CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Baxter v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 575	
		
Claimant:	Gregory Thomas Baxter	
		
insurer:	NRMA	
		
Member:	Hugh Macken	
		
DATE OF DECISION:	16 October 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for exemption; operation of forklift; accident in private property; not a road or road related area; transport yard; moving steel beams; consent to application; insurer declined to indemnify owner or driver; worker’s compensation proceedings; Supreme Court proceedings pending; complex factual issues; contributory negligence; allegations of negligence in respect to staffing levels; Held – matter to be exempted; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT
INTRODUCTION
1.	Gregory Thomas Baxter (the claimant) is a 54-year-old man who was injured at his place of employment on 28 April 2022. He was standing near a stack of steel beams which were being moved through the operation of a forklift which was being operated by a work mate. In the course of operating the forklift the steel beams fell from the forklift and landed on the claimant and cause him very significant injuries including multiple fractures to his hip and left leg.
2.	The accident occurred in the premises of Arrow (NSW) Pty Ltd at 46 McCauley Street, Matraville. This was private property, a fenced off area, and could not in any way be considered to be a road or road related area. It was a transport yard. It was an area that was not open to the public or used by the public.
3.	The claimant sustained his injuries when he was moving towards a stack of steel beams which was being lifted by the forklift. The steel beams fell away from the forklift and landed on the claimant.
4.	The claimant is applying for an exemption from proceedings in the Personal Injury Commission (the Commission).
5.	The insurer consents to this application. The insurer has provided detailed submissions in support of the application for exemption primarily on the basis of the operation of regulation 14(e) as, by notice in writing to the claimant and the owner of the forklift, declined to indemnify the owner or driver under the third party policy. That is, in support of this the insurer submits that Rule 14(c) of the Regulation applies in that a claim has been made against a person other than the insurer. The claimant confirms that a claim has been made against Arrow (NSW) Pty Ltd. The insurer also states that the forklift had no number plates and was only to be used on the private property side at 46 McCauley Street, Matraville.
6.	At the teleconference on 9 October 2024 the claimant confirmed that proceedings will be brought under the Workers’ Compensation Act. Concurrently the claimant has advised that, should this matter be exempted, proceedings will be lodged in the Supreme Court seeking damages against the operator of the forklift which will be damages not limited to non-economic loss and economic loss but include damages for treatment and care costs.
7.	In addition to the exemption application made pursuant to 14(e) of the Motor Accident Insurance Act Regulations I am of the view that there are complex factual issues which do not lend themselves to damages assessment at the Personal Injury Commission. The allegations of negligence include allegations of a failure to property instruct the operator of the forklift. The defence is likely to include an allegation of contributory negligence on the basis that the claimant has allegedly put himself in a position of danger. This, in turn, will give rise to complex issues in respect to the instructions and training given to the claimant in respect to the operational procedures of the transport yard and the moving of heavy loads in and around the workplace. Additionally, allegations in respect to the staffing levels at the workplace, whether the forklift was fit for the purpose in which it was being used and the suitability of the surface in which the forklift was being operated add to the complexity of the factual dispute which are likely to be ventilated by the parties at an assessment conference or hearing of this matter.
8.	Noting that the insurer has completely denied liability and declined to indemnify the owner and operator of the forklift, the existence of a claim made against the person other than the insurer and the complex factual issues which are in dispute between the parties I concur with the submissions of both parties that this is a matter which ought properly be exempted from proceedings in the Personal Injury Commission so that any proceedings against the employer or the CTP insurer can be brought concurrently with the foreshadowed to be brought under the Work Injury Damages Act (NSW).
CONCLUSION
9.	Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 92(1)(b) of the Motor Accidents Compensation Act 1999/ s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt from assessment.
10.	In accordance with s 7.34(1)(b) of the Motor Accident Injuries Act 2017, the Division Head (Motor Accident Division) as Delegate of the President, on 31 October 2024, approved Member Hugh Macken’s recommendation that the claim is not suitable for assessment.