Shamoun v Allianz
[2022] NSWPIC 67
•10 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Shamoun v Allianz [2022] NSWPIC 67 |
| Claimant: | Simon Shamoun |
| insurer: | Allianz |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claim assessment matter; whether the proceedings should be dismissed; multiple non-compliances by the claimant with a direction given by the Personal Injury Commission; claimant not taking steps to prosecute his case; Held- proceedings dismissed pursuant to section 54 of the Personal Injury Commission Act 2020 and rule 77(b) of the Personal Injury Commission Rules 2021. |
| determinations made: | 1. Pursuant to section 54 of the Personal Injury Commission Act 2020 and rule 77(b) of the Personal Injury Commission Rules 2021, the proceedings are dismissed. 2. Attached are brief reasons for my decision. |
Reasons for Decision
INTRODUCTION
1. These proceedings concern a Miscellaneous Claim assessment. The claimant seeks a review of the insurer’s decision under Schedule 2, clauses (3)(d) and (e) of the Motor Accident Injuries Act2017 (the MAI Act), to the effect that the claimant was wholly or mostly at fault in the motor accident.
2. For reasons that follow, the proceedings are dismissed.
GENERAL BACKGROUND
3. The claimant, Simon Shamoun, is a 33-year-old man who suffered injuries in a motor accident on 28 April 2020.
4. The claimant alleges that about 6.55am on that day, he was driving a hired vehicle insured by the insurer, at about 70 to 80kph along Mona Vale Road, Mona Vale, when the drivers-side front wheel fell off the vehicle, causing him to lose control and collide with a tree.
5. On 14 May 2020, the claimant made a claim for the payment of statutory benefits. The insurer admitted liability to make payments for the first 26 weeks after the motor accident.
6. On 14 August 2020, the insurer issued a further liability notice, denying liability for any statutory benefits beyond 26 weeks, on the basis that the claimant was wholly at fault in the accident.
7. On 22 September 2020, the claimant sought an internal review of the insurer’s decision.
8. On 12 October 2020, the insurer affirmed its original decision.
9. On 9 November 2020, the claimant lodged an application with the Dispute Resolution Service (DRS) to have the insurer’s decision reviewed.
10. The claimant’s application was accepted by DRS and referred to me for determination.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
11. The Personal Injury Commission (the Commission) was established on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
12. I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
13. Because of the date of the accident, clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
PROCEDURAL BACKGROUND
14. The proceedings have had a lengthy procedural history of non-compliance by the claimant with directions of the Commission.
15. On 12 January 2021, I conducted the first teleconference with the parties to explore the issues in dispute, to discuss the lodgement of any further documents by the parties and to establish whether any directions for production should be issued to third parties.
16. The insurer was self-represented at the conference. The claimant was represented by Ms Sareeya Misitano of Gajic Lawyers.
17. A significant issue that emerged was the difference between the insurer’s understanding of how the motor accident occurred and the claimant’s description of the accident as contained in his personal injury benefits claim form.
18. In his claim form, the claimant stated that the drivers-side front wheel fell off the vehicle, causing him to lose control and collide with a tree. The insurer contended that the wheel fell off the vehicle when the vehicle hit the tree. The insurer said there was no other plausible explanation for the wheel coming off the vehicle.
19. The claimant did not lodge a statement of evidence with his application. NSW Police Force records reveal that a conversation between the claimant and a police officer took place at the scene of the accident, but the conversation was not recorded by the attending police officer. In its reply to the claimant’s application to the Commission, the insurer submitted that the claimant had not responded to a request made by the insurer on 24 June 2020 for the claimant to provide a statement of his version of events of the accident.
20. The only evidence before the Commission at the time of the first teleconference from the claimant about the circumstances of the accident was the description of the accident in his personal injury benefits claim form.
21. At the conclusion of the conference, I issued a number of directions to the parties, including a direction to the claimant to lodge with the Commission a signed statement setting out the full circumstances of the motor accident, by 5 March 2021.
22. I adjourned the matter to a second teleconference on 11 March 2021 to await the lodgement of the claimant’s statement and other outstanding documents.
23. At the second teleconference, it became apparent that the claimant had not lodged his statement of evidence. Ms Misitano informed the Commission that she was awaiting information from the insurer about the location and availability of the insured vehicle and the drivers-side front wheel for inspection. I advised Ms Misitano that the lodgement of the claimant’s statement of evidence about the circumstances of the accident was not dependent upon the receipt of such information from the insurer and that the claimant should proceed to lodge his statement without delay. I made a further direction for the claimant to lodge his statement of evidence with the Commission by 1 April 2021 and adjourned the matter to a third teleconference on 13 May 2021.
24. At the third teleconference, it again became apparent that the claimant had not complied with the direction to lodge his statement of evidence. I impressed upon Ms Misitano that the claimant’s statement must be lodged regardless of the claimant’s outstanding expert report or any further information from the insurer. I made a further direction for the claimant to lodge his statement by 27 May 2021 and adjourned the matter to a fourth teleconference on 2 June 2021.
25. At the fourth teleconference, the insurer was represented by Ms Frances Allen of Moray & Agnew Lawyers.
26. At this conference, it again became apparent that the claimant had failed to comply with the direction to lodge his statement of evidence. Ms Misitano informed the Commission that the claimant had terminated his instructions to her law firm on 31 May 2021 and that she was not aware whether the claimant had sought alternative legal representation.
27. I adjourned the matter to a fifth teleconference on 23 June 2021 to provide the claimant an opportunity to either seek alternative legal representation or to attend on his own behalf on the next occasion.
28. At the fifth teleconference, the claimant appeared and informed the Commission that he will be representing himself in the proceedings. I impressed upon the claimant that in order to determine his application for a review of the insurer’s decision, the Commission required a statement from him, setting out his version of events leading to the accident. I then made a further direction to the claimant to lodge his statement by 7 July 2021 and adjourned the matter to a sixth teleconference on 12 July 2021.
29. At the sixth teleconference, on 12 July 2021, there was no appearance by the claimant. It was also apparent from the material on the Commission portal that he had not lodged his statement of evidence.
30. To avoid any doubt about whether the claimant received notification of the sixth teleconference, I made a further direction for the claimant to lodge his statement of evidence by 26 July 2021 and adjourned the matter to a seventh teleconference on 9 August 2021.
31. Due to administrative reasons, the seventh teleconference was adjourned to 18 August 2021.
32. At the seventh teleconference, there was no appearance by the claimant. It was apparent from the Commission portal that the claimant had again failed to lodge his statement of evidence by 26 July 2021. Despite the multiple non-compliances and the further non-appearance by the claimant, I made a further direction for the claimant to lodge his statement of evidence by 10 September 2021.
33. The claimant did not comply with the direction.
CAN I DETERMINE THE PROCEEDINGS?
34.Section 52 of the PIC Act makes the following provisions for the conduct of proceedings:
“52 Hearings and conferences
(1) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(2) Subject to any procedural directions, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.
(4) An assessment or determination is to be made by the Commission having regard to information that is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings do not co-operate or cease to co-operate.”
35.The claimant failed to participate in two teleconferences, on 12 July 2021 and 18 August 2021. Because of these failures, I considered that there would be little utility in setting the proceedings down for hearing by way of a video conference.
36.Having regard to the above provisions and Procedural Direction PIC2, I considered whether, on the information available to the Commission, I could proceed to determine the proceedings without holding an assessment conference. I was not satisfied that I could do so in circumstances where there was insufficient evidence from the claimant about the circumstances of the accident.
37.According to rule 74(c) of the Personal Injury Commission Rules 2021 (the PIC Rules), I am required to take measures that are reasonably practicable to ensure that each party has the fullest opportunity practicable to have the party’s case considered without compromising the objects of the PIC Act.
38.Have made the decision that I could not proceed to determine the proceedings on the information available to me, I considered that it was appropriate for the Commission to allow the claimant, as a self-represented litigant, a final opportunity to comply with my direction and to lodge his statement of evidence.
39.On 25 October 2021, I issued a further direction to the claimant allowing him until 8 November 2021 to lodge his statement of evidence. When the direction was despatched to the parties by the Commission on 26 October 2021, they were informed that the Commission was unable to proceed to determine the proceedings on the information before it and without the claimant’s statement of evidence. The claimant was also informed that should he fail to comply with the direction, the Commission would proceed to dismiss the proceedings.
40.The Commission did not receive a response from the claimant.
SHOULD THE PROCEEDINGS BE DISMISSED?
41.It is appropriate to set out the relevant legislative provisions concerning dismissal of proceedings.
42.Section 54 of the PIC Act provides:
“54 Dismissal of proceedings
The Commission may at any stage dismiss proceedings before it—
(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.”
43.Rule 77 of the PIC rules relevantly provides:
“77 Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a) …
(b) for proceedings by an application made under the motor accidents legislation—
i.if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
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 despatch, or
iv.there is no jurisdiction to determine the dispute to which the application relates, or
v.the application is being used for an improper purpose or is otherwise an abuse of process, or
vi.the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.”
44.In these proceedings, the applicant has been directed on seven occasions to provide the Commission with his written statement of evidence and he has failed to do so. The opportunities provided to the claimant to lodge his evidence are reflected in the procedural history of the proceedings that I have outlined at [15] to [32] above.
45.On 26 October 2021, the claimant was made aware that the Commission would be unable to proceed to determine his application without his statement of evidence. He was also informed that should he fail to comply with the (seventh) direction made by the Commission on 25 October 2021 to lodge his statement of evidence by 8 November 2021, his application would be dismissed.
46.The Commission has not been provided with any explanation by the claimant of the reasons for his non-compliance with multiple directions of the Commission or any reasons why his application should not be dismissed.
47.Subrule 77(b)(ii) of the PIC Rules and section 54(c) of the PIC Act make clear provisions enabling the Commission to dismiss proceedings on the ground that an applicant has failed, without reasonable excuse, to comply with a direction given by the Commission.
48.I consider that the claimant’s multiple non-compliances with the direction of the Commission to submit his statement of evidence, the absence of any explanation for such non-compliances, in circumstances where he was made aware that the Commission would be unable to determine the proceedings without compliance with the direction, satisfies the above ground for dismissal of the proceedings.
49.Given the above circumstances, I am also of the view that the claimant has failed to prosecute the proceedings with due despatch, thus satisfying a further ground for dismissal of the proceedings under subrule 77(b) (iii) and section 54(c) of the PIC Act and that he has abandoned the proceedings, thus satisfying yet a further ground for dismissal under section 54(a) of the PIC Act.
50.I find that under section 54 of the PIC Act, as well as under rule 77(b) of the PIC Rules:
a. The claimant has failed, without reasonable excuse, to comply with a direction given by the Commission.
b. The claimant has failed to prosecute the proceedings with due despatch.
c. The proceedings have been abandoned by the claimant.
51.I have no alternative but to apply my discretion to dismiss these proceedings pursuant to section 54 of the PIC Act and rule 77(b) of the PIC Rules.
DETERMINATION
52.Pursuant to section 54 of the PIC Act and rule 77(b) of the PIC Rules, the proceedings are dismissed.
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