Rifai v AAI Limited t/as GIO

[2024] NSWPIC 81

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rifai v AAI Limited t/as GIO [2024] NSWPIC 81
CLAIMANT:	Mohammad Rifai
INSURER:	GIO
MEMBER:	David Ford
DATE OF DECISION:	26 February 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; recommendation; claimant injured in a motor vehicle accident whilst riding as a pillion passenger on a motorcycle; claimant, fell from the motorcycle, landed on the roadway, and was run over by another motorcycle; claimant sustained serious injuries; claimant refused to advise police of the identity of the owner/rider of the motorcycle which he was riding; claimant states he has no recollection of the accident; claim commenced against the insurer who denied liability; insurer submits there were multiple witnesses seen riding with the claimant; insurer requires attendance of these witnesses at the hearing and submits these witnesses may be reluctant to give evidence at the hearing; submitted an exception on discretionary grounds should be sought on the basis the claim involves complex legal and factual issues regarding liability, contributory negligence and causation; Held – matter be exempted on the grounds the claim potentially involves complex legal or factual issues of liability including issues of contributory negligence, fault or causation and whether a claimant or witness is considered by the Commission to be a material witness who resides outside the State; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT

BACKGROUND

1. On 24 March 2021 at approximately 10:55 pm, the claimant states he was a pillion passenger on a motorcycle being ridden along Southern Cross Drive at Mascot, when he fell from the motorcycle, landed on the roadway and was then run over by another motorcycle which was riding behind him..

2. The claimant sustained serious injuries and was taken by ambulance, firstly to St George hospital and then, subsequently, to Royal North Shore hospital. He sustained major injuries to his thoracic spine and unfortunately, he now has complete paraplegia.

3. He refused to advise the police officers who attended the scene of the accident as to the identity of the owner/rider of the motorcycle upon which he was riding on as a pillion passenger. Furthermore, he has provided the insurer’s investigators with a signed statement stating he has no recollection of the accident.

4. The GIO is the CTP insurer of the rider of the motorcycle which ran over the claimant as he was lying on the roadway. The solicitor for the insurer has lodged submissions on the portal in support of their application for exemption on discretionary grounds on the basis the claim does involve complex legal and factual issues regarding liability, contributory negligence and causation. The solicitor for the GIO agrees with the reasons identified by the solicitor for the Nominal Defendant (QBE) which are set out in detail in matter number M2O219/24. The solicitor for the GIO also submits there is no evidence the claimant was a pillion passenger at the time of the accident and, there is a witness account of the claimant riding a motorcycle on the evening of the accident. It is further submitted, also by the solicitor for the GIO there were multiple witnesses that were seen riding with the claimant on the night of the accident and these witnesses will need to be called to give evidence. It is anticipated, again, by the solicitor for the GIO, it is unlikely these witness witnesses will attend to give evidence at any assessment conference.

5. The insurer has denied liability for the claim.

6. It is also submitted the claimant is likely to need a certificate pursuant section 128 of the Evidence Act 1995(NSW) to protect him against self-incrimination. This is necessary as

   (1)    If the claimant was riding a motorcycle at the time of the accident, the Nominal Defendant says that he was riding with a suspended licence.

   (2)    Since the accident, the claimant has served a period of incarceration.

8.  It is further submitted a hearing is likely to take at least 3-4 days given the number of witnesses that will need to be called.

9. The solicitor for the claimant consents to the application for discretionary exemption and submits the claim involves complex legal and factual issues in the assessment of the liability including contributory negligence fault and causation.

1. I note the matter can be exempted under section 7.34(1)(b) of the MAI Act on the following grounds:

   (a) the claim involves issues of liability, including contributory negligence, fault or causation
   (Rule 99(3)(b) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules)).

2. I determine in the interest of justice there will be witnesses who may give crucial evidence about the circumstances leading up to and the cause of the accident, which must be before the decision maker.

Relevant Legislation

12.  Sub-section 7.34 (1)(a) provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.

13. Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.

14. Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:

1. 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.

15.. In this case a number of considerations listed in clause 99 are relevant.

16.The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the PIC Act and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be: accessible, professional and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.

17.In making my findings, I am also mindful of other relevant consideration listed in rule 99 including that the claim potentially involves:

·complex legal or factual issues.

·issues of liability, including issues of contributory negligence, fault or causation; and

·whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State.

18.. I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.

Determination

19. In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:

·the objects of the PIC Act set out in section 3 which include the quick, cost effective, just, and informal resolution of disputes.

·the claim involves potential issues of about liability or contributory negligence and conflicting evidence about how the accident occurred.

1. I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.

2. I recommend that the claim be exempt from assessment by operation of sub-section 7.34(1)(b) of the MAI Act and clause 99 of the PIC Rules.

3. 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 19 March 2024, approved Member David Ford’s recommendation that the claim is not suitable for assessment.