Raymond v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 18
•21 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Raymond v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 18 |
| CLAIMANT: | Simone Raymond |
| INSURER: | Insurance Australia Ltd t/as NRMA |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 21 January 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Personal Injury Commission Act 2020 (PIC Act); the claimant suffered injuries caused by a motor vehicle accident on 3 February 2022; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Review Panel found that the claimant suffered a non-threshold right knee injury; the insurer then served separate notices accepting that the claimant sustained a non-threshold injury for receiving ongoing statutory benefits and commencing a claim for damages; current review by claimant of finding that the claimant did not sustain an eye injury; Panel raised that this application for review should be dismissed; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; claimant’s submission that the insurer may seek a further application on the non-threshold finding of the right knee injury speculative and without evidentiary basis; reasons of Panel sound; insurer wholly admitted liability; no statutory power to withdraw admission; Smalley v Motor Accidents Authority of New South Wales; allowing review to proceed contrary to objects of the PIC Act; no medical dispute about the existence of a non-threshold injury; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious. |
DETERMINATIONS MADE: | 1. The application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act 2020 as frivolous and/or vexatious. |
REASONS
BACKGROUND
There is presently an application for review of a medical assessment before a Medical Review Panel. That Review Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons the review of the medical assessment is summarily dismissed.
Ms Simone Raymond (the claimant) alleges that she suffered several injuries including right knee and eye injuries caused by a motor accident on 3 February 2022.
The insurer is liable to pay to Ms Raymond any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that she sustained non-minor injuries. Pursuant to Schedule 2, cl 2 of the MAI Act this is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical assessment of the eye injury was referred to Medical Assessor Weschler who issued a Medical Assessment Certificate dated 26 July 2023 (the medical assessment). The Medical Assessor found that the motor accident did not cause a hemiretinal vein occlusion and opined that the condition was “related to optic disc or local eye factors such as being a glaucoma suspect and having a high cup/disc ratio”.
In a separate Medical Assessment Certificate dated 22 March 2024 a Medical Review Panel concluded that the motor accident caused a tear of the medial meniscus of the right knee and a soft tissue injury to the cervical spine.
In reaching the view on causation the Review Panel relied on the mechanism of injury involving the right knee striking the dashboard, the immediate onset of right knee symptoms, the absence of evidence that the tear pre-existed the motor accident and a review of the radiology which showed a horizontal tear of the medial meniscus.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April
2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. References to “minor injury” in these reasons can be interchanged with “threshold injury”.
By letter dated 6 May 2024 the insurer admitted they were liable for reasonable and necessary medical expenses and weekly loss of income caused by the accident after the
26-week period. The insurer stated:“We agree that you were not at fault or mostly at fault and that you sustained more than a threshold injury.”
In a further letter dated 25 July 2024 the insurer wholly admitted liability for the claim for damages and encouraged early settlement of the claim for damages.
THE REVIEW
An application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
On 21 November 2024 the President’s delegate noted the application for review had been accepted and that there was no power for the delegate “to compel the claimant to withdraw her application for review”. The delegate did not decide the insurer’s submissions dated 10 October 2024 that the review should be summarily dismissed.
The Panel was convened and issued a direction. It also referred the matter to the Division Head for potential dismissal of the review application.
SUBMISSIONS
Claimant’s submissions dated 30 September 2024
The claimant referred to the history of the matter and noted that it did not intend to withdraw the application for review. The applicant submitted:
“The basis for Claimant’s objection is that there is still an option for the insurer to lodge an Application for Further Medical Assessment with respect to the knee condition based on additional relevant information under Section 7.24 of the Motor Accident Injuries Act 2017 and Clause 13 of the Motor Accident Injuries Regulation 2017.
If the Review Application with respect to the claimant’s eye conditions now withdrawn or discontinued, then the issue of whether the claimant’s eye condition is a threshold/non-threshold injury will no longer be open to challenge.
This creates a real potential prejudice likely to be suffered by the claimant if the insurer subsequently does apply for a further medical assessment for the Claimant’s knee condition.”
The claimant submitted that she could not lodge a further medical assessment for the eye injury because s 7.24(3) of the MAI Act restricts the claimant to only one further medical application.
Insurer’s submissions dated 10 October 2024
The insurer submitted that a “medical dispute no longer exists” and referred to s 7.17 of the MAI Act and the decision of the President in Voudouris v TDV Constructions Pty Ltd.[3]
[3] ]2024] NSWPICPD 53.
The insurer submitted that “the new anticipation of a potential dispute in the future is not sufficient grounds to engage the jurisdiction of the PIC in relation to medical disputes”. It submitted that, in the event that the insurer lodged a further medical dispute, what was being asked was theorising of “what might or could occur in the future based on hypothetical evidence”.
The insurer submitted that the claimant’s submissions based on an absence of an entitlement to make a further medical application for the eye injury under s 7.24(3) is misconceived as that provision is directed to the “same injury”.
The insurer referred to the observations in Talevska v AAI Ltd[4] that it was sufficient that the claimant sustained only one injury which was not a threshold injury for the purposes of the MAI Act of the right for statutory benefits to be paid on an ongoing basis and damages recoverable.
[4] [2022] NSWPICMP 82 (Talevska).
The insurer also noted that allowing the review application to proceed in these circumstances where a dispute no longer exists would be contrary to the objects of the Personal Injury Commission Act 2020 (PIC Act) which promote the expeditious resolution of disputes and avoiding unnecessary costs
PANEL’S RECOMMENDATION
On 20 December 2024 the Panel issued a document headed “Directions” when it referred the matter to the Division Head for the determination of whether the review should be summarily dismissed.
DIRECTION AND SUBMISSIONS
The matter was then referred to me when the following direction was issued:
“This matter has been referred by the Division Head to me for consideration of dismissal under s 54 of the Personal Injury Commission Act, 2020 and the Regulations.
I have received a copy of the Panel’s report and directions dated 20 December 2024 and the insurer’s liability notices dated 6 May 2024 and 25 July 2024.
It is clear from these notices that the insurer accepts that the motor accident caused an injury which is not a threshold injury.
The claimant is on notice that the current review may be frivolous, vexatious and/or an abuse of process as there is no medical dispute on the issue of whether the claimant has received a non-threshold injury which requires determination.
The claimant can file and serve any submissions, by close of business, 15 January 2025, addressing:
1.any errors in the Panel’s report dated 20 December 2024; and
2.why the review should not be dismissed including addressing why the claimant is pursuing the current review.”
The claimant replied to the Direction by a message through the Commission Portal. That message stated:
“In answer to the Directions issued by Member (sic) Harris dated 6 January 2025 the Claimant responds as follows:
1. The Claimant can find no errors in the Panel's report dated 20 December 2024.
2.The Claimant wishes to provide no further submissions as to why the review should not be dismissed.”
FINDINGS
Section 54 of the PIC Act applies to panel review proceedings[5] and relevantly provides that proceedings may be dismissed if:
“(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.”
[5] See Rule 127 (1)(d) of the PIC Rules.
Rule 77(b)(ii) and (iii) of the Personal Injury Commission Rules (the PIC Rules) provides that s 54(c) of the PIC Act applies to motor accidents legislation when:
“(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due dispatch.”
Rule 127(3) of the PIC Rules provides that the function of the Commission under s 54 of the PIC Act is given to the President.
Table B of the delegated functions provides that the function under Rule 127(3) is delegated to various persons including a Principal Member.
The principles of summary dismissal are discussed in Insurance Australia Ltd v Fayed[6] and those principles are repeated in these reasons. It is sufficient to repeat that a “strike out” (dismissal) application is exercised sparingly and in circumstances where the claimant’s case is taken at its highest.
[6] [2023] NSWPICMP 413.
The insurer has accepted that the claimant has sustained a non-threshold right knee injury as referenced in the recent dispute notices. The claimant need only establish a non-threshold injury of any type to obtain ongoing statutory benefits and pursue a claim for common law damages.[7]
[7] See s 3.11, 3.28 and 4.4 of the MAI Act.
Accordingly, there is no longer a medical dispute as to whether the claimant suffered an injury not defined as a threshold injury.
That Review Panel decision was issued in March 2024. There is nothing to suggest that the insurer is seeking a further application of that decision. The claimant’s submission to the contrary is speculative and has no evidentiary basis. I otherwise note the well-reasoned Review Panel findings that the motor accident caused or aggravated a meniscal tear.[8]
[8] See [9] herein.
This case differs from the facts in Insurance Australia Ltd v Mangogna[9] where the insurer asserted that it was seeking a further application of the other injury which had been found to be a non-threshold injury. In that matter there was a finding that the review application proceeds as there was an expectation that a further application would be filed in the proceedings involving the finding of a non-threshold injury.
[9] [2023] NSWPICMP 508
Given that the insurer has wholly admitted liability and is liable to pay some damages, there is no statutory power for the insurer to withdraw that admission.[10] That binding admission means that the insurer has accepted that the claimant is entitled to bring a claim for damages and has satisfied the pre-condition in s 4.4 of the MAI Act.
[10] See Smalley v Motor Accidents Authority of New South Wales [2013] NSWCA 318.
The claimant’s submission that she is not entitled to a further application on the eye injury is contrary to the legislation for the reasons articulated by the insurer. However, I also agree with the insurer that this submission is irrelevant to the present application.
Allowing the review application to proceed is time consuming, an inefficient use of Commission resources and contrary to the objects of s 3 of the PIC Act where there is no medical dispute about the existence of a non-threshold injury.
The proceedings are frivolous and vexatious as there is no dispute about a medical assessment matter pertaining to whether the claimant sustained a non-threshold injury.
The review proceedings are dismissed pursuant to s 54 of the PIC Act.
0
4
0