Mihalis v QBE Insurance (Australia) Limited
[2022] NSWPIC 501
•7 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Mihalis v QBE Insurance (Australia) Limited [2022] NSWPIC 501 |
| Claimant: | James Mihalis |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 7 September 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Claim for statutory benefits made under Motor Accident Injuries Act 2017; dispute about whether the claimant was wholly or mostly at fault; claimant was driving car near Central Station in lane 1 of Lees Street when he came into contact with a small bus insured by QBE being driven in lane 2; dispute about whether impact occurred in lane 1 or lane 2; claimant retained expert but no report served and solicitors withdrew from the proceedings; no attendance by self-represented claimant at teleconference; Insurer requested proceedings be determined; Held – Member satisfied claimant knew about the teleconference as both previous solicitors and staff at the Commission had made contact; Member determined not appropriate to determine the proceedings in circumstances where no statutory benefits are currently being paid; proceedings dismissed pursuant to section 54(a) of the Personal Injury Commission Act 2021 and rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules. |
| determinations made: | 1. The proceedings concerning the miscellaneous claims assessment matter are dismissed, and 2. There is no order or award for any legal costs incurred by the claimant in this matter noting no request for costs was made by the claimant’s former solicitors. |
STATEMENT OF REASONS
INTRODUCTION
Mr James Mihalis (the claimant) was involved in a motor accident near Central Railway Station in Sydney on 5 January 2020. Mr Mihalis says his vehicle was hit from behind causing him injury.
On or about 2 March 2020, Mr Mihalis made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act) against QBE, the third-party insurer of the small bus.
QBE accepted the claim and paid Mr Mihalis his entitlements for the first 26 weeks after the accident.
On or about 11 May 2020 QBE wrote to Mr Mihalis denying liability to pay Mr Mihalis any statutory benefits beyond the first 26 weeks on the basis that QBE was of the view that:
(a) the accident was caused wholly or mostly by Mr Mihalis’ fault, and
(b) because the insurer was of the view Mr Mihalis’ injuries were minor injuries within the meaning of s 1.6 of the MAI Act.
Mr Mihalis sought internal review of that decision and on 4 August 2020 QBE’s internal review decision maker affirmed the original decision relating to fault and on 11 August 2020 the same decision maker affirmed the original minor injury decision.
Solicitors on behalf of Mr Mihalis then lodged a single application with the Personal Injury Commission (the Commission) to determine whether:
(a) under Schedule 2, cl 3(e) of the MAI Act, the accident was caused wholly or mostly by the fault of the claimant, and
(b) under Schedule 2, cl 2(e) of the MAI Act, the claimant’s only injuries are minor injuries.
FACTUAL BACKGROUND
Mr Mihalis says he was in lane 1 of Lees Street stationary waiting to turn left behind a taxi when he was hit from the rear by a small bus. The bus driver says he was in lane 2 travelling at 30km per hour when the claimant pulled out suddenly into his lane.
Police, ambulance and fire brigade arrived but there are no documents from the first responders. There are no independent witnesses. The bus had a dashboard mounted camera, but the bus driver says it was not operational and therefore there was no dashcam footage.
The insurer obtained an investigator’s report which included statements from the insured, diagrams and photographs of the scene of the accident. The photographs appeared to show the bus at an angle in lane 2 and there was debris (including broken glass from what appears to be Mr Mihalis’ vehicle) almost wholly in lane 2.
PROCEDURAL MATTERS
10. On 2 June 2022, at the first teleconference in this matter, the claimant was represented and his solicitor informed me that she had retained an accident reconstruction expert (Mr Mark Burns) to review the material and advise as to the likely cause of the accident. Directions were issued to the parties and a second teleconference was schedule for 14 July 2022.
The second teleconference did not take place because Mr Mark Burns’ report was not yet available. Directions were issued on that date including a direction for the claimant to serve on the insurer and upload to the portal the report of Mr Mark Burns by 19 August 2022. A further teleconference was scheduled for 25 August 2022.
On 22 August 2022 the claimant’s solicitor contacted the Commission pursuant to rule 60(2) of the Personal Injury Commission Rules (the Rules) advising that she no longer held instructions in the matter.
The parties were advised that I requested the following steps be taken in the proceedings:
(a) the claimant’s solicitor was to attempt to advise her client of the time and date of the teleconference and explain Mr Mihalis was required to attend and that the Commission may determine the proceedings in his absence;
(b) QBE’s claims officer was to attempt to make contact with the claimant and confirm the time and date of the teleconference and explain he is required to attend, and
(c) the Commission’s staff member with carriage of these proceedings is to attempt to contact the claimant to advise him of the teleconference and that he is required to attend. The disputes officer should enquire as to whether Mr Mihalis intends to pursue the proceedings and if so whether he has engaged a different lawyer to represent him or whether he intends to proceed without a lawyer.
The following has occurred since 22 August 2022:
(a) the claimant’s solicitor advised the Commission that she had made contact with the claimant and passed on the details of the teleconference;
(b) Mr Mihalis had requested the teleconference be deferred as he was trying to find another solicitor;
(c) the teleconference was deferred to 7 September 2022 and the parties advised;
(d) Mr Mihalis was contacted by a member of the Commission’s staff on 2 September 2022 to confirm arrangements for the teleconference;
(e) on 6 September 2022 an attempt was made by the Commission to contact Mr Mihalis and a message was left on his mobile phone, and
(f) on 7 September 2022 before the teleconference, three further attempts to contact Mr Mihalis were made by a member of the Commission’s staff.
At the appointed time for the teleconference, the Greek interpreter was available. Mr Mihalis’ phone was rung but it diverted directly to his voice mail. His phone message was in clear, but accented English, and I left a message requesting he contact the Commission about his claim and the proceedings.
Ms Bullus informed me that QBE had attempted to contact Mr Mihalis by calling his mobile phone, but no contact had been made. Ms Bullus requested I determine the substantive application concerning fault on the papers.
SHOULD I DETERMINE OR DISMISS THE PROCEEDINGS?
In my view it is not appropriate that I determine the proceedings. Mr Mihalis’ benefits have been terminated. QBE is no longer paying for any treatment or lost earnings (if there were any). Primarily it is a matter for Mr Mihalis to pursue his claim if he wishes to and have his benefits reinstated. From QBE’s perspective Mr Mihalis’ statutory benefits claim is at an end.
Section 7.42 of the MAI Act provides that a miscellaneous claims assessment matter can be referred to the Commission “at any time”. There is therefore no bar to Mr Mihalis lodging a fresh set of proceedings when he has retained a new lawyer and is otherwise ready to proceed. It would be more appropriate for the issue of fault to be determined all the evidence and the benefits of submissions from both sides.
Section 54 of the Personal Injury Commission Act 2020 (the PIC Act) empowers the Commission to dismiss proceedings before it at any stage “if it is satisfied that the proceedings have been abandoned” or for other reasons specified in the rules. Rule 77 includes the following grounds for dismissal:
“(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission, or
(iii) the applicant has failed to prosecute the proceedings with due despatch”
I note that the accident reconstruction report from Dr Burns has not been served or uploaded to the portal. The claimant has therefore failed to comply with the direction issued on 14 July 2022.
I am satisfied that Mr Mihalis was aware of the teleconference date and time and the importance of it to his case. Mr Mihalis was, until recently (2 September) giving every indication of his intention to pursue the proceedings and was attempting to obtain a lawyer. However Mr Mihalis could not be contacted by the insurer and at least four attempts yesterday and today were made by the Commission to contact him without success. He failed to attend the teleconference.
In the circumstances I am satisfied on the information before me that the claimant is not pursuing the current application and has failed without reasonable excuse to comply with a direction of the Commission.
These proceedings are dismissed pursuant to s 54(a) of the PIC Act and rule 77(b)(ii) and (iii) of the Rules.
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