Kaur v Transport Accident Commission
[2024] NSWPIC 177
•10 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kaur v Transport Accident Commission [2024] NSWPIC 177 |
| CLAIMANT: | Pawandeep Kaur |
| INSURER: | Transport Accident Commission |
| MEMBER: | David Ford |
| DATE OF DECISION: | 10 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute; claim for damages submitted to insurer at the same time the claim was referred to the Personal Injury Commission under division 7.6 for assessment; no particulars or relevant documentation provided when the claim was lodged; no offer of settlement or invitation to engage in settlement discussions; whether the claimant had complied with section 7.32 (3 ); meaning of “best endeavours”; whether proceedings should be dismissed’ Held –for the purposes of section 7.32(3) the claimant failed to use her best endeavours to settle a claim before referring it for assessment under division 7.6; proceedings dismissed in accordance with section 54 of the Personal Injury Commission Act 2020. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of claim for damages made in accordance with s 7.36 of the Act. 1. For the purposes of s 7.32(3) of the Motor Accident Injuries Act 2017 the claimant failed to use her best endeavours to settle the claim before referring it for assessment under Division 7.6 of the Motor Accident Injuries Act 2017. 2. The proceedings are dismissed in accordance with s 54 or the Personal Injury Commission Act 2020. 3. The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $ nil. |
STATEMENT OF REASONS
INTRODUCTION
On 25 August 2018 Pawandeep Kaur (the claimant) was driving her motor vehicle through the underground car park, located at Rouse Hill shopping centre, when the motor vehicle being driven by the insured driver, collided with the driver's side of the claimant’s vehicle. As a result of the collision, she sustained the following injuries.
(a) head injury resulting in dissecting basilar artery aneurysm, and
(b) strokes secondary to dissecting basilar aneurysm.
These injuries were confirmed as being a non-threshold injury, pursuant to the assessment of Medical Assessor Robin Fitzsimons dated 17 July 2023.
The insured motor vehicle was registered in Victoria. Following the accident, there was a delay onset of symptoms, however, the claimant lodged her statutory benefits claim on the 25 March 2019. Initially the claim was allocated to QBE insurance, on the mistaken belief an unidentified motor vehicle collided with the claimant’s vehicle. The Transport Accident Commission (TAC) was not notified at the time.
It is submitted the claim remained in abeyance until December 2022, when she was diagnosed with a dissecting basilar artery aneurysm and required surgery. Subsequently the claimant lodged an Application for Common Law Damages dated 3 February 2023, and shortly thereafter, lodged an application for general assessment of the claim on 20 February 2023
The solicitor for the insurer submits the proceedings should be dismissed because of the claimant's failure to comply s 7.32(3) of the Motor Accident Injuries Act 2017 (the Act). This provision requires the parties to a claim to use their best endeavours to settle the claim before referring it for assessment under Division 7.6 of the Act.
The issue for determination is to whether the claimant has failed to comply with s 7.32(3) of the Act and what are the consequences of that failure.
Teleconference
A teleconference was held on 26 March 2024. The insurer confirmed its application for the proceedings to be dismissed. The claimant opposed this application, and I directed the solicitor for the claimant to serve on the insurer and lodge on the portal any further submissions in reply on or before 27 March 2024. The parties agreed this application to have the proceedings dismissed by the insurer should be determined on the papers.
Following the teleconference, the solicitor for the claimant lodged the following message on the portal on 26 March 2024:
“We refer to the insurer’s application to dismiss the current proceedings. Whilst the claimant generally agrees with the insurer’s submissions regarding the procedural history in that the parties have not been able to utilise their best endeavours to settle the claim before referring it for assessment (given the threshold injury dispute was not resolved until January 2024), the claimant will shortly be assessed by neurologist Dr Teychenne on 15 April 2024
Upon receipt of the report, this will enable the claimant to serve and lodge her statement and submissions and participate in an ISC.
The claimant respectfully requests that the matter be stood over for a period of
6-8 weeks. It is the claimant’s position that to dismiss the current application only to have to possibly re lodge the same application within a short period of time is not cost and time efficient which is not in line with the objectives of the Personal Injury Commission to ‘resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible’ Section 3 of the Personal Injury Commission Act 2020.”
The solicitor for the insurer lodged the following message in reply on the portal on 3 April 2024.
“I apologise for the delayed relayed message from the insurer as coming back from leave today. Please see the insurer’s message dated 2 April 2024.
In this day and age of electronic filing it is not onerous to re lodge an application and may indeed improve the usefulness and coherence of these submissions in that they will be based upon the medical evidence relied upon, rather than being provided in a piece meal fashion.
Indeed, the matter may resolve without requiring further input from the Commission unless there are compelling reasons for expedition of a case the party should comply with the procedural steps provided by the legislature. Allowing ad hoc non compliances has the effect of degrading the system as a whole.
We therefore seek that the application be dismissed…”
On the papers
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and procedural direction PIC2, I have considered that the proceedings can be determined on the papers. I am satisfied sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing.
Documents considered.
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the insurer.
In their submissions the insurer has referred to a number of decisions by Members of the Personal Injury Commission (Commission) in regard to the definition of the term “best endeavours”. It is submitted these decisions of the Commission established the obligation to use best endeavours is measured by what is reasonable in the context. I have noted the various decisions referred to in the submissions by the insurer and I further note the submissions regarding the objects of the Act and the PIC Act as submitted in paragraphs 29-32 of the submissions. I note the following submissions under the heading “Best Endeavours”.
“33. The claimant has not provided particulars or engaged in settlement negotiations.
34. A threshold injury dispute was determined by the Commission on 18 December 2023 and was received by TAC’s solicitors on 12 February 2024.
35. it is apparent that there are a number of reports and other documents which have not been included in the subject application and which are not in the TAC’s possession.
36. Financial records such as tax returns have not been provided.
37. The claimant is apparently not ready to pursue a damages claim.
38. There is a significant cost differential between stage 2 and stage 3. In the interest of keeping scheme costs manageable it is important to honour the purposes behind these regulations and give the insurer the opportunity to receive particulars and negotiate with the claimant before the matter comes before the Commission.
39. The claimant is already out of time. In the event the matter needs to go to Court, so there is no prejudice in dismissing this application.
40. When and if the parties need the commission’s assistance to resolve this damages claim, we can apply again.”
Submissions made by the claimant.
The solicitor for the claimant submits the claimant’s physical injuries caused by the subject motor vehicle action are significant enough to warrant a possible settlement to general damages. It is also resulted in economic loss. The three-year limitation period has expired, and the damages application is being lodged now to preserve the claimant’s rights for assessment of damages once the threshold dispute is resolved. They also request the matter placed in the stood over list until medical assessments have been undertaken.
I further note in paragraph 8 above the solicitors for the claimant have stated they generally agree with the insurer’s submissions regarding the procedural history the parties have not been able to utilise their best endeavours to settle the claim before referring it for assessment.
It is clear the solicitor for the claimant has conceded she has not used her best endeavours to settle the claim.
DETERMINATION
I refer the decision of Member Williams in Mammone v NRMA (2021) NSWPIC 501. At [51] he states as follows
“I agree with the construction of s. 7.32 (3) contended for by the insurer., in my view it allows the flexible application of the provision on a case-by-case basis and in a manner that is consistent with the objects of the MAI Act. I consider that this construction furthers the stated object of encouraging the early resolution of motor accident claims and the quick cost effective and just resolution of disputes. It does this by requiring the parties to take reasonable steps to settle the claim before referring it for assessment”.
At [53] Member Williams determines compliance with s 7.32(3) is mandatory. At [57] he further states the following:
“If the claimant’s submission that the proceedings could not be dismissed were accepted, it would render s. 7.32,(3) a toothless provision given the use of the mandatory ‘must’ in the provision .The legislature clearly considered the requirement to use best endeavours to resolve a claim prior to referring it for assessment to be integral to the overall operation of the MAI Act, particularly operation of Division 7.6..This requirement sits comfortably with the stated object of encouraging the early resolution of motor accident claims in the quick cost effective and just resolution of disputes..”
I determine these proceedings are dismissed in accordance with s 54 of the PIC Act and rule 77(b)(iii) of the Personal Injury Commission Rules which states as follows.
“77 (b) for proceedings by an application made under the Motor Accidents legislation.
(iii) The applicant has failed to prosecute the proceedings with due despatch...”
ORDERS
For the purposes of s 7.32 (3) the claimant has failed to use her best endeavours to settle the claim before referring it for assessment under Division 7.6 of the Act
The proceedings are dismissed in accordance with s 54 of the PIC Act.
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