Peter Hunt
Principal
CTP Insurance, Insurance
Proceedings Dismissed – A Drain on the Commission’s Resources
8 July, 2024
In Brief
- The Commission should only resolve disputes which will have an impact on the rights of the parties.
- It is not cost-effective for the Commission to resolve a contributory negligence dispute, in a statutory benefits claim, where the Claimant only claims treatment and care.
Facts
The Personal Injury Commission (PIC) published its decision in Drane v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 338 on 5 July 2024.
The Claimant was injured when she was struck by a motor vehicle whilst walking across Concord Road. She subsequently made a claim for statutory benefits.
Once their investigations were complete, the Insurer served a Third Liability Notice accepting liability for ongoing statutory benefits – beyond 26 weeks – subject to 30% contributory negligence.
The allegation of 30% contributory negligence was confirmed on Internal Review and the Claimant referred the contributory negligence dispute to the Commission for assessment.
The Member’s Reasons
The PIC Member advised the parties that the dispute would not represent a cost-effective use of the Commission’s resources for the following reasons:
- Pursuant to s 3.44 of the Motor Accident Injuries Act 2017 (MAIA), any decision the Member made on contributory negligence was not binding in any claim for common law damages the Claimant might ultimately make.
- Pursuant to s 3.38 of MAIA, in the Statutory Benefits regime, a finding of contributory negligence only impacts the Claimant’s entitlement to weekly benefits and it has no impact on the Claimant’s entitlement to treatment and care.
- Given that the Claimant made no claim for weekly benefits, because she had retired before her motor accident, any finding of contributory negligence would have no impact on the Claimant’s entitlement to Statutory Benefits.
Once this was explained to her, the Claimant indicated that she did not wish to pursue the proceedings and they were dismissed pursuant to s 54(a) of the Personal Injury Commission Act 2020.
Key Learnings
The Decision in Drane provides a useful reminder that the Commission will only resolve disputes which have an impact on the parties’ rights and liabilities. In this claim there was, effectively, no dispute between the parties because the Insurer’s allegation of contributory negligence had no actual impact on the Claimant’s entitlement to Statutory Benefits because, as a retiree, she was not claiming weekly benefits.
Doubtless, the contributory negligence dispute will come to the fore when, and if, the Claimant makes a claim for Damages under Common Law.
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 Principal, Peter Hunt, today.
