| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | ACE v AAI Limited t/as GIO [2021] NSWPIC 289 |
| CLAIMANT: | ACE |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 13 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous Claims Assessment; dispute about legal costs and other costs and expenses that the Claimant is entitled to recover from the insurer in connection with the proceedings; claimant sought order that insurer pay his costs on the basis that exceptional circumstances exist within the meaning of s8.10(4)(b) of the Motor Accidents Injuries Act 2017; insurer submitted exceptional circumstances did not exist; AAI Limited v Moon considered; Held- issues in these proceedings did not represent a departure from the norm; not satisfied exceptional circumstances exist; claimant entitled to recover the maximum regulated amount for legal costs. |
| DETERMINATIONS MADE: | 1. The proceedings are discontinued. 2. The amount of the Claimant’s reasonable and necessary legal costs in connection with the proceedings assessed in accordance with the Motor Accident Injuries Act 2017 and Regulation 2017 is $1,660 plus GST. 3. The Claimant is entitled to recover from the Insurer expenses incurred obtaining documents from the NSW Police in the sum of $30 and the NSW Ambulance Service in the sum of $30. 4. A brief statement of my reasons for this determination are attached to this certificate. 5. I note that the Insurer has accepted liability to pay the Claimant statutory benefits in accordance with Part 3 of the Motor Accident Injuries Act 2017. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
The Claimant alleged that he suffered injury in circumstances that gave rise to entitlements under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The Insurer initially accepted liability to make payments to the Claimant under Part 3 for the first 26 weeks post-accident.
Liability was subsequently declined by the Insurer on 4 January 2019 on the basis that the Claimant did not suffer injury as a result of a motor accident and that he was wholly or mostly at fault for the accident.
An internal review decision issued by the Insurer on 18 March 2019 determined that the Claimant did not suffer injury as a result of a motor accident. As a consequence, he did not satisfy section 3.1(1) of the MAI Act and was therefore not entitled to benefits under Pt 3. Given those findings, the internal reviewer did not determine whether the Claimant was wholly or mostly at fault for the accident.
The Claimant lodged an Application with the Dispute Resolution Service on 3 November 2020. The dispute constituted a miscellaneous claims assessment matter in accordance with Sch 2 of the MAI Act.
The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced 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), the proceedings constitute pending proceedings and pre-establishment…
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- Case
- [2021] NSWPIC 289
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the exceptional circumstances outlined in section 8.10(4)(b) of the Motor Accidents Injuries Act 2017 were present and if so, whether they warranted costs beyond the regulated maximum. The court needed to determine if the issues in the proceedings represented a departure from the norm and warranted exceptional costs. The decision in AAI Limited v Moon was also considered, which had established criteria for determining exceptional circumstances.
The court found that the issues in the proceedings did not represent a departure from the norm and did not warrant the conclusion that exceptional circumstances existed. The claimant was thus entitled to recover the maximum regulated amount for legal costs. This decision aligns with the principle that exceptional circumstances must genuinely be exceptional and not a matter of routine in motor accident claims.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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