BIJ v QBE Insurance (Australia) Limited - [2022] NSWPICMR 75

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	BIJ v QBE Insurance (Australia) Limited [2022] NSWPICMR 75
ClaimanT:	BIJ
Insurer:	QBE Insurance (Australia) Limited
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	16 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (2002 Act) (as applied by section 3.39 of the 2017 Act; Limitation on statutory benefits in relation to certain mental harm); section 30 of the 2002 Act; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
Determinations made:	Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by s 3.39 of the Motor Accident Injuries Act 2017 (the MAI Act) (Limitation on statutory benefits in relation to certain mental harm)) and is therefore a merit review matter under Schedule 2(1)(t) of the MAI Act. 1. The reviewable decision is affirmed. The claimant is entitled to regulated costs up to a maximum of 16 monetary units.

STATEMENT OF REASONS

INTRODUCTION

A dispute has arisen between BIJ (the claimant) and the insurer about the claimant’s entitlement to payment of weekly benefits under Division 3.3 of the MAI Act.
The claimant’s grandson, BKE (the victim), was injured in a motor accident at approximately 7.50pm on 1 February 2020.
The claimant made a claim for statutory benefits under the MAI Act arising from pure mental harm suffered by the claimant in connection with the victim’s motor accident.
On 10 June 2022 the insurer determined the claimant was not entitled to statutory benefits as she was not a person who is eligible to bring a claim for pure mental harm under s 30 of the Civil Liability Act2002 (the CLA).
On 8 July 2022 the claimant requested an internal review of the insurer’s decision dated

10 June 2022.
According to the claimant, the insurer has failed to conduct an internal review in relation to their 10 June 2022 decision within the required time. Accordingly, the claimant now seeks a merit review of the insurer’s decision dated 10 June 2022.

SUBMISSIONS

The claimant submits:
(a) she is an eligible person under s 30 of the CLA on the basis she is either a close member of the family of the victim and/or she witnessed, at the scene, the victim being put in peril;
(b) she meets the definition of “close member of the family” of the victim under s 30 on the basis she is the grandmother and has “parental responsibility” for the victim, and
(c) she witnessed the victim being put in peril on the basis she arrived at the…

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 BIJ v QBE Insurance (Australia) Limited

Details

AGLC: BIJ v QBE Insurance (Australia) Limited [2022] NSWPICMR 75
Case: [2022] NSWPICMR 75
Decision Date: 16 December 2022

CaseChat Overview and Summary

In the case of BIJ v QBE Insurance (Australia) Limited, the dispute arose from a motor accident that led to a claim for weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act). The claimant sought compensation for mental harm, which was contested by the insurer, QBE Insurance (Australia) Limited, on the grounds of the application of Part 3 of the Civil Liability Act 2002 (2002 Act) as per section 3.39 of the 2017 Act. This section limits statutory benefits in cases of mental harm where the claimant is deemed to have been put in peril by a close member of the family of the victim. The claimant challenged the insurer’s decision to refuse payment of these benefits, leading to a review by the court.

The primary legal issues before the court involved the interpretation of key terms within the statutory framework, specifically the definitions of "close member of the family" and "being put in peril" under the 2002 Act. The court needed to determine whether the claimant met the criteria that would entitle them to weekly benefits despite the statutory limitation. Additionally, the court had to consider the applicability of section 30 of the 2002 Act in the context of the statutory benefits limitation imposed by section 3.39 of the 2017 Act.

The court found that the claimant did not qualify as a close member of the family within the meaning of section 30 of the 2002 Act, and therefore, the statutory limitation on benefits applied. The court's reasoning was based on the specific statutory definitions and the circumstances of the claimant’s relationship to the victim. The court held that the claimant's status did not fall within the protective ambit of the 2002 Act, which consequently allowed the insurer to refuse the payment of weekly benefits. Consequently, the reviewable decision by the insurer was affirmed, and the claimant's claim for statutory benefits was dismissed.

Orders