Insurance Australia Limited t/as NRMA Insurance v Allianz Australia Insurance Limited
[2024] NSWPIC 342
•24 June 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Allianz Australia Insurance Limited [2024] NSWPIC 342 |
| APPLICANT INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| RESPONDENTINSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 24 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims matter; relevant insurer; acceptance of claim; jurisdiction of Personal Injury Commission (the Commission); applicant insurer sought a determination by the Commission that the relevant insurer under section 3.2 is the respondent insurer; where applicant insurer has accepted claim; whether the Commission has power to determine the dispute; Held – applicant insurer had accepted claim; the power vested in the Commission by section 3.3(2) only extends to determining which insurer is the relevant insurer with respect to claim for statutory benefits; where claim accepted by applicant insurer there was no dispute; the Commission has no jurisdiction to determine relevant insurer; no order as to costs. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under section 7.42 of the Motor Accident Injuries Act 2017 1. The Commission does not have jurisdiction to determine the relevant insurer dispute. 2. The proceedings are dismissed under s 54 of the Personal Injury Commission Act, 2020. 3. There is no order for costs. |
STATEMENT OF REASONS
INTRODUCTION
Ms Connie Smith (the claimant) sustained injury in a motor vehicle accident on 31 August 2019.
This is a miscellaneous claims dispute pursuant to s 3.3 of the Motor Accident Injuries Act, 2017 (the MAI Act) as to who is the relevant insurer and liable to pay statutory benefits to Ms Smith.
The dispute is between Insurance Australia Limited t/as NRMA Insurance (NRMA) and Allianz Australia Insurance Limited (Allianz).
Ms Smith submitted an Application for personal injury benefits on 23 September 2019.
DOCUMENTS CONSIDERED
NRMA uploaded an indexed and paginated bundle of documents dated 8 April 2024.
Allianz uploaded an indexed and paginated bundle of documents dated 31 May 2024.
FACTUAL DISPUTE
The accident occurred on 31 August 2019 at about 2.50pm on Ferrers Road, Horsley Park.
The claimant’s vehicle, a Hyundai i30 (AXD81D) was insured by NRMA.
In the Application for personal injury benefits dated 23 September 2019 Ms Smith stated:
“I had just driven through the roundabout of Ferrers Road and Chandos St and had driven approx. 150 mt. The next thing I knew was my car was embedded in a telegraph pole. The air bags had exploded. Stephen Elizo Modi asked me for my I.D. I asked him for his. He stated I had rolled back on his car. Impossible. I was stuck in the pole. People pushed him aside & got me out of the car as the grass was on fire. They rolled my car to the other side of the road. Mr Modi had a 4 wheel drive and there were black tyre marks on bumper bar of approx. ½ mt & up the drivers side of my car of approx. 1 mt. Have photos”.
Ms Smith reported she had sustained multiple rib fractures 4 to 8 on the left side, a left T2 transverse process fracture and an undisplaced sternum fracture.
The Police Report recorded the claimant collided with a telegraph pole which caused her vehicle to roll back and collide with another vehicle a Toyota RAV4 which sustained minor damage. That was the vehicle driven by Mr Modi (CO96PT) and insured by Allianz.
In a statement to an investigator dated 15 October 2019 Ms Smith stated after travelling through the roundabout her car all of a sudden swerved to the left and hit a telegraph pole which was about three to four metres from the side of the road [57]. She did not remember how it happened and did not remember feeling an impact from the rear of her car or anything else to explain why her car left the road [58]. She also stated in the lead up to the accident she did not notice the other car behind her although she believed the vehicle (driven by Mr Modi) collided with the rear of her car [100] and the front of her car then hit the pole [106]. Ms Smith stated she did not have any conversation with the other driver. She reported damage to the rear right side of her car and a dent on the right rear which was not present prior to the accident [60].
Apart from the major damage to the front of her car there was also minor damage to the rear which was apparent on photographs of the claimant’s car furnished with the investigation report.
Mr Modi provided a statement to Constable Rimmer on 31 August 2019. He stated he was travelling in a southerly direction on Ferrers Road, Horsley Park behind a white Hyundai when it veered off the left hand side of the road and hit a telegraph pole before rolling back and colliding with the rear of the passenger side of his vehicle.
A statement was provided by a witness Nigel Ward on 18 November 2019. He resided across the road from the accident scene. Upon hearing the accident, he attended the scene and observed the claimant’s vehicle slowly reversing after colliding with a telegraph pole. The vehicle stopped approximately two metres from the telegraph pole whilst the rear of the vehicle was about two metres from the roadway. Mr Ward stated the claimant’s vehicle at no time reached the roadway to come into contact with other vehicles. He reported while he was attending to the claimant a male approached her vehicle and demanded details from her. Mr Ward stated he was unsure why he was yelling because he thought it was a single vehicle accident. He stated he did not hear two bangs to suggest the claimant’s vehicle reversed into another car.
There is factual dispute as to the circumstances of the accident and whether the at fault vehicle was the vehicle driven by Ms Smith (AXD81D) and insured by NRMA or the vehicle driven by Mr Modi (CO96PT) and insured by Allianz.
PROCEDURAL EVENTS
Ms Smith submitted an Application for personal injury benefits on 23 September 2019.
On 9 October 2019 NRMA, the insurer of the vehicle driven by Ms Smith accepted liability for statutory benefits for 26 weeks from the date of the accident.
On 25 February 2020 NRMA issued a Liability Notice accepting benefits after 26 weeks whilst investigations were continuing.
On 16 June 2020 NRMA issued an Amended Liability Notice declining liability for statutory benefits on the basis Ms Smith was wholly at fault for the accident. That decision was reviewed and on 9 July 2020 NRMA overturned the declinature of liability and accepted liability for statutory benefits beyond 26 weeks after the accident on the basis Ms Smith was not at fault for the accident.
On 9 June 2022 NRMA informed Ms Smith’s lawyer that it was not able to accept an Application for damages under common law on the basis she could not lodge a common law claim against herself or her own vehicle AXQ81D.
On 7 November 2023 NRMA issued a Transfer Notice to Allianz seeking recovery of statutory benefits paid to the claimant on the basis Allianz is the compulsory third party (CTP) insurer for vehicle CO96PT which NRMA alleges is the at fault vehicle.
On 9 November 2023 Allianz informed NRMA it did not accept transfer of the claim on the basis the police report places the claimant at fault.
On 6 May 2024 NRMA lodged a miscellaneous claims assessment application in the Personal Injury Commission (Commission) seeking recovery from the insurer of the at fault vehicle. On 31 May 2024 Allianz lodged a reply to the application.
That dispute has been referred to me.
The dispute was listed for teleconference before me on 13 June 2024. In circumstances where NRMA has accepted liability for the claim, a preliminary issue arose as to whether the Commission has the power to determine the dispute, the subject of the application made by NRMA.
The parties agreed I should determine the preliminary issue as to whether the Commission has the power to determine the dispute first. If I conclude the Commission has the power to determine the dispute I will then proceed to determine which insurer is the insurer of the at-fault vehicle for the purposes of s 3.3 of the MAI Act.
Both parties agreed the matter should be determined on the papers. I find it is appropriate for the preliminary dispute to be determined on the papers in accordance with s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2.
THE RELEVANT LAW
Part 3 of the MAI Act deals with statutory benefits and s 3.2(1) states those benefits are payable by the relevant insurer.
Section 3.2(2) defines the relevant insurer and provides as follows:
“(2) The relevant insurer is (subject to this section and section 3.3)—
(a) if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover—the insurer of the motor vehicle, or
(b) if the motor accident concerned involved more than 1 motor vehicle—the insurer of the at-fault motor vehicle, or
(c) in any other case—the Nominal Defendant.
Note—
The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.
(3) However, in the case of the payment of statutory benefits for treatment and care provided more than 5 years after the motor accident concerned, the relevant insurer is the Lifetime Care and Support Authority of New South Wales.
(4) The insurer of the at-fault motor vehicle is the insurer who provides motor accident insurance cover for—
(a) the motor vehicle the use or operation of which caused the death or injury for which the statutory benefits are payable, or
(b) if more than 1 motor vehicle caused the death or injury—the motor vehicle the use or operation of which contributed most to causing the death or injury for which the statutory benefits are payable.
(5) For the purposes of this Act (including any motor accident insurance cover in respect of a motor vehicle) a liability that the relevant insurer has to pay statutory benefits under this Part in respect of death or injury is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (being a motor vehicle for which the insurer is the relevant insurer).
(6) If the insurer of the at-fault motor vehicle is not a licensed insurer (a non-licensed insurer), statutory benefits payable under this Part are payable by the Nominal Defendant on behalf of the non-licensed insurer, unless the Authority gives written approval for the non-licensed insurer to enter into arrangements with a licensed insurer for the licensed insurer to pay the statutory benefits payable as a result of the motor accident.
(7) However, if the insurance policy of the non-licensed insurer of the at-fault motor vehicle does not insure against a liability to pay statutory benefits under this Part—
(a) the Nominal Defendant is the relevant insurer, subject to subsection (3), for the purposes of the payment of the benefits, and
(b) the non-licensed insurer must give the Nominal Defendant the information it has in relation to an application made to it for the payment of benefits concerning the accident.
(8) The Nominal Defendant or other insurer who pays statutory benefits under this Part is entitled to recover the amount of statutory benefits properly paid from the relevant insurer liable to make those payments, along with the costs associated with handling the statutory benefits claim.”
Section 3.3 addresses the determination of the relevant insurer and provides as follows:
“(1) Insurers may enter into arrangements approved by the Authority for the determination of which insurer will accept a claim for statutory benefits and be the relevant insurer in respect of the claim.
(2) If there is a dispute about which insurer will accept a claim for statutory benefits or any delay in determining the insurer who will accept a claim, the Commission may determine which insurer is the relevant insurer in respect of the claim and its determination is binding on the insurers for the purposes of this Part.”
NRMA’S SUBMISSIONS
In submissions dated 8 April 2024 NRMA refer to the objects of the MAI Act which include “to provide early and ongoing financial support for persons injured in motor accidents” and “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes”.
Consistent with the objects of the MAI Act, it is submitted, insurers are required to issue their liability decision for statutory benefits during the first 52 weeks (at the time of this claim it was 26 weeks), within four weeks under s 6.19 of the MAI Act. Failure to notify a claimant of the liability decision means the insurer is taken to have accepted liability.
NRMA submits there is limited scope to decline the payment of statutory benefits for the first 52 weeks (or 26 weeks as it was then) and, thereafter, liability to pay benefits is to be accepted if a claimant is not wholly or mostly at fault and has sustained a non-threshold injury. NRMA notes section 6.19(5) provides the acceptance of liability does not prevent the subsequent denial of liability.
NRMA refers to the decision of Member Cassidy in Allianz Australia Insurance Limited v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 73 (Dogias) where she states at [54]:
“The power of the Commission in s 3.3(2) does not, in my view, extend to determining which insurer is the relevant insurer for all purposes under the Act, including for the purpose of determining whether one insurer can recover benefits paid by it from another insurer.”
Member Cassidy stated at [70] that for an insurer to accept liability to pay benefits beyond 26 weeks, it would include an acceptance that it is the relevant insurer under s 3.2 of the MAI Act. Further, she stated at [72]:
“72. If the insurer denies it is the relevant insurer, then the appropriate course of action would be to not accept liability for the payment of statutory benefits in accordance with s 6.19(1) or (2) and provide that as the reason for denying liability … If the insurer is not sure whether it is the relevant insurer, then a possible course of action would be to accept the claimant was injured in a motor accident to which the legislation applies but not accept it is the relevant insurer pending further enquiries. The insurer could then pay the benefits and seek recovery of them from the correct relevant insurer at a later date under s 3.2(8).”
Member Cassidy concluded at [77] there was no power for the Commission to determine whether Allianz or NRMA was the relevant insurer because there was no dispute about which of those insurers “will accept the claim” within the meaning of s 3.3(2).
NRMA also acknowledged the decision of Member Williams in AAI Limited t/as AAMI v Allianz Australia Insurance Limited [2024] NSWPIC 1. Member Williams agreed with Member Cassidy and concluded at [55] the power of the Commission in s 3.3(2) was “limited to determining a dispute between insurers for the limited purpose of deciding which insurer will accept a claim for statutory benefits”. In that matter he noted AAMI had accepted the claim.
However, NRMA submits the Commission is not bound by the decision in Dogias. NRMA submits the approach taken by Member Cassidy is not in accordance with the objects of the MAI Act. It is submitted that neither the MAI Act nor the Motor Accident Guidelines (MAG) stipulate that acceptance to pay statutory benefits after 26 or 52 weeks contemplates the relevant insurer issue, other than cl 4.15 of the MAGs which states that “a claimant must give notice of the claim to the relevant insurer”. NRMA submits that consideration of the relevant insurer in this respect is subjective to a claimant. I do not agree that is correct, because an insurer who did not accept they were the relevant insurer would reject the claim.
NRMA submits that where there is divergence between the evidence of Ms Smith and the evidence of Mr Modi the evidence of the independent witness should be preferred. NRMA submits the evidence of Mr Ward supports the assertion that Mr Modi rear ended Ms Smith’s vehicle following which she lost control of her vehicle and collided with the telegraph pole.
NRMA also referred me to the decision of Member Cassidy in Brown v The Nominal Defendant [2022] NSWPIC 65 where there was a dispute between NRMA and QBE Insurance (Australia) Limited as to which insurer was the relevant insurer and liable to pay statutory benefits to Mr Brown. However, the parties agreed the issue of whether Mr Brown was wholly or mostly at fault for causing the accident would be dealt with first. Member Cassidy determined that Mr Brown was wholly at fault so she did not determine the ‘relevant insurer’ dispute.
I was also referred to a decision of Member Nolan dated 15 November 2022 where the claimant’s name has been redacted. This was a dispute as to whether NRMA or Allianz Insurance Australia Limited was the relevant insurer. This decision does not assist because it does not seem either insurer had accepted the claim for statutory benefits before the matter was referred to Member Nolan.
ALLIANZ’S SUBMISSIONS
Allianz provided submissions dated 31 May 2024.
Allianz submits s 3.3(2) of the MAI Act only gives the Commission jurisdiction over determining which insurer is the relevant insurer in respect of the claim if there is a dispute or delay in determining which insurer will accept a claim for statutory benefits.
Allianz submits NRMA accepted the claim and admitted liability for statutory benefits after 26 weeks and therefore there is no dispute between the parties about which insurer will accept the claim for statutory benefits within the meaning of s 3.3(1) of the MAI Act.
Allianz notes whilst NRMA issued an amended liability notice dated 9 July 2020 following an internal review accepting liability for statutory benefits beyond 26 weeks after the accident the transfer notice was not submitted by NRMA to Allianz until 7 November 2023, more than three years later.
Allianz submits that the application by NRMA should be dismissed as there is no dispute about which insurer will accept the application for statutory benefits and where the Commission only has power to determine that type of dispute with respect to a claim for statutory benefits.
In the alternative Allianz submits Ms Smith “caused” or “contributed most” to the accident and therefore, NRMA is the relevant insurer and a determination ought to be made accordingly.
Allianz submits Mr Ward heard only one impact, which was more likely to be the impact between Ms Smith’s vehicle and the telegraph pole. Allianz submits Ms Smith does not know what occurred, Mr Modi states the collision occurred when Ms Smith’s vehicle rolled back into his vehicle and the evidence of Mr Ward does not assist where he only heard one impact not two.
PANEL DETERMINATION
Notwithstanding the divergence in the evidence and the dispute between the two insurers I am not, at this stage, required to consider which vehicle contributed most to causing the injury sustained by Ms Smith, where it has been agreed I should first determine whether the Commission has power to determine the dispute.
Part 3 of the MAI Act deals with statutory benefits and I agree with Allianz that there is no power to determine which is the relevant insurer for any purpose other than under Part 3, that is, with respect to the claim for statutory benefits. The determination of this dispute is not relevant to the claim for common law damages.
Section 3.3(2) of the MAI Act provides the Commission with the power to determine which insurer is the relevant insurer in respect of a claim for statutory benefits. The Commission has the power to determine the following disputes:
· a dispute about which insurer will accept a claim for statutory benefits, and
· a dispute about any delay in determining the insurer who will accept the claim.
Schedule 2(3)(c) declares a dispute about which insurer is the insurer of the at fault vehicle for the purposes of s 3.3 is a miscellaneous claims dispute which can be determined by the Commission under s 7.42 of the MAI Act.
Division 6.3 of the MAI Act contains various provisions relating to making a claim for statutory benefits and clauses 4.11 to 4.26 of the Motor Accident Guidelines (the Guidelines) made pursuant to s 10.2 of the MAI Act specifically address claims for statutory benefits.
Clause 4.25 of the Guidelines requires an insurer to acknowledge receipt of a claim form and cl 4.26 states if notice of claim is given to an incorrect insurer and the claim must be transferred the claimant is excused from giving notice to the relevant insurer although the insurers are required to cooperate in the exchange of information. Clause 4.43 of the Guidelines provides guidance as to the steps to be taken by the insurer on receipt of new information relevant to a liability decision, including notifying the claimant in writing, but otherwise makes no provision for the transfer of a claim to another insurer.
Section 6.19(1) of the MAI Act provides the insurer must within four weeks after a claimant makes a claim for statutory benefits give notice to the claimant stating whether the insurer accepts liability for the payment of statutory benefits during the first 26 (now 52 weeks) after the date of the accident.
In this case NRMA issued a notice on 9 October 2019 accepting liability for statutory benefits for 26 weeks from the date of accident. On 25 February 2020 NRMA issued a notice accepting liability for statutory benefits after 26 weeks. And whilst NRMA issued an amended liability notice declining liability on 16 June 2020, that decision was reviewed and on 9 July 2020 NRMA issued a further liability notice accepting liability for statutory benefits beyond 26 weeks.
There can be no doubt that NRMA accepted the claim for statutory benefits. It is correct that consistent with the objects of the MAI Act a liability decision is required to be issued within four weeks of receipt of the claim or else the insurer is taken to have accepted liability. NRMA submits that there is limited scope to decline payment of statutory payments, however, there was nothing to prevent NRMA from commencing payment of statutory benefits before determining whether liability was accepted for those payments in accordance with c 6.19(7) of the MAI Act. NRMA did not opt to follow that course of action.
Indeed, in this matter NRMA not only accepted liability on 9 October 2019, but reiterated that acceptance of liability on 24 February 2020, nearly six months post-accident. It is apparent that NRMA investigated the claim because in an amended liability notice dated 16 June 2020 liability was denied on the basis Ms Smith was wholly at fault. That was not the end of the matter because after undertaking a further review NRMA overturned the declination of liability before again stating liability was accepted on 9 July 2020.
Section 3.3(1) of the MAI Act provides for insurers to enter into an arrangement approved by the Authority for the determination of which insurer will accept the claim for statutory benefits and be the relevant insurer in respect of the claim. Whilst I have not been informed of any arrangement approved by the Authority in respect of this accident the wording of the provision suggests that the insurer who accepts the claim for statutory benefits will be the relevant insurer in respect of the claim. In this matter the relevant insurer in respect of the claim is NRMA where NRMA accepted the claim.
The “primary object of statutory construction is to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute”.[1] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the High Court stated whilst regard is to be had to the context and purpose of a statute including the legislative history and extrinsic materials, such materials cannot displace the clear meaning of the text.[2]
[1] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
[2] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) CLR 27; [2009] HCA 41 at [47].
The meaning of the text as it appears in s 3.3(2) is clear. The dispute as to which insurer will accept a claim for statutory benefits relates to the acceptance of the claim. This is consistent with the objects of the MAI Act to provide early and ongoing financial support for persons injured in motor accidents by providing a mechanism for the Commission to determine the relevant insurer or to intervene where there is any delay in making that determination.
If the legislature meant the provision to apply to a dispute arising out of the transfer of a claim where subsequent to the acceptance of liability the insurer denied liability under s 6.19(5) it could have said so.
I agree with the decision of Member Cassidy in Dogias and the decision of Member Williams in AAI Limited T/as AAMI v Allianz Australia Insurance Limited. There is no dispute to be determined by the Commission where there can be no doubt that NRMA accepted the claim and is the relevant insurer.
I find the Commission does not have jurisdiction to determine a dispute as to relevant insurer under s 3.3(2) of the MAI Act.
COSTS
NRMA seeks an order that it be permitted to pay its legal representatives under s 8.3(4) of the MAI Act above the regulated amount.
Allianz submits there should be no discretion exercised in awarding costs. Ms Allen submitted the dispute has previously been determined by the Commission and the proceedings should never have been brought.
I agree with Allianz that the proceedings had little prospect of success where it is clear that NRMA had accepted the claim for statutory benefits and where the same issue had previously been ventilated before Member Cassidy and Member Williams. Other than suggesting that the requirement to issue a liability decision within four weeks under s 6.19 of the MAI Act placed the insurer under pressure to make an early liability decision no other cogent argument was provided to support a determination which was not consistent with the decision in Dogias and AAI Limited T/as AAMI v Allianz Australia Insurance Limited.
In the circumstances I am not satisfied that I should exercise my discretion and make an order in favour of NRMA under s 8.3(4) of the MAI Act.
I decline to make any order for costs.
CONCLUSION
The Commission does not have jurisdiction to determine the relevant insurer dispute.
The proceedings are dismissed under s 54 of the Personal Injury Commission Act, 2020.
There is no order for costs.
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