Mitchell v Insurance Australia Limited t/as NRMA Insurance

[2023] NSWPIC 331

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Mitchell v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 331

CLAIMANT:

Edward Mitchell

INSURER:

IAG Limited t/as NRMA Insurance

MEMBER:

Elyse White

DATE OF DECISION:

7 July 2023

CATCHWORDS:

MOTOR ACCIDENTS - Claimant involved in a minor incident; liability admitted; 20% contributory negligence alleged; in the second telephone conference the claimant’s legal representative advised the claimant had passed away; it was agreed the matter could not proceed until there was a grant of probate or letters of administration; not withstanding numerous messages over 12 months no further correspondence was received from the deceased’s claimant’s legal representative; with the consent of the insurer the claim was dismissed; Held – claim dismissed in accordance with Part 8 section 77 of the Personal Injury Commissions Rules and section 54 of the Personal Injury Act 2020.

DETERMINATIONS MADE:

CERTIFICATE

This claim is dismissed.  No order as to costs.

STATEMENT OF REASONS

Introduction

1. The claimant says he was injured in a motor vehicle accident at approximately 1.30pm on 12 October 2016.  He says he was driving along Rockdale Plaza Drive where two lanes merge into one.  A vehicle travelling behind the claimant, attempted to pass and when doing so, collided with the claimant’s vehicle.

2. Having reviewed the version of their insured driver, the insurer IAG Limited t/as NRMA Insurance admitted liability but alleged the claimant contributed to the accident and submitted there should be a finding of 20% contributory negligence.

3. At the second preliminary conference on 7 September 2022, the claimant’s legal representative advised me and the insurer’s legal representative, the claimant had sadly passed away.  He informed me an application was being made for letters of administration. Until such application has been processed by the NSW Supreme Court, this claim cannot proceed.

Directions

1. Numerous messages were sent through the portal to the deceased’s legal representative requesting an update as to the status of the estate and preparations for the assessment of this claim.

2. The deceased’s legal representative has not responded to my last message sent on 4 June 2023 which said “Dear claimant and defendant, as I have had no satisfactory response from the claimant or his legal representative, I intend to dismiss the claim.  I am prepared to extend the time for compliance until 21 June 2023.  If the claimant has not provided a satisfactory response by this date, I will give reasons and dismiss the claim, Member White”.

3. I have reviewed the portal and the pathway and there are no further messages or requests for further time, or an update on preparation of the application to the Supreme Court.

Dismissal

1. Part 8 Section 77 of the Personal Injury Commission Rules 2021: Dismissal of proceedings

   The following grounds are specified for section 54 of the PIC Act—
   (b)(ii) 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.

2. Section 54 of the PIC Act says the Commission at any stage may dismiss proceedings for any ground specified in the Commission rules.

Reasons for Dismissal

1. I dismiss the claim for damages on grounds the deceased’s legal representative has not provided any grant of probate or letters of administration of the deceased claimant’s estate.

2. The deceased’s legal representative has been afforded every opportunity to provide an update on any application to the Supreme Court seeking a grant of probate or letters of administration.  No communication has been forthcoming.

OUTCOME

1. M 10482025/22 is dismissed.

2. There is no order as to costs.