CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Gohari v QBE Insurance (Australia) Limited [2022] NSWPIC 490	
		
Claimant:	Ami Gohari	
		
insurer:	QBE (Insurance) Australia Limited	
		
Member:	Terence O'Riain	
		
DATE OF DECISION:	30 August 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS - duty, breach and injury disputed; claim made as annexure to application to assess damages in the Personal Injury Commission (Commission); claimant is workers compensation claimant; claimant requires surgery; claimant not in position to attempt settlement due to claimant not being medically stable; defective vehicle alleged; where claimant not in position in relation to quantify permanent impairment and non-economic loss; failing to serve damages claim prior to filing application to assess damages; Held — taking into account the claim circumstances for the purposes of section 7.32(3) of the Motor Accident Injuries Act 2017 (2017 Act); the claimant had not used best endeavours to settle the claim before referring it for assessment; proceedings will not be dismissed; dismissal grounds limited to grounds in rule 77 Personal Injury Commission Rules 2021; arguable claim; dismissing application to assess damages would not have furthered or promoted 2017 Act objects nor facilitated the just, quick and cost effective resolution of the real issues in the proceedings; to give effect to the guiding principle in section 42 of the Personal Injury Commission Act 2020; Leary v Allianz Australia Insurance Limited agreed with; section 6.32(3) of the 2017 Act imposes monetary threshold to court proceedings made more than 3 years after accident; extra costs and delay; referred to Stood Over List in accordance with Procedural Direction MA1-Stood over proceedings.

Background
1.	On 16 May 2018 at or about 7.15am, the claimant drove a truck into the rear of another vehicle which was stationary at the intersection of Canal Road and the Princess Highway, St Peters.
2.	The claimant alleges he failed to stop and crashed into the rear of another vehicle because of a defect in the vehicle. He claims he sustained injuries in the collision.
3.	Police considered the claimant was at fault.
4.	The claimant made a claim for damages on 14 May 2021, by including the application for common law damages in an application for assessment of damages he filed at the Personal Injury Commission (the Commission) the same day.
5.	The claimant did not separately lodge a claim with the insurer, and the insurer first knew of the common law damages claim when it received the application to assess damages.
6.	The insurer accepted the claim for damages as complying with s 6.14 of Motor Accident Injuries Act 2017 (the MAI Act) but denied liability generally.
Insurer’s submissions
7.	The insurer argues the proceedings should be dismissed because of the claimant’s failure to comply with s 7.32(3) of the MAI Act.
8.	Section 7.32(3) of the MAI Act requires parties to a claim to use their best endeavours to settle the claim before referring it for assessment under Division 7.6 of the MAI Act.
9.	The Commission has the power at any stage in proceedings to dismiss those proceedings before it if satisfied the proceedings have been abandoned, are frivolous, vexatious, otherwise misconceived or lacking in substance, or for any other ground of dismissal specified in the Commission Rules.
10.	One of the objects of the MAI Act to be found in s 1.3(2)(g) is to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
11.	The claimant’s claim form and dated 13 May 2021, was included in an application for assessment of liability and damages filed in the Commission on 14 May 2021. A schedule of damages was provided with the application outlining a claim of $742,800. However the claimant did not attach any medical or quantum evidence to the application. The following is outstanding:
a.	evidence of entitlement to damages for non-economic loss, or
b.	particulars of his claim, or
c.	an application for whole person impairment assessment to the Commission.
12.	The delay is therefore likely to be significantly longer than six months, as contemplated by Rule 101 of the PIC Rules.
13.	Dismissing the proceedings for breach of s 7.32(3) of the MAI Act is compatible with object 1.3(2)(g), namely, to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
14.	The insurer submit the parties have not been afforded the opportunity of attempting to resolve the claim at an earlier point prior to the commencement of the proceedings, and therefore the commencement of proceedings is in direct defiance of the objects of s 1.3(2)(g).
15.	The insurer could not promote settlement before the application was filed, because it did not receive the claim for damages until the proceedings were lodged (the claim form was an annexure to the application commencing the subject of the proceedings).
16.	The claimant ought to have particularised his claim, provide medical evidence supporting his claim, and made some endeavour to settle the claim before commencing proceedings.
17.	Neither the objects contained in s 3 of the PIC Act, or the guiding principle in s 42, excuse the claimant from complying with his obligations and s 7.32(3) of the MAI Act. 
18.	Section 42(5) of the PIC Act states nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
19.	There is nothing within the PIC Act, Regulations, Rules or Guidelines which permits an application to be lodged where there has not been compliance with pre-filing requirements.
20.	In the insurer’s submission, the claimant’s failure to comply with obligations in s 6.25 (the supply of particulars) and s 7.32(3) of the MAI Act leaves the Commission no option but to dismiss the proceedings.
21.	Dismissing the proceedings does not mean the claimant is necessarily disentitled from refiling in the Commission or commencing court proceedings in the future. Sections 7.33 and 6.32 of the Act expressly permit the claimant to seek leave to apply to do so after the third anniversary of the accident, and those provisions also tell against 
s 7.32(3) being read down just because there is a limitation issue.
Claimant’s submissions
22.	The claimant submits that he has used his best endeavours to act in accordance with 
s 7.32 (3) of the MAI Act.
23.	In or about May 2018 the claimant lodged a workers compensation claim for injuries he suffered in the accident.
24.	The claimant lodged a claim form (the claimant seems to be referring to an application for personal injury benefits with the CTP insurer) on 17 November 2020 and the CTP insurer advised the claimant to pursue his workers compensation entitlements.
25.	Notwithstanding that, the insurer also requested the claimant's full and satisfactory explanation for the delay in lodging the claim form, under s 6.13 of the MAI Act.
26.	The claimant's explanation was provided on 14 May 2021, but the claimant says the insurer has not responded to that explanation. Further the claimant states he is not able to proceed with settling the motor accident claim until that issue is resolved.
27.	In the circumstances the claimant could not make any offers of settlement to the CTP insurer or engage in any way to resolve the common law claim. The claimant is currently in a dispute with the workers compensation insurer regarding surgery. When that workers compensation dispute is resolved the claimant will undergo surgery and need time to stabilise and be assessed for permanent impairment.
28.	Accordingly the claimant could not make any further efforts to settle his claim prior to lodging the application to assess damages.
29.	The claimant says he not able to take steps to attempt settlement for the following reasons:
a.	the CTP insurer has not indicated whether or not it accepts the explanation for the late claim; 
b.	the claimant is still pursuing workers compensation entitlements, which may involve surgery;
c.	the claimant points out that these circumstances will delay resolution, but it would not fit the MAI Act objects in terms of being cost effective and a just resolution to dismiss the matter, and
d.	further, Covid 19 has caused delays in resolving aspects of this claim.
30.	The claimant says that the CTP insurer relies upon the case of Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83 where Justice Mason said at paragraph 17: 
31.	“A ‘best endeavours’ clause thus prescribes a standard of endeavour which is measured by what is reasonable in the circumstances, having regard to the nature, capacity, qualifications and responsibilities of the licensee viewed in the light of the particular contract.”
32.	The claimant submits that he has used his best endeavours to progress his claim in the circumstances and has acted reasonably. He prays that the application to assess damages should not be dismissed , and ought to be referred to the Motor Accident Division's head for assessment for suitability for the stood over list.
Reasons
33.	I am required to make a finding as to whether the parties have used their best endeavours to settle a claim prior lodging an assessment for damages. This is a question of fact and will be decided on the circumstances in each case.
Best endeavours
34.	The obligation applies to both parties, but in this case it is the claimant’s conduct I am examining.
35.	If I find the claimant has not used his best endeavours then I am to decide whether dismissing the damages assessment application can be justified or appropriate to further the object of the MAI Act at s 1.32.
36.	The insurer has not had a chance to consider settlement because:
i.	the claimant’s medical condition is not stable and hence NEL damages are unable to be quantified or referred for assessment;
ii.	the damages claim was made at the same time as the damages assessment application was lodged;
iii.	the claimant has not supplied particulars of claim, and
iv.	the claimant is still pursuing his workers compensation entitlements, which are necessary to fund treatment including surgery and rehabilitation.
37.	It is apparent that the claimant has not been in a position to promote settlement, and hence unable to endeavour to settle the claim.
38.	It would not be possible to settle the claim in these circumstances, because quantum cannot be assessed. Also, an extra layer of difficulty is that the facts of the accident include the allegation that the injuries happened as a result of Mr Gohari losing control of his vehicle due to defects. 
39.	Such a claim could involve complex questions of liability and the possibility that other parties may need to be added. That would make resolving the matter difficult, and beyond the parties at this stage, with the added difficulty.
40.	Serving the damages claim sooner could have mitigated this issue. It would have given the insurer more time to investigate the facts and become reconciled to the circumstances, including Mr Gohari’s need to lodge the damages application to stop the time running under s 6.32(2) of the MAI Act.
41.	Based on the Oxford dictionary meaning of failure as non–fulfillment, non–performance, lack of success or omission, it is apparent that Mr Gohari has not used his best endeavours to attempt to settle the claim prior to lodging the application to assess damages.
Dismissal
42.	The principles to be applied in considering whether an application can be dismissed under s 54 of the PIC Act and rule 77 of the PIC Rules are referable to decisions on dismissal of court proceedings. 
43.	Dismissal of Commission proceedings is only permitted within the matters listed in rule 77. 
44.	Generally within the context of courts with inherent jurisdiction or under the time limitation legislation, the dismissal sanction is intended to apply only to cases which are really not arguable, or if there is irredeemable prejudice to the defendant. It is not for cases where there is an irregularity, which could be corrected with replies to requests for particulars, amendment to pleadings, and by affording procedural fairness to an insurer. 
45.	A plaintiff or claimant must not be improperly deprived of the opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 C.L.R. 125 per Barwick C.J. at p.130:
“4. But the rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim: An argument, even extensive argument, may be necessary to demonstrate the plaintiff's case is so clearly untenable  it cannot possibly succeed. ibid:
5. As a general rule, a plaintiff is “entitled...as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff the pleading should be struck out:” Dalgety Australia Ltd. v. Rubin Full Court 24 August 1984, Library 5485, per Burt C.J.”
46.	Further Shepherd J stated in Trade Practices Commissioner v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685 (at 695):
47.	“... a court asked to strike out all or part of a pleading needs to be careful to ensure giving effect to the application does not prevent a party from making a case which it is entitled to make. One has to err on the side of caution lest one deprive a party of a case which in justice it ought to be able to bring.”
48.	In this case, I am not satisfied that Mr Gohari’s application is frivolous or vexatious or otherwise misconceived or lacking in substance. There is no evidence that supports that proposition. The insurer relies on the objects of the MAI Act as justifying dismissal. Instead, it appears from the material served with the application that Mr Gohari has a quantifiable and arguable claim.
49.	My colleague Member Brett Williams recently decided that it would not be justified to dismiss proceedings for not using best endeavours to settle a claim prior to lodging an assessment application in the Commission.
50.	He decided that if the proceedings were dismissed then further time, effort and expense would be involved in connection with an application for leave under s 7.33 of the MAI Act. 
51.	Dismissing the proceedings would not have encouraged the early resolution of the claim or the quick, cost effective and just resolution of disputes that arise in the claim and would otherwise not have furthered or promoted the objects of the MAI Act. 
52.	He did not agree with the insurer’s submissions that dismissing the proceedings under s 54 of the Personal Injury Commission Act 2020 (PIC Act) would have facilitated the just, quick and cost effective resolution of the real issues in the proceedings, so as to give effect to the guiding principle found in s 42 of the PIC Act.
53.	I agree with that reasoning. 
54.	I also add that the ability to apply for an extension of time under s 6.32(3) of the MAI Act to commence court proceedings is not a panacea allowing the claimant to litigate eventually. Section 6.32(3)(b) requires the claimant to satisfy a monetary threshold, as well as provide a full and satisfactory explanation for the delay. It is costly to satisfy that threshold, when not satisfying that requirement could lead to a considerable loss of rights and compensation. It will also lead to further costs and delays.
55.	I decline the insurer’s application to dismiss this application for damages.
CONCLUSION
56.	I decline to make a direction as to costs at this time. The parties may make submissions at the conclusion of the damages assessment.
57.	Having considered Procedural Direction MA1, and noting the further investigations to be undertaken, I refer the proceedings to the stood over list.
Member Terence O'Riain
Personal Injury Commission