Saunders v Allianz Australia Insurance Limited
[2024] NSWPIC 514
•23 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Saunders v Allianz Australia Insurance Limited [2024] NSWPIC 514 |
| CLAIMANT: | Darren Saunders |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 23 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CLA); exemption from assessment; not suitable for assessment; complex legal or factual issues; issues of liability; proceeding against non-CTP parties; rule 99 of the Personal Injury Commission Rules; as a member of Fire and Rescue NSW the claimant attended the scene of a fatal accident; complex legal and factual arguments under section 30(2)(a) of the CLA and as to causation; possibility of associated recovery proceedings by non-CTP party; dispute as to the limitation issue and procedural breach of section 6.14 of the MAI Act; Held – claim not suitable for assessment; exemption from assessment recommended; recommendation subsequently approved by the Division Head, as Delegate of the President. |
RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
The claimant sustained injury in a motor vehicle accident on 18 June 2020 (the accident).
Darren Saunders (the claimant) asks that I refer the claim to the President of the Personal Injury Commission (Commission) with a recommendation that the claim be exempted from assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the MAI Act) and rule 99(3) of the Personal Injury Commission Rules 2021 (the PIC rules).
Section 99 of the PIC Rules provides that in determining whether a claim is suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim.
In determining whether a claim is not suitable for assessment for the purposes of s 7.34(1)(b), matters the Commission may consider under rule 99(3) of the PIC Rules include 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, and
(c) whether a claimant seeks to proceed against one or more non-CTP parties.
THE FACTS
The claimant as a member of Fire and Rescue NSW attended the scene of an accident on 18 June 2020 on the Princess Highway, Bewong.
The at fault vehicle, a semi-trailer registered No. CF87CX insured by Allianz Insurance Australia Limited (insurer) collided with vehicle registered No. BZK57X. The driver of vehicle BZK57X sustained severe injuries and died at the accident scene.
The claimant attended the scene of the accident and was required to remove the body parts of the deceased from his vehicle.
The claimant has commenced workers compensation proceedings against his employer Fire and Rescue NSW and the relevant workers compensation insurer, Employers Mutual Limited (EML). That claim has been accepted and the claimant continues to receive statutory workers compensation payments.
On 23 April 2024 the claimant made a claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (1987 Act) on EML.
THE GROUNDS FOR THE APPLICATION
Complex factual issues
The claimant submits the claim is not suitable for assessment in the Commission due to the complex factual issues.
The complex factual arguments outlined by the claimant include the following:
(a) the time of the deceased’s death;
(b) whether the deceased was dead at the time of the claimant’s arrival at the accident scene and prior to the commencement of the emergency operation;
(c) whether the claimant knew or ought to have known that the deceased was in peril, passing or had already passed away at the time he attended and participated in the rescue operation following the accident;
(d) the impact of the accident on the claimant’s overall psychological state;
(e) whether any deduction should be made arising from the contributory negligence of the employer for traumatic events the claimant was previously exposed to during the course of his employment with Fire and Rescue NSW in his role as a firefighter, and
(f) the apportionment of liability.
Liability, contributory negligence, fault and causation
The claimant notes there is a dispute as to who is liable for causing the claimant’s injuries.
The claimant submits pursuant to s 4.4 the evidence supports that the driver of the semitrailer CF87CX was at fault for causing the accident. The claimant alleges there was a breach of duty of care. The claimant has been diagnosed with post-traumatic stress disorder, a non-threshold injury.
While admitting fault on behalf of their insured driver and acknowledging that the claimant sustained a non-threshold injury, the insurer in a liability notice dated 7 September 2023 denied liability because:
(a) further information is required to determine the extent to which the claimant’s condition relates to the accident, where the claimant attended other traumatic events throughout his career as a firefighter, and
(b) having regard to s 30(2)(a) of the Civil Liability Act 2002 (CLA) the claimant is not entitled to recover damages for pure mental harm (psychological injury) where he did not witness, at the scene, the victim being killed, injured or put in peril.
Claimant proceeding against a non-CTP party
In a letter dated 18 January 2024 EML indicated they are instructed to pursue recovery of statutory workers compensation payments made to the claimant from the date of injury to date pursuant to s 151Z of the 1987 Act. Those proceedings will be commenced in the District Court of New South Wales.
Limitation
The claimant lodged the claim for statutory benefits and for common law damages under the MAI Act on 20 July 2023, outside the three year limitation period.
The claimant purported to provide a full and satisfactory explanation for the delay in April 2024.
The insurer has not accepted that the explanation for delay is full and satisfactory.
Accordingly, the claimant submits, the limitation issue is yet to be determined.
Settlement discussions
The claimant served on the insurer a report of Dr Richa Rastogi dated 26 October 2023 on 8 May 2024.
Having regard to the dispute as to liability the parties have not participated in settlement discussions, or utilised best endeavour to resolve the dispute prior to commencing these proceedings in the Commission.
INSURER’S REPLY
The insurer uploaded a Reply and submissions dated 22 August 2024. The insurer concurs with the claimant’s application for exemption.
The insurer notes there is an unresolved procedural breach under s 6.14 of the MAI Act. In this regard, the insurer maintains that the claimant is yet to provide a full and satisfactory explanation for the delay in bringing his claim.
The insurer submits liability has been denied on the basis the claim does not satisfy s 30(2)(a) of the CLA. The insurer also states there is insufficient evidence currently available to determine whether ss 4.4 and/or 1.9(2) of the MAI Act and/or s 31 of the CLA are further grounds for a denial of liability.
The insurer notes the involvement of the workers compensation insurer and pending 151Z recovery action further complicates the claim as outlined by the claimant.
The insurer submits it is likely the parties will need to gather extensive material and call experts and witnesses to give evidence in respect of the liability dispute. The insurer submits the Court’s facilities are better equipped to accommodate this in a timely and cost-efficient manner.
CONCLUSION
There are complex factual and legal issues involving the timing of the deceased’s death and whether the claimant was present at the time the deceased was killed, injured or put in peril.
There are also complex factual and legal issues involving the apportionment of liability including the question of contributory negligence where the claimant has responded to various traumatic events during his employment with Fire and Service NSW.
Where any application for recovery by EML of workers compensation payments under s 151Z of the 1987 Act arises out of the accident it would be preferable if those proceedings were determined together with any claim to be brought by the claimant arising out of the accident. In the event the claimant or any other witness is required to give evidence having both proceedings determined together in the District Court means the claimant and any witnesses will not be required to give evidence on more than one occasion.
Where there is an issue about the limitation period and whether the claimant has provided a full and satisfactory explanation for the delay exemption from assessment and hearing by a court will enable those issues to be determined once and for all.
There is no power to compel the attendance of a witness in the Commission. A court hearing will give the claimant an opportunity to utilise the subpoena power to secure the attendance of witnesses if required and will facilitate evidence being given on oath in a forum where the strict rules of evidence apply.
A court hearing will also permit the parties to utilise the subpoena process to secure the production of records relevant to issues of liability.
Having regard to the complex factual and legal issues and the possibility of related proceedings involving a non-CTP party I am of the view the claim should be exempted from assessment by the Commission.
RECOMMENDATION
Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the MAI Act and I recommend to the President that it be exempt from assessment.
I vacate the preliminary conference listed on 28 August 2024 at 9:00 am.
In accordance with s 7.34(1)(b) of the MAI Act, the Division Head (Motor Accident Division) as delegate of the President, on 20 September 2024, approved Member Susan McTegg’s recommendation that the claim is not suitable of assessment.
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