Qian v AAI Limited t/as Suncorp Insurance
[2024] NSWPIC 674
•6 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Qian v AAI Limited t/as Suncorp Insurance [2024] NSWPIC 674 |
| CLAIMANT: | Chunhao (Eric) Qian |
| INSURER: | AAI Limited t/as Suncorp Insurance (QLD) |
| MEMBER: | Terence Stern OAM |
| DATE OF DECISION: | 6 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for discretionary exemption pursuant to section 7.34(1)(b); general complexity; Insurance Australia Ltd t/a NRMA Insurance v Banos, IAG Ltd t/as NRMA Insurance v Abiad, and IAG Limited t/as NRMA Insurance v Khaled applied; whether a court hearing is likely to result in the just, quick and cost effective resolution of the real issues in dispute and compel the calling of witnesses that may otherwise not be compellable to give evidence; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President's delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
The claimant was involved in a motor accident on 24 November 2018.
The claimant is Chunhao (Eric) Qian. The insurer is AAI Limited trading as Suncorp Insurance (QLD). The legal representation for this particular matter is Steven Young for the claimant and Helen Li for the insurer.
On 5 November 2024 the claimant made a claim against Suncorp (the insurer).
The insurer has filed a reply. The insurer submits that the claim is not suitable for assessment in the Personal Injury Commission (the Commission).
I conducted an initial Preliminary Conference on 3 December 2024. The insurer some days prior to the Preliminary Conference had filed its reply which incorporated an application for a discretionary exemption.
STATUTORY FRAMEWORK
The insurer's application for exemption is made pursuant to s 7.34(1)(b) of the
Motor Accident Injuries Act 2017 ('MAI Act') that provision is in the following terms:
"7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if:
(a) the claim is of a kind specified in the regulations is a claim that is exempt from assessment under this Division, 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 a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."
As the claim is not of a kind specified in cl 14 of the Motor Accident Injuries Regulation, 2017, the application for discretionary 'exemption’ has been made pursuant to s7.34(1)(b).
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 the 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 in the circumstances of the claim.
(4) 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."
Suncorp denies liability and further denies that it was the insurer on risk at the time of the motor vehicle accident.
The vehicle which caused the accident was reported to have been stolen to the Queensland police at 6:53am on 23 November 2018, the day before the collision.
The report of the stolen vehicle was immediately notified to the QLD Traffic and Main Roads Authority (TMR).
In accordance with the relevant legislation, the cancellation of the registration was effected by QLD Motor Registry on 24 November 2018.
Given that the motor vehicle collision did not occur until after 7pm on 24 November 2018, the registration of the vehicle had been cancelled prior to the accident causing the injuries.
Suncorp submits that in the circumstances, it was not the insurer at risk at the time of the accident.
Suncorp submits that the matter should proceed as a claim against the Nominal Defendant.
At the Preliminary Conference on 3 December 2024, the legal representatives for Suncorp and for the Nominal Defendant supported and consented to an application for a discretionary exemption.
General complexity
All parties submit that there is general complexity arising from the circumstances of the accident and complexity in relation to assessment of whole person impairment.
SUBMISSIONS
No party has made detailed submissions.
In a letter dated 21 November 2023 however, Moray & Agnew representing the Nominal Defendant maintained that Suncorp is the relevant insurer for the purpose of the common law claim and the claim for recovery. The letter continued that while Suncorp maintained that the registration of the vehicle had been cancelled before the accident, the Nominal Defendant maintained that the vehicle was covered by CTP insurance on that day.
Further, Moray & Agnew advise that they were instructed to commence proceedings in the Supreme Court Equity Division seeking a declaration that the CTP policy for insurance issued by Suncorp was valid at the date of the accident.
There is an added complexity in respect of a medical dispute for whole person impairment. Neither Suncorp nor Allianz (the agent for the Nominal Defendant) have arranged for the claimant to be examined by any medico-legal experts to assess whole person impairment given the uncertainty as to the CTP insurer.
DETERMINATION
Notwithstanding that all parties seek to have the matter exempted pursuant to s 7.34(1)(b) of the MAI Act and pursuant to rule 99 of the Personal Injury Commission Rules 2021, I must still be satisfied that this claim is not suitable for assessing before recommending to the President of the Commission that the matter be formally exempted.
Justice Campbell in Insurance Australia Ltd t/a NRMA Insurance v Banos [2013] NSWSC 1519 ("Banos") provided some helpful guidance by identifying relevant considerations when exercising such administrative discretion:
"[43] When deciding statutory question in the case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. I do not mean to be exhaustive:
(a) the Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court;
(b) however, the consideration that s.92 provides for both mandatory exemptions and discretionary exemption provides a clear legislative guidepost that appropriate cases should be “redirected” to the court system at an earlier time by way of preliminary determination;
(c) a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised;
(d) a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross- examination of witnesses whose credit is to be impugned and the greater availability of cross examination of medical experts on the material which may call a claimant's reliability into question;
(e) as it is clear the claimant's credit will be called into question, a consideration of whether it is in the public interest that such an examination occurs in open court;
(f) Finally, but by no means least, the consideration that it is not mandatory, when a credit issue is raised, to decide the claim is not suitable for assessment under part 4.4."
Subsequently, Justice Bellew relying upon the Banos decision held the relevant considerations include:
(a) whether both parties can be afforded a hearing (assessment conference) which is fair in a practical sense having regard to the nature of the allegations raised.
(b) which mode of hearing will resolve the dispute more efficiently, and effectively bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses this credit is to be impugned and the greater availability of cross-examination of experts on the material which may cause the claimant's reliability to be put into question.[1]
[1] IAG Limited t/a NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J.
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 pursuant to Division 7.6 of the MAI Act. This is primarily because of the nature of the matters in dispute and the limitations on the process and procedure applied by the Commission. The court is free of such limitations.
CONCLUSION
Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment pursuant to s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and I recommend to the President that it 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 21 February 2025, approved Member Terence Stern’s recommendation that the claim is not suitable for assessment.
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