Strbac v Allianz Australia Insurance Limited
[2025] NSWPIC 239
•30 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Strbac v Allianz Australia Insurance Limited [2025] NSWPIC 239 |
| CLAIMANT: | Bosko Strbac |
| INSURER: | Allianz Australia Insurance Limited |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 30 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Motor Accidents Compensation Act 1999 (MAC Act); claimant alleges injury whilst boarding a privately owned bus; whether the claim governed by the MAI Act or the MAC Act; McTye v Ching Yu Chang by his tutor Leo Alexander Birch; joint application for claim to be exempted from assessment in accordance with section 7.34(1)(b) of the MAI Act on the basis of legal complexity; Held – the question of whether the claim is governed by the MAI Act or the MAC Act is of such complexity that that issue alone renders the claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate. |
RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
BACKGROUND
Bosko Strbac (claimant) alleges that he suffered injury whilst boarding a bus at Liverpool on 1 April 2019 (accident). He has made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer). Liability for the claim has been denied and the claim referred to the Commission for assessment under Div 7.6 sub-div 2 of the MAI Act.
The bus involved in the accident was owned by Ingleburn Bus Services Pty Ltd. Since the proceedings were commenced McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3 (Chang) has been handed down by the Court of Appeal.
There is an issue as to whether the claim is governed by the MAI Act or the Motor Accidents Compensation Act 1999 (MAC Act), the insurer having informed the claimant that it does not consider Chang applies to the claim, and that the claim is governed by the MAI Act. In this regard, Griffiths AJA said in Chang that:
“[73]…One issue which the present litigation may not resolve is which legislation applies to an award of damages where a person is injured in a public transport accident and the bus is not operated by the STA but rather under some contracted-out arrangement. The future resolution by Court processes of such issues will also be costly and demanding in terms of time and resources. “
The parties have made a joint application for the claim to be exempted from assessment under Div 7.6 of the MAI Act: s 7.34(1)(b) MAI Act. On 2 May 2025 the parties were directed to file joint submissions in support of the application for exemption. That has now been done.
I dispense with the requirement under Procedural Direction MA 5 for an application for exemption and reply to be filed.
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim for the purposes of s 7.34(1)(b) can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.
STATUTORY FRAMEWORK
The application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision is relevantly in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, or
(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:
“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.”
Procedural Direction MA5 applies to the application. As recorded earlier, I have dispensed with the requirement for an application for exemption and reply to be filed.
In determining whether the claim is not suitable for assessment the objects of the PIC Act must be considered. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules or interprets any provision of the MAI Act or the Rules: s 42(2) PIC Act.
SUBMISSIONS
The parties have lodged joint written submissions dated 26 May 2025 in support of their application for exemption. The submissions record that:
(a) the parties submit the matter is not suitable for assessment as it involves an issue of jurisdiction which should be determined by the District Court, and
(b) in the alternative, the parties seek a discretionary exemption from claims assessment, pursuant to r 99(3)(a) and (b) of the Commission Rules 2021 as the claim involves complex legal and factual issues and issues of liability.
The parties submit that in order to conduct an assessment of damages, the Commission must first conduct an exercise of statutory interpretation to determine the applicable Act.
The insurer submits that, following the judgment in Chang, the claimant has no entitlement to damages and accordingly, the Commission proceedings ought to be withdrawn and/or dismissed. As the bus involved in the accident was owned by Ingleburn Bus Services Pty Ltd, a private company, the insurer argues that in light of Griffiths AJA’s comments at [73] in Chang, the claimant was not involved in a public transport accident in accordance with s 121 of the Transport Administration Act 1988.
Against this, the claimant submits the claim is governed by the MAC Act.
The parties refer to the reasons in Chang at [71] – [74], and submit the issues raised in the claim render it unsuitable for assessment in the Commission as it involves an issue of jurisdiction, complex legal and factual issues, and issues of statutory interpretation.
Further, the parties state that as any determination made by the Commission does not create binding precedent, the dispute “should be ventilated” in the District Court.
CONSIDERATION
Whether the claim is governed by the MAI Act or the MAC Act will have a significant impact on the claimant’s entitlements. If the former his potential entitlements will be limited to non-economic loss. As it stands, he would not be entitled to those damages, the permanent impairment as a result of his accident caused injuries having been certified as not being greater than 10%.[1] If, however, his claim is governed by the MAC Act the claimant may be entitled to heads of damages not available under the MAI Act.
[1] Medical Review Panel certificate dated 2 July 2024.
Given the view I have formed with respect to whether the claim is not suitable for assessment, I do not propose to address the “issue of jurisdiction” raised by the parties.
The reasons given by each of Bell CJ, Basten AJA, and Griffiths AJA in Chang make it clear that the question of whether the claim is governed by the MAI Act or the MAC Act is complex. There is real doubt as to whether Chang has resolved the position with respect to a bus that is not operated by the STA: Chang at [73].
At [74] Griffiths AJA referred to “the tangled web of legislation which is potentially relevant in determining the rights and liabilities of injured persons and CTP insurers respectively concerning public transport accidents.”
The legal complexity involved in determining which Act applies to this claim is such that I am satisfied the claim is not suitable for assessment under Div 7.6 of the MAI Act.
Further, requiring the parties to undertake the work and incur the cost associated with the claim being assessed by the Commission would not facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim be exempt from assessment.
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 June 2025, approved Member Brett Williams’ recommendation that the claim is not suitable for assessment.
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