AAB v AAI Limited

Case

[2021] NSWPIC 44

22 March 2021


CERTIFICATE OF DETERMINATION OF MEMBER 
CITATION: AAB v AAI Limited [2021] NSWPIC 44
APPLICANT: AAB
RESPONDENT: AAI Limited t/as GIO on behalf of the nominal defendant
MEMBER: Brett Williams
DATE OF DECISION: 22 March 2021
CATCHWORDS:

MOTOR ACCIDENTS- Miscellaneous Claim; dispute about whether the applicant is entitled to receive statutory benefits in accordance with Part 3 of the Motor Accident Injuries Act 2017; unregistered golf buggy; capable of registration; did accident occur on a road; make a claim against the Nominal Defendant; section 2.28 requires there to be an established liability on the part of the Nominal Defendant; unregistered vehicle permit; Held- applicant suffered an injury as a result of a motor accident; applicant entitled to receive statutory benefits in accordance with part 3 of the Motor Accident Injuries Act 2017; the nominal Defendant is the relevant insurer; amount of applicants costs assessed in accordance with the Motor Accidents Regulation 2017 is $1,660.16 plus GST; no costs penalty imposed on insurer.

DETERMINATIONS MADE:

1. For the purposes of section 3.1 of the Motor Accident Injuries Act 2017 (the Act) AAB suffered injury on 18 August 2020 as a result of a motor accident in this State.

2. AAB is entitled to receive statutory benefits in accordance with Part 3 of the Act.

3.    Statutory benefits to which AAB is entitled are payable by the Nominal Defendant as the relevant insurer in accordance with section 3.2 of the Act.

4.    The question of whether the motor accident occurred on a road does not arise.

5. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,660.16 plus GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

  1. AAB made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the Act). The claim was made following an accident at XXX Golf Club on 18 August 2020. AAB submitted a claim form in which she recorded the following:

“On 18 August 2020 at approximately 1:30pm I was at XXX Golf Club loading my golf bag onto a golf buggy when a golf buggy behind me having no driver, collided into me. There was a staff member that was working on the golf buggy”.

  1. As a result of the accident AAB says that she suffered injury to her left leg and knee.

The Accident

  1. The account of the accident provided in the claim form is generally consistent with the account provided by AAB recorded in the transcript of interview conducted on 16 October 2020. The transcript includes the following exchange:

    “Q 200     Okay.  Alright.  Can you please describe how the accident even come about? So, what happened from you playing and you were at halfway at the golf course, what happened from there? How did the accident come about?

    A      I:...... Hi, so we were driving, and we found the battery was about run out on the cart but we tried to get the cart back to the office. We also called the office men ah, called the office and advised them um, that the battery’s about the run out. Eventually the battery ran out and ah, a staff member drove um, another ah, cart and come over our way. After he parked our cart behind us um, he told us to move our luggage to um, his cart. So um, I was standing between the two ah, vehicles ah, back ah, back to back ah, in the middle and I’m, I was moving the um, um, my golf bag and it’s all um, I shifted other my stuff to the other cart already and I can see um, the staff member is operating on my cart and, and that’s when he was ah, operating the cart he, my cart actually  slid  down  and  ah,  on  ah,  squeezed  my  um,  leg  between  the  two vehicle so ah, got hit between the two vehicles.

    Q 201      Alright. So you were standing in between and the attendant was working on your first cart.

    A      I:...... He is actually manoeuvring the car when he was still having his foot on the ground.

    Q 202      Okay. So he was moving the cart?

    A      I:     Yes. So had to, he can only see that his hand is moving ah, but he’s not sure what he’s doing. She’s not sure what he’s doing.

    Q 203      So was the cart moving before it rolled back on you?

    A      I:...... I’m not sure what he did but the car actually, the cart actually rolled down and squeezed me, and squeezed me.”

  2. The precise location at which the accident occurred is not apparent from the evidence. What seems clear is that the accident occurred while AAB was playing a round of golf on the course.

  1. As to the nature of the location at which the accident occurred, I note the following exchange in the transcript of interview:

    Q 161     Okay. So can you drive anywhere or do you have to be on the road only or can you go across grass or the gardens? Where can you go?
    A   I:......You cannot go through the park...... oh, green ...... You cannot go onto, you cannot go onto the green.
    Q 162      Is there like a path that runs beside the green so you can drive from each hole?
    A   I:......Hi, I don’t usually go anywhere outside the, the, the road ah, for the cart. So I just stop on the, on the road.
    Q 163      Is it a wide road or is it narrow? Is it like a normal street on the street like on the normal roadways?
    A   I:......It’s ah, about the width of a golf cart.
    Q 164      Is it one way?
    A   I:...... Yes. You cannot overtake another golf cart ...... Hold on ......I think people driving ah, on the grass as well as people done that.”

  2. Although this exchange does not appear to relate to the specific circumstances of the accident, the inference I draw from the exchange is that the accident occurred on a path or road on the golf course that is used by golfers driving a golf buggy.

The claim

  1. The golf buggy was unregistered. A claim for statutory benefits was made on the Nominal Defendant. AAI Limited trading as GIO was appointed to manage the claim for the Nominal Defendant.

  2. By letter dated 20 November 2020 the Insurer denied liability for the claim on the following basis:

    “To be eligible for benefits and for the Nominal Defendant to pay such benefits the golf buggy must be capable or [sic] registration and the motor accident must have occurred on a road or road related area, open to, or used by, the public pursuant to section 2.29 of the Motor Accident Injuries Act 2017.”

  3. In response to a request from AAB’s lawyers to review the denial, the Insurer wrote to AAB on 26 November 2020 and maintained the denial of liability. The Insurer’s reasons include reference to the application of section 2.29(1) of the Act to her claim. The Insurer asserted that to be entitled to statutory benefits the accident must have occurred on a road as relevantly defined. The letter concludes:

    “The claim therefore fails under Section 2.29 of the MAIA and GIO maintain a denial of indemnity and liability.”

  4. An internal review was sought by AAB. An internal review decision was made by the Insurer on 8 December 2020. The internal reviewer affirmed the decision of the GIO Claims Team. It was found that AAB’s injuries did not result from a motor vehicle accident on a road or road related area. The reviewer stated that AAB was not ‘entitled to a claim for statutory benefits and treatment expenses for the first 26 weeks.’

  5. In further submissions made to the Commission dated 12 March 2021, the Insurer maintained that the right to bring a claim for statutory benefits against the Nominal Defendant in the case of an uninsured vehicle is found in section 2.29(1). It was also argued that the Claimant ‘has not established that her claim for benefits falls within the statutory insurance policy of the statutory CTP scheme’.

Issues for Determination

  1. AAB asserts an entitlement to statutory benefits under Part 3 of the Act consequent upon the accident. The entitlement is disputed by the Insurer. The dispute constitutes a miscellaneous claims assessment matter for the purposes of Part 7 of the Act.

  2. The Insurer’s fundamental contention is that before Part 3 has any application the issue of whether a claim for statutory benefits can be made against the Nominal Defendant must be resolved. Because, in the insurer’s submission, AAB cannot make a claim against the Nominal Defendant she has no entitlement to statutory benefits under Part 3.

  3. The following matters arise for determination:

(a) Did AAB suffer an injury on 18 August 2020 as a result of a motor accident in this State for the purposes of section 3.1?

(b)    Is the Nominal Defendant the relevant insurer?

(c) Does section 2.29 apply to the claim?

(d)    Is the Nominal Defendant liable to pay statutory benefits to AAB?

  1. As a result of concessions made by the Insurer, referred to below, I do not need to determine whether AAB suffered injury as a result of a motor accident.

  2. For the reasons that follow I am not persuaded by the Insurer’s arguments. I have concluded that AAB is entitled to statutory benefits to be paid by the Nominal Defendant in accordance with Part 3 of the Act.

  3. Given the conclusions I have reached, the question of whether the motor accident occurred on a road does not arise.

Documents Considered

  1. I have considered the documents provided in the application and the reply and further information provided by the parties, including supplementary submissions.

Legislative Framework

  1. Before moving to the issues that require resolution it is appropriate to identify some aspects of the Act that may illuminate the context in which these issues arise.

  2. Part 1 sets out preliminary matters that include the objects of the Act.  Section 1.3(1) states that the Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents.

  3. The objects are found in section 1.3(2)(a) – (h) and include:

    “(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities,

    (b) to provide early and ongoing financial support for persons injured in motor accidents,

    …”

  4. The Act establishes two distinct streams of entitlements, statutory benefits and damages. This dispute involves a claim for statutory benefits.

  5. The definition of “statutory benefits” is found in section 1.4 as follows:

    "statutory benefits" means statutory benefits payable under Part 3.

  1. Part 3 of the Act applies to claims for statutory benefits. In AAI Ltd trading as GIO v Moon [2020] NSWSC 714 (Moon), Wright J [at 31] found that “Statutory benefits are governed by Pt 3 of the MAI Act, as a result of the definition in s 1.4.”

  2. The Nominal Defendant is established by Part 2 Division 2.4 of the Act. A Nominal Defendant fund is created by section 2.38. Licensed insurers act for the Nominal Defendant as provided by section 2.36. Provisions applicable to actions for the recovery of damages in the case of uninsured (section 2.29) or unidentified (section 2.30) vehicles are also found in this Division.

  3. Part 2 Division 2.2 deals with third-party policies under the Act.

The Insurer’s concessions – motor accident and injury

  1. Given that the Insurer does not dispute that AAB was injured in a motor accident (see paragraph 5 of the Insurer’s Further Submissions dated 12 March 2021) I do not need to determine whether AAB suffered injury as a result of the motor accident.

  2. In the Insurer’s further submissions [paragraph 14] the Insurer concedes that the circumstances in which it is alleged AAB suffered injury meet the definition of ‘motor accident’ for the purposes of the Act.

The Claimant satisfies section 3.1

  1. For the purposes of the Act, “statutory benefits” means statutory benefits payable under Part 3. The gateway to an entitlement to statutory benefits under Part 3 is found in section 3.1, which states:

“3.1 Statutory benefits payable in respect of death or injury resulting from motor accident

(1)    If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.

(2)     Statutory benefits are payable (except as otherwise provided by this Part)—

(a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or

(b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.”

  1. There is no dispute that AAB suffered injury as a result of a motor accident on 18 August 2020. There is no dispute that the accident occurred in this State. In the circumstances, AAB has satisfied section 3.1(1) of the Act.

  2. While fault on the part of AAB has not been put in issue in these proceedings, I note that section 3.1(2) states that statutory benefits are payable, except as otherwise provided by Part 3, whether or not she was at fault.

The Nominal Defendant is the relevant insurer

  1. Section 3.2 says that the statutory benefits are payable by the relevant insurer. The section reads:

    “3.2 Statutory benefits payable by relevant insurer

    (1)The statutory benefits payable under this Part are payable by the relevant insurer.

    (2) The "relevant insurer" is (subject to this section and section 3.3)--

    (a) if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover--the insurer of the motor vehicle, or

    (b) if the motor accident concerned involved more than 1 motor vehicle--the insurer of the at-fault motor vehicle, or

    (c) in any other case--the Nominal Defendant.

    Note : The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.

    (3) However, in the case of the payment of statutory benefits for treatment and care provided more than 5 years after the motor accident concerned, the "relevant insurer" is the Lifetime Care and Support Authority of New South Wales.

    (4) The insurer of the at-fault motor vehicle is the insurer who provides motor accident insurance cover to--

    (a) the owner or driver of the motor vehicle whose fault in the use or operation of the vehicle caused the death or injury in respect of which the statutory benefits are payable, or

    (b) if there is more than one such motor vehicle--the owner or driver of the motor vehicle who was most at fault.

    (5) For the purposes of this Act (including any motor accident insurance cover in respect of a motor vehicle) a liability that the relevant insurer has to pay statutory benefits under this Part in respect of death or injury is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (being a motor vehicle for which the insurer is the relevant insurer).

    (6) If the insurer of the at-fault motor vehicle is not a licensed insurer under this Act, statutory benefits payable under this Part are payable by the Nominal Defendant on behalf of the insurer.

    (7) The Nominal Defendant or other insurer who pays statutory benefits under this Part is entitled to recover the amount of statutory benefits properly paid from the relevant insurer liable to make those payments.”

  2. As the golf cart was not the subject of motor accident insurance cover, the effect of section 3.2(2) is that the Nominal Defendant is the relevant insurer.

  3. That being the case, statutory benefits to which AAB is entitled, having satisfied section 3.1, are payable by the Nominal Defendant in accordance with section 3.2(2)(c). Those benefits are payable except as otherwise provided by Part 3.

Does section 2.29 apply to the claim?

  1. The Insurer argues that the right to bring a claim against the Nominal Defendant in the case of an uninsured vehicle is found in section 2.29(1) which is in the following terms (emphasis added):

    2.29 Claim against Nominal Defendant where vehicle not insured (cf s 33 MACA)

    (1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales may be brought against the Nominal Defendant.”

  2. The Insurer says that AAB is not entitled to statutory benefits because the motor accident did not occur on a road in New South Wales.

  3. At the telephone conference held on 9 March 2021 I raised with the parties whether section 2.29 applied to the claim, particularly in light of the opening words of section 2.29(1), namely “An action for the recovery of damages…”..

  4. In response to directions made at the telephone conference further submissions have been provided by both parties in relation to this issue.

  5. The Insurer’s submissions point to section 2.28 of the Act which reads as follows:

2.28 Application of Division to statutory benefits

For the purposes of the application of this Division to a claim against the Nominal Defendant for statutory benefits payable under Part 3, the liability of the Nominal Defendant is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a vehicle that is not an insured motor vehicle or, as the case may be, a vehicle the identity of which cannot be established.”

  1. The Insurer argues that the effect of section 2.28 is that the whole of Division 2.4, including section 2.29, applies to a claim for statutory benefits.

  2. I do not agree. In my view, the section deems the Nominal Defendant’s liability to pay statutory benefits under Part 3 to be a liability caused by the fault of the owner or driver of the vehicle.

  3. The Insurer argues that before Part 3 has any application the issue of whether a claim for benefits can be made against the Nominal Defendant must be resolved.

  4. It seems to me that this submission, when considered against the language of section 2.28, puts the cart before the horse.

  5. On my reading of the provision, section 2.28 requires there to be an established liability on the part of the Nominal Defendant to pay statutory benefits under Part 3. If there is a liability to pay statutory benefits, the section then deems that liability, for the purposes of the application of Division 2.4 to the claim, to be a liability in respect of (in this case) injury caused by the fault of the owner or driver of the vehicle that is not insured.

  6. This interpretation of section 2.28 lends support to the conclusion that Part 3 of the Act is the starting point in relation to a determination of AAB’s entitlement to payment of statutory benefits.

  7. Subject to what I say below in relation to Part 3, if section 2.28 was intended to have the effect contended for by the Insurer, any such intention should be clear from the language used in the section. In my view, it is not.

  8. As discussed earlier in these reasons, an entitlement to statutory benefits arises as a consequence of Part 3 of the Act. As Wright J found in Moon [at 31], “Statutory benefits are governed by Pt 3 of the MAI Act…”.

  9. Sections 3.1(1) and 3.1(2) state that the statutory benefits are payable except as otherwise provided by Part 3.

  10. I interpret this to mean that any limitations or restrictions that apply to a claim for statutory benefits are contained in Part 3 of the Act.

  11. Part 3 does contain a number of limitations and restrictions in relation to a claim for statutory benefits. Those restrictions and limitations are found in Division 3.5, which is headed “Restrictions and limitations on statutory benefits”.

  12. I note in particular section 3.36, which reads as follows:

    No statutory benefits for at-fault driver or owner if vehicle uninsured
    3.36 No statutory benefits for at-fault driver or owner if vehicle uninsured

    (1) Statutory benefits are not payable under this Part in respect of the death of or injury to a person resulting wholly or mostly from the fault of the person as the owner or driver of a motor vehicle in the use or operation of the vehicle if the vehicle was an uninsured vehicle at the time of the motor accident.
    (2) Any amount properly paid under this Part by the relevant insurer as statutory benefits in respect of death or injury resulting from the fault of a person as the owner or driver of a motor vehicle in the use or operation of the vehicle may be recovered by the insurer from the owner or driver if the vehicle was an uninsured vehicle at the time of the motor accident.

    (3) A motor vehicle is an

    "uninsured vehicle" if and only if at the time of the motor accident--

    (a) the motor vehicle was not subject to coverage under a third-party policy, and

    (b) the motor vehicle was not subject to coverage under a policy of compulsory third-party personal injury insurance or a compulsory motor vehicle accident compensation scheme under the law of a place other than New South Wales or under a law of the Commonwealth, and

    (c) the motor vehicle was not owned by the Commonwealth or by any person or body of persons representing the Commonwealth.

    (4) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
    (5) This section does not apply to a person who was the driver of the vehicle at the time of the motor accident if--

    (a) the driver was driving the motor vehicle with the authority of the owner or had reasonable grounds for believing and did in fact believe that he or she had such authority, and

    (b) the driver did not have any reasonable grounds for believing that the motor vehicle was an uninsured vehicle.”

  1. This provision is of relevance as it deals with claims for statutory benefits that may otherwise give rise to a liability on the part of the Nominal Defendant to pay such benefits.

  2. I note that there are other limitations to an entitlement to statutory benefits in Part 3:

    (a)    if the motor accident was caused wholly or mostly by the injured person (sections 3.11(a) and 3.28(1)(a)); and

    (b)    if the injured person’s only injuries arising from the motor accident were minor injuries (sections 3.11(1)(b) and 3.28(1)(b).

  3. Having regard to all these matters, I have concluded that if there was an intention to restrict or limit claims for statutory benefits against the Nominal Defendant to motor accidents that occurred on a road, any such restrictions or limitations would be found in Part 3 of the Act. The absence of a restriction or limitation in this regard persuades me that no such limitation or restriction applies to this claim.

  4. I am not persuaded by the Insurer’s argument that the effect of section 2.28 is to bring this claim for statutory benefits within the ambit of section 2.29(1) with the result that AAB must satisfy that section before she can establish an entitlement to statutory benefits under Part 3.

  5. I have concluded that section 2.29 (1) does not apply as a restriction or limitation on the Nominal Defendant’s liability to pay statutory benefits to AAB as the relevant insurer under section 3.2.

  6. In my view, AAB’s rights to bring a claim for statutory benefits against the Nominal Defendant are governed by Part 3 of the Act, not section 2.29(1), as contended by the Insurer.

The Insurer’s section 2.3(b) argument

  1. The Insurer submits that the Claimant must establish for the purposes of section 2.3(b) that the golf buggy was used on a road to make a claim for statutory benefits. Section 2.3 sets out the terms of a third-party policy issued under the Act. It reads as follows:

    2.3 Third-party policies
    A third-party policy under this Act is a policy that is in the following terms--
    Third-party Policy
     The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle-
    (a) if the motor vehicle is not one to which paragraph (b) applies--in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a road), or
    (b) if the motor vehicle is subject to an unregistered vehicle permit under the Road Transport Act 2013 --in the use or operation of the vehicle on any road in any part of the Commonwealth.”

    In this policy, words and expressions have the same meanings as in the Act.

  2. Section 2.4 states:

    2.4 Treatment of certain vehicles for purposes of third-party policy

    (1) A motor vehicle that is--

    (a) subject to conditional registration under the Road Transport Act 2013, and
    (b) designed principally for use otherwise than on a road, and
    (c) a motor vehicle, or a motor vehicle of a class, prescribed by the regulations for the purposes of this section,

    is taken, for the purposes of a third-party policy under this Act, to be subject to an unregistered vehicle permit and not to conditional registration.

    (2) However, a regulation made for the purposes of this section does not affect a third-party policy under this Act that is in force in respect of any particular vehicle at the time that the regulation is made.”

  1. The insurer relies Regulation 5(f) the Motor Accident Injuries Regulation 2017 in support of its argument. The Regulation reads:

5      Motor vehicles subject to unregistered vehicle permits (section 2.4 (1) (c))

For the purposes of section 2.4 of the Act, the following classes of motor vehicles are prescribed as classes of motor vehicles that are taken, for the purposes of a third-party policy under the Act, to be subject to an unregistered vehicle permit and not to conditional registration—

(a)– (e) …

(f) motor vehicles that are motorised buggies or carts and are designed and used for the purpose of—

(i) carrying golfers, spectators or golfing equipment on a golf course, or

(ii) carrying persons in a holiday resort or retirement village or the like,”

  1. In my view section 2.4 only applies to a motor vehicle that is subject to conditional registration. If so, and the other criteria in section 2.4(1) are satisfied, the subject vehicle is taken, for the purposes of a third-party policy under the Act, to be subject to an unregistered vehicle permit and not to conditional registration. In those circumstances, section 2.3(b) would apply.

  2. That is not the case here. I have not seen any evidence that the golf buggy was the subject of conditional registration under the Road Transport Act 2013.

  3. The golf buggy was unregistered. It was not the subject of a third-party policy. That is why the claim has been made against the Nominal Defendant.

  4. In the circumstances, I am not persuaded that section 2.3 applies to this claim. I do not accept the Insurer’s section 2.3(b) argument.

The Insurer’s purported denial of indemnity

  1. In the Insurer’s Further Submissions, reference is made to the Insurer’s denial of indemnity in relation to this claim. A denial of indemnity for the claim is also referred to in the Insurer’s letter to AAB denying liability for the claim dated 20 November 2020 and their letter to XXX Golf Club of 12 March 2021.

  2. In my view, reference to a denial of indemnity in a claim involving an uninsured vehicle does not arise. In such a case, there is no third-party policy in existence with respect to which indemnity can be denied. It is the absence of a third-party policy that gives rise to the involvement of the Nominal Defendant. 

The Nominal Defendant is liable to pay statutory benefits to the Claimant

  1. Having regard to the conclusions I have reached I find that:

(a) For the purposes of section 3.1 of the Act AAB suffered injury on 18 August 2020 as a result of the motor accident on 18 August 2020.

(b) AAB is entitled to receive statutory benefits in accordance with Part 3 of the Act.

(c)    Statutory benefits to which AAB is entitled are payable by the Nominal Defendant as the relevant insurer in accordance with section 3.2 of the Act.

(d)    The question of whether the motor accident occurred on a road does not arise.

Costs

  1. AAB seeks costs in relation to these proceedings.

  2. In addition to regulated costs, costs are sought on the basis that exceptional circumstances arise.

  3. It is also argued that the Insurer should incur a costs penalty of 25% in accordance with section 6.21.

  4. The insurer argues that no costs should be awarded against it  because “on a clear reading of the MAIA the claim should never have been brought against the Nominal Defendant and it should not be liable to pay any costs for a claim that it is not obliged to indemnify”.

  5. I have found for AAB in relation to the matters in dispute. In those circumstances, the Insurer submits that any costs allowed should not exceed the maximum regulated fee, which is said to be “fair and reasonable to cover the amount of work required in the present application”.

  6. In Moon, Wright J held [at 97] that the power to permit payment of legal costs in section 8.10(4) was designed to deal with particular, unusual situations where the maximum costs fixed by the regulations may not be adequate.

  7. In these proceedings, one telephone conference was held. While additional submissions were required the additional submissions lodged for AAB occupied just over 2 pages. The documentation submitted by the parties in the proceedings was not voluminous. The matter was dealt with on the papers. In all the circumstances I do not consider this to be a matter that merits payment of costs on the basis that exceptional circumstances arise.

  8. It is argued that a 25% costs penalty should be imposed on the Insurer under section 6.21.

  9. A costs penalty can be imposed if the Commission is of the opinion that there was no reasonable basis for the denial of liability. There is considered to be a reasonable basis for a denial of liability only if the denial was based on provable facts and a reasonably arguable view of the law.

  10. In my view, the Insurer’s denial of liability was based on a reasonably arguable view of the law. I do not intend to impose a costs penalty on the insurer.

  11. The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,660.16 plus GST.

Brett Williams

Member (Motor Accidents Division)

Personal Injury Commission

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