Robinson v Transport Accident Commission

[2024] NSWPIC 594

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Robinson v Transport Accident Commission [2024] NSWPIC 594
CLAIMANT:	Kellie Robinson
INSURER:	Transport Accident Commission
MEMBER:	David Ford
DATE OF DECISION:	1 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); claims assessment dispute as to whether the claim is not suitable for assessment under Division 7.6 of the MAI Act; insurer made an application that matter be exempted on a discretionary basis under section 7.34(1)(b) of the MAI Act on the grounds that the claim involves issue of liability, including contributory negligence, fault or causation; rule 99(3)(c) of the Personal Injury Commission Rules 2021; claimant lodged a claim for common law damages in respect of pure mental harm because of her attending a motor vehicle accident on 17 March 2020 during the course of her employment as a firefighter with Fire and Rescue NSW; the driver of the Victorian registered truck caught fire, and unfortunately, the driver was killed; it was a single vehicle accident; claimant suffered a panic attack, anxiety and since then, has been diagnosed with post-traumatic stress disorder; insurer denied liability, and did so on several grounds, which included that the workers compensation insurer of the claimant’s employee had commenced section 151Z recovery proceedings under the Workers Compensation Act 1987 against the insurer, and the proceedings have been listed for a directions hearing in the District Court at Sydney; the insurer submitted the matter ought to be exempted and allowed to proceed in the appropriate forum, where the legal and factual complexities can be properly considered, where a binding decision can be made and where non-party witnesses can be compelled to give evidence; Held – determined the claim is not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

Recommendations Claim Not Suitable for Assessment

Issued under section 7.34(1)(b) of the Motor Accident Injuries Act 2017

My preliminary assessment of the claim and I recommend to the President that:

1.    This claim is not suitable for assessment under Division 7.6.

2. This claim is exempt under sub-section 7.34(1)(b) of the Motor Accident Injuries Act and clause 99 of the Personal Injury Commission Rules 2021.

BACKGROUND

1. The insurer has made an application the matter be exempted on a discretionary basis under section 7.34(1)(b) of the MAI Act on the following grounds.

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

2. The claimant lodged a claim for common law damages in respect of pure mental harm because of her attending a motor vehicle accident on 17 March 2020 during the course of her employment as a firefighter with Fire and Rescue NSW. The motor vehicle concerned was a Victorian registered truck, which caught fire, and unfortunately the driver was killed. It was a single vehicle accident.

3. The claimant was required to attend the scene and remained there with the body of the deceased. It is alleged she suffered a panic attack, anxiety, and since then, has been diagnosed with PTSD,

4. The insurer has denied liability and has done so on several grounds which are as follows.

   (a) The workers compensation insurer of the claimant’s employer has commenced s.151Z recovery proceedings under the Workers Compensation Act 1987 against the insurer and the proceedings have been listed for directions hearing in the District Court in November 2024.

   (b)  the denial of liability

   (c)   complex factual issues in relation to the claimant’s prior exposure to workplace trauma and the nature of her underlying symptomatology.

   (d) the complexity of the various defences pleaded under s.30 of the Civil Liability Act NSW

   (e) The complexity of the defence under s.1.9 to the Motor Accident Injuries Act 2017

   (f) the complexity of the defence under s.151Z. of the Workers Compensation Act 1997 NSW

   (g)  it is submitted there will be a need to cross examine both medico legal experts ,Dr Brown and Dr Rastogi ,prior to which there should be a conclave.

5. The insurer submits the matter ought to be exempted from assessment and allowed to proceed in an appropriate forum where the legal and factual complexities can be properly considered and where a binding decision can be made and where non-party witnesses can be compelled to give evidence.

6. 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)); and

   (b) a Claimant, or witness, considered by the Commission to be a material witness, resides outside the State (rule 99(3)(c) of the PIC Rules).

Relevant Legislation

1. 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.

2. 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.

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

4. 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.

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

2. 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.

1. 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.

2. Although I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.

Determination

1. 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; and

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

3. 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.

4. 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 23 October 2024, approved Member David Ford’s recommendation that the claim is not suitable for assessment.