Toone v AAI Limited t/as GIO - [2021] NSWPIC 536

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Toone v AAI Limited t/as GIO [2021] NSWPIC 536
CLAIMANT:	Charlene Toone
INSURER:	AAI Limited t/as GIO
MEMBER:	Belinda Cassidy
DATE OF DECISION:	21 December 2021
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); damages claim; leave to commence proceedings more than three years after the accident; referral to the Personal Injury Commission (Commission) one week outside the time limit in section 7.33 of MAI Act; insurer conceded claimant had full and satisfactory explanation but argued a discretion was involved before the grant of leave and that in exercising the discretion the Commission could have regard to the futility of the application; blameless accident and claimant owner and driver of only vehicle involved in the accident; Held - leave given to refer damages claim to the Commission for assessment; claimant had full and satisfactory explanation for the delay; section 7.33 of the MAI Act did not involve any additional discretion and issue of futility could not be considered; issue of liability separated from quantum and to be heard separately.

INTERIM DECISION

INTRODUCTION

Factual background

Ms Toone was involved in a motor accident on 19 March 2018 on the M1 near Mount White. Her vehicle was the only vehicle involved in the accident and Ms Toone says she sustained injury in that accident.
Ms Toone made a claim for statutory benefits against GIO, her own insurer on 22 March 2018[1] and on 18 March 2021 the claimant served a claim for damages on GIO[2].
[1] The application for personal injury benefits (statutory benefits claim form) is document A1 attached to the claimant’s application and is signed and dated 22 March 2018.
[2] The application for common law damages (damages claim form) is document R2 attached to the insurer’s reply and is signed and dated 17 March 2021.
On 26 March 2021, the claimant lodged an application with the Personal Injury Commission (the Commission). The application sought leave of the Commission to refer Ms Toone’s claim for assessment more than three years after the accident in accordance with section 7.33 of the Motor Accident Injuries Act2017 (the MAI Act).

Ms Toone also asks that the proceedings be referred to the Commission’s stood over list as the claimant is not ready to proceed with the assessment of her claim.
On 29 April 2021, the insurer lodged a reply to the application opposing the granting of leave on the basis it would be futile to do so, as the claimant’s common law damages claim is, in GIO’s view, destined to fail.

Issue in dispute

The claim has been allocated to me for determination of whether the Commission should grant leave for Ms Toon’s claim to be referred for assessment and, if so, to conduct the assessment. Should leave be granted, I would be required to assess the insurer’s liability for the claim and the quantum of the claimant’s damages arising from the injuries sustained in the accident.
I held a teleconference in these proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Toone v AAI Limited t/as GIO and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPIC 536
Decision Date: 21 December 2021

CaseChat Overview and Summary

In Toone v AAI Limited t/as GIO, the plaintiff sought to claim damages for motor accident injuries under the Motor Accident Injuries Act 2017 (MAI Act). The plaintiff's claim was filed more than three years after the accident, and it was referred to the Personal Injury Commission one week after the deadline specified in section 7.33 of the MAI Act. The insurer conceded that the plaintiff had a full and satisfactory explanation for the delay but argued that the Commission had discretion in deciding whether to grant leave and that it could consider the futility of the application. The plaintiff was the owner and driver of the only vehicle involved in the accident.

The legal issues before the court were whether the court had any discretion under section 7.33 of the MAI Act and whether the Commission could consider the issue of futility in deciding whether to grant leave. The court found that section 7.33 of the MAI Act did not involve any additional discretion and that the issue of futility could not be considered. The court also held that the issue of liability should be separated from quantum and heard separately.

The court granted leave for the plaintiff to refer the damages claim to the Commission for assessment. The court held that the issue of liability should be heard separately from the issue of quantum. The court did not speculate on the merits of the case or make any findings on the issue of liability. The final orders of the court are not included in the text.

Orders