AAV v AAI Ltd t/as GIO
[2021] NSWPICMR 9
•17 May 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | AAV v AAI Ltd t/as GIO [2021] NSWPICMR 9 |
| APPLICANT: | AAV |
| RESPONDENT: | AAI Ltd t/as GIO |
| MERIT REVIEWER: | Ray Plibersek |
| DATE OF DECISION: | 17 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; whether the insurer is entitled to issue a direction to the claimant under section 6.26 of the Motor Accident Injuries Act 2017; failing to provide particulars; admitting liability; non-minor injury; application for damages; Directions Notice; claim deemed withdrawn; medical assessments; Direction given in accordance with the Motor Accidents Guidelines; Held- reviewable decision affirmed. |
| DETERMINATIONS MADE: | 1. The reviewable decision, being the Insurers’ entitlement to issue a direction dated 24 September 2020 to the Claimant under section 6.26, is affirmed. 2. By operation of sub- section 6.26 (3) of the Motor Accident Injuries 2017 the Claimant is taken to have withdrawn his claim for damages. |
Background
There is a dispute between the Claimant, AAV, and the Insurer about an alleged non-compliance with a direction by an insurer for failing to provide particulars under sections 6.25 and 6.26 of the Motor Accident Injuries Act 2017 (the Act). The dispute is a merit review matter under sub-clause 1 (z) Schedule 2(1) of the Act.
The Claimant was injured in a motor vehicle accident on 13 March 2018.
The Claimant lodged an Application for personal injury benefits dated 26 March 2018, (AD2).
On 28 June 2018 the Insurer issued two notices admitting liability for the first 26 weeks and also accepting the claim was a non-minor injury, (AD2).
The Claimant lodged an Application for damages under the common law dated 12 February 2020, (R3).
On 19 May 2020, the Insurer issued a notice admitting fault but denying liability for the damages claim because the Claimant’s alleged injuries did not satisfy the definition of a non-minor injury, (R2).
On 19 May 2020, the Insurer issued another notice denying liability to pay further statutory benefits after the first 26 weeks because the Claimant’s alleged injuries did not satisfy the definition of a non-minor injury, (R3).
By letter dated 1 June 2020, the Insurer requested particulars of the Claimant’s damages claim, (R4).
The Insurer wrote a letter to the Claimant with an attached Directions Notice that were both dated 24 September 2020. The Direction referred to section 6.25 requiring the Claimant to provide to the Insurer the particulars requested as expeditiously as possible. The Direction also referred to section 6.26 which requires the production of the relevant particulars within three months of the date of the Direction otherwise the claim would have been taken to be withdrawn, (R7).
By letter dated 1 February 2021, (R9) the Insurer’s solicitors wrote to the Claimant’s solicitors referring to the Insurer’s letter dated 24 September 2020 and noting that no response had been received. The letter also stated that the claim was now deemed withdrawn under section 6.26 of the Act.
By an email dated 1 February 2021, (R10), the Claimant’s solicitors wrote to the Insurer’s solicitors stating:
“We refer to the above matter and in particular to your email dated 1 February 2021. We have not yet attended to your request for section 6.25 particulars as the insurer had suddenly after our application denied liability of the claim for damages on the basis that the claimant sustained a “minor injury”. It is to our understanding that until the issue of “minor injury” has been resolved, the claimant will be incapable of pursuing a damages claim and we see no necessity to attend to your request for particulars at this time.”
By letter dated 3 February 2021, (R11), the Insurer’s solicitors wrote to the Claimant’s solicitors in part as follows:
“Section 6.25 of the Motor Accident Injuries Act 2017 requires the claimant to provide particulars after a claim for damages is made. The application of Section 6.26 is not subject to any liability notice issued under Section 6.20 by the insurer. In accordance with Section 6.26(3), the claimant is taken to have withdrawn the claim due to non-compliance of the insurer’s direction.”
The Claimant’s solicitors then lodged an online application for review on 16 February 2021.
Written submissions
The Claimant’s solicitors lodged a document seeking an internal review dated 3 February 2021, (A1). The submissions stated that the decision should be changed because:
“The insurer is NOT entitled to give a direction to the claimant under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages), as per section 4.4 reflecting the current injury status deemed by the insurer, no damages entitlement is warranted as a result section 6.26(3) is not applicable.”
The Claimant’s solicitors also lodged submissions dated 21 February 2021, (AD3). These submissions briefly set out the relevant history of the request and directions made for particulars. The issue in dispute was described as to whether the insurer is entitled to give a direction to the claimant under section 6.26. The Claimant’s solicitors submit that the Insurer is not entitled to give a direction under section 6.26.
The submissions refer to section 4.4 of the Act and argue that no damages may be awarded to an injured person if the only resultant injuries were minor injuries. The submissions argued that from the time the Insurer had decided that the Claimant had a minor injury (19 May 2020) “… the claimant no longer had entitlements to damages as per s4.4. Therefore the claimant was not in a position to respond to any request for particulars in relation to damages.”
The Insurer’s solicitors lodged written submissions dated 8 March 2021, (R1). These submissions briefly set out the relevant notices in the matter including the request for particulars dated 1 June 2020. The submissions note that by 13 September 2020 no response had been received to the Insurer’s request for particulars. The submissions also note that by notice dated 24 September 2020 the Insurer sought to compel the Claimant to provide the requested particulars.
The Insurer’s solicitors submitted that the Insurer received no response to the section 6.26 notice and, the three months period which the claimant was required to comply with the notice, expired on 24 December 2020.
The Insurer’s solicitors’ submissions also note that the Claimant had not advised the Insurer at any time between 19 May 2020 and 24 December 2020 that he accepted the insurer’s s 6.20 liability notice or that he no longer intended to pursue his damages claim.
The Insurer’s solicitors submitted that:
“… the claimant has duty under section 6.25 of the Act to provide relevant particulars of claim for damages as expeditiously as possible after the claim is made. The application of section 6.26 of the Act is not subject to any liability notice issued under section 6.20. The insurer has issued its written notice in accordance with s6.26 of the Act. Section 6.26(8) does not apply.”
Oral submissions
A teleconference was held between the parties on 11 May 2021. The Claimant was represented by his solicitors Mr Young and Mr Cheng. The Insurer was represented by its solicitor Ms Li.
Ms Li submitted that the Insurer was entitled to issue a notice under section 6.26 seeking particulars. The Claimant had not provided the particulars sought and at no stage had the Claimant withdrawn his claim for damages.
Mr Young submitted it was a pointless exercise to provide particulars while the further medical assessments of the Claimant had yet to take place and the minor injury issue was yet to be determined. Mr Young asked if the dispute about providing particulars could be delayed until after the medical assessments were completed. Mr Young noted that during the COVID outbreak he was not seeing clients and it was very difficult to get proper instructions. Mr Young noted that because of the COVID outbreak medical assessments had been very delayed. Mr Young then withdrew his suggestion about whether the determination of the dispute providing particulars could be delayed until after the medical assessments were completed.
Reasons
Sub-section 6.25 (1) imposes a statutory duty on a claimant for damages to provide relevant particulars about a claim to the insurer as expeditiously as possible.
The timetable, mechanism and consequences of the requirement and failure to provide particulars are set out in section 6.26. After two years and six months if a claimant fails to provide the insurer with the relevant particulars without a reasonable excuse then the insurer may give a written direction requiring the claimant to provide those particulars. Then if the claimant does not comply with that direction within three months the claimant is deemed to have withdrawn the claim.
In this case the Claimant lodged an Application for damages under the common law dated 12 February 2020, (R3). By letter and Directions Notice, both dated 24 September 2020, the Insurer required the Claimant to provide the particulars requested within three months of the date of the direction otherwise the claim would have been taken to be withdrawn, (R7).
Under sub- section 6.26 (2) the insurer’s direction must be given in accordance with the Motor Accident Guidelines. The Direction issued by the Insurer in this case notes that it is issued in the form approved by the State insurance Regulatory Authority pursuant to section 6.26 (2) of the Act. Accordingly, I find that the Direction in this case is given in accordance with Motor Accident Guidelines.
After the three month period had expired, the Insurer’s solicitors wrote to the Claimant’s solicitors, by letter dated 1 February 2021, (R9), referring to the Insurer’s letter dated 24 September 2020 and noting that no response had been received. The letter also stated that the claim was now deemed withdrawn under by section 6.26 of the Act.
The Insurer’s solicitors submit that they have received no notice of the Claimant’s claim for damages being withdrawn. There is no evidence provided by the Claimant’s solicitors of any notice of the Claimant’s claim for damages being withdrawn. As a result, I find that there is no evidence that the claim for damages is withdrawn and the Claimant still maintains his claim for damages.
Prior to the Claimant’s solicitors email dated 1 February 2021, (R10), the Claimant gave no reasons nor reasonable excuse as to why they had not provided the particulars requested by the Insurer. The Insurer appears to have given a valid Direction in accordance with the requirements of the legislation and Guidelines. Accordingly, I find that by operation of section 6.26 of the Act, the Claimant in this case is taken to have withdrawn his claim for damages.
The only reasons offered by the Claimant’s solicitors were in oral submissions before me at the first tele-conference. The solicitors for the Claimant submitted that that during the COVID outbreak they were not seeing clients and it was very difficult to get proper instructions. Mr Young also submitted that because of the COVID outbreak medical assessments had been very delayed. Whilst I have considerable sympathy for these reasons they should have been communicated to the Insurer before the Insurer issued its Direction requiring the Claimant to reply and provide the particulars requested. It is too late to offer these reasons after the Direction has been made and after claim for damages is taken to have been withdrawn by sub- section 6.26 (3).
Whist the reasons offered by the Claimant’s solicitors (referred to above) may not be relevant to the issues to be considered before me, they may well form the basis of a future application for reinstatement made under sub-sections 6.26 (5) to (7).
Sub-section 6.26 (8) does not apply in the Claimant’s case because there is no evidence before me that a medical assessor has declined to make an assessment because the injury has not become permanent.
Legal costs
Sections 8.3 and 8.10 of the Act make provision for the fixing and recovery of legal costs in relation to claims for statutory benefits.
Sub-clause 22 (1) (a) of the Motor Accident Injuries Regulation 2017 provides in part that the costs set out in Schedule 1 are the maximum costs for legal services provided by an Australian legal practitioner to a claimant or to an insurer in a motor accidents matter.
Clause 1 of Schedule 1 Part 1 of the Regulation then provides that the maximum costs for legal services provided to a claimant or an insurer in connection with a merit review under Division 7.4 of the Act involving a dispute about a regulated merit review matter are 16 monetary units (to a maximum of 60 monetary units per claim). The definition of a regulated merit review matter includes under sub-clause 2 (i):
“… whether the insurer is entitled to give a direction to the claimant under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages) of the Act.”
In this matter neither the Claimant nor the Insurer’s solicitors raised the issue of legal costs of the merit review in any written or oral submission.
In view of my findings in this matter, and the conclusion that the Insurer was entitled to issue a Direction dated 24 September 2020 to the Claimant and also because neither party made any submissions on legal costs, I propose to make no provision to award any legal costs to either party.
Conclusion
The reviewable decision, being the Insurers’ entitlement to issue a direction dated 24 September 2020 to the Claimant under section 6.26, is affirmed.
By operation of sub- section 6.26 (3) the Claimant is taken to have withdrawn his claim for damages.
Legislation and Guidelines
In making this decision, I have considered the following:
· The application, reply, correspondence between the parties and supporting documentation.
· The oral submissions made by the Insurer’s and Claimant’s solicitors at the teleconference held on 11 May 2021.
· The Act.
· Motor Accident Injuries Regulation 2017.
· Motor Accident Guidelines, November 2017.
Ray Plibersek
Merit Reviewer
Personal Injury Commission
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