Smith v AAI Limited t/as AAMI

[2024] NSWPIC 372

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v AAI Limited t/as AAMI [2024] NSWPIC 372
CLAIMANT:	Jason Smith
INSURER:	AAMI
MEMBER:	David Ford
DATE OF DECISION:	4 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); section 7.34(1)(b); rule 99(3)(d) of the Personal Injury Commission Rules 2021; recommendation that claim is not suitable for assessment; claimant injured in a motor vehicle accident admitted to two hospitals for treatment, subsequently suffered a serious wound infection requiring surgeries; claimant has alleged medical negligence on the part of the medical staff at the said hospitals which caused him to develop further injuries; claimant has now commenced a medical negligence claim against the hospitals in the District Court; claimant submits the matter be exempted in the interests of justice in order for both claims to be determined concurrently in the jurisdiction of the District Court; whether matter should be exempted on discretionary grounds; Held – matter be exempted on the grounds a claimant or insurer seeks to proceed against one or more non-CTP parties; recommendation subsequently approved by the Division Head, as the President’s delegate.

BACKGROUND

1. Jason Smith (claimant) was injured in a motor vehicle accident on 31 May 2021 and liability is currently denied due to ongoing investigations regarding the circumstances of the accident.

2. The claimant sustained compound fractures of the right forearm and a laceration to his left elbow in the accident. He was taken by helicopter to the Royal North Shore Hospital where he underwent surgery being an open reduction and fixation of fractures to the right radius and ulnar. Following discharge, he was treated as an outpatient at Wyong Hospital and Royal North Shore Hospital. He subsequently suffered a serious wound infection and underwent two further surgeries. He developed further injuries together with an exacerbation of the injuries from the motor vehicle accident because of the wound infection.

3. The claimant has filed a statement of claim in the District Court in Sydney regarding to the post operative care provided by Wyong Hospital and Royal North Shore Hospital in relation to the injury he sustained in the subject accident. He has alleged medical negligence on the part of the medical staff at the said hospitals, which caused him to develop injuries.

4. The solicitor for the claimant has lodged an application for discretionary exemption and I note the matter can be exempted under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act).

5. I note the matter can be exempted under s 7.34(1)(b) of the MAI Act on the following ground under Rule 99(3)(d) of the Personal Injury Commission Rules 2021:

   ·        whether a claimant or insurer seeks to proceed against one or more non-CTP parties.

6. I recommend the matter be exempted because in the interest of justice, both claims should be determined concurrently in the jurisdiction of the District Court.

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 the claim is not suitable for assessment as follows:

   “99   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.”

4. In this case a number of considerations listed in cl 99 are relevant.

5. 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 Personal Injury Commission Act 2020 (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.

6. 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, and

   ·        issues of liability, including issues of contributory negligence, fault or causation.

7. 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 s 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

   ·        the claimant seeks to proceed against one or more non-CTP parties.

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 cl 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 9 August 2024, approved Member Ford’s recommendation that the claim is not suitable for assessment.