Louangamath v Youi Pty Limited
[2023] NSWPIC 393
•8 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Louangamath v Youi Pty Limited [2023] NSWPIC 393 |
| Claimant: | Youthanet Louangamath |
| insurer: | Youi Pty Limited |
| Member: | Maurice Castagnet |
DATE OF DECISION: | 8 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application by claimant pursuant to sub-section 7.34(1)(b); seeking discretionary exemption on the basis that claim is not suitable for assessment; insurer has denied liability; whether claim involves complex issues of law or fact; Held – claim remains suitable for assessment by Commission. |
INTRODUCTION
This matter has been referred to me to determine an application made by the claimant, Youthanet Louangamath, seeking an exemption of his claim for damages from assessment by the Personal Injury Commission (Commission) under Division 7.6 of the Motor Accident Injuries Act2017 (MAI Act).
RELEVANT BACKGROUND
The claimant is a 58-year-old man who was injured in a motor accident on 24 March 2022.
Initially, the claimant made a claim for statutory benefits with the insurer. These benefits which include payment for loss of earnings and treatment and care expenses, are available to the claimant for the first 26 weeks regardless of whether he was at fault in the accident. The insurer accepted to make payment of those benefits to the claimant during that period.
At the relevant time, ss 3.11(1) and 3.28 (1) of the MAI Act provided that the claimant as an injured person, was not entitled to payment of those statutory benefits after 26 weeks[i] if he was wholly or mostly at fault in the accident or if he had sustained only a minor injury (now known as a threshold injury).[ii]
At the relevant time and currently, ss 3.11(2) and 3.28 (2) provide that the accident is caused mostly by the fault of the claimant if the contributory negligence of the claimant to the accident is greater than 61%.
On 15 August 2022, the insurer accepted liability to continue to make payment of the statutory benefits to the claimant after 26 weeks on the basis that he had sustained a non-threshold injury and that he was not wholly or mostly at fault in the accident.
Subsequently, on 2 December 2022, the claimant made a claim for common law damages with the insurer.
On 24 March 2023, the insurer issued a liability notice to the claimant. On this occasion, the insurer denied liability for the claim, maintaining that although the insured driver owed a duty of care to the claimant, the insured driver did not breach that duty. The insurer also maintained that even if the duty was breached, the claimant contributed to the accident by failing to keep a proper lookout. The extent of the claimant’s contributory negligence was not specified in the notice.
On 30 March 2023, the claimant requested an internal review of the insurer’s decision which was not successful.
THE CLAIMANT’S APPLICATION FOR EXEMPTION
The claimant has now made this application, contending that his claim for damages is “not suitable for assessment” by the Commission under Division 7.6 of the MAI Act.
The claimant seeks an exemption of the claim being assessed by the Commission pursuant to sub-s 7.34 (1)(b) of the MAI Act and sub-rules 99 (3) (a) and (b) of the Personal Injury Commission Rules 2021 (PIC Rules).
The claimant contends that the claim is not suitable for assessment by the Commission for the following reasons:
(a) the matter has complex legal issues and factual issues as the parties maintain different versions of how the accident occurred;
(b) the claimant maintains that the insured driver suddenly pulled into his lane on the roadway, causing the claimant’s vehicle to collide with the insured driver’s vehicle. The insured driver maintains that he was slowly merging from his lane into the claimant’s lane when the claimant collided with his vehicle;
(c) the matter involves issues of liability as the insurer has denied liability and has alleged contributory negligence on the part of the claimant without specifying the extent of such negligence, and
(d) the insured driver’s property damage insurer AAMI has fully accepted liability for the damage to the claimant’s vehicle.
THE INSURER’S SUBMISSIONS
The insurer opposes the claimant's application and says that it should be dismissed.
The insurer submits that the Commission remains a suitable forum to determine the dispute for the following reasons:
(a) section 7.36 of the MAI Act gives the Commission jurisdiction to assess "the issue of liability". As such, the legislation clearly envisaged that the Commission would determine most liability disputes and that liability disputes would only be exempted from the Commission process when they are afflicted by such a level of complexity as to render the Commission an inappropriate forum for the dispute;
(b) the insurer agrees that the claimant and the insured driver provide different accounts of the accident. The member of the Commission will be required to consider each version and make findings regarding how the accident occurred. This is typical of most liability disputes and is not a reason to conclude that the Commission is not a suitable forum for this dispute;
(c) whilst there may be a factual dispute regarding the circumstances of the accident, the factual dispute is not complex;
(d) whilst the insurer has not nominated a percentage figure for contributory negligence in its liability notice, it will do so in its submissions. In any event, should contributory negligence be found, the percentage reduction is a matter for the Commission. Assessing the level of contributory negligence is well within the capability of a member of the Commission given that contributory negligence assessments are conducted frequently by the Commission in the context of both damages disputes and most at fault disputes, and
(e) the claimant has not advanced any reasons to support the argument that the claim is affected by a complex legal dispute. The insurer submits that the legal principles regarding each party's duty of care are well settled and are in no way complex for a specialist legal tribunal such as the Commission.
THE RELEVANT LEGISLATION
Section 7.30 of the MAI Act defines “claims assessment” as an assessment of a claim by the Commission under Division 7.6.
Section 7.31 of the MAI Act provides that Division 7.6 applies to a claim whether or not the insurer admits or denies liability.
Section 7.36 of the MAI Act provides that in conducting a claims assessment, the Commission is to make an assessment of;
(a) the issue of liability for the claim (unless the insurer has admitted liability), and
(b) the amount of damages for that liability (being the amount of damages that a court would be likely to award).
Sub-section 7.34(1) of the MAI Act provides that a claim is exempt from a claims assessment in the following circumstances:
(a) the claim is of a kind specified in the Motor Accident Injuries Regulation 2017 (Regulation) as a claim that is exempt from assessment under this Division, 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 (a discretionary exemption).
Rule 99 of the PIC Rules deals with the matters I should consider when granting a discretionary exemption from a claims assessment. Rule 99 relevantly provides:
“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.”
CONSIDERATION
Discretionary exemption
In this case, the claim in question is not one of a kind specified in cl 14 of the Regulation that is exempt from assessment under Division 7.6 of the MAI Act.
Accordingly, an exemption from a claims assessment can only be granted at my discretion, pursuant to sub-s 7.34 (1)(b) of the MAI Act, if I make a preliminary assessment of the claim and determine (with the approval of the President) that the claim is not suitable for assessment by the Commission.
According to sub-rule 99 (2) of the PIC Rules, in making the determination, I must consider the objects of the Personal Injury Commission Act2020 (PIC Act) and the circumstances of the claim.
Preliminary assessment of the claim
It is apparent from the reasons advanced by the claimant that the discretionary exemption is being sought on the basis of issues concerning liability. Accordingly, in determining the application, I need not concern myself with any issues concerning the assessment of damages.
Both the claimant and the insured driver have provided signed statements to the Commission.
The claimant’s version of the motor accident may be summarised as follows:
(a)he was driving his SUV vehicle on Smithfield Road in Greenfield Park travelling north towards Wakeley. It was about 4.50am in the morning. It was dark. He had his headlights on;
(b)there were two lanes of traffic. He was driving in the right lane;
(c)the speed limit was 60kmph and he was driving within the speed limit;
(d)when he was almost directly across from a side street on his right, called Rogan Crescent, he saw a Ute (the insured driver’s vehicle) suddenly “pull out” directly in front of him and positioning itself on a slight angle towards Rogan Crescent before coming to a complete stop, and
(e)he quickly applied his brakes but could not avoid a collision between the front left corner of his SUV and the centre of the Ute on the driver’s side.
The insured driver’s version of the accident may be summarised as follows:
(a)he was travelling in a northerly direction along Smithfield Road approaching Rogan Crescent;
(b)he had his headlights on;
(c)the speed limit in the area was 60kmph;
(d)Smithfield Road has two lanes of traffic in a northerly direction. He was travelling in the left lane;
(e)after he passed through the intersection of Canley Vale Road and Smithfield Road, he immediately indicated to the left and merged into the right lane;
(f)when he merged from the left lane to the right lane, the claimant’s vehicle was still outside the intersection. There were at least 50m between them. He could see the claimant’s vehicle through his rear vision mirror and his driver side mirror;
(g)after he had moved into the right lane, he continued driving along, reducing his speed to about 40kmph and began to turn right towards Rogan Crescent, and
(h)as he was attempting to turn right towards Rogan Crescent, he suddenly felt an impact to the rear right wheel/tray of his Ute and the claimant’s vehicle behind. The claimant’s vehicle continued ahead and collided into the driver door of his Ute.
Having reviewed both statements, I consider that there is no controversy between the parties about issues concerning the location, date and time of the accident, the speed limit, the description of the lanes on the roadway, the lane in which each party was travelling prior to the accident, the speed at which both vehicles were travelling prior to the accident and the use of their headlights.
From the material before me, it is apparent that the NSW Police Force did not attend the scene of the accident and that there are no independent witnesses to the accident that have been identified by either party.
On my preliminary assessment, the issues that remain for determination include: whether the claimant failed to stop in time or give way to the insured vehicle when the insured vehicle was attempting to make a right-hand turn; whether the insured vehicle did not change lanes safely and drove into the path of the claimant’s vehicle when there was neither time or space to do so, and whether either or both parties failed to keep a proper lookout for the vehicle of the other.
In the circumstances, I have concluded that these issues do not involve complex issues of law or fact that would render the claim not suitable for assessment by a Member of the Commission pursuant to the Commission’s jurisdiction under s 7.36 through its process such as an assessment conference.
Section 43(2) of the PIC Act stipulates that in conducting an assessment conference, a Member of the Commission is not bound by the rules of evidence. He or she may inform themself on any matter in a manner that he or she thinks is appropriate so as to give proper consideration of the matter to be assessed. On that basis, both the claimant and the insured driver may be questioned on their respective versions of fact at the assessment conference to determine the remaining issues of liability in dispute.
If either party wishes to rely on any expert evidence to support their respective position on liability, they are able to do so by utilising the Commission’s practice and procedure.
Whether claim is not suitable for assessment by the Commission
It is apparent from the provisions of s 7.36 of the MAI Act that in conducting a claims assessment, the Commission has jurisdiction to assess issues of liability.
However, it is important to keep in mind the question that I need to address when determining whether to grant a discretionary exemption is not whether the Commission is capable of assessing these issues, but whether the claim is “not suitable for assessment” by the Commission.
This would explain why I am required in accordance with sub-rule 99 (3) (b) of the PIC Rules to consider whether the claim involves issues of liability, including contributory negligence, fault or causation. That consideration is not about whether the Commission has jurisdiction to assess those issues but whether the processes, practice and procedure available to the Commission to determine the issues, would render the claim not suitable for assessment by the Commission.
In this case, the claimant has not advanced any reasons in his application to suggest that the determination of the liability issues would be faced with any evidentiary difficulty through the use of the Commission’s processes, practice and procedure so as to render the claim not suitable for assessment by the Commission.
Any admission made on behalf of the insured driver by the property damage insurer AAMI is an additional matter that would be considered by the Commission but that would not be a matter that would render the claim unsuitable for assessment by the Commission.
I note that there are no submissions from either party to suggest that the credit of a witness may be in issue or that a party has withheld information from the Commission so as to require either the claimant or the insured driver to provide their evidence under oath or affirmation.
I note that neither party intends to call evidence from any independent witnesses and in that event, may have the need to call upon the compulsory processes of a Court to issue a subpoena to a witness to attend and give evidence.
The objects of the PIC Act
One of the objects of the PIC Act is to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
Section 42(1) of the PIC Act provides that the guiding principle for this Act and the PIC 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.
Considering the circumstances of this case, I find that there are no issues advanced by the claimant in his application that would persuade me that the processes, practice and procedure available in the Commission would not provide a suitable forum to achieve a fair and just assessment of the claim.
It follows that I decline to exercise my discretion to grant an exemption of the claimant’s claim from assessment by the Commission under Division 7.6.
CONCLUSION
The claimant’s application for an exemption under sub-s 7.34 (1)(b) of the MAI Act, is dismissed.
[i] For motor accidents occurring on and after 1 April 2023, the MAI Act provides that the relevant period is 52 weeks instead of 26 weeks. (See the Motor Accident Injuries Amendment Act 2022.)
[ii] Since 1 April 2023, the term “minor injury” has been replaced with the term “threshold injury” in section 1.6 of the MAI Act. (See the Motor Accident Injuries Amendment Act 2022.)
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