RECOMMENDATIONS - CLAIM NOT SUITABLE FOR ASSESSMENT

1. John Glenn (the claimant) was asleep in the rear of a car when it was involved in a motor accident on 3 April 2021 where the driver and other passenger in the vehicle were killed in the accident. The claimant has no recall of how the accident occurred.
2. According to the police report E79086244 "in currently unknown circumstances, Veh 1 has veered off the road and collided with a tree".
3. On 19 April 2023, the claimant made a claim against NRMA (the insurer) for common law damages relating to injuries sustained in the accident.
4. The insurer on 16 January 2025 admitted liability with contributory negligence of 45% on the part of the claimant on a number of grounds specified in the determination on liability.
5. On 3 March 2025 the claimant has referred the claim to the Personal Injury Commission (Commission) seeking an exemption from assessment. The insurer similarly consents to the exemption and has made submissions in support.

BASIS OF APPLICATION FOR DISCRETIONARY EXEMPTION

1. The claimant seeks an order for exemption pursuant to regulation 99(3)(a)-(b) of the Personal Injury Commission Rules 2021 (the Rules) on the basis that the claim is not suitable for assessment for the purposes of s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act) as it involves the determination of complex issues of contributory negligence (liability), and fact.
2. These matters warrant referral to the District Court rather than the Commission because of the existence of multiple legal and factual considerations that extend beyond the scope of the Commission's assessment process and require a higher degree of judicial process and scrutiny.
3. On 16 January 2025, the insurer served a liability decision notice which accepted liability for the claim for damages but alleged contributory negligence on the part of the claimant at 45%.
4. Prior to 16 January 2025 contributory negligence was not contended by the insurer.
5. The relevant chronology of the claim appears below:

(a) at all material times the claimant was a passenger in a single vehicle accident on 2 April 2021;

(b) on 20 March 2023, the insurer advised of the need to further investigate the issue of liability but that no determination had yet been made;

(c) on 19 April 2023, the insurer denied liability for common law damages on the basis that investigations into the circumstances of the accident were continuing and they expected it would take "Several more months before we are able to obtain access to the full NSW Police Brief of Evidence and relevant records from ACT Police" because of ongoing coronial proceedings;

(d) on 19 June 2023, the insurer supplied Australian Federal Police and NSW Police authorities for the claimant to complete to enable further investigation into liability. This request was attended by delay given the physical and psychological impairment of the claimant;

(e) on 21 October 2024, the claimant supplied authorities to the insurer, and

(f) on 16 January 2025 the insurer then served a liability notice alleging contributory negligence.

1. Following receipt of the liability notice, the legal representatives of the claimant identified the need for exemption. Instructions were immediately sought from the claimant and provided on 28 February 2025.The following submissions therefore outline the nature of the dispute at hand and the consequent need for exemption.

1. The insurer's liability notice has alleged a significant degree of contributory negligence (45%) on the part of the claimant, citing failure to wear a seatbelt, improper seatbelt use, and constructive knowledge of the driver's intoxication. These allegations require a detailed examination of the factual circumstances, including witness testimony, police reports, and critically, expert liability evidence, in the form of biomechanical and evidence from a pharmacologist to determine whether the claimant's actions contributed to the severity of his injury and the extent to which this might impact the claim.
2. The complexity of these issues necessitates expert analysis and comment. Such comment will take the form of competing expert reports. The validity of these reports and their conclusions ought properly be tested in court through expert conclave and testimony. These are matters that go beyond the routine assessment of a claim and warrant judicial consideration.

1. The insurer's reliance on legal precedent, Joslyn v Berryman [2004] NSWCA 121, underscores the need for judicial consideration. The authority cited by the insurer involves nuanced legal principles regarding contributory negligence in circumstances where a passenger is alleged to have known or ought to have known of the driver's impairment. The application of these principles to the present case and the claimant's need to respond, likely with the comparison of further similar case law such as Twilia Rose Campbell v The Nominal Defendant [2012] NSWDC 37 and Jones v NRMA Insurance Limited [2013] NSWDC 82, requires a judicial consideration where factual and legal disputes can be rigorously tested, and expert evidence can be properly assessed.
2. The interplay between different areas of expertise, medical, forensic, biomechanical, and legal, necessitates a level of analysis that the Commission is not structured to accommodate. Only through judicial determination can the complex interplay of these factors against legal precedent be properly assessed.

ISSUES OF LIABILITY, CONTRIBUTORY NEGLIGENCE, AND CAUSATION

1. The apportionment of liability and contributory negligence by the insurer also has direct implications for the quantum of damages. Given that liability apportionment impacts settlement negotiations and the ultimate award, a judicial determination is required to ensure procedural fairness and legal certainty. The claimant submits that the courts would be better equipped to handle the level of evidentiary analysis required in this case, particularly given the conflicting interpretations of the evidence presented by the parties.
2. Rule 99(3)(a)-(b) provide that exemption may be granted where the claim involves issues of liability, including contributory negligence, fault, or causation. In this case, all three elements are in dispute, requiring a detailed and technical legal assessment attended by multiple expert reports, complex scientific and legal questions, and appropriate cross-examination of witnesses. Full consideration of these issues is most appropriately considered in the court context.
3. The Commission's process is not structured to allow for the same level of cross-examination and expert evaluation as court proceedings. Given the number of disputed factual issues in this matter, the District Court provides a more appropriate forum for their resolution.
4. The District Court's procedures allow for the full presentation of competing expert reports, legal arguments, and witness testimony, which are all necessary in this case to ensure a fair and just outcome.

RELATED PROCEEDINGS IN THE DISTRCT COURT (ESTOPPEL)

1. The claimant notes that concurrent proceedings have been brought before the District Court of New South Wales by Ms Renee Catrell, a dependant of the driver, Ms Julie Patricia Nadin, in the subject accident on 3 April 2021 (M2024/00281722).
2. Evidence and determinations on liability relating to the accident and any expert evidence should be jointly considered for the purpose of both claims to avoid issue estoppel arising.
3. Accordingly, the claimant's matter is more just and efficiently heard concurrently in the District Court where such evidence can be used for multiple proceedings.

1. Overall, given the concurrent proceedings already present within the District Court, the factual complexity of the dispute, and the complex issues attending liability, contributory negligence and fault, the claimant submits that there are reasonable grounds to support an order for exemption under r 99(3)(a)-(b) of the Rules.
2. We therefore submit that the matter should be exempted and referred to the District Court for determination.

1. The claimant applies for an exemption of the claim from the Commission on discretionary grounds pursuant to s 7.34(1)(b) of the MAI Act and regulation 99 of the Rules.
2. The claimant submits that the claim involves issues of liability and complex factual and legal issues justifying the exemption of the claim.
3. The claimant also submits that there are concurrent proceedings arising from the same accident currently litigated before the District Court of New South Wales, liability evidence and expert evidence relating to the accident should be jointly considered to avoid issues of estoppel.
4. The insurer consents to that application.
5. In addition to the issues addressed in claimant's submission in his application, the insurer submits that there is a significant prospect that the claimant will require to give evidence in the proceedings currently before the District Court of NSW by the spouse and on behalf of the estate of one of the deceased, as the claimant was the sole survivor.
6. Moreover the parties will not be bound by the Commission's assessment as contributory negligence is in issue, increasing the risk of a re-hearing and of the claimant having to provide evidence on multiple occasions.
7. Given the circumstances of the accident, which involved multiple fatalities, it would be appropriate to minimise the number of occasions on which the claimant is required to give evidence.
8. The insurer submits that it would be unnecessarily costly and inconvenient for lay and expert witnesses, to have to give evidence on multiple occasions.
9. The insurer wishes to rely on evidence produced under subpoena in the litigated claim and expert evidence which bears on the determination of contributory negligence including but not limit to a report by the Coroner.
10. A hearing is likely to take several days, which the insurer submits the Commission is not equipped to facilitate.

1. Having considered the material before me and the circumstances of this claim the submission of the parties are persuasive. The claim involves complex legal and factual considerations.
2. There is likely to be a number of proceedings heard together. The claimant is seeking matters to be heard together. Whilst it is noted the insurer has indicated it wished the matters to remain separate, this will ultimately be a matter for the Court to decide. It is likely that related matters will be heard together and the Commission does not have the power to compel non CTP and third parties to attend its forum. There will be numerous witnesses called and transcript of evidence required daily to assist in cross-examination.
3. It will definitely be more expeditious and cost effective for the matters to be determined in the one forum.
4. The cost effectiveness of having a number of claims heard together is also to be considered as well as the impact of the claimant and others being required to give evidence traumatic in nature on a number of occasions. The exemption of the claim will enable the hearing to encompass more than one dispute simultaneously.
5. I note there are concurrent separate proceedings already in place in the District Court by family members of the deceased driver.
6. I note both parties in the Commission application consent to the application for discretionary exemption.

1. I have regard to the relevant legislation and the provisions of the Personal Injury Commission Regulations 2021 and in particular r 99(3) of the Guidelines in making this recommendation. The rules provide the following considerations:

(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."

1. The claim is unsuitable for assessment at the Commission pursuant to r 99(3) (a) and (b).

1. Having taken into consideration the provision of s 7.34 of the MAI Act, a claim can be exempted if the Commission has made a preliminary assessment of the claim that the claim is "not suitable for assessment".
2. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the MAI Act and r 99(3)(a) and (b) of the Rules. I recommend to the President that it be exempt from assessment.
3. 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 8 May 2025, approved Member Shana Radnan's recommendation that the claim is not suitable for assessment.