Insurance Australia Limited t/as NRMA Insurance v Zahoor
[2024] NSWPICMRP 1
•22 March 2024
| DETERMINATION OF MERIT REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Zahoor [2024] NSWPICMRP 1 |
| CLAIMANT: | Sohail Zahoor |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MERIT REVIEW PANEL MEMBERS: | Elizabeth Medland Stephen Boyd-Boland Katherine Ruschen |
| DATE OF DECISION: | 22 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; review of a Merit Review decision about whether the insurer is entitled to give a direction to the claimant under section 6.26; consideration of whether the claimant had provided particulars pursuant to section 6.25; whether the obligation to provide particulars pursuant to section 6.25 is a positive obligation upon the claimant; whether “evidence” constitutes “particulars”; Held – the claimant had not provided particulars in discharge of the positive obligation pursuant to section 6.25; the insurer entitled to issue a direction pursuant to section 6.26; the Merit Review decision is revoked. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The reviewable decision is about whether the insurer is entitled to give a direction to the claimant under s 6.26 of the Motor Accident Injuries Act 2017 (MAI Act), which is a Merit Review matter under Schedule 2, cl 1(z) of the MAI Act. In relation to the decision made by a single Merit Reviewer, the Review Panel revokes the Merit Reviewer’s certificate dated 17 May 2023. 1. The Panel finds that the insurer was entitled to give a direction to the claimant under s 6.26 of the MAI Act. 2. The amount of the claimant’s costs awarded in this matter is $500 plus GST. 3. |
STATEMENT OF REASONS
BACKGROUND
Sohail Zahoor (the claimant) suffered injuries caused by a motor accident that occurred on 30 October 2019. A claim for damages was lodged on Insurance Australia Limited t/as NRMA (the insurer) who are the insurer of the vehicle considered to be at fault.
A dispute has arisen in respect of a direction issued by the insurer under s 6.26 of the Motor Accident Injuries Act 2017 (MAI Act). The insurer contends that the claimant is taken to have withdrawn the claim due to a failure to provide relevant particulars about the claim within three months of the s 6.26 direction.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) seeking a determination of the dispute. Merit Reviewer Maurice Castagnet conducted a Merit Review and issued a certificate and reasons dated 17 May 2023 which certified that the insurer was not entitled to issue a direction to the claimant under s 6.26 of the MAI Act.
The insurer has lodged an application seeking a review of the Merit Review certificate of Merit Reviewer Castagnet.
The President’s delegate has determined that there is reasonable cause to suspect the Merit Review determination was incorrect in a material respect. Consequently, the review has been referred to this Review Panel (Panel) for determination.
The objects of the MAI Act are set out in s 1.3(2). The MAI Act seeks "the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes” and “to provide early and ongoing financial support for persons injured in motor accidents".
Section 1.3(4) says a decision maker should promote the objects of the MAI Act when interpreting those provisions.
Section 1.3(5) provides that the decision-maker must act in a way that promotes the objects of the MAI Act when exercising an MAI Act discretion. Part 5 of the PIC Act enables the Commission to make rules regarding the Commission’s practice and procedure. This includes panel proceedings reviewing Merit Reviewers’ or Medical Assessors’ decisions.[1]
[1] Section 41(2) of the PIC Act.
Section 3 sets out the objectives of the Personal Injury Commission Act 2020 (the PIC Act) and includes ensuring the Commission’s decisions are timely, fair, consistent and of high quality. It also enables the Commission to decide matters justly, quickly, cost-effectively and with as little formality as possible.
Section 4 of the PIC Act echoes ss 1.3(4) and (5) of the MAI Act and requires exercising the powers and discretions to promote the PIC Act.
Section 42(1) of the PIC Act and the Commission Rules contain the Commission’s ‘guiding principle’. The section requires the Commission to facilitate “the just, quick and cost-effective resolution of the real issues in the proceedings”.
Section 42(2) requires the Panel to give effect to the guiding principle when exercising any power given to a decision-maker under the PIC Act or the rules.
Pursuant to s 7.15(4) of the MAI Act, the Panel may confirm the decision of the single Merit Reviewer, or set aside the decision and make a decision in substitution for the decision the review panel set aside.
REVIEW CONDUCT
The Panel met via teleconference on 6 November 2023. It was noted that a Reply to the insurer’s application had not been received. Directions were issued requiring a Reply to be lodged by 4 December 2023.
The Panel reconvened via teleconference on 5 December 2023. By such time, the claimant’s representatives had not lodged a Reply in accordance with the previous directions. A request for an extension was received and the Panel issued further directions dated
7 December 2023 requiring a Reply be lodged by 11 December 2023 and the insurer provided an opportunity to lodge any submissions in response by 15 January 2024.
Submissions dated 11 December 2023 have been received from the claimant’s representatives. The insurer lodged submissions in reply dated 15 January 2024.
LEGISLATION
Section 6.25 of the MAI Act provides as follows:
“Duty of claimant to provide relevant particulars of claim for damages
(1) A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2) For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
Section 6.26 of the MAI Act provides as follows:
“Consequences of failure to provide relevant particulars of claim for damages
(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2) The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3) If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4) The claimant may make an application for reinstatement of the claim—
(a) to the Commission for a claim that is not exempt from assessment under Division 7.6, or
(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(5) (Repealed)
(6) If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7) If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
(8) This section does not apply to a claim that, as at 2 years and 6 months since the motor accident concerned, is the subject of a determination by a medical assessor declining to make an assessment under Division 7.5 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.”
Schedule 2 cl (1)(z) of the MAI Act provides that a dispute as to whether the insurer is entitled to give a direction to the claimant under s 6.26 is a Merit Review for the purposes of Part 7 of the MAI Act.
DOCUMENTATION
The Panel has considered the application and the submissions lodged on behalf of each party. Also considered by the Panel are a copy of the documents that were before the single Merit Reviewer.
Summary of relevant correspondence
The insurer’s representatives, via letter dated, 8 September 2021, requested ‘further and better particulars’ of the claimant’s claim purportedly pursuant to s 6.25 of the MAI Act.
On 30 June 2022 the insurer sent the claimant and his legal representative a s 6.26 direction to provide all relevant particulars within three months (ie, by 30 September 2022), or the claim would be taken to be withdrawn.
The claimant’s representative provided a response dated 27 September 2022 to the direction, however, it was not sent to the insurer (via email) until 2 October 2022 due to an apparent administrative error. The email states as follows:
“Please find attached our response to your request for Further and Better Particulars.
We noticed our response was suppose (sic) to be sent on 27 September 2022 but it was not sent due to an administrative error.
Nonetheless we have attached our response along with Notice of Assessment [sic] from June 2019 till 2022.
Also we are finalising our Schedule of Damages and supporting material for our ISC booked on 18 October 2022. We should submit those to you in the coming weeks.”
Further, the letter also indicated that particulars for claims for past and future economic loss are “yet to be finalised”.
By way of letter dated 11 October 202 the insurer advised the claimant’s representatives that the claim is considered to be withdrawn pursuant to s 6.26(3) of the MAI Act. In so doing, the insurer referred to the fact the letter purporting to provide particulars noted the claim for economic loss is “yet to be finalised”. The insurer stated that the particulars were not provided within the relevant timeframe and in addition, the particulars failed to comply with the claimant’s obligations to provide particulars.
THE REVIEWABLE DECISION
The Merit Reviewer certified that the insurer was not entitled to issue a direction pursuant to s 6.26 of the MAI Act. Such determination was made essentially on the basis that the requirements of s 6.25 which deals with the provision of particulars by the claimant had been satisfied. The obligation had been met when the various pieces of evidence were taken into account, including a medico-legal report of Dr Keller.
The Merit Reviewer observes that s 6.26(1) requires the insurer to conduct an enquiry as to whether the claimant has not provided particulars pursuant to s 6.25(2) “without reasonable excuse”. In examining that issue the Merit Reviewer refers to cl 4.120 of Version 8 of the Motor Accident Guidelines (Guidelines). The Merit Reviewer states that such clause requires the insurer to take into account all relevant information already available including from any related statutory benefits claim.
On such basis, the Merit Reviewer then considers the information available to the insurer at the relevant time. The Merit Reviewer notes that the insurer had admitted liability for the claim for damages and on such basis he was satisfied that the insurer had full details of the motor accident concerned (as required by s 6.25(2)(a)).
In respect of particulars of injuries and disabilities sustained by the claimant pursuant to
s 6.25(2)(b), the Merit Reviewer refers to the various certificates of fitness provided and also notes the claimant had signed the authority as part of the claim form for the insurer to obtain information from “...any doctor, ambulance service, hospital or other related service provider”. The Merit Reviewer notes that from such authority and a similar one provided in respect of the claim for damages, the insurer was provided with various pieces of medical evidence relevant to the claim.
In addition, the Merit Reviewer notes that in accordance with various duties met by the claimant the insurer had in its possession reports of Benchmark Rehabilitation and a medico-legal report of Dr Keller dated 7 June 2022.
The Merit Reviewer found that such material meant that the insurer had full details of the injuries sustained by the claimant and particulars of disabilities and impairments arising from those injuries such to make a proper assessment of the claimant’s full entitlement to damages.
In respect of the question whether the insurer had particulars as to any economic losses and any other losses that are being claimed as damages as at 30 June 2022, the Merit Reviewer notes the insurer had previously accepted a claim for statutory benefits which included a claim for weekly payments for loss of earnings. The Merit Reviewer notes that he had himself issued a determination in respect of a dispute relating to the claimant’s pre-accident weekly earnings.
The Merit Reviewer notes that the insurer possessed various taxation documents in addition to various certificates of fitness. It is also noted that the insurer had a report of Dr Keller, who assessed whole person impairment for physical injuries as not greater than 10%. In addition, Dr Keller had provided an opinion about the claimant’s ability to work.
The Merit Reviewer therefore found that as at 30 June 2022, the claimant had provided all relevant particulars as required under s 6.25 of the MAI Act.
The Merit Reviewer also made findings in respect of the insurer’s obligations under s 6.22 of the MAI Act, where it is provided that an insurer is under a duty to make a reasonable offer of settlement to a claimant on a claim for damages as soon as practicable. The Merit Reviewer found that the insurer failed to comply with this duty noting there was no information to suggest the insurer had made an offer of settlement and in circumstances where the Merit Reviewer found that as at 30 June 2022 the insurer had sufficient information to allow for a proper assessment of the claimant’s full entitlement to damages.
SUBMISSIONS
Insurer’s submissions dated 5 June 2023
These submissions support the insurer’s application to the President in submitting that the Merit Review determination of the single Merit Reviewer was incorrect in a material respect.
The insurer submits that the single Merit Reviewer decision that the insurer was not entitled to issue a s 6.26 direction is wrong in law.
It is submitted that the Merit Reviewer conflated the content of the Guidelines regarding insurer’s requesting information and the claimant’s positive obligation to provide particulars of their claim under s 6.25 of the MAI Act.
The question of whether the claimant had provided s 6.25 particulars is submitted to be a simple one in circumstances where the claimant indicated in the letter of 27 September 2022 that he would provide particulars of his claims for economic loss in due course.
The insurer relies upon the case of Atikullah v Sefton [2001] NSWCA 385 (Atikullah). That case involved a consideration of s 50A of the Motor Accidents Act 1988. Such section is similar in its wording to s 6.25 of the MAI Act. It provides that a claimant is not entitled to commence court proceedings until the claimant has provided full details of certain aspects of the claim (which are similar in terms of the requirements of s 6.26).
In deciding whether the claimant had provided the required particulars under s 50A, Hodgson JA at paragraph 39:
“in my opinion, there was a breach of s.50A in respect of the respondent’s Griffiths v Kerkemeyer claim. It was a significant part of the claim as formulated in the Statement of Claim, and was a part which, by 21st October 1999, the respondent was aware of and intended to make. The fact that the Insurer had some material pertinent to an assessment of a claim for Griffiths v Kerkemeyer damages does not affect the requirement of s.50A that the respondent as Claimant give details of what she was claiming: any proper assessment must be on the basis of both what a Claimant is claiming and other information available to the Insurer. Because of the significance of this aspect of the claim, there was in my opinion no need for the Insurer to call evidence, that its absence meant that the details supplied were not sufficient: that was a clear and inevitable inference.”
The insurer notes the Merit Reviewer’s finding that the insurer had enough information to assess damages pursuant to s 6.25 of the MAI Act, and accordingly a decision was not required as to whether the particulars were relevant or whether they were provided in time. The insurer submits that this finding creates a test that does not exist in law.
In particular, it is submitted that the Merit Reviewer erred when he found that any economic losses and other losses claimed were relevantly particularised. The insurer accepts that before issuing the s 6.26 direction, it had a number of documents and particulars. However, the material that the insurer possessed amounts to “evidence” and not “particulars”.
The insurer states that “particulars are particularly important documents given that an insurer may allege fraud against a claimant for fraudulently making a claim outlined in their response to particulars. It is entirely possible that a doctor make [sic] take an incorrect history”.
The insurer submits that the Merit Reviewer was in error when relying on cl 4.120 of the Guidelines which provides that before making a request for further information, the insurer must take into account all relevant information already available, including any information from a related statutory benefits claim.
It is submitted that the Merit Reviewer erred when he found that relevant particulars were provided pursuant to s 6.25 either directly or indirectly by the provision of authorities to the insurer under s 6.27 of the MAI Act. The insurer reiterates the submission that the Merit Reviewer has misconstrued the terms “evidence” and “particulars”.
Furthermore, it is submitted that the Merit Reviewer erred in effectively shifting the onus onto the insurer rather than the claimant having a positive obligation to particularise a claim for damages. It is submitted that if such position were correct, then just providing authorities would be sufficient and it would be up to the insurer to “piece together a claim without any further information”.
In addition, it is submitted that information from third parties is also not enough for an insurer to obtain relevant particulars. The insurer provides an analogy of a situation where information received from a physiotherapist could suggest a claimant is fit to return to work. However, that would not sufficiently cover a situation where a claimant could also be suffering an incapacity owing to a psychological injury.
The insurer refers to the Merit Reviewer’s findings that medico legal evidence consisting of a report of Dr Keller addressed to the insurer contained opinion as to the claimant’s capacity for employment and on that basis, and in conjunction with other material, the insurer had sufficient information to make its own assessment of damages for past and future economic loss. The insurer again submits that the Merit Reviewer erred in misconstruing “evidence” with “particulars”.
In addition, the insurer submits that the finding could effectively result in a consequence whereby the claimant could be restricted from claiming future economic loss in a situation where Dr Keller found no ongoing incapacity for work. Being a situation where the report constitutes particulars for the purposes of s 6.25.
Moreover, the insurer notes that more recently the claimant has served a report from a psychiatrist who opines the claimant has no capacity for employment on account of a psychological injury. In this regard, the insurer states: “Clearly, the claimant had not yet provided all relevant particulars of the claim prior to the insurer issuing the section 6.26 direction as there was no information about a claim for future loss of earnings resulting from any psychiatric injury. This alone should render the Merit Reviewer’s certificate incorrect in a material respect.”
Overall, the insurer submits that the claimant bears the onus of particularising their claim and the claimant did not do so until such time as she applied to reinstate the claim.
The insurer admitted liability for the claim on or about 20 September 2021.
However, by way of notice dated 30 June 2022, the insurer issued a “direction” under s 6.26 of the MAI Act requiring the claimant to provide relevant particulars within three months.
In respect of cl 4.120 of the Guidelines, the insurer submits the Merit Reviewer erred in quoting the clause as it was a misunderstanding of the issue at hand, and a mischaracterisation of the nature of the material before the insurer.
Claimant’s submissions dated 11 December 2023
The claimant disputes that the Merit Reviewer was in error. It is submitted that it is crucial to consider the subject provisions in the context of the intention of the MAI Act. It is stated:
“The main purpose of these laws is to ensure a fair and just resolution of each case, rather than punishing claimants for procedural mistakes. The Member’s decision, in this context, demonstrates a fair and equitable approach that places importance on achieving justice rather than getting caught up in procedural details.”
It is submitted that courts have “…frequently prioritised fairness and overall outcome of legal proceedings over strict adherence to procedural rules…” In this regard, the claimant acknowledges a response was “slightly delayed due to an administrative error”.
The claimant submits that the concept of “full details” under s 6.25 of the MAI Act should be considered in a flexible and pragmatic manner and it is important to consider practicality when interpreting statutory requirements “…as highlighted by legal precedents”. It is suggested that the Merit Reviewer’s determination demonstrated an “…appreciation for the ever-changing nature of claims and the challenges of collecting intricate information”.
The reliance on the case of Atikullah by the insurer is rejected by the claimant on the basis that it was relevant to a different legislative framework. It is suggested that the “changing landscape may require a fresh perspective…”
It is submitted by the claimant that the Merit Reviewer’s interpretation of s 6.25 “…suggests to strike a balance between procedural requirements and equitable considerations”.
It is further submitted that the insurer’s differentiation between “particulars” and “evidence” may be excessively inflexible. In respect of the Merit Reviewer’s mention of cl 4.120 of the Guidelines, the claimant submits that the such clause emphasises a responsibility to thoroughly evaluate all pertinent information regardless whether it is explicitly identified as “particulars”.
Insurer’s submissions dated 15 January 2024
The insurer notes the claimant’s submissions fail to include reference to any legal precedent to support his argument.
The insurer submits that s 6.26 does not allow for the question of proportionality as argued by the claimant. It is noted that the section sets out strict timelines that have significant consequences, and “presumably this is why an insurer is unable to serve the notice until 2.5 years have elapsed”.
It is further submitted that the claimant appears to misunderstand the nature of the review application. In this regard, it is noted that the Merit Reviewer did not disregard the delay, but found that the particulars had been received and therefore the s 6.26 notice was “ineffective”. The insurer states: “the Act does require the claimant to provide particulars as set out in s6.25. There is no doubt they can be amended as further evidence is provided, but 6.25 does place a positive obligation on the claimant to provide those particulars.”
The insurer also refutes any suggestion that the case of Atikullah is not applicable in a situation where the relevant sections are similar and the objects of the two separate acts are the same.
It is further submitted that there is nothing within the provisions that allows a Merit Reviewer to “strike a balance between procedural requirements and equitable submissions” and if that did occur the Merit Reviewer would be in error. It is submitted that the matter cannot be approached other than the guidance of s 7.13.
The insurer submits the claimant’s submissions regarding the comparison of “particulars” and “evidence” is wrong at law. It is submitted that it was not open to decide that other material constituted particulars, when it had not been adopted by the claimant as being claimed by him. It is submitted that the claimant’s approach to the issue is not endorsed by the legislation.
In respect of the Merit Reviewer’s reference to cl 4.120 of the Guidelines the insurer submits such clause is not relevant to the issues at hand. It is noted that the clause deals with late claims for damages, which is not a situation that is present in the subject matter.
It is concluded that the concept of fairness and justice is a two way street, and the insurer submits that it cannot properly investigate a claim unless it is told what the claim is.
FINDINGS AND REASONS
The question that the Panel is required to resolve is a reasonably narrow one. That being, whether the insurer was entitled to issue a notice pursuant to s 6.26(1) of the MAI Act. For practical purposes that question requires the Panel to make a finding whether the claimant, as at 30 June 2022, had failed without reasonable excuse to provide the insurer with all relevant particulars about the claim as required by s 6.25 of the Act.
The Panel finds that the wording of s 6.25 is such that the legislation places a positive obligation upon a claimant who makes a claim for damages to provide the insurer with relevant particulars. Whilst it is often the case, as is in this case, that an insurer will request particulars and state that they are requested pursuant to s 6.25, the obligation is one placed upon the claimant and not the insurer.
It is a requirement that all four categories of particulars as set out in s 6.25(2)(a) – (d) of the MAI Act are provided by the claimant.
The Panel finds that the claimant had failed, as at 30 June 2022, to provide relevant particulars, being full details, of “any economic losses and other losses that are being claimed as damages” as required by s6.25(2)(d) of the MAI Act.
This is likely best illustrated by the fact that the claimant’s response to a request for particulars dated 27 September 2022 states that claims for past and future economic loss are “yet to be finalised”.
It is the case that a number of certificates of fitness were within the insurer’s possession, that set out periods of incapacity and restrictions for work. Leaving aside the issue whether this material amounts to “evidence” rather than “particulars” the certificates are relevant to the claimants past economic loss, in the context of a claim for damages. They would present minimal assistance to the insurer in making a proper assessment of the claimant’s entitlement.
The report of Dr Keller includes an opinion as to the claimant’s capacity for employment, however, it does not cover (nor would Dr Keller be qualified to) any possible incapacity for employment owing to any alleged psychological injury caused by the accident. Evidently, the claimant has since indicated that his claim will encompass an allegation of psychological injury, given the apparent service of a psychiatric report.
Similarly, the Panel rejects the suggestion that the provision of authorities, pursuant to the claimant’s obligations under the legislation, satisfies the obligation of the claimant to provide relevant particulars pursuant to s 6.25 of the MAI Act. The Panel finds that information from third parties, such as that gained through authorities, does not amount to details of the claim made. It is noted that s 6.25(2)(d) provides that the particulars of economic and other losses that is required is what is “being claimed as damages”. That is, what the claimant puts forward as his claim. It is not the case that the insurer is to gather information from third parties and then attempt to piece together what they think is being claimed.
Information from third parties could not be considered sufficiently reliable in providing the full picture of the claimant’s situation. For instance, such material is unlikely to set out the claimant’s future plans in terms of employment, but of the accident. It is noted that the assessment of future economic loss is to be calculated with reference to the claimant’s most likely future circumstances but for the injury, in accordance with s 4.7 of the MAI Act. This is not something that could be sufficiently assessed on third party material in the absence of the claimant setting out the claim made. The claimant’s future plans is something that only the claimant can particularise.
More broadly, the Panel accepts the submission that medico-legal reports and certificates, and other material from third parties does not constitute “particulars” as required by s 6.25. Instead the Panel accepts that such material is evidence, that assists in the assessment of the claim. In this regard, the Panel accepts the findings of the Court in the matter of Atikullah as relevant to the issue at hand. Whilst that case was decided under a different legislative scheme, the wording is very similar and the objects of the two legislative schemes are effectively the same.
The claimant’s submissions largely focus on the intent of the legislation and the need to prioritise fairness over procedural rules. It is true, that it is incumbent upon the Panel to come to the correct and preferable decision. In coming to that decision, the Panel is to consider the relevant material and any applicable written or unwritten law (s 7.13 of the MAI Act). The Panel is required to follow the provisions of the relevant legislation. It is not for the Panel to disregard the express requirements and obligations of parties as set out in the legislation. This includes s 6.25 of the MAI Act.
The Panel rejects the claimant’s suggestion that the express requirements of s 6.25 of the MAI Act should be approached in a “flexible” and “pragmatic” fashion. Such submission is made without any reliable legal basis.
Moreover, the Panel does not accept that requiring the claimant to comply with an obligation is against the objects of the MAI Act. Indeed, it could be said that the requirement to provide full details of the claims made promotes the objects of the MAI Act. For instance, the framework of time limits, such as those imposed by s 6.25 and s 6.26 of the MAI Act, is an effective tool in encouraging the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes (see s 1.3(2)(g) of the MAI Act).
COSTS
Pursuant to Schedule 1 cl 3(a) of the Motor Accident Injuries Regulation 2017, the maximum costs for the legal services provided in connection with a review of a decision about any Merit Reviewer matter by a review panel is 16 monetary units.
The present value of a monetary unit is $119.96, thereby making the maximum regulated costs that can be awarded is $1,919.
The Panel has found against the claimant, however, that does not preclude the awarding of costs in his favour. The insurer made the application for review of the Merit Reviewer’s decision. The claimant’s representatives did not initially lodge a reply. However, following a direction issued by the Panel submissions were provided. Those submissions are not extensive. The Panel therefore declines to award the maximum regulated costs. Instead, the Panel awards an amount of $500 plus GST.
CONCLUSION
In relation to the decision made by a single Merit Reviewer, the Review Panel revokes the Merit Reviewer’s certificate dated 17 May 2023.
The Panel finds that the insurer was entitled to give a direction to the claimant under s 6.26 of the MAI Act.
The amount of the claimant’s costs awarded in this matter is $500 plus GST.
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