Raffoul v AAI Limited t/as GIO
[2023] NSWPIC 265
•15 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Raffoul v AAI Limited t/as GIO [2023] NSWPIC 265 |
| CLAIMANT: | Johny Raffoul |
| INSURER: | AAI Limited t/as GIO |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 15 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Preliminary assessment and determination of insurer’s application for exemption under section 7.34(1)(b) Motor Accident Injuries Act 2017; application opposed by the claimant; liability denied for claim by insurer; breach denied; insurer relies on defences in Part 7 of the Civil Liability Act 2002; factual dispute between the parties; insurer intends to call non-parties to give evidence; insurer argues that claim gives rise to complex legal, factual, and liability issues; insurer argues that evidence given under oath or affirmation required; Held – claim involves complex legal issues; court hearing will resolve the matters in dispute in the claim more efficiently and effectively; claim not suitable for assessment; recommendation that the claim be exempt from assessment. |
DETERMINATIONS MADE: | 1. I recommend to the President that the claim be exempt from assessment. |
BACKGROUND
Johny Raffoul was injured in an incident that occurred on 13 November 2020 (incident). He subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer), the insurer of the vehicle involved in the incident. The insurer has denied liability for the damages claim, and Mr Raffoul has referred his claim to the Personal Injury Commission (Commission) for assessment under division 7.6 of the MAI Act.
The insurer has sought an exemption from assessment under s 7.34(1)(b) of the MAI Act. These reasons contain my preliminary assessment of the claim and determination under that provision.
As recorded in the preliminary conference report dated 24 January 2023, there is a dispute between the parties in relation to the facts and circumstances in which the incident occurred. Further, at the preliminary conference Ms Watts confirmed that, in addition to the factual disputes, the insurer would be raising a defence under part 7 division 1 of the Civil Liability Act 2002 (CL Act), together with an agony of the moment defence.
I do not propose to summarise all the material that has been lodged by the parties in the proceedings; rather, I have incorporated into these reasons aspects of the material to provide necessary context for my determination.
THE INCIDENT
The NSW Police report dated 12 January 2021 includes, relevantly, the following narrative in relation to the incident:
“About the stated date and time[1] POI1[2] had just pulled into his driveway after being tailgated and then stopping and pulling out in front of the VOI driven by POI2.[3] POI2 has pulled over just down from POI1 residence.
POI1 has walked towards the VOI and has leant down speaking to POI2 through the driver’s window of the VOI. They have been talking for a short time which appeared to become more heated. POI1 has then punched POI2 through the window of the VOI. POI2 appears to have punched him back. POI2 has then driven off in the VOI, this has apparently run over the foot of POI1…
POI2 stated that he was just driving normally along Reddall Pde, when POI1 driving his ute has pulled to the left before pulling sharply right trying to hit him. POI2 states he had to go onto the incorrect side of the road to avoid a collision and has pulled over a short distance away. POI2 states the POI1 has walked up to the car and they have had a verbal argument over there [sic] respective manners of driving. POI2 states POI1 has punched him through the window of his car, POI2 has a large lump and redness to the right side of his head near the temple. POI2 states that son of POI1 has then started banging on the window of his car…
Witness 2 has [sic] spoken to by phone and has told police that she saw POI2 pull in sharply and saw POI1 approach POI2. Witness 2 also told police she saw POI strike POI2 through the driver’s window and a first act of aggression. She then saw POI2 drive off she got out when she heard POI1 shouting about being run over…”
[1] 13 November 2020 2.50pm.
[2] Mr Raffoul.
[3] Daniel Garnsey.
In his application for personal injury benefits dated 17 November 2020, Mr Raffoul described the incident in the following terms:
“At 2.55pm on 13.11.2020 I was standing near my driveway when I was run over by another vehicle. I have the driver’s address + the name + number of three witnesses. Police are investigating. I don’t have the rego no. of this vehicle at this stage.”
There are other accounts of the incident contained in the material relied on by the parties, including the version provided by Mr Raffoul in his statement dated 29 November 2022, particularly at [19] – [25], the account provided by Mr Lane in his statement dated 7 December 2022, in particular at [10] – [15], and the insured driver’s evidence, in his statement dated 17 December 2020, in particular at [15] – [31]. I have taken all the statements into account for the purposes of my preliminary assessment of the claim and this determination.
STATUTORY FRAMEWORK
The insurer’s 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
(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).”
As the claim is not of a kind specified in cl 14 of the Motor Accident Injuries Regulation 2017, the application for exemption has been made under s 7.34(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 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 an application for exemption may be made before a Member in the course of the general assessment of a claim. That is what has occurred in these proceedings.
SUBMISSIONS
Insurer’s submissions
In support of its application for exemption, the insurer relies on a bundle of documents dated 13 February 2023. The bundle includes submissions of the same date. I have considered the material in the bundle.
The insurer submits that the claim is not suitable for assessment by the Commission, and ought to be exempted from assessment, on the following bases:
(a) liability for the claim has been denied by the insurer, on the basis that the insurer denies that its insured driver breached his duty of care to the claimant. In so denying, the insurer intends to rely upon, among other things, the defences in Part 7 of the CL Act – specifically, those in ss 52, 53 and/or 54, and
(b) the insurer expects that it will be necessary to serve subpoenas to attend to give evidence upon several non-party witnesses.
It is the insurer’s position that the incident occurred in the course of its insured’s reasonable actions in attempting to flee the scene, in an effort to avoid further assault at the hands of the claimant.
The insurer’s submissions assert that the circumstances of the incident fall within the provisions of s 52 of the CL Act (or s 53, should it be found that its insured’s actions were not a reasonable response in the circumstances as perceived by the insured, a matter that the insurer does not concede). Put another way, in circumstances where it is alleged that the claimant had assaulted the insured, the insured’s actions in attempting to leave the area amounted to self-defence, and these actions, it is submitted, were a reasonable response to those circumstances as perceived by the insured.
The insurer also argues that on Mr Raffoul’s version of events, ss 54(1)(a) and (b) will be relevant to any assessment of his claim for damages.
It is the insurer’s submission that the relevance of Part 7 of the CL Act to any determination of liability in its insured, gives rise to complex legal, factual, and liability issues, rendering the claim unsuitable for assessment by the Commission: see rr 99(3)(a) and (b) of the PIC Rules.
The insurer says that, in addition to Mr Raffoul, non-parties to the proceedings are likely to be required to give evidence, namely: the insured driver; the officer in charge of the police investigation; and at least three independent witnesses.
The insurer points to s 51 of the Personal Injury Commission Act 2020 (PIC Act), and submits that in order for the parties to be afforded a fair hearing, the compulsion of the non-parties to attend to give evidence will be necessary. This, in the insurer’s submission, can only be done by way of service of subpoenas to attend to give evidence. Further, it is submitted, it will be necessary for the non-party witnesses to give evidence under oath or affirmation, and be subject to proper examination and cross-examination so as to afford both parties a fair hearing.
The insurer argues that the claim is not suitable for assessment by the Commission, and ought to be exempted pursuant to s. 7.34(1)(b) of the MAI Act.
Mr Raffoul’s submissions
Mr Raffoul opposes the insurer’s application for exemption. He relies on submissions prepared by Mr Hallion, of counsel, dated 7 March 2023.
Mr Raffoul’s submissions canvas the circumstances of the incident, references the insurer’s liability notice dated 18 October 2022, the Police report summary of the incident, and the “insurer’s factual report”, which I take to be a reference to the Brooksight reports contained in the insurer’s bundle of material dated 13 February 2023. The submissions make a number of criticisms of the liability notice, and address the operation of Part 7 of the CL Act.
The submissions make reference to the onus carried by the insurer in respect of Part 7 of the CL Act, and argue that “whether this is discharged is no different from any other claim in the [Commission] where the [i]nsurer dispute[s] the measure or entitlement to claim damages”. I do not accept this submission. While the Commission regularly undertakes assessments of damages, the assessment of disputes involving Part 7 of the CL Act is not commonplace. Disputes involving Part 7 of the CL Act are materially different to disputes about the assessment of damages. They often involve more evidence, including witnesses, and a different body of law. And they are often more complex, both factually and legally.
It is argued that the “front-end procedure and right to question the claimant and [i]nsured driver are more than sufficient for determining a dispute where the ambit of the dispute is extremely narrow”. I do not agree. It appears likely that a number of other witnesses will be called, including Mr Lane and Ms O’Connell. Further, I consider it likely that the evidence of these witnesses will be critical to the factual findings made in relation to the incident.
The submissions address the causation issue Mr Raffoul asserts need to be addressed, and the precautions it is said a reasonable person would have taken in the circumstances in which the claim arose. The submissions also address the evidence, the merits of the insurer’s case, and the issues Mr Raffoul submits need to be determined in his claim. The submissions argue that the evidence of third party witnesses, such as the police officers, would provide little further assistance. I do not agree. The evidence of Mr Lane and Ms O’Connell (and perhaps others) is likely to be critical in circumstances where there is a factual dispute between the parties as to what occurred.
Mr Raffoul argues that the narrow ambit of the factual dispute will involve an exercise that is “routinely undertaken” by the Commission. I do not agree, for the reasons given at [23]. He submits that the basis upon which the insurer has denied liability is misconceived, and that reliance on part 7 of the CL Act only goes to limit recovery of damages, not the threshold question of whether there was fault in the use of a motor vehicle.
It is submitted that “[w]hile the facts are novel they are not unique or give rise to complexity or any great deal of conflict”. While I agree that the facts are novel, I do not agree that they are not unique, or give rise to complexity or any great deal of conflict.
DETERMINATION
I make no findings with respect to the facts and circumstances that have given rise to Mr Raffoul’s claim for damages. Further, I am not required to address the merits of either parties’ arguments as they relate to liability for the claim. 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”.
I have considered the material relied on by the parties in the proceedings, and taken into consideration that:
(a) the insurer has denied that the insured driver breached the duty of care owed to Mr Raffoul;
(b) liability for Mr Raffoul’s claim for damages has been denied;
(c) in his submissions, Mr Raffoul agrees that the “facts are novel”;
(d) there is a factual dispute in terms of the circumstances in which the incident occurred;
(e) at the preliminary conference held on 24 January 2023, the insurer confirmed that, in addition to the factual disputes, the insurer would be raising a defence under Part 7 Division 1 of the CL Act, together with an agony of the moment defence;
(f) it is likely that one or both parties will want to call third party witnesses to give evidence;
(g) subject to s 51(2) of the PIC Act, a summons may be issued only to a party to the proceedings in the Motor Accidents Division. Therefore, non-parties cannot be compelled to give evidence in Commission proceedings, and
(h) the Commission cannot require a person giving evidence to give an oath or affirmation.
I am satisfied that the claim involves issues of liability, including fault and causation. It may ultimately involve issues relating to contributory negligence. The insurer relies on defences under Part 7 Division 1 of the CL Act, together with an agony of the moment defence. In these circumstances, I am satisfied that the claim involves complex legal issues.
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 a better opportunity for proper and fair cross examination of witnesses, and the ability to compel the attendance of witnesses to attend a hearing by way of subpoena. The ability to compel non-party witnesses to give evidence may be critical in a claim in which there are factual disputes between the parties. The evidentiary difficulty that would arise if the insurer is not able to compel relevant witnesses to give evidence under oath in the Commission will not apply to court proceedings.
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 PIC Act, considered the circumstances of the claim, including the various accounts of the incident contained in the material relied on by the parties, and the matters referred to at [29] – [33], I have determined 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.
Recommendation for exemption approved by Division Head on 4 April 2023.
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