ABN v AAI Ltd t/as GIO
[2021] NSWPICMR 20
•18 June 2021
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | ABN v AAI Ltd t/as GIO [2021] NSWPICMR 20 |
| APPLICANT: | ABN |
| RESPONDENT: | AAI Ltd t/as GIO |
| MERIT REVIEWER: | Brett Williams |
| DATE OF DECISION: | 18 June 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; statutory benefits in respect of death under section 3.1 of the Motor Accident Injuries Act 2017; pure mental harm arising from mental or nervous shock; grandmother died as a result of injuries; claimant a minor; psychological injury; close family member under the Civil Liability Act (CLA); “close member of the family”; parental responsibility; a single mother; satisfies s 30(5)(c) of the CLA; Held- insurer is not entitled to refuse payment of statutory benefits; claimant entitled to recovery statutory benefits for pure mental harm arising from mental or nervous shock in connection with the death of grandmother; legal costs. |
| DETERMINATIONS MADE: | 1. The Insurer’s decision of 17 July 2020 is set aside. 2. ABN is a close member of the family of the late KP for the purposes of s 30(2)(b) of the Civil Liability Act 2002. 3. The Insurer is not entitled to refuse payment of statutory benefits to ABN in accordance with Part 3 of the Civil Liability Act 2002 as applied by s 3.39 of the Motor Accident Injuries Act 2017. 4. ABN is entitled to recover statutory benefits for pure mental harm arising from mental or nervous shock in connection with the death of KP in a motor accident on 1 April 2020 in accordance with Part 3 of the Motor Accident Injuries Act 2017. 5. ABN is entitled to recover from the Insurer her reasonable and necessary legal costs in connection with this merit review matter in the amount of $1,660 plus GST. |
Background
The claim
On the morning of 1 April 2020 KP was riding a bicycle through a roundabout located at the intersection of George, Hereford and Stanley Streets, Bathurst, when a vehicle collided with her (’the accident’). KP died as a result of injuries sustained in the accident.[1]
[1] A notice issued by the Coroners Court on 5 May 2020 recorded that the direct cause of KP’s death was a traumatic brain injury. The notice also recorded that the inquest into KP’s death had been suspended as the Coroner had formed an opinion that the evidence established an indictable offence against a known person. The known person was the driver of the vehicle involved in the accident.
ABN is KP’s granddaughter. Following the death of her grandmother, ABN, a minor, developed a psychological injury that required treatment[2]. She subsequently submitted a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) to AAI Limited t/as GIO, the insurer of the at fault vehicle involved in the accident (‘the Insurer’).
[2] Certificate of Capacity and Fitness of Dr J.M Corbett-Jones dated 21 May 2020. Dr Corbett-Jones certified that ABN suffered psychological injury as a result of her grandmother’s death. The doctor diagnosed ‘Adjustment D - Bereavement’’. I have assumed that ‘D’ is shorthand for ‘Disorder’. The doctor stated that ABN required treatment in the nature of psychological counselling.
By letter dated 29 June 2020 the Insurer denied ABN’s claim on the basis that she was not a close member of KP’s family for the purposes of s 30(2)(b) of the Civil Liability Act 2002 (CLA).
An internal review of the Insurer’s decision was issued on 17 July 2020. The internal reviewer determined that:
(a) ABN does not meet the definition of ‘close family member’ in accordance with the CLA (NSW).
(b) The statutory benefits claim up to 26 weeks from the date of the accident for the pure mental harm claim lodged pursuant to Part 3 of the CLA is denied.
(c) ABN is not entitled to the payment of weekly benefits and may not recover treatment and care expenses.
Implicit in the Insurer’s decision is that the psychological injury ABN suffered constituted ‘mental harm’ for the purposes of the MAI Act and CLA. The Insurer has not disputed that ABN suffered mental harm as a consequence of her grandmother’s death.
The critical issue for determination is whether ABN satisfies s 30(5)(c) of the CLA and is therefore a close member of the family of KP for the purposes of s 30(2)(b) of the CLA. If so, she will be entitled to benefits in accordance with Part 3 of the MAI Act.
Transitional matters
The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced on 25 February 2021, before the PIC was established. In accordance with Sch 1 Part 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020 (the Pic Act), they constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.
The proceedings
The dispute constitutes a merit review matter for purposes of Part 7 Division 7.4 of the MAI Act.[3]
[3] Sch 2 cl 1(t) MAI Act.
At a teleconference held on 6 May 2021 the parties agreed that the matter should be determined on the papers. Having considered s 52 of the PIC Act and Procedural Direction PIC2, I am satisfied that sufficient information has been supplied in connection with the dispute and that the proceedings can be determined on the papers.
RELEVANT STATUTORY PROVISIONS
Claims for statutory benefits are governed by Part 3 of the MAI Act. Section 3.1 is the gateway to accessing statutory benefits. The section reads as follows:
“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.”
Statutory benefits are payable subject to the other provisions in Pt 3.
ABN’s psychological injury constitutes mental harm. As a result, s 3.39 of the MAI Act applies to her claim. That provision states:
“3.39 Limitation on statutory benefits in relation to certain mental harm
Part 3 (Mental harm) of the Civil Liability Act 2002 applies to the payment of statutory benefits under this Part in connection with an injury in the same way as it applies to the award of damages in connection with an injury, subject to any necessary modifications and to any modifications prescribed by the regulations.”
The regulations referred to in s 3.39 are found in Pt 3 cl 8 of the Motor Accident Injuries Regulation 2017. There is nothing in the Regulations that is relevant to the resolution of this dispute.
Central to the dispute in these proceedings are s 30(2) and (5) of the CLA. Section 30 states relevantly as follows:
“30 Limitation on recovery for pure mental harm arising from shock
(1) This section applies to the liability of a person ("the defendant" ) for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless--
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
(3) …
(4) …
(5) In this section--
"close member of the family" of a victim means--
(a) a parent of the victim or other person with parental responsibility for the victim, or
(b) the spouse or partner of the victim, or
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
"spouse or partner" means--
(a) the person to whom the victim is legally married (including the husband or wife of the victim), or
(b) a de facto partner,
but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.”
While s 30(2) refers to ‘damages’ that word should be replaced, for the purposes of this dispute, with the term ‘statutory benefits’.[4] The provision limits the class of person who can recover statutory benefits for pure mental harm. Because she does not satisfy
s 30(2)(a) of the CLA, ABN must establish that she was a close member of the family of KP in order to satisfy s 30(2) and establish an entitlement to recover statutory benefits. This means that she must come within one of the defined categories contained in s 30(5).[4] Section 3.39 states that Pt 3 of the CLA applies to the payment of statutory benefits under that Part in the same way as it applies to the award of damages in connection with an injury, subject to any necessary modifications. Replacing the word ‘damages’ with the term ‘statutory benefits’ is such a necessary modification.
ABN argues that she satisfies s 30(5)(c), in that she was a person for whom KP had parental responsibility. The Insurer argues to the contrary.
THE EVIDENCE
ABN’s statement
In support of her claim, ABN provided a statement dated 27 May 2021. Therein she states, relevantly:
“5. I am the daughter of SP and granddaughter of KP. I would refer to my grandmother, as ‘Omar’.
6. I would speak and see Omar daily as mum worked a lot on weekends and weekdays. We went to Omar’s house in the morning before school and after school, until mum finished work.
7. I would watch tv with Omar, and go swimming with her. She would drive us to sports that we played, like karate.
8. Omar would take ABO and I into town after school and drop into mum’s work and see if she needed anything and she would buy groceries for us. She would get us food and make us lunches and dinners. Every week night that mum worked, we had dinner at Omar’s house.
9. Omar bought half the clothes in my cupboard.
10. I had a really good relationship with Omar. I stayed at her house for 2 weeks when she had a hip replacement and I would often stay at her house on weekends, when I was supposed to go to dad s house.
11. When I heard the news about Omar passing away, I didn’t really believe it. It did not register, as I saw her every day and was really close with her, and I did not believe it at all really. It still has not really sunk in, and I still feel like I saw her yesterday.
…
13. I am very angry all the time. I am angry towards everything. I am annoyed that Omar can’t be there to do things with my sister, ABO and I.
14. Once or twice a week, I am not able to sleep well, as I am thinking of Omar.
…
16. I had about 6 weeks off school after Omar passed away. I have difficulty concentrating when I am at school. My grades have gone down significantly, and I am not paying attention in class, as I am thinking about Omar.
…
18. I don’t swim any more. We used to go to the pool with Omar 2 to 3 times a week and do laps in the pool with Omar but I have not swam in the pool since she died.
19. Omar used to take us on big trips, like to the Gold Coast, but we haven’t been on a holiday since.
…
21. I really miss Omar, as she was a really big part of ABO and my life. As mum was a single mum, Omar was like a parent figure for ABO and myself.
…”
In addition to her own statement, ABN relies on statements from the following:
(a) Joint statement of JY, SK, MM, MR, MW and BH (joint statement), undated.
(b) EP (undated).
(c) SK (undated).
(d) RW dated 30 June 2020.
(e) WH (undated).
(f) Dr Corbett-Jones dated 18 June 2020.
(g) Her mother, SP, dated 27 May 2021.
I have read and considered all the statements. Extracts of the statements are contained in my decision in the related matter of ABO (’the related matter’). I do not propose to repeat that evidence in these reasons. The summary provided in the related matter should be taken to have been incorporated into these reasons.
SUBMISSIONS
The parties to these proceedings rely on submissions that are in all material respects the same as those relied on in the related matter. I do not propose to repeat them here. In short, ABN argues that she satisfies s 30(5)(c) and s 30(2)(b) of the CLA and is entitled to statutory benefits under Part 3 of the MAI Act. She says that the definition of ‘parental responsibility’ in s 61B of the Family Law Act 1975 (FLA) does not apply to her claim. The Insurer argues that the definition of ‘parental responsibility’ in s 61B of the FLA applies to the claim, that ABN does not come within the definition and is, therefore, not entitled to statutory benefits in accordance with Part 3 of the MAI Act.
Consideration
As recorded earlier in these reasons, the critical issue for me to determine is whether ABN was a person for whom KP had parental responsibility in accordance with
s 30(5)(c) of the CLA.For the reasons provided in the related matter I find that the definition of ‘parental responsibility’ in s 61B of the FLA does not apply to ABN’s claim.
Was ABN a person for whom KP had parental responsibility?
When looked at in the context of SP raising ABN and her sister as a single mother, the following matters, when taken together, have led me to conclude that at the time of her death KP did have, and took, parental responsibility for ABN:
(a) KP prepared her meals.
(b) KP provided her with moral and ethical guidance.
(c) KP took her to and from school.
(d) KP took her to sporting events, including karate.
(e) KP ‘tucked her in to bed at night’.
(f) KP took care of her when she was unwell.
(g) KP helped ABN set and achieve goals.
(h) KP was instrumental in developing ABN’s character.
(i) KP was a role model to ABN.
(j) KP looked after ABN so that ABN’s mother, SP, could generate income for the family.
(k) KP was her primary carer during school holidays.
(l) KP would accompany her to medical appointments and was “deeply and inherently” involved in her day to day care.
(m) SP relied on KP to help her raise ABN.
I am satisfied on the evidence available to me that the role played by KP in ABN’s life was such that ABN was a person for whom KP had parental responsibility at the time of her death. I find that, for all intents and purposes, KP fulfilled the role of a second parent to ABN. The responsibilities she took for ABN were consistent with those typically reserved to a parent. Those responsibilities ranged from clothing and feeding her to providing moral and ethical guidance. The responsibilities KP took for ABN allowed ABN’s mother SP to run her business. KP made a critical contribution to the running of the household.
I find that ABN satisfies s 30(5)(c) of the CLA. As a corollary, I find that ABN is a “close member of the family” of KP for the purposes of s 30(2)(b) of the CLA.
The Insurer is not entitled to refuse payment of statutory benefits to ABN in accordance with Part 3 of the CLA as applied by s 3.39 of the MAI Act. Having satisfied s 30(2)(b) of the CLA ABN is entitled to recover statutory benefits in accordance with, and subject to, Pt 3 of the MAI Act.
Legal costs
ABN seeks an order that the Insurer pay her legal costs in connection with the claim. Her submissions in relation to costs are consistent with those referred to and summarised in the related claim. I will not repeat them here.
ABN is entitled to recover from the Insurer the reasonable and necessary legal costs, and other costs and expenses, incurred by her in connection with the claim[5] but only if payment is permitted by the Regulations or the Commission.
[5] See s 8.10(1).
This matter is a merit review matter[6] and a ‘regulated merit review matter’.[7] The Regulations provide for payment of legal services provided to her in relation to the matter to a maximum of 16 monetary units[8]. The present regulated maximum for legal costs is $1,660.[9]
[6] Sch 2 cl 1(t) MAI Act.
[7] Sch 1 cl 1(2)(d) of Regulations 2017.
[8] Sch 1 cl 1(1).
[9] 16 x $103.76.
The Commission can permit payment of legal costs incurred by ABN but only if satisfied that she is under a legal disability or exceptional circumstances exist that justify payment of legal costs incurred by her.[10]
[10] Section 8.10(4).
In her submissions, ABN conceded that a lot of the substantive work undertaken was common to both disputes being heard at the same time.[11] In the circumstances, I do not intend to exercise the discretion to permit the payment of legal costs found in s 8.10(4) of the MAI Act.
[11] Submissions 1 June 2021 at paragraph 35.
I have determined that ABN’s reasonable and necessary costs in relation to these proceedings are $1660 plus GST. She is entitled to recover those costs from the Insurer.
Brett Williams
Member – Motor Accidents Division | Merit Reviewer
Personal Injury Commission
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