Garha v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMR 64
•16 February 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Garha v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 64 |
CLAIMANT: | Sukhjinder Singh Garha |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
MERIT REVIEWER: | Elizabeth Medland |
DATE OF DECISION: | 16 February 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act2017 (MAI Act); whether an injured person is or has been residing outside of Australia; claimant a USA citizen injured in motor accident in August 2023 during a planned two-week vacation to Australia; claimant has not returned to the USA due to ongoing treatment for accident-related injuries; insurer denied payment of weekly statutory benefits on the basis that he does not reside in Australia; insurer submitted that a definition contained within the Australian Citizenship Act 2017 (Cth) should apply; claimant submitted that the ordinary meaning of “resides” should apply; Held – ordinary meaning applied, with reference to section 34 the Interpretation Act 1987, and the objects of the MAI Act; claim for costs due to exceptional circumstances, noting the dispute is not a regulated merit review matter; exceptional costs allowed to the amount equivalent to the maximum regulated amount for a regulated merit review matter. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision about whether for the purposes of s 3.21 of the Motor Accident Injuries Act 2017 (MAI Act) (weekly statutory benefits to persons residing outside Australia) the claimant is or has been residing outside of Australia, and is therefore a merit review matter under Schedule 2(1)(g) of the MAI Act. 1. The reviewable decision is set aside. 2. The claimant is and has not been residing outside of Australia. 3. Legal costs awarded pursuant to s 8.10(4)(b) of the MAI Act in favour of the claimant in the amount of $1,919 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Mr Sukhijinder Singh Garha suffered injury in a motor accident occurring on
31 August 2023.
Briefly, the claimant was a driver of a Mazda 6 stopped in a line of traffic at a red traffic signal on Lookout Road, Lambton Heights NSW when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle. I understand that the claimant’s pregnant wife and young son were passengers in the vehicle.
The claimant alleges having suffered an injury to his spine and left elbow in addition to an adjustment disorder with depressed mood.
At the time the motor accident occurred the claimant was on holidays in Australia from his home country of United States of America (USA). The claimant holds a USA passport.
On or about 4 September 2023 the claimant lodged an application for personal injury benefits (claim form) with the insurer of the vehicle considered at fault, Insurance Australia Limited t/as NRMA (the insurer).
The claimant states in his claim form that the planned duration of the trip to Australia was two weeks. However, apparently due to accident related injuries the claimant remains in Australia.
A dispute has arisen between the parties as to the claimant’s entitlement to weekly payments of statutory benefits. The information before me reveals that the claimant, at the time of the accident, was employed as a full-time heavy diesel mechanic, and part time commercial driver for Andy Mohr Truck Centre and MTS in the USA.
The insurer in a notice dated 27 September 2023 accepted liability for statutory benefits for treatment and care up to 52 weeks.
An email to the claimant from the insurer dated 29 September 2023 states that the claimant is “not entitled to our weekly benefits scheme as you have not worked in Australia.”
An internal review was requested and in a decision dated 11 October 2023 the insurer affirmed the original decision.
An application was subsequently lodged with the Personal Injury Commission (Commission) and the matter has been allocated to me for determination.
The dispute is a Merit Review under Schedule 2, cl 1 (g) of the Motor Accident Injuries Act2017 (MAI Act) being: “whether for the purposes of s 3.21 (Weekly statutory benefits to persons residing outside Australia) an injured person is or has been residing outside Australia”.
The insurer also disputes the claimant is entitled to statutory benefits on the basis that loss of earnings is likely to be of a permanent nature as per the requirements of s 3.21 of the MAI Act.
I held a preliminary conference with the parties on 29 November 2023. I noted that the material submitted on behalf of the application did not include any submissions supporting the claimant’s case. Directions were made for the lodgement of submissions. They were received on 15 December 2023.
Upon review of the claimant’s submissions I noted a claim for costs under s 8.10(4) of the MAI Act. I invited the insurer to respond to such claim. A response was received via messages on the Commission online portal on 12 February 2024. The insurer also confirmed that no reply submissions would be relied upon in response to the claimant’s submissions.
The parties agreed at the preliminary conference that it was appropriate that I determine this matter on the papers.
LEGISLATIVE FRAMEWORK
Section 3.21 of the MAI Act provides as follows:
“(1) An injured person who resides outside Australia is not entitled to receive any weekly payment of statutory benefits in respect of any period during which the person resides outside Australia, except as provided by this section when the loss of earning capacity is likely to be of a permanent nature.
(2) An injured person residing outside Australia is entitled to receive on a quarterly basis, or at shorter intervals agreed by the insurer and injured person, the amount of the weekly payments accruing due during the preceding quarter if—
(a) the Commission or insurer has determined that the injured person’s loss of earning capacity is likely to be of a permanent nature, and
(b) the person establishes, in such manner and at such intervals as may be required by the Motor Accident Guidelines, the person’s identity and the continuance of the loss of earning capacity.”
SUBMISSIONS
Insurer’s submissions dated 22 November 2023
The submissions refer to a number of pieces of medical evidence and submits that, on balance, the claimant has not established that his loss of earning capacity is likely to be of a permanent nature.
The insurer notes that the claimant is undergoing physiotherapy [BG1] and submits that after suitable rehabilitation, the claimant will be able to resume his pre-injury employment, or otherwise one to his skills and experience. The insurer refers to the case of BAX v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC, noting a two tiered requirement of there being a loss of earning capacity and same being of a permanent nature.
On the issue of where the claimant resides the insurer submits that the claimant is a USA citizen “who currently lives and resides outside of Australia” and notes that the claimant was on holiday in Australia when the accident occurred.
The insurer relies on s 3 of the Australian Citizenship Act 2007 which defines the term “ordinarily resident”. The definition provides as follows:
“A person is taken to be ordinarily resident in a country if and only if:
(a) He or she has his or her home in that country; or
(b) That country is the country of his or her permanent abode even if he or she is temporarily absent from that country”[BG2]
However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.
Claimant’s submissions dated 15 December 2023
The submissions refer to a letter of the claimant’s prior legal representative, Firths Compensation Lawyers, dated 11 October 2023 addressed to the insurer. The letter addresses the insurer’s denial of liability for payment of weekly statutory benefits and asserts that the insurer appeared to be “labouring under the misapprehension” that the claimant had returned to the USA. The letter confirms that is not the case and the claimant had been residing in Australia ever since the accident. It is noted the claimant is receiving active treatment and will remain in Australia until such time as he is cleared to return to the USA.
No response was received to such correspondence. The claimant’s case was subsequently transferred to his current legal representatives. The letter referred to above was resubmitted to the insurer, however no response was received and accordingly the subject application was lodged.
The submissions dispute that the Commission is required to make a determination as to whether the claimant’s loss of earning capacity is likely to be of a permanent nature. In this regard, it is submitted that such determination is only required if the claimant does not reside outside of Australia. Of course, it is submitted that the claimant has in fact not resided outside of Australia since the accident.
It is conceded that the claimant is not an Australian citizen or a permanent resident of Australia. The submissions refer to the insurer’s reliance upon the definition of “ordinarily resident” as contained in s 3 of the Australian Citizenship Act 2007 and assert that the claimant is not required to meet this definition.
It is submitted that there is nothing in the relevant legislation that suggests the legislators intended to rely on such definition and there is nothing in the legislation, regulation or guidelines that would suggest that reliance on such definition is appropriate.
In support of such submission, s 3.33 of the MAI Act is referred to which includes the phrase “…person who is not an Australian citizen or a permanent resident of Australia”.
The submissions rely on s 34 of the Interpretation Act1987, which provides:
“(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material –
(a) to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision –
I.if the provision is ambiguous or obscure, or
II.if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or unreasonable.”
The claimant submits that the Australian Citizenship Act definition relied upon by the insurer does not assist in the “ordinary meaning” of s 3.21. It is further submitted that the section is neither ambiguous or obscure and the ordinary meaning of the text does not lead to a “manifestly absurd” or “unreasonable” outcome.
The Cambridge Dictionary definition of “reside” is relied upon, which provides: “to live, have your home or stay in a place.” Such application is relied upon in submitting the claimant is living or staying in Australia and is therefore entitled to weekly statutory benefits in accordance with Division 3.3 of the MAI Act.
REASONS
I reject the insurer’s position that I should apply the definition of “ordinarily resident” contained within s 3 of the Australian Citizenship Act 2007. There a number of reasons why I take this position.
Firstly, the term “ordinarily resident” is not synonymous with the term “resides” which is contained within s 3.21(1) of the MAI Act. Following therefrom, the context of the terms within their respective statutes are utilised for entirely different purposes.
Various different Commonwealth and State legislative instruments employ different definitions for terms such as “resident” or “ordinarily resident” for the purposes of governing any particular scenario. By way of example only, s 6 of the Income Tax Assessment Act 1997 includes a detailed definition of “resident or resident of Australia”, which is significantly different to the definition of “ordinarily resident” relied upon by the insurer contained within the Australian Citizenship Act.
I find that had the legislature intended for the term of “resides” to adopt the definition as contained within a different legislative instrument it would have specified that being the case in explicit terms.
Accordingly, applying s 34 of the Interpretation Act 1987, I consider that the ordinary meaning of “resides” should be applied when interpreting the provision of s 3.21 of the MAI Act. This is taking into account one of the stated objects of the MAI Act being to provide early and ongoing financial support for persons injured in motor accidents
(s 1.3(2)(b)).
I therefore apply the ordinary meaning of resides. I note the claimant’s reliance on the Cambridge Dictionary definition as set out above. I also note that Macquarie Dictionary defines “reside” as to “dwell permanently or for a considerable time; have one’s abode for a time.”
There appears to be no dispute between the parties that the claimant has remained in Australia since the motor accident, which occurred almost six months ago. There is no dispute that the claimant’s initial plan, but for the accident, was to remain in Australia for the purposes of a holiday for a period of approximately two weeks.
Whilst there is not an abundance of material on the claimant’s current activities, it is apparent from the limited information before me that he continues to undergo active treatment, by way of physiotherapy and the like, paid for by the insurer.
I find that for all intents and purposes the claimant has lived in Australia since the accident, almost six months ago, and applying the ordinary meaning I find that he resides in Australia for the purposes of s 3.21 of the MAI Act.
I reject any suggestion that a definition contained in a different statutory instrument should apply noting that the ordinary meaning does not lead to a “manifestly absurd or unreasonable” outcome. The outcome of applying the ordinary meaning of “resides” is that the claimant will receive financial support due to accident related injuries in accordance with the objects of the MAI Act.
Having made the above determination regarding the issue of “resides” the dispute of whether any loss of earning capacity is likely to be of a permanent nature effectively falls away. I therefore make no findings in relation to same.
COSTS
The subject dispute is not a “regulated merit review matter” for the purposes of Schedule 1 of the Motor Accident Injuries Regulation 2017 (the Regulation). Accordingly, does not entitle the claimant to regulated costs.
However, the claimant’s legal representatives in their written submissions of
15 December 2023 advance a claim for legal costs to be awarded under s 8.10(4)(b) of the MAI Act on the basis that “exceptional circumstances” exist to justify payment of legal costs.
It is submitted that the work performed on behalf of the claimant is beyond that which the claimant would be able to do himself. It is submitted that the insurer had the opportunity to resolve the issues with the claimant, noting there to be no response to the claimant’s previous lawyers’ correspondence regarding the claimant remaining in Australia.
It is also submitted that the issue is a novel one which does not appear to have come before the Commission previously. The claim made is for not less than 16 monetary units allowed for regulated merit review matters under the Regulations.
I am satisfied that exceptional circumstances exist. The dispute involved reasonably complex considerations as to statutory interpretation, as raised by the insurer, and it could not be reasonably expected that a lay claimant with no knowledge or experience of the Australian legal system, in particularly the NSW compulsory third party system, could navigate.
I was assisted by the claimant’s legal representatives extensive written submissions.
I further note, that by way of a message in the Commission online portal the insurer indicated consent to the award of costs under s 8.10(4)(b).
I note 16 monetary units, being the maximum allowed for a regulated merit review matter, currently amounts to $1,919. I consider this amount to be appropriate for the subject dispute, and make an award of same.
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