Causation Questions Render Claim Unsuitable for Assessment

In Brief

Section 7.34(1)(b)  of the Motor Accident Injuries Act 2017 (MAIA) states a claim can be subject of a discretionary exemption from assessment, if it has been determined by the Commission that the claim is not suitable for assessment under Division 7.6.

Rule 99 of the Personal Injury Commission Rules 2021 outlines the considerations the Commission may consider in determining whether a claim is not suitable for assessment:

1. whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,
2. whether the claim involves issues of liability, including contributory negligence, fault or causation,
3. whether a Claimant or witness, considered by the Commission to be a material witness, resides outside the State,
4. whether a Claimant or insurer seeks to proceed against one or more non-CTP parties,
5. 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 provides that an application for exemption may be made before a Member in the course of a general assessment of a claim.

A Member is required to make a preliminary assessment of the claim and take into consideration of the objects of the Personal Injury Commission Act 2020, consider the issues that arise in the claim to provide a recommendation of whether the claim is not suitable for assessment under Division 7.6 of MAIA.

If the President of the Commission agrees with the Member’s preliminary assessment, and the claim is exempt from assessment, the Claimant will be entitled to commence court proceedings in respect of the claim.

Facts

On 19 January 2024, the Personal Injury Commission (PIC) published its decision in RACQ Insurance v BRT [2023] NSWPIC 672.

The Claimant was involved in a motor vehicle accident on 28 June 2018.

The Claimant lodged a claim for damages under MAIA on 28 February 2020 and subsequently referred her claim to the Commission for assessment.

The Insurer, RACQ, sought the claim be exempted from the PIC process, on a discretionary basis, under section 7.34(1)(b) of MAIA.

The Member directed both parties to provide submissions and medical evidence in relation to the application for exemption.

The Insurer provided submissions the claim was not suitable for assessment because of the complex causation issues surrounding the Claimant’s alleged cervical spine and lumbar spine injury based on the following evidence:

• The Claimant attended the hospital four days after the accident and the hospital records reported a soft tissue injury to the lumbar spine and no record of an injury to the cervical spine.
• The Claimant was involved in a subsequent motor vehicle accident on 24 July 2019.
• The Claimant underwent a C5/6 fusion and discectomy on 24 October 2019.
• The Claimant was involved in another subsequent motor vehicle accident on 14 January 2021.
• The Claimant eventually underwent a L4 to S1 lumbar interbody fusion on 9 July 2021.
• The Claimant provided inconsistent histories to the medical experts who examined her.
• There were differing expert opinions in respect to the cause of the cervical spine and lumbar spine injury.
• If the matter was exempted, the experts could be cross-examined in accordance with the court rules and the rules of evidence would apply.
• The Insurer requires the Claimant’s pre-accident medical file from Nelson Hospital in New Zealand and the Commission cannot compel the Hospital to produce its records.

The Claimant was afforded an opportunity to provide submissions but did not provide any submissions in respect to the exemption application.

The Member’s Recommendation

The Member considered:

• The issue of causation was complex given the pre and post-accident history of cervical spine and lumbar spine injuries.
• The Claimant’s reliability as an accurate historian was in issue.
• The requirement of both parties to call oral evidence.
• The Commission did not have the power to compel the New Zealand Hospital to produce its records.
• The Commission did not have the ability to compel medical experts to give evidence.

The Member made a preliminary assessment that a court hearing has the advantage of affording the parties a better opportunity for proper and fair cross examination of the medical witnesses, the ability to compel witnesses to attend the Hearing by way of subpoena and the ability to issue a subpoena for production outside of NSW. The Member, therefore, determined the matter was not suitable for assessment because of the complex medical issues surrounding causation.

The Division Head (Motor Accident Division) as a Delegate of the President approved the Member’s recommendation that the claim was not suitable for assessment.

Key Learnings

Whether a matter should be exempted under s 7.34(1)(b) of MAIA turns on the Member’s discretion. It is heavily fact-dependent.

A party who is seeking to have the matter exempted because it is not suitable for assessment should provide supporting submissions and relevant evidence referring to the considerations set out in Rule 99 of the Personal Injury Commission Rules 2021 and under section 7.34(1)(b) of MAIA.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.

Additional McCabes Resources

• MC PIC Decision of the Week – McCabes Lawyers
• MC MAIA Toolkit – McCabes Lawyers
• The Proper Lookout Podcast – McCabes Lawyers
• MC Ready Reckoner – McCabes Lawyers