Leong v AAI Limited t/as GIO

[2022] NSWPIC 262

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Leong v AAI Limited t/as GIO [2022] NSWPIC 262

Claimant:

Chiaw Wei Leong

insurer:

AAI Limited t/as GIO

Member:

Terence O'Riain

DATE OF DECISION:

30 May 2022

CATCHWORDS:

MOTOR ACCIDENTS - section 4.4 Motor Accidents Injuries Act 2017; minor injury; application for assessment of damages made before medical dispute regarding minor injury assessed; no entitlement to damages once minor injury confirmed; dismissal of application to assess damages; Commission has no jurisdiction to make a decision regarding damages; dismissed under section 54 of the Personal Injury Commission Act 2020 and rule 77(b)(iv) Personal Injury Commission Rules 2021; Held- application to assess damages dismissed. 

determinations made:

1.    All of the claimant’s injuries have been assessed as minor and thus damages cannot be awarded under section 3.40 of the Motor Accident Injuries Act 2017 (the MAI Act).

2.    This damages assessment application cannot proceed as there is no jurisdiction and is dismissed.

Background

1. The insurer’s informed the Commission[1] that the claimant has not advised whether a review application will be lodged, noting the claimant will need to satisfy the requirements under section 7.26 of the Act for any review application to be successful.

   [1] R1

2. As of this date the claimant has not lodged any review or instructed other solicitors.

3. The Commission has contacted the claimant via the Dispute Officer with charge of this application and she is aware of these proceedings.

4. As the claim cannot proceed to an award of damages this current application is to be dismissed on the grounds that there is no jurisdiction for the matter to proceed.

Documents considered

1. I have considered the documents provided in the application and the reply and any further information provided by the parties.

REASONS

1. The powers to dismiss proceedings in the Commission are prescribed at section 54 of the Personal Injury Commission Act 2020 (the PIC Act) and rule 77 of the Personal Injury Commission Rules (the Rules).[2]

   [2] 77   Dismissal of proceedings

2. The Commission does not have the power to dismiss the application unless it falls within one of the listed items.

3. No damages can be awarded to a claimant if the only injuries suffered are minor injuries as defined under the MAI Act.

4. In this case the Commission has no jurisdiction to make a decision regarding damages for Ms Leong due to Assessor Homes’ findings, which are currently unchallenged.

10.The current application for assessment of damages must be dismissed pursuant to rule 77(b)(iv) because the Commission has no jurisdiction to assess damages in this case.

GENERAL DIRECTIONS

11.The timetable in the directions made 24 March 2022 is vacated.

12.The claimant’s application for the assessment of damages filed with the Commission on 2 March 2022 is dismissed.

13.The parties made no submissions as to costs.

14.The claimant is not entitled to costs in respect of the application.

The following grounds are specified for section 54(c) of the PIC Act—
(a)  for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch,
(b)  for proceedings by an application made under the motor accidents legislation—
(i)  if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
(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 despatch, or
(iv)  there is no jurisdiction to determine the dispute to which the application relates, or
(v)  the application is being used for an improper purpose or is otherwise an abuse of process, or
(vi)  the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.
Note—
Section 54 of the PIC Act provides that the Commission may at any stage dismiss proceedings before it—
(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.
Section 54 of the PIC Act also applies to medical assessment proceedings, merit review proceedings and panel review proceedings. See rules 107, 114 and 127.