CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Drane v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 338	
		
Claimant:	Susan Elizabeth Drane	
		
insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Member:	Belinda Cassidy	
		
DATE OF DECISION:	26 June 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Personal Injury Commission Act 2020 (PIC Act); claim for statutory benefits and insurer’s allegation of 30% contributory negligence; claimant objected to the allegation and referred dispute to the Commission under schedule 2(3)(g) of the MAI Act; preliminary conference held and no appearance by claimant; insurer confirmed that the claimant was retired at the time of the accident and had not been receiving any weekly benefits; claimant confirmed by a message in the portal that a claim for damages was to be made; Member raised in preliminary conference report whether the proceedings should be dismissed; claimant contacted Commission and agreed to the dismissal; Held – the insurer’s decision and any decision by the Member about contributory negligence in the statutory benefits claim was not binding and had no effect in the damages claim as per section 3.44 of the MAI Act; the insurer’s decision and any decision by the Member about contributory negligence in the statutory benefits claim had no impact on the level or payment of any treatment and care expenses as contributory negligence reduced weekly income benefits only as per section 3.38 of the MAI Act; as the claimant was not receiving weekly benefits there was nothing to reduce; proceedings dismissed under section 54(a) of the PIC Act.

REASONS FOR DISMISSAL
Introduction
1.	Susan Drane was involved in a motor accident on 6 October 2022. She was a pedestrian walking along Concord Road when she attempted to cross Homedale Avenue, Strathfield. She was struck, or she struck, a vehicle driven by Shan Cevenini which was attempting to turn left into Concord Road from Homedale Avenue.
2.	Ms Drane sustained a number of serious injuries in the accident including a fractured tibia and fibula.
3.	On or about 11 October 2022, Ms Drane made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against NRMA the third-party insurer of Mr Cevenini’s vehicle.
4.	On 1 November 2024, NRMA sent a liability notice to the claimant accepting the claim and agreeing to pay Ms Drane the statutory benefits to which she was entitled in the first 26 weeks after the accident.
5.	On 20 January 2023, NRMA issued a further liability notice to the claimant accepting liability to pay Ms Drane her statutory benefits beyond the first 26-week period. NRMA advised 
Ms Drane that further investigations were being undertaken in relation to the circumstances of the accident and that this information might affect its decision.
6.	On 12 October 2023, NRMA sent a third liability notice to the claimant confirming that her benefits would continue but applying “a reduction to your payments based on your level of contributory negligence”.  NRMA assessed the claimant’s contributory negligence at 30%.
7.	The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act.  The request was made on 21 December 2023. In accordance with cl 7.4 of the Motor Accident Guidelines (the Guidelines) a time limit of 28 days is imposed for such a request and the claimant made her request outside that time frame. However, cl 7.5 of the Guidelines permits the insurer to either consider the late request or decline it. In a letter dated 21 December 2023, the insurer declined to accept the claimant’s request for an internal review.
8.	Ms Drane then referred the issue about contributory negligence to the Personal Injury Commission (Commission) in accordance with s 7.41(2)(b) of the MAI Act.
9.	The proceedings were allocated to me and a timetable was set for the insurer’s reply and a preliminary conference which was held on 5 June 2024 at 2.00pm.
10.	NRMA’s representative attended the preliminary conference but Ms Drane did not.
Legislative Framework
Statutory benefits generally
11.	Ms Drane’s claim for statutory benefits is made under Part 3 of the MAI Act. The statutory benefits which are payable by NRMA are:
(a)	if she was an “earner” - weekly income replacement type benefits pursuant to Division 3.3, and 
(b)	treatment and care benefits pursuant to Division 3.4.
12.	Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident. 
13.	Section 3.38 of the MAI Act provides that, if an injured person contributed to the cause of the accident, the injured person’s weekly income replacements benefits are reduced by the degree of any contributory negligence.  Section 3.38 and any finding of contributory negligence does not affect the claimant’s statutory treatment and care benefits. 
Dispute resolution
14.	Schedule 2, clause 3 declares certain matters to be miscellaneous claims assessment matters and one of those matters (clause 3(g)) is whether statutory benefit should be reduced for the claimant’s contributory negligence and if so the amount of that contributory negligence.
15.	Section 7.42 of the MAI Act enables such a dispute to be referred to the Commission for assessment. 
16.	The Personal Injury Commission Act 2020 (PIC Act) provides for the way in which proceedings in the Commission are to be commenced, conducted and determined.
17.	Section 54 provides for the dismissal of proceedings in the following circumstances:
(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.
CONSIDERATION OF THE ISSUES
The insurer’s concession
18.	At the preliminary conference Ms Baladi confirmed that NRMA admits Mr Cevenini was negligent. That is NRMA admits he was at fault and caused Ms Drane’s accident. 
19.	Ms Baladi also confirmed that NRMA accepts liability to continue to pay Ms Drane’s statutory benefits because Ms Drane was not wholly or mostly at fault.
Is a decision about contributory negligence in the current claim relevant to any damages claim made?
20.	I asked Ms Baladi whether Ms Drane had made a common law lump sum damages claim (which could possibly include a claim for non-economic loss) and Ms Baladi said she did not think such a claim had been made. Ms Drane advised an officer of the Commission on 
20 June 2023 that she was intending to file such an application “in the near future”.
21.	I note that in accordance with s 3.44 of the MAI Act any decision made by the insurer or any decision made by me in the current proceedings in relation to the claimant’s contributory negligence in her statutory benefits claim is “not binding” on any claim for damages 
Ms Drane might make.
22.	In other words, if I decided Ms Drane was contributorily negligence, that decision would have no effect on the damages claim. Similarly, if I decided there was no contributory negligence, NRMA can still raise that issue in the damages claim.
Is any decision about contributory negligence relevant to the statutory benefits claim?
23.	Section 3.38 of the Act permits weekly income replacement statutory benefits to be reduced on account of the claimant’s contributory negligence.
24.	Ms Drane’s application for statutory benefits (claim form) advised the insurer that she was not employed at the time of the accident and not losing time off work. In the statement 
Ms Drane gave to the insurer’s investigator she says she is “retired”.
25.	Ms Baladi confirmed that NRMA had not paid Ms Drane any weekly income replacement statutory benefits on the basis that she was retired and not an “earner” within the meaning of the legislation. Ms Baladi confirmed that NRMA has paid for Ms Drane’s treatment and care and continues to do so in full and with no reduction for contributory negligence.
26.	I indicated to Ms Baladi at the preliminary conference that there appeared little utility in me proceeding to undertake an assessment of the claimant’s contributory negligence. As she has no entitlement to weekly benefits, there are no benefits that can be reduced for contributory negligence.
Should the proceedings be dismissed?
27.	In the absence of the claimant, I was reluctant to dismiss the proceedings at the preliminary conference. I reported to both parties at the conclusion of the preliminary conference and instructed the Commission’s staff to make contact with the claimant to explain my report.
28.	A letter was sent to the claimant on 11 June 2024 and on 17 June 2024 she made contact with the Commission indicating she was going to be providing a written response to my report but that she was having technical difficulties accessing the case management system.
29.	On 20 June 2024, Ms Drane was contacted again and she indicated she understood my report and that there was no utility in proceeding. She verbally agreed that the proceedings should be dismissed. She indicated she was intending to lodge a damages claim shortly.
30.	Determining whether there is any contributory negligence on Ms Drane’s part and if so the degree of that contributory negligence would not be a cost-effective use of the Commission’s resources. Dismissing the proceedings:
(a)	will not affect Ms Drane’s entitlement to ongoing statutory benefits for treatment and care or the amount of those statutory benefits, and
(b)	will not affect her entitlement to a lump sum damages claim, or the amount of any lump sum damages claim as the contributory negligence issue can be raised and dealt with in those proceedings.
Conclusion
31.	I am of the view that the current proceedings should be dismissed under s 54(a) of the PIC Act as the claimant has indicated she does not wish to pursue the proceedings. The current proceedings are therefore dismissed.