Randall v Allianz Australia Insurance Limited
[2024] NSWPIC 164
•4 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Randall v Allianz Australia Insurance Limited [2024] NSWPIC 164 |
| CLAIMANT: | Brooke Ashley Randall |
| INSURER: | Allianz Australia Insurance Limited |
| SENIOR MEMBER: | Williams |
| DATE OF DECISION: | 4 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for exemption under section 7.34(1)(b); whether claim is not suitable for assessment; where claimant’s vehicle collided with a rock wall on the M1 Motorway and another vehicle travelling in the same direction subsequently collided with her vehicle; Insurance Australia Limited t/as NRMA Insurance v Banos and IAG Limited t/as NRMA Insurance v Khaled applied; Held – the claim involves complex legal issues in relation to liability; expert evidence, including from an accident reconstruction expert, pharmacologist (to address whether the claimant was “over the limit” when the accident occurred), and mechanic, is likely to be required; the hearing is likely to take a number of days and involve multiple witnesses giving evidence; 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; it is neither appropriate nor fitting for the claim to be the subject of an assessment by the Commission; the claim is not suitable for assessment under division 7.6; recommendation subsequently approved by the Division Head, as the President’s delegate. |
BACKGROUND
Brooke Randall (claimant) was injured in a motor accident at Cowan on 27 January 2021 (accident). She subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer). Liability for the claim has been denied, and the claimant has referred her claim to the Commission for assessment in accordance with Div 7.6 of the MAI Act.
In the course of the proceedings, that were allocated to me to assess, the insurer has made an application for exemption on the basis that the claim is not suitable for assessment. An application for exemption by a party is permissible in these circumstances: Cl 17 Procedural Direction MA5 (Procedural Direction).
I dispense with the requirement for the insurer to lodge an application for exemption and for the claimant to lodge a reply, as otherwise required by the Procedural Direction.
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.
EVIDENCE
In the course of making a preliminary assessment of the claim I have considered all the evidence lodged by the parties. I will refer to some aspects of the evidence to provide context for my determination.
In an application for personal injury benefits, the claimant recorded that she has no memory of the accident. An Ambulance Electronic Medical Record includes the following case description:
“…High speed MVA single driver into rock wall. Pt found by other motorists in the gutter, suspected ejected from vehicle…”
The following account is contained in the hospital admission records:
“…single vehicle accident. Stopped facing the wrong way on the freeway, then hit head on by a second car at high speed…”
Some of the reports prepared by medical practitioners include histories of the accident. By way of example, in a report dated 30 November 2022, Dr Coughlan, neurosurgeon, recorded as follows:
“…She reported she had a very severe accident when she was travelling down the highway towards Sydney and just before the bridge at Mooney she hit the stone wall on the left hand side. Apparently there was some sort of malfunction with the steering wheel…”
In a report dated 26 March 2023, Dr Stephenson, orthopaedic surgeon, recorded a history that the claimant:
“…was driving a small Hyundai car, when suddenly the steering wheel locked and started shaking. She hit the brakes, the car spun around and hit a brick dividing wall on the freeway…”
The best evidence I have available to me with respect to the circumstances in which the accident occurred is the report of Dr Richardson dated 22 August 2023. The report includes (among other things) a summary of evidence from NSW Police, versions of the accident provided by the driver of the other vehicle involved and his passenger, and photographs of the accident scene.
The report records that the accident occurred on the M1 Motorway, some 800m from the Hawkesbury River Bridge, at approximately 10.53pm. Dr Richardson was asked to assume that:
(a) the claimant was driving north along the M1 Motorway when she collided with a rock wall, causing her vehicle to stop;
(b) she was uninjured apart from having suffered shock, and
(c) while she was at her vehicle, another northbound vehicle collided with her vehicle.
The following narrative, reproduced in the report, was taken from Police records:
“It is unclear at this time what has fully occurred, however at this stage it appears the following has occurred:
Vehicle two was travelling north along the M1 when it has collided with the rock wall, the circumstance of this accident at this stage are unclear but it appears to be a single vehicle MVA . At the time of the collisions it was lightly raining, the road was wet, it was night time and there are no street lights along that section of the M1.
As a result of this accident vehicle two has ended facing south in the north bound lane, without the headlights on in lane three of three. This section of the of the M1 is a sweeping bend with no street lighting.
Vehicle one has come around the bend travelling approximately 110km/h with a truck travelling next to him in lane two of three, vehicle one has had no time to attempt to break and has collided with vehicle two, forcing vehicle two into lane one of three and vehicle one has collided with the centre rock wall and stopped in the break down lane next to lane three of three…”
In brief terms, the other driver involved in the accident reported that he had no time to stop, and was unable to avoid the collision.
In Dr Richardson’s opinion, had the other driver driven slower in the rain, he would have had more time to see, perceive, and react to any unexpected hazard such as the claimant’s vehicle. Further, had he driven slower in the rain, and not chosen to overtake the truck, he would not have collided with the claimant’s vehicle.
In Dr Richardson’s opinion, the other driver “rolled the dice to pass a truck when he could not see through the spray and rain” and the claimant was injured as a result of his decision.
It is clear on the evidence available to me that as a result of the accident, the claimant sustained significant injuries, primarily orthopaedic. In this regard, I have considered the ambulance report, the records of Royal North Shore Hospital, reports from the claimant’s treating doctors, radiological reports, and medico-legal evidence.
Reports from the claimant’s treating surgeon, Dr Papadimitriou, record the nature and extent of her injuries, together with her post-accident treatment (that included surgical procedures). Further, Medical Assessor Hyde Page has given a certificate in which he certified that the claimant’s injuries caused by the accident give rise to a permanent impairment that is greater than 10%.
SUBMISSIONS
The insurer’s submissions in support of its application are contained in correspondence addressed to the Commission dated 22 March 2024. In those submissions the insurer identified the following matters that it argues support a finding that the claim is not suitable for assessment:
(a) the claim involves complex legal issues in relation to liability, which takes the matter outside of the parameters of matters suited to determination by the Commission;
(b) expert evidence, including from an accident reconstruction expert, pharmacologist (to address whether the claimant was “over the limit” when the accident occurred), and mechanic, is likely to be required;
(c) a range of witnesses are likely to be required to give evidence, including emergency services personnel, the other driver and his passenger, the claimant and her partner, and the experts relied on by the parties;
(d) the Nominal Defendant may be joined to proceedings on the basis that another vehicle may have impacted the claimant causing her injuries;
(e) the hearing on liability alone will take four to five days and submissions thereafter one to two days, and
(f) the likely length and complexity of the hearing renders the claim not suited to a determination by the Commission.
At a preliminary conference held today, Mr Hall-Johnston confirmed that the claimant did not oppose the insurer’s application for exemption.
DETERMINATION
Having undertaken a preliminary assessment of the claim, I am well satisfied, given the factual issues, liability issues, matters with respect to which expert opinion is likely to be required, the likely length of the hearing, and the range of witnesses likely to be required to give evidence, 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 Div 7.6 of the MAI Act.
In my opinion, 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]. I am satisfied that it is neither appropriate nor fitting for the claim to be the subject of an assessment by the Commission: IAG Limited t/as NRMA Insurance v Khaled [2019] NSWSC 320 Bellew J at [27]
Having taken into consideration the objects of the Personal Injury Commission Act 2020, and considered the issues that arise in the claim, I have determined that the claim is not suitable for assessment under Div 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 18 April 2024, approved Senior Member Williams recommendation that the claim is not suitable for assessment.
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