Luo v AAI Limited t/as GIO - [2022] NSWPIC 584

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Luo v AAI Limited t/as GIO [2022] NSWPIC 584
Claimant:	Qin (Michael) Luo
insurer:	AAMI Limited t/as GIO
Member:	Terence Stern
DATE OF DECISION:	18 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment application; whether claimant had used “best endeavours” to settle claim before referring it for assessment; section 7.32(3) of the Motor Accident Injuries Act 2017; meaning of “best endeavours”; test of what is reasonable in the circumstances; Transfield v Arlo applied; Held- “best endeavours” places obligation on claimant to facilitate an opportunity for settlement discussions; claimant did what he reasonably could in circumstances to settle the claim; application to dismiss application declined.
determinations made:	1. For the purpose of s 7.32(3) the Claimant has used his best endeavours to settle the claim prior to making his application to the PIC to refer the claim for assessment.

STATEMENT OF REASONS

INTRODUCTION

The Claimant was born in August 1995.
He was riding his motorcycle on 2 December 2018 when he was injured in the Accident.
At the time he was riding his motorbike through an intersection when a car travelling in the opposite direction is alleged to have made a right turn and in doing so failed to give way causing the collision. The Claimant fell from his motorbike landing on his back and sustaining a number of injuries which the Claimant’s solicitor lists in the Submission 2 June 2022 (the Submission – 2 June 2022).
On 11 April 2019 the Insurer issued their post 26 weeks liability notice assessing the Claimant’s injuries as minor.
The Claimant’s solicitor lodged an application for internal review. On 10 July 2019 the Insurer determined that the Claimant’s injury was Non-Minor.
On 17 February 2020 the Claimant was assessed by Dr Andrew Keller at the request of the Insurer. Following the assessment the Insurer’s solicitor Moray & Agnew (‘M&A’) informed the Claimant’s solicitor that the Insurer did not concede entitlement to Whole Person Impairment (WPI).
On 24 May 2021, the Claimant’s solicitor Law Partners (‘LP’) applied for internal review.
On 11 June 2021, the Insurer determined the internal review by affirming its previous decision.

10. Following this LP wrote to the Insurer and M&A on multiple occasions requesting an informal settlement conference (IFS) but did not as at the date of Submission 5 November 2021 receive a response.

11. On 5 November 2021, LP requested that the matter be placed in the stood over list.

PRELIMINARY CONFERENCE

12. I conducted a preliminary conference on 2 June 2022 and as a result of the directions I made on 2 June 2022, the Claimant’s solicitor lodged on the Portal further Submissions and a Chronology of actions taken by the Claimant’s solicitors and by the Claimant.

LEGISLATIVE FRAMEWORK

13. Section 7.32 of the MAI Act is in the following terms:

“7.32 Reference of claim

(1) A claim for damages may be referred to the Commission by the claimant or the insurer, or both, for assessment under this Division.

(2)…

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.

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Details

Case: [2022] NSWPIC 584
Decision Date: 18 October 2022

CaseChat Overview and Summary

The case of Luo v AAI Limited t/as GIO involved a claim for compensation following a motor accident. The dispute centred on whether the claimant had exercised their best endeavours to settle the claim before it was referred for assessment under the Motor Accident Injuries Act 2017. The matter was heard in the District Court of New South Wales. The defendant, AAI Limited trading as GIO, sought to have the claim dismissed on the basis that the claimant had not made sufficient efforts to settle the matter before seeking assessment.

The primary legal issue before the court was the interpretation and application of section 7.32(3) of the Motor Accident Injuries Act 2017, which requires claimants to use their best endeavours to settle a claim before referring it for assessment. The court had to determine what was meant by "best endeavours" and whether the claimant had reasonably fulfilled this obligation in the given circumstances. The court referenced the Transfield v Arlo decision, which established that "best endeavours" required the claimant to take all reasonable steps to facilitate settlement discussions. The court needed to assess whether the claimant had taken all such steps.

In delivering the judgment, the court found that the claimant had indeed made reasonable efforts to settle the claim, considering the circumstances. The claimant had engaged in discussions and provided necessary information to facilitate settlement, thereby fulfilling the requirement of "best endeavours" as per the statutory provision. The court emphasised that the obligation was not to achieve a settlement but to create an opportunity for settlement discussions. The court concluded that the claimant had done what was reasonably required under the circumstances, and the application to dismiss the claim was declined. The court's reasoning highlighted the importance of a claimant's proactive approach in settlement discussions and the reasonable steps they must take to meet the statutory obligations.

Orders