispute officer with two residual addresses: Andrea Kozkova, Mr Krajniak’s partner – xxxxxxxxxx Street Bateau Bay NSW 2261 and his address xxxxxxxx Road, Callala Bay NSW 2540. The Commission posted a letter to both addresses on 24 June 2024 asking Mr Krajniak to contact the Commission by 12 July 2024. No response has been received.
As reported in the preliminary conference report dated 24 June 2024, I indicated if no contact could be made with the claimant, that I would proceed to consider the insurer’s application seeking a discretionary exemption.
The insurer’s application for exemption is twofold; Mr Krajniak’s claim raises complex legal and factual issues which necessitate the forensic processes and procedures of a court for their proper and fair resolution. Therefore, the insurer submits the Commission is not a suitable forum for the assessment and ought be exempt from assessment pursuant to Part 4.4 of the Act.
There is no submission by the claimant, Mr Krajniak.
RELEVANT LAW
Section 92(1)(b) of the Act provides as follows:
“(1) A claim is exempt from assessment under this Part if—
(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 Part.”
Rule 99 of the Personal Injury Rules provides:
“(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) 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, resides outside the State,
(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.”
The insurer relies on authorities including but not limited to Insurance Australia Limited v Banos [2013] NSWSC 845 (Banos); Allianz Australia Insurance Limited v Tarabay [2013] NSWSC 141.
EVIDENCE
Mr Krajniak was born in Slovakia. He told Medical Assessor Woo that he was qualified and worked as an accomplished and highly acclaimed musician in Europe.
He came to Australia with his wife in 2014 and obtained permanent residence in 2015. He told Medical Assessor Woo in June 2021 he had applied for a job with the Sydney Symphony Orchestra at the time of the accident and was waiting for an audition.
Mr Krajniak relies on a letter provided by Mr Adrian Keating dated 12 June 2017. Mr Keating played with the Opera Australia Orchestra until 2015. Mr Keating states in his letter that Mr Krajniak has fine motor skills in his left wrist which has been impacted by injuries sustained in the accident.
Mr Krajniak relies on medico-legal evidence arranged by his former legal representatives with Dr Sikander Khan as well as treating professional records.
According to the insurer’s submissions, Mr Krajniak is claiming significant amounts for past and future economic loss caused by injuries and disabilities caused by the crash. Apparently, he has not provided any financial evidence to support his claim.
He had pressed the insurer to concede entitlement to damages for non-economic loss. The concession was refused which resulted in a medical dispute being referred to the Commission. Medical Assessor Woo concluded the certificate of WPI was not greater than 10%.
To determine Mr Krajniak’s capacity to perform as a violinist in a professional capacity and determine his activities of daily living, the insurer arranged for him to be assessed by Associate Professor Goetz Richter. After presenting the insurer with a raft of questions which were duly answered, this assessment has not taken place as the insurer has not had contact with the claimant since providing the final answers to the request.
The insurer arranged for Mr Krajniak to be examined and provide a number of reports from Dr Allan Meares, hand surgeon. Dr Meares has issued a number of opinions which are at complete odds with Dr Khan.
GROUNDS FOR EXEMPTION FROM ASSESSMENT AT THE COMMISSION
In submissions relied on that this claim is not suitable for assessment in the Commission, the insurer highlights the claimant’s self-employment as a violist and his estimate of his pre-accident earnings is $3,000 to $4,000 per week, and that prior to the accident he was working.
No evidence has been forthcoming to support his economic loss claim.
He claims his accident-related injuries and disabilities have reduced his work capacity. He is yet to attend the work capacity assessment which the insurer is entitled to arrange with Associate Professor Richter.
The insurer submits that it is necessary to take evidence from Mr Keating to determine his opinion on the level of Mr Krajniak’s competencies as a highly skilled musician.
For the insurer to properly canvass Mr Krajniak’s impairment to his work capacity and to assess his past and future economic loss say they need to seek evidence from Drs Khan, Meares and Associate Professor Richter.
As no records have been forthcoming from the claimant to support his claim for economic loss, the insurer submits it will necessitate the issue of subpoena outside of the jurisdiction. Mr Krajniak claims he has years of experience working in Europe which the insurer should be entitled to explore.
There is the issue of contributory negligence surrounding the circumstances of the accident. The insurer says it will be necessary to call the insured driver and other witnesses involved at the time of the accident and incidents thereafter.
Further, the insurer has raised issues of the claimant’s reliability as a witness.
The insurer has estimated the likely duration of a hearing would be three to four days. They submit because of the complexity of the legal, medical and liability issues give rise to the appropriate forum for this claim to be heard is a court of law.
CONSIDERATION
The fundamental principle is not whether or not this claim is suitable for assessment but whether or not it is not suitable for assessment in the Commission.
The objects of the Act set out in s 5 are to, amongst other objectives, encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
It is apparent from the provisions of the Act that in conducting a claims assessment, the Commission has jurisdiction to assess issues of liability.
It is important to bear in mind that the question required to be addressed when determining whether to grant a discretionary exemption is not whether the Commission is capable of assessing these issues but whether the claim is ‘not suitable for assessment’ by the Commission.
The consideration of whether a claim involves complex factual, legal or quantum issues is an evaluative determination, which must necessarily involve a determination of the relative factual, legal and quantum issues as compared with the norm. The word complex should be given its ordinary meaning in the context of r 99(3)(a) of the Rules and is used in the sense of complicated, not simple, difficult to analyse, understand and explain.
The issues of liability, medical, factual and legal in these proceedings are complex. It is likely that either or both parties will seek to call oral evidence from lay witnesses, liability and medical experts and economic loss witnesses. The ability to compel third party witnesses to give evidence may be critical in a claim in which there are disputes between the parties in relation to impairment to work capacity, pre-accident professional expertise, differing medical conclusion and factual circumstances of the accident. Evidentiary difficulty may arise if a party were not able to compel a relevant lay or expert witness to give evidence under oath in the Commission. Such difficulty would not arise in court proceedings.
On the available evidence, I am satisfied that the claim involves complex legal and factual issues relating to liability and contributory negligence. I am satisfied the claim involves complex issues relating to earning capacity, pre-accident experience and professionalism, and but for the accident, the claimants most likely future circumstance. I am satisfied there is evidence outside the jurisdiction which may need to be accessed which may include oral evidence and or production of documentation.
Accordingly, I consider that the forum that will resolve this dispute more justly, efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment in the Commission on the one hand, and a court hearing on the other, is the latter as discussed in Banos.
I consider that a court hearing is more likely to result in a just, quick and cost effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under s 92 (1)(b) of the Act. I consider that this claim is not suitable for assessment by the Commission.
CONCLUSION
Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 92(1)(b) of the Act and I recommend to the President that it be exempt from assessment.
In accordance with s 92(1)(b) of the Act, the Division Head (Motor Accident Division) as delegate of the President, on 11 September 2024, approved Member Elyse White’s recommendation that the claim is not suitable of assessment.
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