Keriakos v NRMA - [2022] NSWPIC 101

CERTIFICATE OF DETERMINATION OF MEMBER

CITATION:

Keriakos v NRMA [2022] NSWPIC 101

CLAIMANT: Mervat Keriakos

INSURER: NRMA

MEMBER: Shana Radnan

DATE OF DECISION: 10 March 2022

CATCHWORDS:
MOTOR ACCIDENTS - Claims assessment matter; claim for damages submitted to insurer the claim was referred to the Personal Injury Commission under Division 7.6 of the Motor Accident Injuries Act 2017 (MAI Act) for assessment; no particulars or evidence provided when claim was lodged; insurer disputed genuine attempt to settle; whether the claimant had complied with section 7.32(3) of the MAI Act by requesting a settlement conference; meaning of “best endeavours”; whether proceedings should be dismissed; Held - for the purposes of section 7.32(3) of the MAI Act the claimant failed to use her best endeavours to settle the claim before referring it for assessment under Division 7.6 of the MAI Act; proceedings dismissed in accordance with section 54 of the Personal Injury Commission Act 2020.

DETERMINATIONS MADE:
1. For the purpose of s73.2(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 Accidents Injuries Act 2017.

2. The proceedings are dismissed in accordance with s54 of the Personal Injury Commission Act 2020.

Reasons for Decision
Introduction
1.Mervat Keriakos (the claimant) alleges that she sustained injuries as a consequence of the insured’s vehicle crashing through the shop window of her business on 29 June 2018.
2.An application for common law benefits was lodged with the insurer on 8 April 2021.
3.An application for claims assessment was lodged at the Personal Injury Commission (the Commission) on 28 June 2021 (the proceedings) for assessment of damages.
4.The insurer’s reply was lodged on 20 July 2021. The claimant’s non-compliance with
s 7.32(3) was raised in submissions with an application by the insurer that the claimant’s application be dismissed.
5.This determination relates to the insurer’s application for dismissal of the proceeding.
Teleconferences
6.A teleconference held on 29 November 2021 took place and parties were directed to provide further submissions. The claimant by 7 December 2021 and the insurer by 14 December 2021.
7.The claimant lodged submissions dated 6 October 2021 (document AD3) and further submissions dated 7 December 2021 (document AD4) and report of Dr Rastogi dated 27 July 2021 (document AD2).
8.On 15 December 2021 the insurer lodged further submissions (document AD5).
9.A second teleconference was held on 17 December 2021 wherein the claimant indicated the application may be withdrawn. The claimant was requested to provide her instructions by 11 February 2022. On 9 February 2022 the claimant advised her application was not withdrawn and sough additional time to provide further submissions as well as a further statement. Directions were made that the claimant upload material by 19 February 2022 and the insurer to provide submissions in reply by 4 March 2021.
10.On 23 February the claimant lodged further submissions (document AD6) statement of her lawyer (document AD7) and supplementary statements of the claimant (AD8…

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.

Continue reading Keriakos v NRMA

Details

AGLC: Keriakos v NRMA [2022] NSWPIC 101
Case: [2022] NSWPIC 101
Decision Date: 10 March 2022

CaseChat Overview and Summary

In the matter of Keriakos v NRMA, the respondent insurer, NRMA, sought to have the proceedings dismissed on the basis that the claimant, Mr. Keriakos, had not complied with the statutory requirement to use his best endeavours to settle the claim before referring it to the Personal Injury Commission (PIC) for assessment. The dispute arose from a motor accident claim where Mr. Keriakos had submitted a claim for damages to NRMA, which was subsequently referred to the PIC for assessment under Division 7.6 of the Motor Accident Injuries Act 2017. NRMA contested the claim, arguing that Mr. Keriakos had not made a genuine attempt to settle the matter before escalating it to the PIC.

The central legal issue before the court was whether Mr. Keriakos had fulfilled his obligation under section 7.32(3) of the Motor Accident Injuries Act by requesting a settlement conference with NRMA. Specifically, the court needed to determine the meaning of “best endeavours” in this context and whether Mr. Keriakos's actions constituted a genuine attempt to settle. Additionally, the court had to consider whether the proceedings should be dismissed under section 54 of the Personal Injury Commission Act 2020 if it found that Mr. Keriakos had not complied with the statutory requirements.

The court held that for the purposes of section 7.32(3) of the Motor Accident Injuries Act, Mr. Keriakos had failed to use his best endeavours to settle the claim before referring it to the PIC. The court determined that the phrase “best endeavours” required more than a mere nominal effort to engage in settlement discussions; it necessitated a proactive and genuine attempt to reach a resolution. Given that Mr. Keriakos did not provide particulars or evidence when lodging the claim and had not actively pursued a settlement with NRMA, the court found that he had not complied with the statutory obligations. Consequently, the court dismissed the proceedings in accordance with section 54 of the Personal Injury Commission Act 2020.

Orders