Jones v NRMA - [2022] NSWPIC 126

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v NRMA [2022] NSWPIC 126
CLAIMANT:	Max Jones
INSURER:	NRMA
MEMBER:	Maurice Castagnet
DATE OF DECISION:	25 February 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment application; whether claimant had used “best endeavours’ to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017 (MAI Act); meaning of “best endeavours”; Held- In the context of the MAI Act and section 7.32(3), the obligation of using “best endeavours” is satisfied if the claimant has taken reasonable steps to make, prepare and advance his claim towards a resolution; no practical utility in pursuing settlement where degree of permanent impairment remains in dispute; the obligation does not require the claimant to capitulate and compromise his claim for the sake of achieving a settlement before referring it for assessment by the third anniversary of the motor accident.

INTRODUCTION

The claimant is a 30-year-old man who suffered injuries in a motor accident on 3 August 2018, when the insured vehicle reversed out of a driveway and collided with the motorcycle he was riding on Baker Street, Carlingford.
On 2 August 2021, the claimant lodged an application with the Personal Injury Commission (the Commission) pursuant to section 7.36(1) of the Motor Accident Injuries Act 2017 (the MAI Act), referring his claim for common law damages for assessment.
As such, the application was lodged within 3 years of the date of the accident and in conformity with section 7.33 of the MAI Act.

DIRECTION SOUGHT BY THE CLAIMANT

The claimant seeks a direction for his application to be referred to the stood over list pursuant to s10(a) and s10(c) of the Commission’s Procedural Direction MAI 1, pending the conclusion of a medical assessment of his permanent impairment by the Commission.

THE INSURER’S POSITION

In written submissions submitted on 25 August 2021, the insurer opposed the direction sought by the claimant.
The insurer contends that the claimant has not complied with section 7.32 of the MAI Act which is a requirement before the claim can be referred for assessment. The insurer says the claimant has not used any endeavours to settle the claim before referring it to assessment. The parties have not engaged in any settlement discussions. Neither party has conveyed an offer of settlement at any time to date.
The insurer notes that the claimant has lodged his application with the Commission one day prior to the three-year anniversary of the accident and submits that this was done to “preserve time”.
The insurer submits the Commission may be minded to dismiss the application.

STEPS TAKEN BY THE CLAIMANT TO PROGRESS HIS COMMON LAW CLAIM

On 6 April 2020, the claimant made a claim for common law damages.
The insurer admitted liability for the claim on 10 August 2020.
On 13 September 2020, the claimant was assessed by Dr Gehr as having a permanent impairment of 13%.

On 9 October 2020, the claimant served the report of Dr Gehr on the insurer with a request to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 126
Decision Date: 25 February 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Jones v NRMA dealt with a motor accident claims assessment application. The claimant, Jones, sought an assessment of his claim against the insurer, NRMA. The primary issue was whether Jones had fulfilled the requirement of using “best endeavours” to settle his claim before referring it for assessment, as mandated by section 7.32(3) of the Motor Accident Injuries Act 2017. The court was tasked with interpreting the phrase “best endeavours” in this context and determining if Jones had taken sufficient steps to attempt to resolve his claim before the statutory deadline.

The court examined the legislative intent behind the requirement of using “best endeavours” and concluded that it was satisfied if the claimant took reasonable steps to make, prepare and advance his claim towards a resolution. The court found that it was not necessary for Jones to compromise or capitulate on his claim if there was no practical utility in pursuing settlement, particularly in cases where the degree of permanent impairment was in dispute. The court emphasised that the obligation did not require the claimant to achieve a settlement before the third anniversary of the motor accident but rather to have made reasonable efforts to do so.

Ultimately, the court ruled in favour of Jones, finding that he had used “best endeavours” by taking reasonable steps to settle his claim. The court determined that the obligation was satisfied by Jones's actions, and he was not required to capitulate on his claim for the sake of achieving a settlement before the statutory deadline. The decision underscores the importance of taking reasonable steps to attempt to resolve a claim within the legislative framework, without necessarily compromising on the merits of the claim.

The final orders of the court were that Jones's claim would proceed to assessment, with the court acknowledging that he had satisfied the requirement of using “best endeavours” to settle his claim. The decision provides clarity on the interpretation of “best endeavours” in the context of the Motor Accident Injuries Act, reinforcing the need for claimants to take reasonable steps towards resolution without compromising their legitimate claims.

Orders