George v AAI Limited t/as AAMI
[2022] NSWPICMR 22
•19 April 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | George v AAI Limited t/as AAMI [2022] NSWPICMR 22 |
| CLAIMANT: | Jijo Moolethadathil George |
| INSURER: | AAI Limited t/as AAMI |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 19 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; dispute about failure to provide particulars under section 6.25 and 6.26 of the Motor Accident Injuries Act 2017 (MAI Act); whether full and satisfactory explanation for the failure to provide the required particulars; whether the claim should be reinstated; jurisdiction and power of merit reviewers; sections 8, 33 and 34 of the Personal Injury Commission Act 2020; schedule 2(1) of the MAI Act; Held– the application for a merit review is refused. |
| DETERMINATIONS MADE: | The reviewable decision is about the claimant's failure to comply with the insurer's direction under section 6.26 of the Motor Accident Injuries Act 2017 (the MAI Act) specifically, whether his claim should be reinstated under section 6.26(4), and is therefore not a merit review matter under Schedule 2(1) of the MAI Act. |
Issued under section 7.13(4) of the Motor Accident Injuries Act2017
BACKGROUND
There is a dispute between Jijo Moolethadathil George (the claimant) and the insurer about the claimant's failure to comply with the insurer's direction under section 6.26 of the MAI Act and whether his claim should be reinstated under section 6.26(4).
The claimant was involved in a motor accident on 27 February 2019.
On 4 May 2021 the claimant made an application for common law damages.
On 3 August 2021 the insurer denied liability on the basis the injury was a minor injury.
On 30 August 2021 the claimant requested an internal review of the 3 August 2021 decision.
On 6 September 2021 the insurer issued a direction for particulars under section 6.26 of the MAI Act.
On 16 September 2021 the insurer issued their internal review decision in which the insurer determined the injury was not minor and withdrew the earlier denial of liability.
The claimant did not comply with the insurer’s section 6.26 direction dated 6 September 2021 by the deadline of 6 December 2021. Accordingly, pursuant to section 6.26(3) the claimant is taken to have withdrawn the claim.
On 25 February 2022 the claimant made the present merit review application in which he requests his claim be reinstated under section 6.26(4) of the MAI Act.
SUBMISSIONS
The claimant and insurer have provided detailed written submissions, which have been considered. In short, the claimant attributes his failure to comply with the section 6.26 direction to his solicitor. He submits he has provided a reasonable explanation for the failure to comply and that there is no prejudice to the insurer.
The insurer submits the claimant’s explanation is not a satisfactory explanation, as a reasonable person in the position of the claimant would not have failed to have complied with the direction.
REASONS
Issue
In his merit review application, the claimant says there is a dispute about his failure to provide particulars in accordance with section 6.26 of the MAI Act. However, there appears to be no dispute that:
(a) the claimant has failed to provide full particulars of his claim under section 6.25 of the MAI Act;
(b) the insurer was entitled to issue the direction under section 6.26;
(c) the claimant failed to comply with that direction within the time prescribed in the MAI Act (three months, and
(d) the claimant’s application to reinstate his claim is made less than three years after the date on which the motor accident occurred and therefore section 6.26(6) applies.
Accordingly, the issue is whether the claimant has a full and satisfactory explanation for the failure to provide the required particulars such that his claim should be reinstated under section 6.26(4).
The question of jurisdiction as a merit reviewer arises from this issue.
Jurisdiction
Pursuant to section 8 of the Personal Injury Commission Act 2020 (PIC Act) the “Commission” consists of the President and Deputy President as presidential members and the following non-presidential members:
(a) principal members;
(b) senior members;
(c) general members.
Pursuant to section 33 of the PIC Act the President of the Personal Injury Commission (Commission) may appoint persons to be merit reviewers for the purpose of the MAI Act. Under section 32 of the PIC Act a merit reviewer is a “decision-maker” and is not a member of the Commission.
Pursuant to section 34 of the PIC Act a merit reviewer’s functions are limited to only those functions conferred on merit reviewers by or under the PIC Act or the MAI Act.
Disputes that may be determined by merit reviewers are set out in Schedule 2(1) of the MAI Act. In so far as is relevant to the subject matter of this dispute (particulars of a claim) a merit reviewer’s jurisdiction is limited to determining the following disputes:
(a) whether the claimant has provided the insurer with all relevant particulars about a claim in accordance with section 6.25 (duty of claimant to provide relevant particulars of claim for damages) (Schedule 2(1)(y)), and
(b) whether the insurer is entitled to give a direction to the claimant under section6.26 (consequences of failure to provide relevant particulars of claim for damages) (Schedule 2(1)(z)).
As noted, however, there is no dispute that the claimant has failed to provide all relevant particulars about the claim in accordance with section 6.25. Accordingly, there is no dispute under Schedule 2(1)(y) of the MAI Act. There is also no dispute that the insurer was entitled to issue the section 6.26 direction. Accordingly, a dispute under Schedule 2(1)(z) of the MAI Act also does not arise.
A dispute about whether the claim should be reinstated under section 6.26(4) is not a designated merit review matter under Schedule 2(1) of the MAI Act and accordingly, there is no jurisdiction to determine the dispute as a merit review.
Pursuant to section 6.26(4)(a) of the MAI Act the claimant may make an application for reinstatement of the claim to the “Commission”. Pursuant to section 6.26(6) of the MAI Act, if the application is made less than three years after the date of the motor accident the claim is to be reinstated if “the Commission is satisfied” the claimant has a full and satisfactory explanation for the failure to provide particulars. Accordingly, the claim can only be reinstated if “the Commission” is satisfied as to the claimant’s explanation. It follows from this that the decision as to whether to reinstate must be made by the Commission, as constituted by the members set out above.
As a merit reviewer is not a member of the Commission a merit reviewer does not have power to make decisions of the Commission unless the relevant power is conferred on or delegated to merit reviewers by or under the PIC Act or the MAI Act. There is nothing in the PIC Act or MAI Act that confers on or delegates power to a merit reviewer to determine matters under section 6.26(4) and (6) in the place of the Commission. Accordingly, the claimant’s application for a merit review determination as to whether his claim should be reinstated under section 6.26(4) is refused on the basis there is no jurisdiction.
It is understood from the claimant’s submissions that he has lodged a separate application with the Commission for common law damages “to preserve time”. In that application the claimant will need to satisfy the Commission of his explanation and seek reinstatement of his claim by the Commission to be able to continue his claim.
CONCLUSION
There is no jurisdiction to determine whether the claim should be reinstated under section 6.26(4) as a merit review. Only the Commission may determine whether to reinstate the claim. Accordingly, the claimant’s request that his application for reinstatement be determined as a merit review is refused.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· The application, reply and supporting documentation;
· MAI Act;
· Motor Accident Injuries Regulation 2017;
· PIC Act, and
· Personal Injury Commission Regulation 2020.
Katherine Ruschen
Merit Reviewer
Personal Injury Commission
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