Kennedy v GIO Insurance (Australia) Ltd
[2022] NSWPIC 62
•11 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kennedy v GIO Insurance (Australia) Ltd [2022] NSWPIC 62 |
| CLAIMANT: | Shannon Kennedy |
| INSURER: | GIO Insurance (Australia) Ltd |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 11 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; application for a claim for statutory benefits made after 28 days after the motor accident; section 6.13(2) of the Motor Accident Injuries Act 2017; can time be extended; does section 50F of the Limitation Act 1969 apply to the Claimant to suspend the limitation period; statutory interpretation; Interpretation Act 1987; Project Blue Sky Mining v Australian Broadcasting Authority applied; Held - insurer is entitled to refuse payment of weekly payments of statutory benefits for the period before the claim was made; time for making the claim cannot be extended or suspended; section 50F of the Limitation Act 1969 does not apply; legal costs awarded to Claimant. |
| DETERMINATIONS MADE: | 1. Under sub-section 6.13(2) of the Motor Accident Injuries Act 2017, the Insurer is entitled to refuse payment of weekly payments of statutory benefits for the period before the claim was made on 9 January 2021. 2. The Insurer is to pay the Claimant’s legal costs of $1,200 plus GST as assessed under sections 8.3 and 8.10 of the Motor Accident Injuries Act2017 and the Motor Accident Injuries Regulation 2017. |
Background and introduction
This determination relates to a dispute about an application for a claim for statutory benefits under section 6.13 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 10 October 2020 Shannon Kennedy, (the Claimant), was involved in a motorcycle accident in Ben Bullen State forest. His motorcycle hit a fallen tree branch which penetrated his left foot and seriously damaged it.
The Claimant had several operations in Westmead, St George and Sutherland Hospitals to remove dirt, wood fragments and infection from his left leg and foot.
On 9 January 2021 the Claimant lodged an Application for Personal Injury Benefits Claim Form dated 8 January 2021 by email, (R2). The claim was received by the Insurer on Monday, 11 January 2021.
By letter dated 17 February 2021, the Insurer advised the Claimant that weekly entitlement of statutory benefits would be paid weekly from 9 January 2021, (R3).
On 19 February 2021, the Claimant requested an internal review of the Insurer’s decision to not pay weekly statutory benefits from the date of the accident, (R4).
On 25 February 2021 the Insurer made a determination on internal review confirming the original decision, (AD 12).
By application dated 25 March 2021 the Claimant applied for a review of the Insurer’s decision on internal review.
The dispute comes before me to determine whether or not the Insurer can refuse payment of weekly payments of statutory benefits for the period before the claim was made on 9 January 2021.
Submissions
I have considered the documents provided with the application, the reply and further information including the parties submissions and the statement and emails from the Claimant.
I also viewed the video of the accident, the attendance by the ambulance, the removal of the boot, the evacuation by the helicopter its aftermath and the results of the surgeries and post-operative infections and recovery. This video was available as a link in the submissions and referred to in the Claimant’s statement, AD 4.
I will first briefly summarise the submissions and then summarise the Claimant’s statement.
Claimant’s solicitor’s submissions dated 27 August 2021
The Claimant’s solicitors submissions dated 27 August 2021 (AD 3 and AD 9), outline a timeline and a history of the injury and treatment received by the Claimant. The submissions then make a number of arguments based on statutory interpretation as follows:
(a) the Claimant’s solicitors disagree with the Insurer’s argument that the Claimant does not meet the requirements as set out in Section 50F of the Limitation Act 1969, as the Claimant was not an incapacitated person for a continuous period of 28 days or more;
(b) apart from the Objects of the Act set out in sub-section 1.3 (m), there are grounds in section 6.4 of the MAI Act that conflict with section 6.13(2);
(c) section 1.3 of the MAI Act conflicts with a literal reading of section 6.13(2) of the MAI Act;
(d) a rudimentary analysis of section 6.13(2) in accordance with the rules in statutory interpretation, ought to be applied in the present application;
(e) a literal reading of section 6.13(2) would lead to not only a highly oppressive outcome but it would also lead to an absurd result;
(f) after referring to a number of decisions the solicitors submit that if the irrationality ground is combined with the proportionality, it is submitted that the Claimant has a cause of action;
(g) allowing the Claimant more time to lodge a claim for statutory benefits application is unlikely to conflict with the objects of the Act;
(h) it appears that section 6.13(2) is an arbitrary section and it notes a deadline of 28 days. There is no explanation in Hansard as to why the 28 day period was adopted;
(i) the submissions refer to Article 25 of the Universal Declaration of Human Rights (UDHR) (Right of persons to social security);
(j) Australia is a signatory of the international Covenant on Civil and Political Rights since 1972 and this human right instrument was ratified in 1980;
(k) the Claimant submits that Member is empowered to adopt Article 25 to overcome the absurd effect of section 6.13(2);
(l) the Claimant has a protected right to a standard of living that is regarded as adequate to cover his inability to earn an income due to the significant injury sustained in the motorbike accident and Australia is a signatory to the convention and it has been ratified;
(m) sub-section 6.13(2) of the MAI Act has proven to be a highly oppressive and harsh provision in the MAI Act. Legal Practitioners must therefore delve deeper to find a solution that is in accordance with fundamental human rights and legal principles such as statutory interpretation and international treaties that have been adopted in this country. A courageous approach needs to be adopted to ameliorate the system and this is certainly one area of law that requires this type of methodology, and
(n) the Claimant’s solicitor seeks an award of legal costs in accordance with the Regulations for his effort in preparing the submissions, application and in advising the Claimant.
Insurer’s solicitor’s submissions dated 20 April 2021
The Insurer’s solicitors made submissions dated 20 April 2021, (R 1). In summary their submissions are that sub-section 6.13(2) of the MAI Act and clause 4.15 of the Guidelines are clear and unambiguous and there is no discretion to permit the Insurer to make any weekly payments of statutory benefits where the claim was not made within 28 days after the date of the accident. There is no provision in the MAI Act which permits an extension of the 28-day period where compliance is mandatory.
The other main argument put by the Insurers’ solicitors is that section 50F of the Limitation Act 1969 does not apply to a claim for statutory benefits, see the reasoning of Dispute Resolution Services (DRS) Claims Assessor Stern in AFQ v GIO Insurance [2019] NSWDRS CA143-SIRA.
Insurer’s solicitor’s further submissions dated 9 September 2021
The Insurer’s solicitors made further submissions dated 9 September 2021, (AD 12). In summary their submissions are that:
(a) the Limitation Act 1969 does not apply to a claim for statutory benefits. The Insurer relies on the reasoning of: DRS Claims Assessor Stern in AFQ v GIO Insurance [2019] NSWDRS CA 143 - SIRA, and DRS Claims Assessor Nolan in AMJ v AAMI Insurance Ltd (Claims Assessment) [2020] NSWSIRADRS 119 (26 May 2020) and ALP v GIO Insurance (Claims Assessment) [2020] NSWSIRADRS 99 (31 May 2020);
(b) there is no discretion to allow the payment of a late pay for statutory benefits by relying on the ‘full and satisfactory’ provisions in section 6.2 of the MAI Act;
(c) if a claimant provides and a full and satisfactory explanation for a delay in making a claim that claimant is not entitled to their full statutory benefits including weekly payments from the date of accident;
(d) whilst there is a discretion to accept a late claim under sub-section 6.13(1), there is no such discretion for a claim made under sub-section 6.13 (2). Sub-section 6.13(2) is clear and unambiguous. If Parliament intended for a discretion to be provided (such as provided in respect of sub-section 6.13 (1)), it would have done so;
(e) contrary to what is submitted by the Claimant’s solicitors, there is no ambiguity in the MAI Act, a claimant must lodge their claim within 28 days to receive payments for statutory benefits and there is no need to resort to rules of statutory interpretation and recourse to the Interpretation Act 1987 is unnecessary, and
(f) regarding legal costs, the Insurer submits that an amount of $600 plus GST is reasonable in circumstances where section 6.13(2) of the MAI Act is clear and unambiguous and has been subject to several previous DRS/Personal Injury Commission (PIC) decisions (as highlighted above).
Documents considered- Claimant’s explanation
The Claimant made a number of statements where he describes what treatment he received after his accident and when he applied for benefits.
The most detailed statement made by the Claimant is his statement dated 19 August 2021, (AD 4).
Claimant’s statement dated 19 August 2021
The Claimant’s statement dated 19 August 2021 (AD 4), gives a very detailed account of the Claimant’s injury and a detailed chronological history of the treatment and operations he received. The statement also refers to his inexperience and lack of knowledge about the insurance and legal systems.
In his statement the Claimant referred to a conversation he had with a review officer from the GIO as follows. On 25 February 2021 after GIO conducted their internal review, the Claimant was called by the GIO/Suncorp. The GIO mentioned that in accordance with the MAI Act, there would be no payment for the period from the accident until the claim was lodged. The GIO mentioned that the decision seemed unfair in the circumstances and the Claimant should request a review from the PIC. The GIO also mentioned under the Statute of Limitations Act, that the Claimant was likely incapacitated during the initial 28-day period due to being in hospital and then when the Claimant had the Hospital in the Home service.
The Claimant’s statement then concludes with the following comments:
(a) the legal aspects and his rights and entitlements were the furthest thing from the Claimant’s mind as his focus was on the day-to-day challenges he faced at hospital;
(b) after the discharge from hospital, there was a period of chaos caused to the Claimant and his family;
(c) the Claimant never had to make a personal injury claim previously, and
(d) the Claimant had expected that the law would protect him from his losses and he never anticipated the need to file a claim form within 28 days of the accident.
Claimant’s statement dated 30 March 2021
The Claimant also made a brief statement in his Application dated 30 March 2021 that:
“…the collision I was involved in a motorbike accident on 10/10/2020. I lodged an application for injury benefits on 08/01/2021. My lodgement was outside the statutory 28-day timeframe. The greenslip insurer GIO said they will only pay benefits from the date of lodgement up until 26 weeks. I requested a review which was denied by ……. GIO dated 25/02/21. I feel this is not fair in the circumstances as during the initial 28-day timeframe I was airlifted, hospitalised for 16 days, underwent 6 operations, then hospital in the home for IV antibiotics and wound dressings, taking various pain killers and in no state to be understanding my responsibilities and timeframes in submitting a claim. If you need any more information please don’t hesitate to contact me.”
Claimant’s email dated 21 July 2021
The Claimant sent an earlier email dated 21 July 2021 which set out his medical history, treatment and operations. The email also refers to his inexperience and lack of knowledge about the insurance and legal systems. The email’s content is similar to the more detailed information in the Claimant’s statement dated 19 August 2021, (AD 4).
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Sub-section 6.13 (2) of the MAI Act provides 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 for any period before the claim is made.
“Claim” is defined in section 1.4 of the MAI Act to mean a claim for statutory benefits or a claim for damages.
Section 6.13 provides (in part):
“6.13 Time for making of claims for statutory benefits
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) 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.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either—
(a)the claim is made within 3 years after the date of the motor accident, or
(b)the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.”
Section 50F of the Limitation Act 1969 relevantly provides that if a person has a cause of action for which a limitation period has commenced to run and if the person is under a disability, the running of the limitation period is suspended for the duration of the disability. A person is under a disability while that person is incapacitated for a continuous period of 28 days or more.
Section 50F of the Limitation Act 1969 provides (in part):
“50F Effect of disability on limitation period
(1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability.
(2) A person is under a disability while the person—
(a)is a minor, but not while the minor has a capable parent or guardian, or
(b)is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person.
(3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person.
(4) In this section—
capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)).
guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor.
incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of—
(a)any disease or any impairment of his or her physical or mental condition, or
(b)restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or
(c)war or warlike operations or circumstances arising out of war or warlike operations.”
Section 11 of the Limitation Act 1969 provides a definition of “action” as: “…includes any proceeding in a court”.
Whether for the purposes of Part 6 (Motor accident claims) the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.13 is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (k) of the MAI Act.
I will now consider the operation of the legislation and the evidence and submissions about whether or not the Insurer is entitled to refuse payment of statutory benefits in accordance with section 6.13 and whether or not section 50F of the Limitation Act 1969 applies in this case.
Reasons and consideration of relevant legislation and case law
The Claimant’s left foot was severely injured in the Ben Bullen State forest when his motorcycle hit a fallen tree branch which penetrated his left foot and seriously damaged it. The accident occurred on 10 October 2020. The Claimant endured about six operations and long hospital stays into early 2021. Then on 9 January 2021 the Claimant lodged an Application for Personal Injury Benefits. The Insurer paid the Claimant statutory benefits from 9 January 2021 but refused to pay for the period before the claim was made.
Sub-section 6.13 (2) provides 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 for any period before the claim is made. Contrary to the Claimant’s solicitors submissions, sub-section 6.13 (3), which allows for a late claim to be made if the claimant provides a full and satisfactory explanation for the delay in making the claim, clearly only applies to a claim made under sub-section 6.13 (1) and not under sub-section 6.13 (2).
In their written submissions the Claimant’s solicitors made two main arguments.
The Claimant’s first main argument was that the MAI Act has proven to be a highly oppressive and harsh and that a literal reading of sub-section 6.13 (2) would lead to a highly oppressive outcome and an absurd result. The Claimant’s solicitors argued that sub-section 6.13 (2) should be more broadly interpreted by examining Parliament’s intention, applying the Interpretation Act 1987 or even Article 25 of the Universal Declaration of Human Rights.
Sub-section 6.13 (2) may be said to operate unfairly because it does not allow for the payment of wages of a claimant if their claim is not made within 28 days. Even though this outcome may seem harsh and some parties may see it as unfair, Parliament has clearly expressed that this is the outcome it intended by the use of clear words in the legislation. If Parliament had intended that a claimant may be able to make a late claim for statutory benefits by giving a “full and satisfactory” explanation for a late claim it could have easily extended the application of sub-section 6.13 (3) to a late claim made under sub-section 6.13 (2). It did not do this. Because the legislation is clearly and unambiguously expressed there is no need to resort to rules of statutory interpretation and the Interpretation Act 1987 to try and divine another meaning that is not intended by Parliament. This approach to statutory interpretation is consistent with section 33 of the Interpretation Act 1987 and Project Blue Sky Mining v Australian Broadcasting Authority [1998] HCA 28 at [69]. I also agree with the analysis of Claims Assessor Broomfield in AMR v AAI Limited (GIO) (Claims Assessment) [2020] NSWSIRADRS 128 (18 June 2020). (As quoted in the Insurer’s solicitors further submissions dated 9 September 2021 at paragraph 10 (AD 12)).
I find that in the circumstances of the Claimant’s case, sub-section 6.13 (2) applies because a claim was not made within 28 days after the date of the motor accident so weekly payments of statutory benefits are not payable for any period before the claim was made on 9 January 2021. Because of the conclusions I have made about the meaning and application of sub-section 6.13 (2) it is unnecessary for me to consider in any more detail the Claimant’s other arguments about objects of the MAI Act and whether Article 25 of the Universal Declaration of Human Rights should be followed in this case.
The second main argument from the Claimant’s solicitors was that section 50F of the Limitation Act 1969 applies in the Claimant’s case which would have the effect of suspending the limitation period for the duration of his disability.
The Claimant’s solicitors submit that section 50F of the Limitation Act 1969 applies to the Claimant. They say that the Claimant meets the requirements of section 50F of the Limitation Act 1969 as the Claimant was an incapacitated person for a continuous period of 28 days or more. The Insurer argues that section 50F of the Limitation Act 1969 does not apply to a claim for statutory benefits.
Sub-section 6.32(5) of the MAI Act provides that the Limitation Act 1969 does not apply to, proceedings in respect of a “claim”. “Claim” is defined in section 1.4 of the MAI Act to mean “a claim for statutory benefits or a claim for damages”. However sub-section 6.32(5) of the MAI Act appears in Division 6.5 of the MAI Act and section 6.29 makes it clear that the Division only applies to “…court proceedings on a claim for damages” which excludes a claim for statutory benefits under 6.13 which is in Division 6.3. This means under the MAI Act the Limitation Act 1969 is only specifically excluded for a claim for damages made in court proceedings.
Under section 50F of the Limitation Act 1969, if a person has a cause of action for which a limitation period has commenced to run, and if the person is under a disability, the running of the limitation period is suspended for the duration of the disability. “Cause of action” is not defined in the Limitation Act 1969 but “action” is defined in section 11 as: “…includes any proceeding in a court”.
In the Claimant’s case, section 50F of the Limitation Act 1969 does not apply because his claim is for statutory benefits. The Claimant’s claim is not an “action” nor is it a “…proceeding in a court” as is required to enliven section 50F in the Claimant’s favour. Because of the conclusions I have made about the meaning and application of section 50F it is unnecessary for me to consider in any more detail the Insurer’s other argument that the Claimant does not meet the definition of an “incapacitated person” under section 50F.
For the above reasons I find that section 50F of the Limitation Act 1969 has no application in the Claimant’s case. I also note the decision of DRS Claims Assessor Stern in AFQ v GIO Insurance [2019] NSWDRS CA143-SIRA which reached the same conclusion.
Conclusion
I am satisfied that in the Claimant’s case a claim was not made within the required 28 days after the date of the motor accident so weekly payments of statutory benefits are not payable for the period before the claim was made on 9 January 2021. I am also satisfied that in the Claimant’s case section 50F of the Limitation Act 1969 does not apply because his claim is for statutory benefits. His claim is not an “action” nor is it a “…proceeding in a court” as is required under section 50F. I will issue a certificate to that effect.
Legal costs
In this matter both parties made submissions on whether legal costs should be awarded for this dispute.
The Claimant’s solicitors submit that an award of legal costs should be made in accordance with the Regulations for preparing submissions, the application and in advising the Claimant. The Insurer’s solicitors submit that an amount of $600 plus GST is reasonable in circumstances where section 6.13(2) of the MAI Act is clear and unambiguous.
I have carefully considered the submissions, evidence and statements before me provided by both the Claimant’s and Insurer’s solicitors. Based on the submissions and information before me, and in the exercise of my discretion, I find the legal work provided by the Claimant’s solicitors in this case was reasonable and necessary. The case concerned complex issues about the application and interpretation of sub-section 6.13(2) of the MAI Act and section 50F of the Limitation Act 1969. Under sections 8.3 and 8.10 of the MAI Act and the Motor Accident Injuries Regulation 2017, I assess the amount of legal costs to be paid by the Insurer to the Claimant in the amount of $1,200 plus GST.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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