Case: Pout v Shipway [2024] NSWPIC 41

Date of Decision: 16 January 2024

Jurisdiction: Personal Injury Commission, Senior Member Brett Williams

Background

The claimant Mr Pout was injured whilst driving an all-terrain vehicle (ATV) on private property. He made a claim for damages against the respondent Mr Shipway, who owned the ATV, as well as the property on which the claimant was injured.

The ATV did not have compulsory third party (CTP) insurance and on this basis, also made a claim for damages against the Nominal Defendant, under the Motor Accident Injuries Act 2017 (MAI Act). The CTP damages claim did not proceed, however, the claimant commenced proceedings for damages in the Supreme Court of the Australian Capital Territory against the respondent.

In the Personal Injury Commission (PIC), the claimant had referred his claim for damages for assessment but sought an exemption from assessment under s7.34(1)(b) of the MAI Act.

The respondent, neither lodged a reply, nor any evidence or submissions.

The claimant argued that his claim was not suitable for assessment because:

(a) he resided in the Australian Capital Territory;

(a) there was no CTP policy which responds to the claim, but there may be a public liability policy which responded;

(b) there were complex legal issues, likely as to liability, contributory negligence, and indemnity;

(c) there were complex factual issues, in particular with respect to alleged modifications to, and defects in, the ATV;

(d) liability had not been admitted, and

(e) the claimant had commenced proceedings with respect to the accident against Mr Shipway in the Supreme Court of the Australian Capital Territory.

Issues

The issue was whether on preliminary assessment, the PIC was satisfied that the claim was not suitable for assessment. There are various factors to be considered, and this is informed by Rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules) which stipulates:

“(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.”

Decision

The claimant had fulfilled the conditions referred to in r 99(3)(a)-(d).

The Commission ultimately made the preliminary assessment and determined that the claim was not suitable for assessment, because it involved complex issues relating to liability, contributory negligence and damages.

Another consideration was that the Commission considered that a court hearing was more likely to result in the just, quick and cost effective resolution in dispute. Further, given that a claim was already on foot in Court against a non-CTP party, there would be unnecessary and undesirable duplication of work.

Key Lessons for Employers & Insurers

In the context of the motor vehicles accident compensation legislation, a claim for damages may be referred to the Commission for assessment. The majority of such disputes are resolved through the assessment process and such assessments may relate to liability and quantum.

However, s 7.34 of the MAI Act allows for a preliminary assessment to be had instead, where it could be determined that the claim was not suitable for assessment.

As can be seen from this decision, and the often cited case of Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519, claims are unlikely to be suitable for assessment in the Commission (and more suited for adjudication in Court), if there are complex legal issues or serious matters of credit to be considered.

Contributor:

Justin Heng

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.