CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Saliba v Allianz Australia Insurance Limited [2023] NSWPIC 236	
		
Claimant:	Ghassan Saliba	
		
insurer:	Allianz Australia Insurance Limited	
		
Member:	Maurice Castagnet	
		
DATE OF DECISION:	24 May 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment application; proceedings commenced by claimant to refer his claim for damages for assessment; claim not ready for assessment; application by claimant to refer the proceedings to the stood over list on the basis of a pending medical dispute; where there is no medical dispute on foot; whether the proceedings should be dismissed; sections 4.4 and 7.32(3) of the Motor Accident Injuries Act 2017 considered; section 54 of the Personal Injury Commission Act 2020 considered; Rule 77 of the Personal Injury Commission Rules 2021 considered; Held – proceedings dismissed as misconceived or lacking in substance. 	
determinations made:	CERTIFICATE OF DETERMINATION
         
Pursuant to s 54(b) of the Personal Injury Commission Act 2020, the proceedings are dismissed.

STATEMENT OF REASONS
INTRODUCTION
1.	The claimant, Ghassan Saliba has made an application to the Personal Injury Commission (Commission) to have his claim for damages referred for assessment under s 7.32(1) of the Motor Accident Injuries Act 2017(MAI Act) (the proceedings).
2.	The claimant says that the claim is not ready for assessment. He seeks to have the proceedings referred to the stood over list pursuant to Procedural Direction MA1.
3.	The insurer says that proceedings should be dismissed.
BACKGROUND
4.	The claimant is a 65-year-old man who was injured in a motor accident on 17 March 2020.
5.	On 1 April 2020, the claimant made a claim for personal injury benefits. The insurer accepted liability to make payments of statutory benefits to the claimant for the first 26 weeks. Subsequently, the insurer declined liability to make further payments on the basis that the claimant had sustained threshold injuries in the accident.
6.	Whether an injured person has sustained only threshold injuries affects the person’s entitlement to both statutory benefits and damages.
7.	The claimant made an application to the Commission for a medical assessment to determine whether he had sustained more than a threshold injury in regard to his physical injuries.
8.	On 1 June 2022, Medical Assessor Truskett issued a certificate, finding that the claimant’s injuries to the cervical spine and shoulders were threshold injuries for the purposes of the MAI Act.
9.	The claimant made an application for the review of Medical Assessor Truskett’s findings. On 1 December 2022, a review panel confirmed the certificate of medical assessment issued on 1 June 2022.
10.	On 5 January 2021, the insurer (through an internal review) affirmed its original decision that the claimant’s psychological injury was also a threshold injury. For reasons that will become apparent later in these reasons, the claimant has not challenged that decision. 
11.	On 21 February 2023, the claimant made a claim for damages with the insurer. 
12.	On 13 March 2023, the insurer accepted that the insured driver was wholly at fault for the motor accident. However, in reliance upon s 4.4 of the MAI Act, the insurer denied liability for the claim on the basis that the claimant was not entitled to an award for damages, having sustained no more than a threshold injury.
13.	On 17 March 2023, the claimant commenced these proceedings to have his claim for damages referred for assessment.
THE CLAIMANT’S POSITION
14.	The claimant says that as result of an administrative error, the previous application for the medical assessment (of his physical injuries) did not include an application for determination of whether the claimant’s psychological injury was more than a threshold injury.
15.	The claimant says that he is in the process of filing a separate application for medical assessment of his psychological injury to determine that issue.
16.	The claimant also says that another reason for filing the proceedings on 17 March 2023 (within three years of the date of the accident) was to preserve his entitlement to have his claim for damages determined by the Court in the event that the claimant does not accept the Commission’s determination for his damages and/or if the insurer declines to accept the Commission’s findings. 
17.	The claimant asks that the matter be referred to the stood over list pursuant to Procedural Direction MA1 until such time as the medical dispute concerning his psychological injury has finalised and his entitlement (or otherwise) to damages is known.
THE INSURER’S POSITION
18.	The insurer says that the application made in the proceedings is premature. It should be rejected until such time, if at all, it is found that the claimant has an entitlement to claim damages, that is, that he has sustained more than a threshold injury. 
19.	The insurer submits in the interests of natural justice and fairness that there should first be a determination that the claimant has an entitlement to bring a claim for damages before an application for the assessment of the claim is made.
20.	The insurer submits the fact that the three-year limitation would still apply in the event that Court proceedings were commenced, is a matter of conjecture and in any event irrelevant to the determination of the Commission. 
21.	The insurer asks that the proceedings be dismissed due to a failure by the claimant to comply with s 7.32(3) of the MAI Act. 
DOCUMENTS CONSIDERED
22.	In making my decision, I considered the documents and submissions provided to the Commission by the claimant in his application and by the insurer in its reply. 
I also considered additional documents provided to the Commission by the parties.
23.	I am satisfied that there is sufficient information before me to make a determination on the papers.
LEGISLATION
24.	In making my decision, I considered the following:
•	the MAI Act;
•	the Motor Accident Guidelines 2017 (Version 9.1) (Guidelines);
•	the Motor Accident Injuries Regulation 2017 (Regulation);
•	the Personal Injury Commission Act 2020 (PIC Act), and 
•	the Personal Injury Commission Rules 2021 (PIC Rules).
DISCUSSION
25.	The claimant has made his claim for damages with the insurer, within three years of the date of the accident, in compliance with s 6.14(2) of the MAI Act. 
26.	The issue to be determined is whether the claimant was entitled to commence these proceedings on 17 March 2023. 
27.	According to s 4.4 of the MAI Act, the Commission cannot award any damages to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
28.	The claimant argues that when he commenced the proceedings, he was “in the process” of making an application to the Commission for medical assessment of his psychological injury to determine whether that injury is more than a threshold injury. When I conducted a teleconference five weeks later on 20 April 2023, that application had not yet been made.
29.	The claimant seeks to have the proceedings referred to the stood over list pursuant to Procedural Direction MA1, until such time as the medical dispute concerning his psychological injury is determined. 
30.	According to cl 10 (a) of Procedural Direction MA1, the Commission may refer proceedings to the stood over list if a medical dispute has not yet been finalised.
31.	According to s 7.17 of the MAI Act, a “medical dispute” means a dispute between a claimant and an insurer about a medical assessment matter.  A “medical assessment” means a medical assessment matter made under Part 7, Division 7.5 of the MAI Act.
32.	The difficulty with the claimant’s submission is that when these proceedings were commenced in the Commission, there was no medical dispute about a medical assessment matter that was on foot in the Commission. There is still no medical dispute on foot. The Commission cannot refer a claim for damages to the stood over list to await the finalisation of a medical dispute that is non-existent.
33.	According to cl 10 (d) of Procedural Direction MA1, I have a discretion to refer the proceedings to the stood over list if I consider that there is any other reason as relevant to the proceedings being unable to continue. 
34.	In my view, there are no other reason that calls for my discretion to be exercised. 
Should the proceedings be dismissed?
35.	The powers of the Commission to dismiss proceedings are prescribed by s 54 of the PIC Act and rule 77 of the PIC Rules. 
36.	Section 54 of the PIC Act provides:
“54	Dismissal of proceedings
	The Commission may at any stage dismiss proceedings before it—
(a)	if it is satisfied that the proceedings have been abandoned, or
(b)	if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)	for any other ground of dismissal specified in the Commission rules.”
37.	Rule 77 of the PIC Rules relevantly provides:
“77	Dismissal of proceedings
The following grounds are specified for section 54(c) of the PIC Act—
(a)     …
(b)	for proceedings by an application made under the motor accidents legislation—
(i)	if the application relates to a medical assessment—the application is not  likely to be ready for determination within the next 6 months, or
(ii)	the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii)	the applicant has failed to prosecute the proceedings with due despatch,  or
(iv)	there is no jurisdiction to determine the dispute to which the application  relates, or
(v)	the application is being used for an improper purpose or is otherwise an      abuse of process, or
(vi)	the application was made by a person who died after the application was    made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.
                               Note – 
                               …”
38.	As previously noted, at the time that the claimant commenced these proceedings to have his claim for damages assessed, it was determined that he sustained only threshold injuries. On the basis of s 4.4 of the MAI Act, the claimant had no entitlement to damages. 
39.	These proceedings concern the assessment of damages. If the Commission cannot make an award for damages, it follows that the proceedings are misconceived or lacking in substance. 
40.	For these reasons, the proceedings should be dismissed.
41.	The insurer submits that the proceedings should be dismissed pursuant to s 7.32(3) of the MAI Act. 
42.	According to s 7.32 (3) of the MAI Act, the parties must use their best endeavours to settle a claim for damages before referring it for assessment.
43.	In this case, and indeed as the insurer has argued, the claimant has no entitlement to claim damages until an application for medical assessment is made and if the Commission ultimately finds that the claimant has sustained more than a threshold injury. 
44.	There is no utility in endeavouring to settle a claim for damages when an entitlement to damages does not yet exist. In those circumstances, it follows that the provisions of 
s 7.32(3) of the MAI Act has no applicability.
45.	The proceedings should be dismissed under s 54(b) of the PIC Act because the proceedings are misconceived or lacking in substance.
46.	If the claimant were to apply for the determination of a medical dispute concerning his psychological injury, there would be nothing to prevent him from recommencing proceedings to have the matter referred to the stood over list pending determination of that dispute, in accordance with Procedural Direction MA 1.
CONCLUSION
47.	Pursuant to s 54(b) of the PIC Act, these proceedings are dismissed.