Insurance Australia Limited t/as NRMA Insurance v Talevski

[2024] NSWPIC 475

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Talevski [2024] NSWPIC 475
CLAIMANT:	Vasco Talevski
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Hugh Macken
DATE OF DECISION:	12 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claim; whether claim suitable for assessment; complex legal and factual issues; issues of liability including of contributory negligence, fault and causation, and compellability of witnesses; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as Delegate of the President.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. Vasco Talevski (the claimant) was injured in a motorcycle accident which occurred at 11:30pm on 14 June 2019. It is alleged the claimant was turning right from Masden Road into Kissing Point Road at Eastwood when his motorcycle slid on oil on the roadway, causing him to lose control of his motorcycle, fall and sustain injuries.

2. The claimant made a claim against NRMA (the insurer). The insurer denied liability for the claim on 3 June 2021.

3. The insurer has now referred the claim to the Personal Injury Commission (the Commission) seeking an exemption from assessment.

4. The matter was the subject of a preliminary conference on 27 June 2024 at which time, following some discussion between the parties, some further time was given to the claimant to put on submissions opposing the insurer’s application for an exemption of this matter. No material opposing the application was put on and, at the subsequent preliminary conference on 17 July 2019, the claimant’s solicitor advised that they were not intending to rely on any material and the question of the exemption of the matter was one which they neither consented to nor opposed but rather were content to abide by whatever determination the commission makes.

5. At the preliminary conference there was some discussion in respect to the grounds for the exemption and, in particular, the primary ground which was claimed by the insurer that the claiming was complex legal and factual issues and issues of liability, including contributory negligence, fault and causation which falls into the category criteria for discretionary exemption pursue into s 7.34(1b) of the Motor Accident Injuries Act 2017 as well as regulation 99 (12) of the Personal Injury Commission rules 2021. The regulations prescribe considerations as to whether the matter involves complex legal and factual issues, issues of liability including contributory negligence fault and causation, whether a witness or witnesses were required by the insurer to give evidence are compellable or only give evidence absent in the direction of a court.

DOCUMENTS CONSIDERED

1. The documents I have considered are those listed in, and attached to, the application and the reply, together with any further information provided by the parties I note these include photographs of the scene, statements, factual investigation, and medical material.

REASONS

1. In my view neither the medical material nor the claim for economic loss poses any particular difficulty in assessing the matter. Whilst there is some material the insurer would require, including tax returns and documents to support the allegations of economic loss, these documents could be provided and would not give rise to any grounds for an exemption in this matter.

2. That said I concur with the insurer’s application that this matter does pose complex legal and factual matters which do not lend themselves to an assessment within the limitations of the Personal Injury Commission (Commission).

3. The claimant alleges that there was oil on the road. There was no report of oil on the road from the paramedics who attended the scene. The NSW Fire and Rescue Service who attended the scene also note that there is no oil visible on the road. Both these witnesses would need to be compelled to give evidence in this matter and this would pose difficulties in any circumstances other than when they could be subpoenaed to give evidence.

4. Equally as relevant is matter surrounding the circumstances of the accident and establishing negligence, should be found if oil was on the road which was a hazard, is to how it came to be on the road. It does not necessarily follow that the existence of oil on the road means that an act of negligence by an unidentified vehicle has occurred. There are complex legal issues that surround this questions which, in my view, do not lend themselves to an assessment of the Commission.

5. Finally, the circumstances surrounding the allegations of contributory negligence creates a particular complexity. Were a finding of negligence to be made against an unidentified vehicle then the insurer is alleging that the claimant would have contributed to his injuries by failing to keep a proper look out, failing to brake or swerve so as to avoid the alleged oil spill and drove at an excessive speed in normal circumstances. Such a matter would also require a complex and detailed analysis of all the circumstances of the accident. It would require a considerable period of time to be allowed for cross examination of both the claimant together with all other witnesses as well as a likely need for expert evidence in respect to the matter generally. The time frame for such a hearing is beyond that which could reasonably be allowed at the Personal Injury Commission.

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 under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt 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 16 September 2024, approved Member Hugh Macken’s recommendation that the claim is not suitable for assessment.