CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Bridgefoot v Allianz Australia Insurance Limited (Nos 1 and 2) [2023] NSWPIC 111	
		
Claimant:	Gelsomina Bridgefoot	
		
insurer:	Allianz Australia Insurance Limited	
		
SENIOR Member:	Brett Williams	
		
DATE OF DECISION:	17 March 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer’s application for damages assessment proceedings to be dismissed on the grounds that the claimant had not used her best endeavours to settle the claims before referring them to the Personal Injury Commission (Commission) for assessment, as required by section 7.32(3); where insurer denied both claims on the basis that the claimant’s only injuries resulting from each accident were minor injuries; where the claimant had lodged applications for assessment of minor injury disputes, served evidence in support of her claims and provided particulars; Mammone v Insurance Australia Limited t/as NRMA and Golding v NRMA applied; Held – prior to referring her damages claims to the Commission for assessment, the claimant had taken steps that a prudent, determined and reasonable person acting in her own interests and desiring to achieve a settlement of each claim would take; the steps she had taken were endeavours undertaken by the claimant to resolve her claims; because she had undertaken those endeavours, the claimant had used her best endeavours to settle each claim before referring it to the Commission for assessment, as required by section 7.32(3).  	
determinations made:	Interim determination	

background 
1.	Ms Bridgefoot (claimant) was involved in motor accidents that occurred on 
30 November 2018 and 6 December 2019. She has made claims for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer) with respect to each accident. The insurer has denied both claims on the basis that the claimant’s only injuries resulting from the accidents were minor injuries: 
s 4.4 of the MAI Act. 
2.	The claimant referred both claims for damages to the Personal Injury Commission (Commission) for assessment on 13 December 2022. In its reply, the insurer submits that each proceeding should be dismissed under s 54 of the Personal Injury Commission Act 2020 (PIC Act) on the grounds that the claimant has not complied with s 7.32(3) of the MAI Act (insurer’s application). 
3.	On 30 January 2023 a preliminary conference was held in each proceeding. 
At the preliminary conference the insurer confirmed that its application was pressed. I made directions for the provision of evidence and submissions in relation to the insurer’s application. The claimant has provided a bundle of material relied on, including submissions and a chronology. On 10 March 2023 the insurer advised the Commission that it did not intend to make any further submissions in relation to its application.
4.	At the preliminary conference both parties agreed that I should determine the insurer’s application on the papers. It was also agreed that if the proceedings were not dismissed, they should be referred to the stood over list.
5.	Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the insurer’s application can be determined on the papers. I am satisfied that sufficient information is available in connection with the application to allow me to determine it without holding a formal hearing.
insurer’s submissions
6.	In its submissions contained in the reply filed in each proceeding, the insurer argues that there has been no attempt to resolve either matter given the outstanding issues. In this regard, the insurer’s submissions make reference to the medical disputes in relation to whether the claimant’s injuries are minor injuries. The insurer criticises the claimant’s submissions, and asserts that neither matter is ready to proceed. The insurer “asks” that the applications be dismissed due to a failure to comply with s 7.32(3) of MAI Act. The insurer submits that there is no reason why the application in either matter should be allowed to proceed. 
7.	The insurer argues that given the use of the word “must” in s 7.32(3), the legislature clearly considered that the requirement to use best endeavours to resolve a claim prior to lodgement was integral to the scheme. The insurer submits that, given the claimant’s failure to comply with s 7.32(3), each proceeding should be dismissed under s 54(b) of the PIC Act. 
claimant’s submissions
8.	In written submissions dated 21 February 2023, the claimant argues she has done all she can reasonably do to act in a manner that a prudent party would to achieve a settlement of her claims. 
9.	The claimant submits that her case is similar to that of Leary v Allianz Australia Insurance Ltd [2022] NSWPIC 436, in that threshold injury disputes have been lodged and the degree of the claimant’s permanent impairment resulting from her injuries caused by the accidents is yet to be determined.
10.	She argues that she has invited the insurer to make an offer of settlement, in circumstances where medical disputes are yet to be determined. The claimant argues that, despite the parties having not engaged in any settlement discussions, the fact that any offers had been conveyed between the parties and given the outstanding medical disputes she has clearly used her best endeavours to advance and settle her claims. It is submitted that dismissal of the proceedings is not the appropriate remedy if it is found that she has not used her “best endeavours” to settle her claims.
determination
11.	Section 7.32 of the MAI Act is in the following terms:
“7.32  Reference of claim 
(1)  A claim for damages may be referred to the Commission by the claimant or the insurer, or both, for assessment under this Division.
(2)   (Repealed)
(3)  Parties to a claim must use their best endeavours to settle the claim before referring it for assessment under this Division.”
12.	Section 7.32(3) of the MAI Act has not been the subject of judicial consideration. In Mammone v Insurance Australia Limited t/as NRMA [2021] NSWPIC 501 (Mammone) I canvassed authorities that address the meaning of the term “best endeavours” in other legal contexts. I found at [44] that notions of reasonableness and context are the critical considerations that emerge from these authorities, and that these considerations should be applied when determining what the term “best endeavours” means for the purposes of s 7.32(3). In Mammone, I determined at [49] that what constitutes “best endeavours”, for the purposes of s 7.32(3), must depend on the circumstances of each claim. I found that the provision may not require an offer of settlement to be made in every case, and that, in some circumstances, the provision of particulars and evidence in support of a claim for damages may be found to satisfy the “best endeavours” requirement.
13.	In Golding v NRMA [2021] NSWPIC 98, Member McTegg determined at [37] that:
“[37]	… what is required of the claimant was to do all she reasonably could in the circumstances to attempt to achieve a settlement of her claim, or to take steps which a prudent, determined and reasonable person acting in her own interests and desiring to achieve a settlement would take.”
14.	I have taken into consideration the chronology provided with the claimant’s submissions. In the absence of submissions to the contrary from the insurer, I have proceeded on the basis that the chronology is accurate. 
15.	The material before me discloses that, prior to each claim being referred to the Commission for assessment under Division 7.6:
(a)	the claimant lodged applications for common law damages with respect to each accident on 25 October 2021;
(b)	on 20 January 2022 the insurer denied liability for the damages claim relating to the 2019 accident on the basis that it was awaiting receipt of further information;
(c)	on 31 March 2022 the claimant provided to the insurer’s solicitors particulars of her workers compensation claims in relation to the 2018 and 2019 accidents;
(d)	on 4 April 2022 the claimant provided particulars to the insurer’s solicitors in relation to the 2018 and 2019 accidents;
(e)	on 18 May 2022 the insurer denied liability for the damages claim made in relation to the 2018 accident on the basis that the injuries the claimant sustained in the accident were minor injuries. The insurer admitted breach of duty by the insured driver and that the claimant had suffered some injury, loss or damage;
(f)	on 19 May 2022 the insurer denied liability for the damages claim made in relation to the 2019 accident on the basis that the injuries the claimant sustained in the accident were minor injuries. The insurer admitted breach of duty by the insured driver and that the claimant had suffered some injury, loss or damage;
(g)	on 22 June 2022 the claimant sought an internal review of the insurer’s “minor injury” decision in relation to the 2019 accident;
(h)	on 24 June 2022 the claimant lodged an application with the Commission for assessment of a medical dispute about whether physical and psychiatric injuries she alleges were caused by the 2018 accident are minor injuries;
(i)	on 13 July 2022 an internal reviewer determined that the claimant’s injuries resulting from the 2019 accident were minor injuries;
(j)	the claimant sought from the insurer on 25 July 2022 a concession that her injuries gave rise to permanent impairment that was greater than 10%;
(k)	on 28 July 2022 the claimant lodged an application with the Commission for assessment of a medical dispute about whether physical and psychiatric injuries she alleges were caused by the 2019 accident are minor injuries;
(l)	the insurer informed the claimant on 4 August 2022 that it did not agree that the injuries she suffered in the 2019 accident gave rise to a permanent impairment greater than 10%;
(m)	on 13 December 2022 the claimant served on the insurer a schedule of damages and invited the insurer to make a “counter offer of settlement”. The schedule sets out the economic loss damages sought by the claimant with respect to both accidents on a global basis, as opposed to a separate schedule for each accident, and
(n)	both claims for damages were referred to the Commission for assessment on 13 December 2022.
16.	With respect to each claim, because there was no agreement about whether the degree of impairment of the claimant is greater than 10%, s 6.14(1) of the MAI Act prevented her from making a claim for damages before the expiration of 20 months after each accident. While that provision has been repealed, it was in force until 
28 November 2022. Thus, the provision was in force, and applied to, the claims made by the claimant for almost the entire period before she referred her claims to the Commission for assessment of damages.
17.	The matters referred to in the claimant’s chronology and at [15] are relevant circumstances by reference to which I am determining whether she used her best endeavours to resolve her claims before she referred them to the Commission for assessment. Further, while s 7.33 has been repealed, the circumstances also include that, with respect to any court proceedings that may be commenced in respect of either or both claims, s 6.32 of the MAI Act imposes time limits. Time does not run for the purposes of that section from the time a claim is referred to the Commission for assessment of damages and until two months after a certificate as to the assessment is issued: s 6.32(2). Thus, given the date of the accidents with respect to which the claims referred to the Commission for assessment under Division 7.6 relate, this is also a relevant circumstance.
18.	I am satisfied that the claimant did all she reasonably could in the circumstances to attempt to achieve a settlement of her claims. I find that she took steps that a prudent, determined and reasonable person acting in her own interests and desiring to achieve a settlement of each claim would take. Those steps include the following steps taken before the claims were referred to the Commission for assessment under Division 7.6 of the MAI Act:
(a)	seeking a review of the insurer’s minor injury decision;
(b)	lodging, with due dispatch, applications with the Commission for assessment of the disputes about whether her injuries as a result of the accidents were minor injuries for the purposes of the MAI Act;
(c)	providing particulars sought by the insurer in relation to her injuries within a reasonable time, and
(d)	serving on the insurer medical evidence in support of her damages claims, including clinical records and the medico-legal reports of Dr Oats.
19.	Any court proceedings in relation to the 2018 claim were already “late” when the claim was referred for assessment. However, I consider it reasonable for the claimant to seek to refer her claims to the Commission for assessment of damages with a view to stopping time running with respect to the commencement of court proceedings: s 6.32 MAI Act.
20.	Further, setting aside the offer to settle her claims that was made by the claimant to the insurer on 13 December 2022, I consider it reasonable in the circumstances that the claimant had not previously made an offer of settlement. Decisions that are critical in terms of whether she is entitled to damages for either or both claims remained outstanding; namely the assessment of the minor injury disputes. I have seen no suggestion that the insurer was prepared to settle either claim until the minor injury disputes had been determined. And it is not unreasonable that the insurer would want these disputes determined before engaging in settlement discussions. I find that, in the circumstances, the claimant was not required to make offers of settlement prior to 13 December 2022 with respect to either claim in order to satisfy her obligations under      s 7.32. 
21.	I do not consider it would have been reasonable for the claimant to refrain from referring her claims to the Commission for assessment of damages until the minor injury disputes had been determined in circumstances where to do so would have compromised her position with respect to any court proceedings commenced in relation to either or both claims. 
22.	In the circumstances to which I have referred in these reasons, it is difficult to identify what further endeavours the claimant could have undertaken before referring her claims to the Commission for assessment.
23.	In circumstances where the minor injury disputes in each claim had not been determined by the Commission, and both claims for damages had been denied by the insurer on the basis that the claimant’s injuries as a result of each accident were minor injuries, I find that the steps referred to at [18] were endeavours undertaken by the claimant to resolve her claims. I find that, because she undertook those endeavours, the claimant has used her best endeavours to settle each claim before referring it to the Commission for assessment, as required by s 7.32(3) of the MAI Act.
24.	Having considered Procedural Direction MA1, and noting the outstanding medical disputes, I refer each proceeding to the stood over list.