Peter Hunt
Principal
CTP Insurance, Insurance
Exemption Applications – My Dispute is Unsuitable, Get Me Out of Here
28 April, 2025
In Brief
- Section 52 of the Civil Liability Act 2002 (CLA) provides that a person acting in self-defence is not liable to their assailant.
- Section 52(2)(c) of the CLA Section 52(2)(c) of the CLA extends the self-defence protection to actions taken to defend property.
- Section 53 of the CLA provides that a person who acts unreasonably in defending themselves or their property is still not liable provided that the circumstances are not “exceptional“ and provided that depriving the claimant of damages is not “harsh and unjust“.
- Pursuant to s 3B(2)(g) of the CLA, the self-defence provisions in Part 7 apply to motor accident claims.
- Pursuant to Section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAIA), a damages dispute may be exempted from the PIC processes if the PIC is an suitable forum for the dispute.
Facts
The Personal Injury Commission (PIC) published its decision in Atkinson v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 134 on 24 April 2025.
The Claimant was injured in a motor accident on 6 September 2020 whilst riding a motorcycle.
Importantly, the Claimant had stolen the motorcycle from the Insured owner shortly before his accident.
The Insured owner saw the Claimant riding his stolen motorcycle in Condobolin and made the decision to chase him in his car. The Insured drove his vehicle diagonally across the Claimant’s path in an attempt to block his passage and retrieve the stolen motorcycle. The Claimant collided with the Insured vehicle and suffered serious injuries.
The Insurer subsequently served a Liability Notice in which it denied liability for the Claimant’s injuries, on the following grounds:
- Pursuant to s 52 of the CLA, the Insured was not liable because his actions were reasonably carried out in self-defence to protect his property (the motorcycle) “from unlawful taking, destruction, damage or interference“.
- Pursuant to s 53 of the CLA, the Insured was still not liable, even if his actions were not reasonable, because the circumstances were not “exceptional” and depriving the Claimant of damages would not be “harsh and unjust“.
The Insurer subsequently sought a discretionary exemption from the PIC processes pursuant to s 7.34(1)(b) of MAIA.
In general terms, the Insurer argued that the damages dispute was unsuitable for assessment by the PIC because the claim involved complex legal issues, particularly relating to liability.
The Claimant did not oppose the Insurer’s application.
The Member’s Decision
The PIC Member made a preliminary finding that the matter was not suitable for assessment by the PIC for the following reasons:
- The Insurer’s reliance on ss 52 and 53 of the CLA presented complex legal issues not typically determined by the PIC. This was particularly so given that the case law on those sections dealt mostly with actions taken in self-defence against physical assault, rather than protection of property.
- The Insurer also raised a complex issue with regard to contributory negligence. Namely, whether the Claimant contributed to his own injuries by failing to slow down or brake and by riding the motorcycle whilst affected by drugs.
- There were a number of lay and expert witnesses who would need to give evidence but the PIC could not compel them to attend a PIC Hearing.
The PIC Member, therefore, recommended that the PIC Division Head exempt the matter so that the parties to litigate the damages dispute in the District Court.
Why This Case is Important
The decision in Atkinson provides a useful example of how the Commission will assess applications for discretionary exemption based on a claim that the dispute is unsuitable for assessment by the PIC.
In this case, complexity arose from issues arising from the Insurer’s Liability Notice. It is important to note that it is not the role of the PIC Member, dealing with an exemption application, to assess the dispute or even to assess whether the Insurer’s argument is likely to succeed. The Member’s role is limited to assessing whether the PIC is a suitable forum for the dispute and to make a recommendation to the PIC Division Head.
If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Insurance Principal Peter Hunt today.
