Krajniak v Insurance Australia Limited t/as NRMA Insurance

CAMPBELL J: The plaintiff, Mr Krajniak, has brought proceedings in this Court seeking damages for personal injuries arising out of a motor accident which occurred on 7 November 2014. On that day, Mr Krajniak was a bicyclist who was struck by a car turning right across his line of travel to enter a driveway to an institution situated on the other side of the road from the car and involving the vehicle crossing double unbroken lines. Mr Krajniak suffered multiple injuries in the accident, and, for present purposes, it seems to be accepted by the defendant that he has ongoing injuries consisting of a triangular fibrocartilage complex tear to his left wrist joint, and ongoing mechanical pain in his lower back.

The matter has a long history. It is not necessary to traverse. Suffice it to say that in response to a letter from the insurer’s solicitors dated in August last year, Mr Krajniak filed a summons in this Court on 15 September 2025, seeking leave to commence proceedings out of time under the provisions of section 109 of the Motor Accents Compensation Act 1999 (NSW) (“the Act”). He filed a Statement of Claim on 26 November 2026.

In accordance with the representation made in the August letter, the insurer has not taken the point that the proceedings are commenced out of the time limited by section 109, and on 26 November 2025. The defendant has yet to file a defence to that statement of claim, but it is clear from the affidavit of Charles Friocourt, affirmed on 24 November 2025 that it waives its entitlement to plead the statutory bar, a matter to which I will return.

By notice of motion filed on 20 November 2025, perhaps a little prematurely, the defendant now seeks orders that the proceedings be transferred to the District Court of New South Wales pursuant to section 146 of the Civil Procedure Act 2005 (NSW). The defendant also seeks an order that the plaintiff pays costs of this application, if it is successful. Mr Friocourt’s affidavit was affirmed in support of the motion. Mr Krajniak who is currently not legally represented, filed an affidavit affirmed on 26 January 2026. Both affidavits have been read before me.

It is important to record at the outset that by dint of section 44(1)(d) of the District Court Act 1973 (NSW), the District Court has unlimited jurisdiction in respect of claims for damages arising out of motor vehicle accidents, and accordingly, its jurisdiction is concurrent with the jurisdiction of the Supreme Court in relation to such matters. Section 146(1) of the Civil Procedure Act 2005 empowers this Court, if it is satisfied that proceedings could properly have been commenced in the District Court, to order that the proceedings be transferred to the District Court. That discretionary power is subject to the provisions of section 146(4), which, so far as material, I will set out in full:

The proceedings before me have focused upon each of those questions raised by the exception, that is to say, whether the amount to be awarded to the plaintiff, if successful, is likely to be more than $1 million, and that the case involves complex legal issues or issues of general importance. I should say one or two things about those tests. It is unnecessary for me to cite any authority, but the expression “likely”, where it appears in section 146(4)(a)(1), does not mean probably or more probably than not. Rather, it means that on the material before the Court for the purpose of the application, there is a prospect or real possibility that if the material upon which the plaintiff relies is proved to the satisfaction of a judge at trial, the damages will exceed $1 million.

The question of whether a case involves complex legal issues or issues of general importance, it seems to me, is an indication that some issue of law on the one hand has arisen that requires a decision of the Supreme Court likely to have precedential value for the resolution of other cases or, on the other hand, involves some particular complexity in its application to the facts of the case at hand as disclosed by the evidence.

Issues of general importance, of course, also relate to the nature of the case brought forward. It should be demonstrated in my judgment, if that expression is to be shown to be applicable, that it is in the public interest that the case be determined in the Supreme Court as opposed to the District Court. It is not helpful to go through many examples of what might satisfy that statutory test, and I will return to the arguments of the parties in due course. What is important to observe about the provisions of section 146(4) is that the Court is required to transfer the proceedings to the District Court of New South Wales unless the conditions specified section 146(4)(a) are established to the Court’s satisfaction.

The requirement that the Supreme Court accede to the defendant’s application unless the conditions are satisfied, it seems to me, arises out of the expression, “are to be transferred under the section.” The emphasis is upon the expression, “are”, and in my judgment, there is an emphasis arising from the whole co-location of words utilising the expression which equates it with concepts that might be encapsulated by the expression “must.” It seems to me to that extent that the general discretion conferred by the use of the word “may” in section 146(1) is modified in cases to which sub-section (4) applies.

It is necessary to say something about the facts of the case in a little more detail in order to determine whether the first condition, that is to say, is it likely that the amount awarded with exceed $1 million, can be determined. In November 2014, Mr Krajniak had relatively recently migrated to Australia. He remained on a bridging visa at that stage, but had prospects of obtaining permanent residency, as subsequently occurred.

It is of significance to the quantum of damages to record that he is, by profession, a concert violinist. And in his native Slovakia he was highly trained and recognised as highly accomplished at a young age. It was part of his case that he pursued a successfully career in his chosen field throughout Europe before migrating to Australia. The material before me indicates that after he settled in Australia, he sought to continue his profession here by making application to appropriate orchestras, including the highly acclaimed Sydney Symphony Orchestra, in the position of first violinist.

I think I can infer something about what the evidence is likely to be at the trial by observing that his credentials must have been appropriate for that significant role given the consideration that he was awarded the opportunity of auditioning for the orchestra. A number of pieces for the audition were prescribed as well as the opportunity to play pieces of his own choosing. The audition did not go ahead because it was realised that he remained on his bridging visa and it was a requirement of employment by the orchestra that the musicians be either Australian citizens or persons who held permanent residency visas. The audition was cancelled.

After the intervention of his injuries including the fibrocartilage tear to his left wrist, Mr Krajniak found that he had considerable difficulty continuing to play the violin at the very high level he had accomplished prior to the accident. He has demonstrated to doctors, whose medical reports are before the Court, the difficulty he has with some limitation of movement in executing vibrato and playing bar chords on the violin with his left hand. Obviously, he is normally right-handed. And these are significant disabilities for a musician of his calibre. And so much seems to be accepted by the medical experts who have examined him with perhaps some ambiguity arising out of Dr Meares’ reports. But the point is, there is medical support for Mr Krajniak’s case in that regard.

Moreover, there is factual support for his case in that regard. After the accident, once he was granted permanent residency, he was again afforded the opportunity to audition for the Sydney Symphony Orchestra, and later, for the Australian Opera and Ballet Orchestra. Unfortunately he was unsuccessful at those auditions, which Mr Krajniak explains by reference to that disability I have described playing the instrument at the level required. His evidence in that regard is corroborated by another concert violinist, a Mr Keating, who at least at some time, was a member of the Australian Opera and Ballet Orchestra. He explains the significance in classical music of the ability to execute vibrato and play bar chords on the violin.

Although not all of that material in the form put before me is immediately admissible, I am satisfied from it that there will be evidence in admissible form, which if accepted at trial, would establish those facts I have recited which form a critical part of Mr Krajniak’s case, at least so far as damages for diminution of earning capacity are concerned. The evidence also, or the material, indicates that it is likely that Mr Krajniak will be able to establish that the gross salary payable to a first or second violinist with the Sydney Symphony Orchestra as of 2014 was in the vicinity of $92,000 per annum, rising to about $126,000 in or around 2016. In the way of these things that will have gone up considerably in the decade since.

It is also clear from the material that Mr Krajniak has some residual earning capacity. In mitigation of his loss, he took some casual clerical work. He also continued for a period of time to give violin lessons and he also played in an orchestra referred to as the Sydney Amateur Orchestra. It may be that his involvement with that orchestra was a reason why Dr Meares, with no disrespect to him, glibly said that he is able to pursue his previous occupation. Dr Meares assessed whole personal impairment in relation to the fibrocartilage tear. Although perhaps if his opinion as to fitness is accepted, it will be a difficulty in Mr Krajniak’s case. It is not my role to choose between the competing medical assessments for present purposes. I should say, however, that from Mr Krajniak’s description in his affidavit, the performances with the Sydney Amateur Orchestra were infrequent and certainly did not involve the type of intensive full-time work that would be required of a first or second violinist in a leading symphony orchestra like the Sydney Symphony Orchestra.

It is also fair to point out that injuries in terms of disability will affect persons in different occupations differently. Perhaps Mr Krajniak’s injury would do little to impair a person whose job is purely clerical. On the other hand, in the case of a concert violinist like him or some other highly accomplished professional musician, it may be devastating. These are all things that will have to be worked out at the trial, but they indicate that to me that although Mr Krajniak does have a residual earning capacity, the evidence suggests that the diminution of his earning capacity, having regard to his most likely future employment as a concert violinist at the time of the accident, represents a very significant diminution in his earning capacity, assuming the evidence upon which he relies is accepted.

Before leaving this point, it is important to say something about damages for non-economic loss which may also be relevant to the second question which I will come to in a moment. As is clear as a matter of law, under the provisions of the Act, no damages are to be awarded for non-economic loss unless the degree of permanent impairment resulting from the motor accident is greater than 10%. And the scheme under the Act, as is well known, is that in the case of a dispute about the degree of permanent impairment, the matter must be referred for medical assessment under sections 58 to 60 of the Act.

Under section 61, the certificate of the medical assessor certifying the degree of permanent impairment is conclusive evidence as to matters certified in any Court proceedings. Section 131 provides, as I have indicated already, that no damages may be awarded by a Court for non-economic loss unless the degree of whole person impairment is greater than 10%; and section 132(1) is in the following terms:

The question of Mr Krajniak’s degree of permanent impairment was so referred and the medical assessor appointed, Dr Alexander Woo, who, having reviewed the material provided to him by the parties and having examined Mr Krajniak, certified the degree of permanent impairment caused by the motor accident as 7%. That assessment was a combined assessment of other assessments made by the assessor being 2% whole person impairment referable to Mr Krajniak’s injury to his left wrist, and 5% impairment referable to his back injury.

Now, Mr Krajniak before me today has advanced a number of arguments as to why Dr Woo’s assessment should be regarded as wrong. I mean no disrespect by stating that there is no point in me detailing each of those arguments, which were carefully (and with a degree of persuasion) put for the simple reason, as I have recounted, that there is a legal bar to me taking any other assessment of whole personal impairment into account in my consideration of the likely damages to be awarded.

I should say that Mr Krajniak and Mr Nesbeth of counsel, who appeared for the defendant, confirmed with me that there was no application for any review of Dr Woo’s assessment under section 62 of the Act, no application for any review by a review panel under section 63 of the Act, nor has there been any administrative law challenge by way of proceedings for judicial review in this Court to the legal validity of Dr Woo’s assessment. In these circumstances, a Court assessing the damages today would be bound to refuse to award damages for non-economic loss.

However, during my dialogue with Mr Nesbeth about what the material might be capable of showing, were it to be clothed in admissible evidence for the purpose of a trial, quite properly, with respect to him, accepted that were a judge to accept Mr Krajniak’s case at its highest, the damages for economic loss or diminution of earning capacity, alone were, applying the undemanding test I have identified, likely to exceed $1 million. I did not understand that to be any sort of concession made for the purpose of the case by Mr Nesbeth, and nor should anyone else so understand it. He made it quite clear that the defendant’s case, on the basis of Dr Meares’ opinions, is that the is that Mr Krajniak is fit for his pre-injury occupation as a concert violinist.

It seems to me in making the assessment I am required to make for the purpose of section 146(4), I am obliged to take Mr Krajniak’s case at its highest, given the expression, “if successful” in section 146(4)(a)(i). I should also say, if I have neglected to do so thus far, that the defendant has admitted liability but will be raising a defence of contributory negligence, which it contends before me should be assessed in the proportion of 20%. Mr Krajniak strongly joins issue with that contention, but I need not resolve that for today’s purposes, nor am I able to. But it seems to me even if one were to make that allowance for the purpose of this exercise and to allow a reduction in the damages to take account of the residual earning capacity, the figures are such that that first condition, to my mind, is satisfied at this interlocutory stage.

I turn then to the second condition, which is whether there are complex legal issues to be determined, or whether there are matters of public importance which require the matter to be determined by this Court rather than the District Court.

Mr Nesbeth’s argument was that the issues to be resolved are not complex. Yes, there are liability issues in terms of resolution of the question of whether there is contributory negligence, and if so, in what proportion. But these and the assessment of economic loss are familiar issues which involve the application of settled statutory and case law. While there are some complexities factually in Mr Krajniak’s case, say in the assessment of the earnings of a concert violinist, they, do not, by definition, satisfy a test of legal complexity. Indeed, these are matters which District Court judges deal with day in, day out, on the civil side of that Court’s jurisdiction.

Mr Krajniak raises a number of issues. The first argument he puts is, to summarise it, that the defendant should not be permitted to approbate and reprobate. In this regard, he points out that the defendant applied for a discretionary exemption from the assessment process in the Personal Injuries Commission in accordance with the provisions of section 92 of the Act. In this regard, section 92(1)(b) provides that

The ground upon which the insurer relied is that expressed in Rule 99(3)(a) of the Personal Injury Commission Rules 2021 (NSW) that the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim. Member White, with the approval of the President of the Commission, acceded to that claim issuing a certificate in that regard following her recommendation of 12 August 2024. The certificate was formally made by the delegate of the President, duly appointed, for that purpose. Mr Krajniak’s argument is straightforward. If the matter was complex legally and factually, then it must necessarily be, inter alia, legally complex now, and the second condition should be taken as being satisfied.

Mr Nesbeth argued that one has to look at the statutory context and that the issue of complexity with which the Commission was concerned for the purpose of section 92 was a question of whether the matter should be exempt from proceedings in the Commission so that it can proceed in a Court, being the District Court, having all the advantages of procedure, including the ability to compel evidence, available to a Court and not available to the Commission. If one considers the member’s reasons, it is quite clear that while she used the expression, “complex legal and factual issues,” as a more or less compendious phrase, she was focusing upon issues which were questions of fact and questions of fact only. At paragraph 54 of her decision, she said:

It is quite clear that despite her use of the phrase compendiously, the member was focusing upon the factual issues in the case and not the legal issues. So, I am not satisfied there is any degree of approbation and reprobation by way of the defendant taking inconsistent stands in relation to that question for the purpose of the case. Before leaving that point, I should record that Mr Krajniak has some complaints about the procedure adopted in the Commission for the determination of the exemption question. In particular, he relies upon the circumstances that, as was known to the defendant, he was overseas at the time, having gone to visit and support his mother in her terminal illness and that he was unaware of the proceedings.

Whereas on full investigation, it may be that his complaints in that regard could amount to a denial of procedural fairness, he quite properly and fairly made it clear to me that he thought it appropriate that the proceedings be exempt in order that they could proceed in a court of law. So, even if there were to be some procedural unfairness in relation to the exemption process, there is no substantial or practical injustice because Mr Krajniak is content with the outcome.

Mr Krajniak’s arguments in relation to complexity are multifactorial, but they relate to his challenges to Dr Woo’s certificate and the considerations concerning the process adopted in the exemption proceedings in the Commission. They were argued with a degree of complexity and in great detail. As I raised and discussed with him during his argument, the fact that he has logical arguments criticising Dr Woo’s approach is, I am afraid to say, neither here nor there because of the legislative provisions I have identified. Unless and until Dr Woo’s certificate is challenged in accordance with available legal avenues, or such available legal avenues as may yet be open either under the Act or by way of judicial review, it stands immutably as conclusive evidence of the matters certified.

Frankly, the law is so well settled in this regard that even if it were possible to raise a legal issue about them on the hearing of the damages case, it could not be said to involve any complexity. So far as the complaints of process in relation to the exemption procedures are concerned, I must say I find it hard to see how they could arise at all for the determination in an action for damages for personal injury arising out of the motor vehicle accident. It may be that some of those matters about which he is aggrieved could be addressed, possibly by separate proceedings for judicial review, although I express no opinion about that one way or another, or by complaints to the ombudsman or perhaps even the Civil and Administrative Tribunal.

They need not be determined and could not be determined, as I have said, in the context of the proceedings for personal injury. The principal reason why I have expressed reservations about whether judicial review proceedings could be available on those issues is because of the finding I have made in relation to the absence of practical injustice.

It seems to me overall, that Mr Nesbeth’s submissions in relation to the second condition should be accepted. With respect, they are clearly correct. And in the circumstances, the second condition is not established. In these circumstances, for the reasons I have already given at the commencement of this judgment, I am bound by the terms of section 146(4)(a) to transfer the proceedings to the District Court.

I discussed with Mr Nesbeth at the outset that although it was clear that the defendant would not raise the statutory bar created by section 109 of the Act, for clarity I should make an order extending time. Especially so, now that I have decided that the proceedings must be transferred to the District Court so that there is no ambiguity or uncertainty when the matter is reviewed by the judicial registrar or a judge of that Court during case management.

I therefore make the following orders:

Having heard from the parties in relation to costs, I make the following order: