Mallia v Allianz Australia Insurance Limited

[2024] NSWPIC 505

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mallia v Allianz Australia Insurance Limited [2024] NSWPIC 505
CLAIMANT:	The Late Josephine Mallia
INSURER:	Allianz Australia Insurance Limited
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	12 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Personal Injury Commission Act 2020 (PIC Act); dismissal under section 54 of the PIC Act; application for assessment of damages; non-economic loss only head of damages claimed; claimant’s permanent impairment assessed as not greater than 10%; claimant died after proceedings commenced; claimant’s solicitor ceased to act after her death; representative of claimant’s estate has not taken any steps following solicitor ceasing to act; whether proceedings have been abandoned; rule 77 of the Personal Injury Commission Rules 2021 considered; Held – proceedings have been abandoned and have not been prosecuted with due dispatch; Commission not provided with a copy of the grant of probate or letters of administration; proceedings dismissed.

STATEMENT OF REASONS – DISMISSAL OF PROCEEDINGS

1. Josephine Mallia (claimant) was injured in a motor accident on 3 October 2020 (accident). Following the accident, she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer). She subsequently referred her damages claim to the Commission for assessment under Div 7.6 of the MAI Act. The only damages claimed were for non-economic loss.

2. The written submissions provided with her application to the Commission record that as a result of the accident the claimant sustained injuries to her neck, shoulders and back. On 31 July 2023 a Medical Assessment Panel certified that injuries to the claimant’s right shoulder, left shoulder, and cervical spine did not give rise to a permanent impairment that was greater than 10%, the Panel having assessed a 5% permanent impairment of the right shoulder and a 2% impairment of the cervical spine (including left shoulder impairment). The Panel found that there was no impairment of the claimant’s lumber spine due to the accident.

3. The proceedings were listed for a preliminary conference on 7 March 2024. The late claimant’s solicitor confirmed at that time she had died in December 2023. He foreshadowed his firm giving notice of ceasing to act in the proceedings.

4. The following directions were made:

   (a)  On or before 26 April 2024 the executor of the claimant’s estate is to either:

   (i)confirm in writing to the Commission that it intends to maintain these proceedings, or

   (i)lodge with the Commission a Notice of Discontinuance.

   (b) If direction [1] is not complied with, on or after 1 May 2024 I will determine, without further notice to the parties, whether the proceedings should be dismissed under s 54 of the Personal Injury Commission Act 2020 [PIC Act].

   (c)   On or before 15 March 2024 Turner Freeman is to provide a copy of these directions to the executor of the late claimant’s estate by registered post.

5. On 18 June 2024 the claimant’s former solicitors informed the Commission by email that they had written to the last known address for the claimant by letter dated 13 March 2024. The correspondence was sent by registered post, enclosed the directions made on

   
   

   7 March 2024, and advised that they would be ceasing to act.

6. The correspondence from the claimant’s solicitors to the claimant’s estate dated

   
   

   13 March 2024 states:

   “If you intend to pursue this matter further, we enclose Direction of the Personal Injury Commission and note that the Executor of the Claimant's Estate must, by 26 April 2024, notify the Commission that it intends to maintain these proceedings or lodge with the Commission a Notice of Discontinuance.”

7. On 9 April 2024 the claimant’s former solicitor lodged with the Commission a Notice of Ceasing to Act.

8. The insurer argues that the proceedings should be dismissed under rule 77(b)(vi) of the Personal Injury Commission Rules (Rules). In the insurer’s submission, the proceedings have been abandoned; it has been almost six months since the last preliminary conference and the insurer has not been contacted by the claimant’s estate nor does it hold details of the executor.

9. Alternatively, the insurer submits the matter should be dismissed under Rule 77(b)(vi) of the Rules. The insurer argues that there is no evidence the claimant’s estate has provided the Commission with a copy of the grant of probate or letters of administration, and that the Commission cannot be satisfied the estate intends to pursue the application.

DETERMINATION

1. The Commission may at any stage dismiss proceedings before it; if it is satisfied that the proceedings have been abandoned, or if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or for any other ground of dismissal specified in the Rules: s 54 PIC Act.

2. Relevantly, rule 77 provides the following further grounds of dismissal:

   (a)  the applicant has failed to prosecute the proceedings with due despatch, or

   (b)  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.

3. I am satisfied that no one on behalf of the late claimant’s estate, including the executor or other representative, has made contact with the Commission since her former solicitors ceased to act on 9 April 2024.  I am satisfied that no one on behalf of the late claimant’s estate, including the executor or other representative, has taken any step to progress the proceedings.

4. I am satisfied that direction [1] made on 7 March 2024 has not been complied with. The Commission has not received written confirmation that the executor intends to maintain these proceedings, nor has a Notice of Discontinuance been filed.

5. The only damages claimed by the late claimant were for non-economic loss. On the evidence before me I am satisfied the degree of permanent impairment of the late claimant as a result of injuries caused by the accident are not greater than 10%. Accordingly, she would not be entitled to an award for non-economic loss: s 4.11 MAI Act.

6. I am satisfied that the proceedings have been abandoned. I am also satisfied that the proceedings have not been prosecuted with due dispatch. Further, the application was made by a person who died after the application was made, and the Commission has not been provided with a copy of the grant of probate or letters of administration for the person’s estate. I am not satisfied that the late claimant’s estate is seeking to pursue the application.

7. For the foregoing reasons the proceedings are dismissed in accordance with s 54 of the PIC Act.