Pout v Shipway
[2024] NSWPIC 41
•16 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Pout v Shipway [2024] NSWPIC 41 |
| CLAIMANT: | Jason Pout |
| RESPONDENT: | Robert Shipway |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 16 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; application for exemption under section 7.34(1)(b); claimant injured while driving an all-terrain vehicle (ATV) on private property; claim for damages made on owner of ATV (who also owned the property); claimant alleges modifications were made to ATV by the owner and that the accident was caused (at least in part) by the modifications; where court proceedings in relation to the accident were on foot; IAG Limited t/as NRMA Insurance v Khaled and Insurance Australia Limited t/as NRMA Insurance v Banos applied; Held – the claim involves complex issues relating to liability, contributory negligence and damages; a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission; given that court proceedings were on foot, there would be an unnecessary and undesirable duplication of work and costs if the claim were to proceed to assessment; claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation approved by Division Head. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
Jason Pout (claimant) was injured in a single vehicle accident on a property at Gundaroo, NSW, on 23 December 2019 (accident). As the vehicle involved, an all-terrain vehicle (ATV), did not have compulsory third party (CTP) insurance, a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) was made by the claimant on the Nominal Defendant. By letter dated 2 December 2022 a claim was also made on Robert Shipway, the owner of both the property on which the accident occurred and the vehicle involved in the accident.
The claimant has referred his claim for damages to the Commission for assessment, and has sought an exemption from assessment under s 7.34(1)(b) of the MAI Act.
PRELIMINARY CONFERENCES
The matter has been the subject of a number of preliminary conferences, and the procedural history, including directions and orders, is recorded in the preliminary conference reports.
At a preliminary conference held on 20 July 2023, Mr Jones, counsel for the claimant, confirmed that while the claim against the Nominal Defendant would not be pursued, the claimant intended to proceed against Mr Shipway. In this regard, I was informed that the claimant had commenced proceedings in the Supreme Court of the Australian Capital Territory in relation to the accident (Supreme Court proceedings), and that Mr Shipway is a party to those proceedings.
At a preliminary conference held on 23 November 2023 I made orders that:
(a) Mr Shipway be joined as a party to the proceedings;
(b) The claimant’s application be amended to name Robert Shipway as a party;
(c) The Nominal Defendant be removed as a party to the proceedings, and
(d) The claimant’s application be amended to remove the Nominal Defendant as a party.
I also made directions for the service of material relating to the exemption application on Mr Shipway, including the preliminary conference report, and the lodgement by Mr Shipway of a reply to the claimant’s application for exemption, including submissions and documents relied on by him.
The preliminary conference report records that unless I received any objection in writing from Mr Shipway on or before 21 December 2023, I proposed to conduct a preliminary assessment of the claim for the purposes of s 7.34(1)(b) of the MAI Act on the papers on or after 8 January 2024 without further notice to the parties.
I have been provided with correspondence from the claimant’s solicitors addressed to Mills Oakley and Mr Shipway dated 15 December 2023 in which the preliminary conference report dated 23 November 2023, the claimant’s application for exemption, and submissions in support of the exemption application, were attached. I understand that Mills Oakley act for Mr Shipway in the Supreme Court proceedings.
A reply to the exemption application from Mr Shipway has not been received by the Commission, nor has any objection been received to the preliminary assessment being conducted on the papers.
STATUTORY FRAMEWORK
The insurer’s application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision is, relevantly, in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, or
(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules) applies to the application. The rule is in the following terms:
“99 Consideration of discretionary exemption from claims assessment
(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.
(2) In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.
(3) Without limiting the matters that may be considered, the Commission may consider the following—
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,
(b) whether the claim involves issues of liability, including contributory negligence, fault or causation,
(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,
(d) whether a claimant or insurer seeks to proceed against one or more non-CTP parties,
(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.”
Procedural Direction MA5 applies to the application for exemption.
EVIDENCE
Evidence in support of the application for exemption has been lodged with the Commission by the claimant. As recorded earlier, Mr Shipway has neither lodged a reply to the application, nor any evidence or submissions.
While I do not propose to canvas all the evidence lodged by the claimant, I will refer to some relevant aspects of the evidence to provide context for my determination.
In an application for personal injury benefits dated 1 December 2022, the claimant recorded that he suffered physical and psychological injury as a result of an accident that he described in the following terms:
“I was driving an ATV provided to me by Robert Shipway. The safety functions of the ATV had been disengaged. I flipped the ATV due to hitting a rut hidden in the long grass and the ATV landed on top of me, breaking my leg. The seatbelts had been tied up & the side doors were removed.”
The claimant gave a statement dated 13 December 2022 in which he stated:
“[6] On 23 December 2019, I was at 1083 Dicks Creek Road, Gundaroo, which is a property owned by Robert Shipway.
[7] Robert owned an ATV for the purpose of riding around his property. He had provided me with the ATV to help him muster sheep. As I was riding the ATV around his property, the front left-hand wheel hit a rut covered by long grass, this caused the ATV to roll onto its left side.
[8] The ATV had a governor which would restrict the maximum speed unless the seatbelt was plugged in. It became known to me that Robert had the seatbelt plugged behind the front seat, which meant the seatbelt was not usable but also allowed the speed of the vehicle to be unrestricted by the governor.
[9] Additionally, Robert had removed both the right and left-hand side doors. Robert had modified the vehicles in these ways, so it was quicker to get going when the ATV needed to be used.
[10] I believe that but for the modifications and changes to the ATV, I would not have sustained injuries. The direct cause of my injuries was the lack of warning, the vehicle modification and the failure to supply a helmet and goggles.”
In his statement at [12], the claimant states that he had consumed alcohol and marijuana “sometime prior to the accident”, and asserts that this did not impair his ability to drive.
Medical records from Gungahlin Family Healthcare and the Canberra Hospital contain evidence with respect to the nature and extent of the injuries suffered by the claimant as a result of the accident. A discharge letter from the hospital records that the claimant was admitted on 24 December 2019 with a history of having been involved in an “ATV rollover accident” the day before. He was discharged on 26 December 2019. X-ray reports confirmed fractures to the left medial and lateral tibial malleoli. The records state that surgery to his left ankle was performed. The hospital records also contain references to injuries and illnesses unrelated to the accident.
Among other things, the Gungahlin Family Healthcare records confirm that the claimant has attended the practice for treatment relating to his accident caused left ankle injury. There are also references to the claimant suffering from anxiety and depression secondary to this injury.
CLAIMANT’S SUBMISSIONS
The claimant has lodged written submissions in support of his exemption application. Briefly stated, the claimant argues that his claim is not suitable for assessment because:
(a) he resides in the Australian Capital Territory;
(a) there is no CTP policy which responds to the claim, but there may be a public liability policy which responds;
(b) there are complex legal issues, likely as to liability, contributory negligence, and indemnity;
(c) there are complex factual issues, in particular with respect to alleged modifications to, and defects in, the ATV;
(d) liability has not been admitted, and
(e) the claimant has commenced proceedings with respect to the accident against Mr Shipway in the Supreme Court of the Australian Capital Territory.
DETERMINATION
My task is to make a preliminary assessment of the claim and determine whether the claim is not suitable for assessment under Div 7.6 of the MAI Act: s 7.34(1)(a). The word “suitable”, in this context is to be given its natural an ordinary meaning, namely: such as to suit; appropriate, fitting, becoming: IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J at [27]
On the evidence available to me, including the evidence to which I have referred at [15]-[19], I am satisfied that the claim involves complex issues relating to liability, contributory negligence and damages. I am also satisfied that the claimant seeks to proceed against one or more non-CTP parties; namely Mr Shipway, his non-CTP insurer, or both. Although I do not have the pleadings in the Supreme Court proceedings, I accept, based on what I have been told by the claimant’s legal representatives, that such proceedings are on foot.
Given the matters to which I have referred in paragraph [22], I consider that a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under Division 7.6 of the MAI Act. In my assessment, the mode of hearing that will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment on the one hand, and a court hearing on the other, is the latter: Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 at [43]. Further, given that proceedings involving the claimant and Mr Shipway are already on foot in the Supreme Court of the ACT, there would be an unnecessary and undesirable duplication of work and costs if the claim were to proceed to assessment in the Commission.
Having made a preliminary assessment of the claim, taken into consideration the objects of the Personal Injury Commission Act 2020, and considered the issues that arise in the claim, I have concluded that the claim is not suitable for assessment under Division 7.6 of the MAI Act. I recommend that the claim be exempt from assessment.
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 31 January 2024, approved Senior Member Williams’ recommendation that the claim is not suitable for assessment.
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