Personal Injury Commission Not An All-Terrain Forum

In Brief

• Section 7.34(1)(b) of the Motor Accident Injuries Act 2017 and cl 99 of the Personal Injury Commission Rules 2021 put in place a mechanism for claims to be exempted from assessment by the Commission on discretionary grounds.
• The discretion may be exercised where they are unsuitable for assessment by the Commission.
• In general terms, a claim may be unsuitable where it involves complex legal issues and/or where the claim is made against non-CTP parties.

Facts

On 16 February 2024, the Personal Injury Commission (PIC) published its decision in Pout v Shipway [2024] NSWPIC 41.

The claimant was injured in a single vehicle accident on a private property at Gundaroo in the State of New South Wales.

The claimant made an application under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAIA) to have his claim exempted from assessment by the PIC.

The claimant relied upon the following facts:

• At the time of his accident, the claimant was driving an all-terrain vehicle (ATV) on private property.
• The owner of the private property also owned the ATV.
• The owner of the ATV had disengaged the safety functions of the ATV.
• Whilst driving the ATV, the claimant hit a rut hidden in long grass, causing the ATV to flip and land on top of him.
• The claimant’s leg was broken in the accident.
• The ATV did not have CTP insurance.
• The claimant chose not to pursue his claim against the Nominal Defendant.
• Instead, the claimant was intent upon pursuing a claim against the owner of the private property where the accident occurred.
• The owner held public liability insurance.
• The claimant had already commenced proceedings against the owner in the Supreme Court of the ACT.

The Member’s Reasons

 The Member agreed that the claim was unsuitable for assessment by the PIC – and, therefore, recommended exemption to the President of the PIC – for the following reasons:

• The claim involved complex issues relating to liability, contributory negligence and damages.
• The claimant sought to proceed against one or more non-CTP parties (namely, the property owner and his public liability insurer).
• A court hearing was more likely to result in the just, quick and cost-effective resolution of the real issues in dispute between the parties.

Key Learnings

The decision in Pout v Shipway reminds us that not all personal injury claims are suitable for assessment by the Personal Injury Commission. This claim involved a reasonably clear-cut example of a claim which was not suitable for assessment by the PIC given that the claimant had chosen not to pursue his claim against the Nominal Defendant and had, instead, commenced proceedings against the owner of the property on which the accident occurred. The claim was effectively against the owner’s public liability insurer.

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 Peter Hunt today.

Additional McCabes Resources

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