Khalil v Allianz Australia Insurance Limited
[2024] NSWPICMP 731
•14 October 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Khalil v Allianz Australia Insurance Limited [2024] NSWPICMP 731 |
| CLAIMANT: | El Beyrouthy Khalil |
| INSURER: | Allianz Australia Insurance Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 14 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered non-threshold injury from rear end collision; the medical dispute related to whether the claimant exceeded the threshold to obtain non-economic loss damages; Medical Assessor assessed claimant at 3%; claimant review of medical assessment; matter referred to Medical Review Panel (Panel); Panel required to re-examine to determine issue; claimant failed to attend medical examinations, failed to explain his non-attendance and did not respond to direction from Panel; claimant indicated that he was not going to attend medical examination; claimant now legally unrepresented; dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; Held – application for review of the medical assessment dismissed pursuant to section 54 of the Personal Injury Commission Act due to the failure to prosecute the proceedings with due dispatch. |
| DETERMINATIONS MADE: | 1. The claimant’s application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act 2020. |
REASONS
BACKGROUND
Mr El Khalil (the claimant) suffered physical injuries caused by a motor accident on
31 July 2020. The claimant was driving slowly in traffic when his vehicle was rear ended by the insured vehicle.The claimant was previously assessed by a Medical Assessor as having sustained non-threshold injuries. Accordingly, the insurer is liable to pay to Mr Khalil any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
THE MEDICAL DISPUTE
The issue in dispute is the degree of permanent impairment. Pursuant to Schedule 2, cl 2(a) of the MAI Act, various matters are declared to be a medical assessment matter including “the degree of permanent impairment of the injured person caused by the motor accident”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
THE MEDICAL ASSESSMENT
The medical assessment matters were referred to Medical Assessor Rapaport who issued a Medical Assessment Certificate dated 3 October 2023 (the medical assessment certificate).
The Medical Assessor noted various inconsistencies in the claimant’s account of the motor accident, absence of recollection of previous problems in the cervical spine and right shoulder and inconsistencies on examination.
The Medical Assessor diagnosed soft tissue whiplash injury, soft tissue injury to the lumbar spine and exacerbation of prior right supraspinatus tendonitis and subacromial/subdeltoid bursitis. The cervical and lumbar spine were assessed at 0%. The right shoulder was assessed at 4% with a one-fifth deduction resulting in 3% impairment.
THE REVIEW
An application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate then referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act; determination dated 16 February 2023.
The Review Panel was convened and advised the claimant that he would be medically examined on 17 April 2024. The claimant did not attend the medical examination.
The following history of the Review is taken from the Panel’s directions dated
5 September 2024:“7. On 30 April 2024 the Review Panel met by Teams and noted that the claimant’s solicitor had been requested to provide an explanation as to why the claimant did not attend the examination. By 30 April 2024 no reply had been received. The claimant solicitor was then requested to respond within seven days. They were advised that if no response was received in the panel would reconvene to consider dismissing the application. No response was received from the claimant or his solicitor.
8. On 14 May 2024 the claimant solicitor confirmed that they have not been able to make contact with their client. The claimant solicitor was followed up on 12 June,
26 June and 12 July for a response.9. Insurer’s solicitors are due to discuss future conduct of this matter on 26 July 2024 and that the parties would provide a response shortly after.
10. On 15 August 2024 the claimant solicitor requested that the matter be placed and stood over list the three months noting that the insurer had put an application for further assessment and that the claimant was scheduled to be medically examined on 6 September 2024. The claimant solicitor went on to say that they have had significant difficulties to reach out to their client for further instructions and that they have given their client notice they would be filing a notice of ceasing to act in the next few days.
11. On 3 September 2024 it was noted that the claimant had indicated that he won’t be attending any further medical is nor does he wish to take any further action in this matter. It was also noted that the claimant is unrepresented. In response to a request as to what further orders the insurer seeks, they replied that they seek a dismissal of the application issued under s 54(a) of the Personal Injury Commission Act as the proceedings would seem to have been abandoned. Thereafter the insurer submitted that the matter or to be dismissed pursuant to rule 77(b)(iii) of the rules as the claimant had failed to prosecute proceedings with due dispatch.”
On 5 September 2024 the Panel issued a report and directions setting out the history of the matter, part of which is quoted above. The claimant was then directed to respond by close of business, 27 September 2024, whether he wished to continue with the application for review.
The claimant did not respond to this direction.
The matter was referred to me and the following direction was issued on 4 October 2024:
“The application for review has been forwarded to me for determination of whether the application should be dismissed because the claimant has failed to prosecute the proceedings with due dispatch pursuant to s 54(c) of the Personal Injury Commission Act, 2020 (PIC Act) and Rule 77(b) (iii) of the Personal Injury Commission Rules. The parties are referred to the Panel’s report and directions dated 5 September 2024. A copy of these directions are attached. The claimant is to file any submissions and/or evidence by close of business 11 October 2024 why the application for review should not be dismissed pursuant to s 54 of the PIC Act including responding to the factual contentions of delay raised in the Panel’s previous direction.”
The claimant did not respond to this direction.
FINDINGS
Section 54 of the Personal Injury Commission Act 2020 (the PIC Act) applies to panel review proceedings[3] and relevantly provides that that the proceedings may be dismissed if:
“(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
[3] See Rule 127 (1)(d) of the PIC Rules.
Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due dispatch”.
Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
I am conscious that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the applicant’s case is taken at its highest: General Steel Industries Inc v Commissioner for Railways (NSW).[4] General Steel was applied in Perera v Genworth Financial Mortgage Insurance Pty Ltd[5] when Leeming JA stated:[6]
“But for present purposes, two matters are clear. One is that common to all the various formulations is the need for ‘exceptional caution’, as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.”
[4] [1964] HCA 69; (1964) 112 CLR 125 (General Steel) at [129].
[5] [2017] NSWCA 19.
[6] (at [30], Macfarlan and Simpson JJA agreeing).
Those comments were in part directed to dismissal where the claim lacked substance. However, I accept that similar caution should be applied in dismissing an application for failing to prosecute.
The claimant, who was initially represented by solicitors, has failed, without any explanation, to attend a medical examination in June 2024. Since that time the claimant has not responded to directions concerning the prosecution of the review application. The claimant was given a further opportunity by the Panel in early September 2024 and by me last week.
The claimant has advised that he will not be attending further medical examinations.
I am satisfied that the application for review of the medical assessment cannot proceed given the claimant’s lack of compliance and refusal to attend a medical examination. There has been significant non-compliance with directions from the Panel.
I am satisfied that applicant has breached Rule 77(b)(ii) and (iii) of the PIC Rules by failing, without reasonable excuse, to comply with a direction (attend the medical examination) and has failed to prosecute the proceedings with due dispatch.
The claimant was on notice that the proceedings may be dismissed due to the failure to prosecute the proceedings with due dispatch. The claimant was also given a further opportunity to place evidence before me as to the prosecution of the review. I appreciate that the claimant is now unrepresented and that there should be some latitude. However, the claimant has Also advised that eh is not going to attend any further medical examinations.
Given the extensive delay and the failure by the claimant to respond to recent directions indicating an availability and readiness to prosecute the review, I conclude that the review proceedings should be dismissed.
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