Ace v AAI Limited t/as GIO - [2021] NSWPIC 289

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…

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.

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Details

Case: [2021] NSWPIC 289
Decision Date: 13 August 2021

CaseChat Overview and Summary

The case of Ace v AAI Limited t/as GIO involved a dispute between a motor accident claimant and an insurer regarding the legal costs and other expenses the claimant was entitled to recover. The claimant sought an order that the insurer pay his costs on the basis that exceptional circumstances existed, which would entitle him to costs beyond the maximum regulated amount. The insurer argued that such circumstances did not exist.

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