Chan v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPIC 159

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Chan v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 159

CLAIMANT:

Catherine Chan

INSURER:

Insurance Australia Limited t/as NRMA Insurance

MEMBER:

Hugh Macken

DATE OF DECISION:

17 April 2025

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claim; payment of weekly benefits; effect of section 6.13(2); application for personal injury benefits lodged 19 weeks post-accident; statutory benefits for weekly payments not payable before claim is made; no discretion allowed; provisions for full and satisfactory explanation not applicable; no material or submissions addressing the effect of the legislation; Held – reviewable decision confirmed.

DETERMINATIONS MADE:

CERTIFICATE

Certificate issued under s 7.13(4) of the Motor Accident injuries Act 2017 (MAI Act)

1.    For the payment of weekly payments of statutory benefits which has been declined by the insurer.

2.    Claimant seeks payment of weekly payments of statutory benefits for a period of five weeks immediately following the accident which is contrary to the operation of s 613 (2) of the MAI Act.

3.    It follows that the insurer’s determination dated 31 January 2025 is confirmed.

INTRODUCTION

1. Catherine Chan (the claimant) is a 44-year-old woman who is injured in motor vehicle accident on 26 March 2024 on her way to work. She was injured when the motorbike on which she was riding slipped on an oil spill while she was entering at Sydney Domestic Airport being her place of work.

2. The claimant sustained injuries, including injuries to her right leg, and was unable to return to work for five weeks following accident. That is from the date of accident to about 6 May 2024. Following the accident the claimant investigated bringing a claim against the manager of the airport pursuant to the public liability obligations. This was denied. Thereafter the claimant made an Application for Compensation pursuant to the Workers Compensation Act 1987. This was denied on the basis that the injury did not arise in the course of her employment. That is she had not commenced her shift when the injury occurred nor was she performing any work duties at the time of her injury.

3. Following receipt of this determination by the workers compensation insurer on 30 July 2024 the claimant then lodged an Application for Personal Injury Benefits with the insurer. This application was forwarded to the insurer on 7 August 2024 together with a Certificate of fitness on 20 August 2024.

4. On 31 January 2025 the insurer completed a review of the application for weekly payments and advised that they had determined that the claim for statutory benefits had not been made within 28 days after the date of the motor vehicle accident and accordingly the claimant was only entitled to receive loss of income payments from the date of lodging the application.

5. The claimant submitted that she believes that the insurer is responsible for the payment of her five weeks loss of salary immediately following the motor vehicle accident. She did not provide any submissions or material addressing the effect of s 6.13 (2) of the Motor Accident Injuries Act 2017 (MAI Act) which states that if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made, unless permitted by the regulation. The claimant was unable to take me to any regulation or other power which would allow me to override the legislation and make an order for payments of loss of wages in circumstances where an Application for Personal Injury Benefits was not made within 28 days of the accident.

6. The insurer submitted, quite simply, that the MAI Act sets out clear timeframes for making claims for statutory benefits. Whilst the insurer has not taken any issue with the claim being made after three months following the motor vehicle accident, and consequently in contravention of s 6.13 (1), the decision of the insurer is that the operation of s 6.13 (2) of the MAI Act does not allow the payment of weekly benefits in respect of any period before the claim is made. They further submitted that there are no provisions within the MAI Act which allow for any discretion to be exercised in respect to the issue.

7. In this regard it is significantly different to the operation of a claim for statutory benefits, which must be made within three months of the motor vehicle accident, which provides a capacity to extend the timeline if the claimant provides a full and satisfactory explanation for the delay in making the claim. This does not apply to s 6.13 (2) which provides no such discretion

8. This is a very straightforward matter. The claim for statutory benefits being weekly payments for a period which was prior to the lodging of an Application for Personal Injury Benefits with the insurer in circumstances where no application was made within 28 days of the accident must fail. There is no discretion allowed nor any provision by which the timeframe can be extended allowed in the legislation. It follows that it is that the decision of the insurer is the correct one. That is as the claimant lodged to claim some 134 days following the accident, a claim for statutory benefits for weekly payments cannot be made. That is the claimant is not entitled to weekly payments of statutory benefits in respect to any period before 7 August 2024.

CONCLUSION

1. The determination of the insurer dated 31 January 2025, noting as it does, no entitlement to statutory benefits of weekly payments prior of the filing with an Application for Personal Injury Benefits is confirmed.