RACQ Insurance Limited v BRT
[2023] NSWPIC 672
•13 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | RACQ Insurance Limited v BRT [2023] NSWPIC 672 |
| CLAIMANT: | BRT |
| INSURER: | RACQ Insurance Limited |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 13 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; complex causation issues; pre-and post-accident history of injuries; claimant’s reliability as a medical historian put in issue by the insurer; likely doctors will be required to give oral evidence; Held – 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; the claim is not suitable for assessment; recommendation made that the claim be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
BRT was injured in a motor accident on 28 June 2018 (accident). On
28 February 2020 she made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on RACQ (insurer). On 14 July 2020 the insurer wholly admitted liability for the claim.
BRT subsequently referred her claim to the Personal Injury Commission (Commission) for assessment. She was, at that time (and when the first preliminary conference was conducted on 23 August 2022) legally represented. However, she no longer has legal representation, her solicitors having ceased to act in or about December 2022.
The claim was referred to me to assess in accordance with s 7.36 of the MAI Act. The procedural history is recorded in the preliminary conference reports.
On 20 October 2023 the Commission received correspondence from the insurer’s lawyers, in which the insurer requested that a preliminary assessment of the claim be performed in order to recommend to the President of the Commission that the claim be exempted from the Commission on discretionary grounds under s 7.34(1)(b) of the MAI Act (application for exemption).
On 24 October 2023 I made directions for provision by the parties of submissions and evidence in relation to the application for exemption. The insurer was directed to lodge the material it relied on by 3 November 2023. BRT was directed to provide her written response to the application for exemption, together with any supporting documents, on or before 27 November 2023. The parties were informed that on or after 28 November 2023 I would undertake a preliminary assessment of the claim, under s 7.34(1)(b) of the MAI Act, on the papers. The insurer subsequently provided submissions dated 1 November 2023.
On 21 November 2023, BRT informed the Commission that, due to various issues, she would not be able to respond to the directions made on 24 October 2023. On
22 November 2023 I varied the directions made on 24 October 2023 so that BRT’s response to the application for exemption was to be provided to the Commission on or before
8 December 2023. The parties were informed that I would undertake a preliminary assessment of the claim on or after 9 December 2023, without further notice to the parties.
STATUTORY FRAMEWORK
The application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision is in the following terms:
“7.34 Claims exempt from assessment (cf s 92 MACA)
(1) A claim is exempt from assessment under this Division if—
(a) the claim is of a kind specified in the regulations as 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 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 states:
“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 (PD5) applies to the application for exemption. PD5 makes it clear that, as has occurred in these proceedings, an application for exemption may be made before a Member in the course of the general assessment of a claim.
INSURER’S SUBMISSIONS
In correspondence from its lawyers to the Commission dated 20 October 2023, the insurer provided further submissions in support of the exemption application. The insurer argues that causation is a significant and complicated issue in the claim. Among other things, the insurer points to records from Bankstown Hospital, which it says show that on 2 July 2018 (four days after the accident) the only history was of a soft tissue back injury, and that nothing was recorded regarding a neck injury. In conducting a preliminary assessment of the claim, I have reviewed those records. They include reference to “pain all over the back” and “spinal and paraspinal tenderness thoracic and lumbar”. The hospital records confirm that X-rays of
BRT’s lumbosacral spine, thoracic spine, and chest were performed. The triage comment includes the following:
“Pt walked in with body pain and stiffness to body. Pt was involved in a MVA on Friday, but did not go to hospital because her friend was in critical condition. Pt is complaining of lower back pain. Multiple trauma in the past.”
The insurer also refers to injuries and surgery after the accident, including: a motor vehicle accident on 24 July 2019; a C5/6 fusion and discectomy on 24 October 2019; presentation by BRT at Liverpool Hospital on 3 March 2020 with history of having exacerbated right side neck pain from sliding doors at Centrelink; a motor vehicle accident on 14 January 2021 with a subsequent history of neck and lower back pain; and a lumbar interbody fusion at L4/5 and L5/S1 on 9 July 2021.
The insurer provided further submissions in correspondence from its solicitors dated
1 November 2023. The insurer refers to the differing opinions in relation to causation of the alleged neck and back injuries, and argues that the causation issue is “the key to the resolution of the claim” and involves complex medical evidence. This is evidenced, it argues, by Dr Rosenthal having first considered, in reports dated 14 January 2021 and
18 January 2022, that the need for BRT’s surgery was caused by the accident, and then, on review of the clinical records from Liverpool Hospital, Bankstown Hospital and Campbelltown Medical and Dental Centre, Dr Rosenthal “completely revised his opinion”. In this regard, I note that in his report of 26 August 2022, Dr Rosenthal stated that:
“The history of the pre-existing and subsequent conditions was not accurate from what was given to me in my two previous assessments of BRT. It appears she has had multiple other accidents and injuries which particularly cloud the issue of causation. The opinions, however, provided in my 2022 report in regards to treatment, fitness for work and domestic requirements are based on her presentation as of that date, and do not take into account the issue of causation.”
Further, in his opinion, BRT’s complaints:
“…now appear to be related to multiple other incidents including an accident that occurred in July 2019 and another incident that occurred in March 2020. Thus, the resultant surgical procedures both on her neck and back may be the result of other accidents or incidents that are unrelated to the subject accident of 2018.”
Dr Rosenthal went on to state that:
“It would appear from the hospital documents that the symptoms from the 2018 accident had in fact settled at the time she had the 2019 motor vehicle accident. The cervical fusion occurred in October 2019 which was only a few months after the July 2019 motor vehicle accident. The lumbar spinal fusion occurred in July 2021 which was then also post the 2019 accident and the March 2020 incident. Thus, both surgical procedures appear not directly related to the 2018 subject accident.”
The references to Dr Rosenthal’s opinion that have been recorded above should not be taken to suggest that I agree with the doctor. Rather, I have included these references to illustrate the nature, and basis, of the dispute about causation. In this regard, there is evidence that supports BRT’s case with respect to causation, including the report of Dr Dias dated 9 October 2020.
The insurer also refers to the records of Dr Ahmed, that refer to consistent complaints of neck pain (radiating to the hands), lower back pain as well as occasional knee, leg and wrist pain, the first being in 2011. Reference is also made to records referring to a motor vehicle accident on 19 December 2011 with neck and lower back injury, radiating to the left leg.
In the insurer’s submission, “whether [the alleged failure by BRT to provide an accurate history] involved [her] being forgetful or deliberately misleading is something to best be tested within the rules and evidence applicable to a Court and not available before the [Commission]”. I agree.
The insurer argues that, if exempted, on proceedings being commenced in the District Court, aside from relevant evidence being able to be subpoenaed, including evidence from Nelson Hospital, Nelson, New Zealand, (those records being potentially relevant to the claimant’s pre-accident condition), expert medical evidence will also be the subject of cross-examination. This would include evidence from Dr Wilson, the claimant’s treating neurosurgeon.
In the insurer’s submission, court and applicable rules of evidence are the fairest means for such expert medical evidence to be heard. In that context, it is argued that, by granting the exemption, the objects of the Commission are fulfilled, whilst also fulfilling matters to be relevantly considered under rule 99 of the Commission Rules, including 99(3)(a) and (b).
In the insurer’s submission, the claim involves complex legal and factual issues related to causation and possible misleading statements. Accordingly, the insurer submits that the claim should be exempted from assessment to enable BRT to bring court proceedings.
BRT’S SUBMISSIONS
BRT has provided her response to the exemption application in an email dated
8 December 2023. She makes reference to a number of challenges she has recently experienced, including internet and data issues. Other matters, not directly related to the exemption application, are referred to. She states that she has not been provided with adequate time. She also states “You are requiring doctors that couldn’t even diagnose spinal injuries after a traumatic car crash and have an inability to provide accurate notes”, and that “[a]lmost all of my treating doctors have failed to provide beneficial treatments, they failed to provide treatments that didn’t cause harm and hurt my body and soul.” She states that it would take her “months maybe even a year to gather all the required information in my case.”
Included in BRT’s email is an email from the Commission dated 23 November 2023 that records the variation of the directions made on 24 October 2023, as recorded earlier in these reasons.
DETERMINATION
I am not required to address the merits of either parties’ arguments as they relate to issues that arise in the claim, including with respect to causation of BRT’s injuries. Further, I am not making an assessment of BRT’s damages. My task is to make a preliminary assessment of the claim and determine whether the claim is not suitable for assessment under Division 7.6 of the MAI Act: s 7.34(1)(b) MAI Act.
In IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J at [27], when considering the meaning of “suitable” in the context of s 92(1)(b) of the Motor Accidents Compensation Act 1999 (the MAC Act), found that the word is to be given its natural and ordinary meaning. His Honour relied on the Macquarie Dictionary definition of “suitable”, namely “[s]uch as to suit; appropriate, fitting, becoming”. This is the meaning that I have applied to “suitable”.
In my assessment, the issue of causation that arises in the proceedings is complex. That is because of the pre-and post-accident history of neck and back injuries. BRT’s reliability as an accurate medical historian has been put in issue by the insurer. It is likely that either or both parties will seek to call oral evidence from both treating and medico-legal doctors. Further, it is likely that evidence from Nelson Hospital in New Zealand will be required. The Commission cannot compel the Hospital to produce its records.
The ability to compel medical experts to give evidence may be critical in a claim in which there is a dispute between the parties in relation to causation of injury. It may also be critical where the history provided to medical expert(s) is not accurate, so that the assumptions that underpin their opinion are either not accurate, or not complete. The evidentiary difficulty that would arise if either party were not able to compel relevant expert witnesses to give evidence under oath in the Commission will not apply to court proceedings.
I consider that the mode of hearing that will resolve the matters in dispute in the claim more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment by the Commission on the one hand, and a court hearing on the other, is the latter. In my assessment, a court hearing has the advantage of affording the parties a better opportunity for proper and fair cross examination of medical witnesses, the ability to compel the attendance of witnesses to attend a hearing by way of subpoena, and the ability to issue subpoenae for production outside NSW (relevantly to New Zealand).
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. This is because of the nature of the matters in dispute, and the limitations on the process and procedure applied by the Commission. No such limitations will arise in court proceedings. Thus, in my assessment, it is neither appropriate nor fitting for the claim to be assessed by 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 to the President that the claim be exempt from assessment.
If the President agrees with my preliminary assessment, and the claim is exempt from assessment, BRT will be entitled to commence court proceedings in respect of the claim.
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 December 2023, approved Senior Member Williams recommendation that the claim is not suitable for assessment.
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