Abo v AAI Ltd t/as GIO - [2021] NSWPICMR 21

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	ABO v AAI Ltd t/as GIO [2021] NSWPICMR 21
APPLICANT:	ABO
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; grandmother died as a result of injuries; claimant a minor; psychological injury; close family member under the Civil Liability Act (CLA); Adjustment Disorder; “close member of the family”; parental responsibility; grandmother had prominent role in the girl’s upbringing and well-being; a single mother; day-to-day parental responsibility; consideration of the relationship in question as a whole is required; ‘second parent’ satisfies s 30(5)(c) of the CLA; Held- insurer is not entitled to refuse payment of statutory benefits; legal costs; exceptional circumstances exist.
DETERMINATIONS MADE:	1. The Insurer’s decision of 17 July 2020 is set aside. 2. ABO 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 ABO 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. ABO 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. ABO is entitled to recover from the Insurer her reasonable and necessary legal costs in connection with this merit review matter in the amount of $5,000 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.
ABO is KP’s granddaughter. Following the death of her grandmother, ABO, 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 ABO suffered psychological injury as a result of her grandmother’s death. He diagnosed Adjustment Disorder and recommended psychological counselling.
By letter dated 29…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abo v AAI Ltd t/as GIO

Details

AGLC: ABO v AAI Ltd t/as GIO [2021] NSWPICMR 21
Case: [2021] NSWPICMR 21
Decision Date: 18 June 2021

CaseChat Overview and Summary

The case of Abo v AAI Ltd t/as GIO involved a dispute over statutory benefits under the Motor Accident Injuries Act 2017, following the death of a grandmother due to injuries sustained in a motor accident. The claimant, a minor, sought compensation for psychological injury as a result of the grandmother’s death. The insurer, AAI Ltd, contested the claim on the basis that the claimant did not satisfy the criteria of a close family member under the Civil Liability Act, as the grandmother was not a parent of the child but rather played a significant role in her upbringing. The claimant contended that the grandmother’s role was akin to that of a second parent, thus qualifying her for the statutory benefits. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the claimant’s relationship with the deceased grandmother qualified as that of a close family member under the Civil Liability Act, which is a prerequisite for claiming statutory benefits in respect of death. The court needed to determine if the grandmother’s role in the claimant’s upbringing and well-being was sufficient to classify her as a close family member. The court examined the legislative definitions and the specific circumstances of the claimant’s relationship with the deceased.

The court found that the claimant’s grandmother had a prominent role in her upbringing and well-being, particularly given the claimant’s status as a child of a single mother. The court held that the relationship between the grandmother and the claimant was akin to that of a second parent, thereby satisfying the requirements of a close family member under section 30(5)(c) of the Civil Liability Act. The court ruled that the insurer was not entitled to refuse payment of the statutory benefits. Additionally, the court found that exceptional circumstances existed to justify awarding legal costs to the claimant.

In light of the court’s decision, it ordered that the insurer pay the statutory benefits to the claimant and also award legal costs to the claimant due to the exceptional circumstances of the case.

Orders