Kristiansen v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 587
•21 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kristiansen v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 587 |
| CLAIMANT: | Rebecca Kristiansen |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 21 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; joint application for claim to be exempted from assessment in accordance with section 7.34(1)(b); claimant is the spouse of front seat passenger involved in a fatal single vehicle accident in which the deceased driver's blood toxicology shows the presence of alcohol and other stimulants; damages claimed for mental harm; contributory negligence alleged; claimant, her husband, and a number of other witnesses will be required for cross examination; claimant argues that as a first responder she should not be subject of any contributory negligence finding; Held – the claim involves complex legal and factual issues, including issues arising from the mental harm provisions in the Civil Liability Act 2002; recommendation also made that husband’s claim be exempt from assessment; both claims should be heard in the same forum; claim not suitable for assessment by the Commission; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
Rebecca Kristiansen (claimant) has made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). She claims that she suffered psychological injury (mental harm) as a result of attending the scene of a motor accident that occurred on 17 July 2020 (accident). The claimant’s husband was a front seat passenger in the vehicle involved in the accident. Liability for the claim has been denied.
The claim was referred to the Personal Injury Commission (Commission) for assessment. At the preliminary conference held on 12 September 2024 the parties made a joint application for the claim to be exempted from assessment under Div 7.6 of the MAI Act: s 7.34(1)(b) MAI Act. I dispensed with the requirement under Procedural Direction MA 5 for an application for exemption and reply to be lodged, and directed the parties to lodge joint submissions in support of the application.
The parties did not object to the preliminary assessment of the claim, for the purposes of s 7.34(1)(b), being undertaken on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.
STATUTORY FRAMEWORK
The application for exemption is made under s 7.34(1)(b) of the MAI Act. Section 7.34 is relevantly in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, or
(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:
“99 Consideration of discretionary exemption from claims assessment
(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.
(2) In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.
(3) Without limiting the matters that may be considered, the Commission may consider the following—
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,
(b) whether the claim involves issues of liability, including contributory negligence, fault or causation,
(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,
(d) whether a claimant or insurer seeks to proceed against one or more non-CTP parties,
(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.”
Procedural Direction MA5 applies to the application. As recorded earlier, I have dispensed with various requirements under the Procedural Direction.
In determining whether the claim is not suitable for assessment I must consider the objects of the PIC Act. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules, or interprets any provision of the MAI Act or the Rules: s 42(2) PIC Act.
EVIDENCE
The evidence in the application and reply has been considered, as has the evidence annexed to the joint submissions in support of the exemption application. The evidence includes claim forms, claim correspondence, the claimant’s statement and statutory declaration, the police report, the Broken Hill Local Court file, treating and medico-legal evidence.
SUBMISSIONS
The parties have lodged joint submissions in support of their application for exemption. The submissions record that:
(a) the claimant is the spouse of the front seat passenger involved in a fatal single vehicle accident in which the deceased driver's blood toxicology shows the presence of alcohol and other stimulants;
(b) evidence has been served that the claimant’s husband was unaware the driver was adversely affected by alcohol and/or other stimulants;
(c) it is likely that the claimant, her husband, and a number of other witnesses will need to be cross examined at the hearing;
(d) the claimant and other witnesses, including her husband (who has his own claim) reside in Broken Hill;
(e) there is an argument that as a first responder the claimant should not be subject of any contributory negligence finding;
(f) the insurer has alleged that the claimant’s spouse was contributorily negligent. The allegation is that a reasonable sober person in the position of the claimant’s spouse knew or ought to have known that the insured’s ability to drive was affected by virtue of his intoxication when he agreed to voluntarily travel as a passenger in his vehicle. The insurer contends that contributory negligence extends by virtue of s 30(3) of the Civil Liability Act 2002 (CL Act), and
(g) the insurer’s solicitor wrote to the claimant’s solicitor on 26 August 2024 in her husband’s claim and enquired whether he accepts that the insured’s blood was tested and returned the results contained in the analytical toxicology report of Dr Allan dated 10 August 2020. On 3 September 2024 the claimant’s solicitor advised the insurer’s solicitor that they were not able to make the admission sought.
In addition to the issues associated with the contributory negligence allegation, the joint submissions record that the claimant's economic loss claim is likely to involve competing forensic accounting reports, and that there is a high likelihood that the forensic accountants relied on by each party will be cross-examined.
For the foregoing reasons, the parties submit the claim is not suitable for assessment by the Commission.
CONSIDERATION
I am required to determine, having made a preliminary assessment of the claim, whether the claim is not suitable for assessment under Div 7.6 of the MAI Act.
The claim involves complex legal and factual issues. Contributory negligence has been alleged. The claim involves issues arising from the mental harm provisions in the CL Act. A further consideration that supports the state of satisfaction I have reached is that I have recommended the claim made by the claimant’s husband be exempt from assessment. Both claims should be heard in the same forum.
In my assessment, determination of the claim by a court is more likely to result in the just, quick and cost effective resolution of the real issues in the proceedings than if the proceedings were assessed by the Commission.
Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim be exempt from assessment.
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 4 November 2024, approved Senior Member Brett William’s recommendation that the claim is not suitable for assessment.
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