Blo v CMA - [2024] NSWPICMR 19

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	BLO v CMA [2024] NSWPICMR 19
CLAIMANT:	BLO
INSURER:	CMA
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	22 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002 (CLA); merit review; dispute about payment of weekly benefits under Division 3.3 of the MAI Act; whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA (as applied by section 3.39 of the MAI Act); limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
DETERMINATIONS MADE:	CERTIFICATE 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.

STATEMENT OF REASONS

INTRODUCTION

A dispute has arisen between BLO (the claimant) and the insurer about the claimant’s entitlement to payment of weekly benefits under Division 3.3 of the Motor Accidents Injuries Act 2017 (MAI Act).
The claimant’s niece, CVM, (the victim) and nephew, CSA (CSA) were injured in a motor accident on 1 September 2023.
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 30 November 2023 the insurer determined the claimant was not entitled to statutory benefits as he 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 13 December 2023 the claimant requested an internal review of the insurer’s decision dated 30 November 2023.
On 21 December 2023 the insurer issued their internal review decision, which affirmed the insurer’s original decision that the claimant is not entitled to statutory benefits pursuant to s 30 of the CLA.
On 2 May 2024 the claimant requested a merit review of the insurer’s internal review decision dated 22 December 2023 (the Application).

SUBMISSIONS

The claimant submits he is an eligible person under s 30 of the CLA on the basis he:
(a) is a close member of the family of the victim, and/or
(b) he witnessed, at the scene, the victim being put in peril.
The claimant submits he meets the definition of “close member of the family” of the victim under s 30 on the basis he and the victim “were in a close family relationship in that they considered one another brother and sister”.
In the alternative, the claimant submits…

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 Blo v CMA

Details

AGLC: Blo v CMA [2024] NSWPICMR 19
Case: [2024] NSWPICMR 19
Decision Date: 22 July 2024

CaseChat Overview and Summary

In the matter of Blo v CMA, the dispute revolved around the payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act). The applicant, Blo, sought a merit review of the insurer's refusal to pay statutory benefits. The insurer, CMA, contended that it was entitled to refuse payment in accordance with Part 3 of the Civil Liability Act 2002, as applied by section 3.39 of the MAI Act, due to the limitation on benefits related to certain mental harm. The case was heard in the Civil and Administrative Tribunal (NCAT) of New South Wales.

The primary legal issues before the court were the interpretation and application of section 30 of the Civil Liability Act 2002, specifically the meaning of "close member of the family of the victim" and "being put in peril". The court needed to determine if the applicant qualified for statutory benefits under the Motor Accident Injuries Act 2017, considering the statutory limitations on mental harm benefits. The court also needed to examine the insurer's authority to refuse benefits based on the statutory provisions.

The tribunal reviewed the relevant statutory provisions and considered the applicant's relationship to the victim, the circumstances of the incident, and the statutory definitions. The tribunal found that the applicant did not meet the criteria of being a "close member of the family of the victim" or being "put in peril" as defined by the Civil Liability Act 2002. Consequently, the tribunal affirmed the reviewable decision, upholding the insurer's refusal to pay the statutory benefits. The application for merit review was dismissed, and the tribunal's decision was upheld in its entirety.

Orders