Pickering v AAI Limited t/as GIO

[2024] NSWPIC 192

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pickering v AAI Limited t/as GIO [2024] NSWPIC 192
CLAIMANT:	Shane Pickering
INSURER:	GIO
MEMBER:	Shana Radnan
DATE OF DECISION:	8 April 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 7.34(1)(b); complex factual issues; complex issues of liability, fault and causation; subpoena to issue to Police and third parties, length of hearing; Held – claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. Shane Francis Pickering (the claimant) was riding his motorcycle on Windellama Road and Mountain Ash Road at Gundary with four others on two other motorcycles. A collision occurred with the insured’s vehicle on 21 May 2022 at approximately 11.00am. The claimant alleges he began to overtake the insured’s vehicle which had veered to the left. The insured’s vehicle then sharply turned right without indicating causing a collision. He was transported to Canberra Hospital by Ambulance.

2. There is dispute between the parties as to the circumstances surrounding the collision.

3. On 4 June 2022, made a claim against NRMA (the insurer) for personal injury benefits.

4. On 1 October 2023 an application for damages under Common Law was made. Injuries alleged are 9 broken ribs, ruptured spleen, internal bleeding, multiple broken bones to foot, dislocated toes and pneumonia and bleeding lungs.

5. The insurer denied liability for the common law claim on 4 March 2024.

6. The claimant and insurer have now referred the claim to the Personal Injury Commission (the Commission) seeking an exemption from assessment.

7. The basis of the application is that the claim involves the following:

   (a)    Complex factual issues;

   (b)    Issue of liability, fault and causation;

   (c)    The parties seek a number of members of the NSW Police force in particular Senior Constable Jeames Murray,Senior Constable Luke Feehely  and Constable Cameron Bost who require subpoena to issue to be compelled to appear;

   (d)    There are a number of other witnesses Mark Collins, Heidi Collins, Gavin Swan and Cheryl Swan to be called who are not parties to the proceedings also requiring subpoena to issue to be compelled to appear;

   (e)    The are likely to be experts to be called by both parties;

   (f)     The length of the hearing noting the number of witnesses to be called has been estimated at a minimum of 4 days make it unsuitable.

8. Having regard to the provision of s7.34 of the MAIA a claim can be exempt, if the Commission has made a preliminary assessment of the claim that the claim is “not suitable for assessment.

9. Section 99 of the Rules provides that in determining whether a claim is suitable for assessment the Commission must consider the objects of the Personal injury Commission Act 2020 and the circumstances of the claim.

10. Having taken into consideration the following:

    (a)    99(3)(a) - whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim; and

    (b)    99(3)(b) -whether the claim involves issues of liability, including contributory negligence, fault or causation.

    I consider this claim is unsuitable for assessment on a the following grounds:-

    ·     It is likely to involve complex factual issues,

    ·     complex issues of liability, fault and causation,

    ·     the necessity to subpoena NSW Police officers and experts as well as a number of lay witnesses.

    ·     The length of the hearing noting the number of witnesses is estimated at 4 days and this matter could well exceed such estimate if experts are called and other witnesses to the accident described in investigations are called.

CONCLUSION

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt from assessment.

2. In accordance with s 7.34(1)(b) of the Motor Accident Injuries Act 2017, the Division Head (Motor Accident Division) as Delegate of the President, on 23 April 2024, approved Member Shana Radnan’s recommendation that the claim is not suitable for assessment.