Lay v QBE Insurance (Australia) Limited
[2022] NSWPICMR 27
•12 April 2022
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Lay v QBE Insurance (Australia) Limited [2022] NSWPICMR 27 |
| CLAIMANT: | Peter Lay |
| INSURER: | QBE Insurance (Australia) Limited |
| MERIT REVIEWER: | Maurice Castagnet |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Merit review; whether the insurer is entitled to cease weekly payments of statutory benefits after 104 weeks under section 3.12, Division 3.3 of the Motor Accident Injuries Act 2017 where the claimant has not made a claim for damages; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | The reviewable decision is about whether the insurer is entitled to cease weekly payments of statutory benefits after 104 weeks in accordance with section 3.12 of the Act, and is therefore a merit review matter under Schedule 2, clause (1)(b) of the Act. 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between the claimant, Peter Lay and the insurer concerning payment of weekly payments of statutory benefits after 104 weeks from the date of the motor accident under Division 3.3 of the Motor Accident Injuries Act2017 (the MAI Act).
BACKGROUND
The claimant is a 53-year-old man who sustained injuries in a motor accident on 6 September 2019.
At the time of the accident, the claimant was employed as a Machine Operator with a pharmaceutical company.
On 20 September 2019, the claimant made an application for payment of statutory benefits. These include including weekly payments for loss of income as well as payments for treatment and care. The insurer admitted liability to make those payments.
The insurer also accepted that the claimant has suffered a non-minor injury for the purposes of the MAI Act. Thus, the claimant is entitled to receive payments for treatment and care for the rest of his life and is entitled to make a claim for damages.
On 9 August 2021, the insurer notified the claimant that his weekly payments of statutory benefits would cease on 6 September 2021. That is 104 weeks after the date of the accident. The decision was expressed in the following terms:
“Having considered the accident circumstances we maintain that the accident is a “no-fault motor accident” as defined by section 5.1 of the Motor Accident Injuries Act 2017. In accordance with that determination and section 3.12(2)(a) of the Motor Accident Injuries Act 2017, QBE Insurance has agreed to pay you statutory benefits for up to 104 weeks. Further, in accordance with section 4.1(1) of the Motor Accidents Injuries Act 2017 we maintain that you are precluded from making a damages claim. We therefore decline liability for your damages claim. Section 4.1 makes it clear that a damages claim must relate “to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”. Because your accident was a no-fault accident motor accident, you cannot make a claim for damages.”
On 17 January 2022, the claimant sought a review of the insurer’s decision. The decision requested to be reviewed was expressed as – “Denial of entitlement to make a claim for damages and potential statutory benefits beyond 104 weeks” and the requested outcome was – “That the Claimant is entitled to make a claim for damages and to make a potential claim for statutory benefits beyond 104 weeks.”
On 24 January 2022, the insurer issued a determination affirming its original decision.
On 21 February 2022, the claimant made an application to the Personal Injury Commission (the Commission) seeking a review the insurer’s review decision.
That application is now before me for determination.
DOCUMENTS AND INFORMATION
In making my determination, I have considered the documents and submissions provided to the Commission by the claimant in his application and by the insurer in its reply.
I am satisfied that I have sufficient information before me to proceed to determine the matter on the papers.
THE DISPUTE
The claimant has referred the matter to the Commission for determination as a merit review matter under Schedule 2, clause (1)(b) of the MAI Act. I am required to determine whether for the purposes of section 3.12 of the MAI Act (Cessation of weekly payments to other injured persons after maximum weekly payments period) the claimant’s injury is the subject of a pending claim for damages.
In its submissions to the Commission, under the heading “Jurisdiction”, the insurer remarks that the claimant requested an internal review outside 28 days of being notified of the insurer’s (original) decision and “notwithstanding” this, the insurer provides its submissions.”
It is not clear to me whether in making this remark, the insurer sought to convey that the Commission does not have jurisdiction to proceed with the merit review.
To clarify the issue, I refer to clause 7.5 of the Motor Accident Guidelines (version 8). Clause 7.5 says that the insurer has the choice to either decline or accept a late application for an internal review. If the insurer declines to accept the application the insurer must provide the claimant with a written notice of its decision and must advise the claimant that he may refer the disputed decision directly to the Commission. There is no such information before me. Instead, it is apparent that the insurer has accepted and issued a review decision. That review decision is now before the Commission for review.
I am therefore satisfied that the Commission has jurisdiction to determine the merit review matter.
CLAIMANT’S SUBMISSIONS
The claimant says that there is no dispute about the fact that a claim for damages has not yet been submitted. On that basis, it is necessary to consider the second part of the insurer’s review decision even though that was not repeated in his application for an internal review.
The second part of the insurer’s decision contended that the claimant was “precluded” from making a claim for damages on the basis of section 4.1(1) of the MAI Act. Having determined that the claimant is precluded from submitting a claim for damages, the insurer then declined liability for the claim, notwithstanding that the claim had not yet been submitted.
The claimant goes on to explain why he is entitled to make a claim for damages under Part 5 of the MAI Act arising from a no-fault motor accident. The claimant then submits that there is no explicit statutory basis to preclude a claim for damages in the case of a no-fault motor accident.
The claimant says that although he concedes that a claim for damages has not yet been lodged (to the date of these submissions), the insurer’s decision to preclude him from making the damages claim at the outset is incorrect. The claimant says that the claimant intends to make a claim for damages whereby the insurer will be requested to make a determination in due course.
The claimant submits that the insurer’s decision should be set aside and a finding made that the claimant is entitled to make a claim for statutory benefits beyond 104 weeks and that the claimant is entitled to make a claim for damages. Alternatively, the review decision should be remitted to the insurer for reconsideration.
THE INSURER’S SUBMISSIONS
The insurer says that the primary reason for making the review decision was because a claim for damages had not been made.
The claimant has acknowledged that a claim for damages has not yet been made and at the time of making these submissions, the claim has still not yet been advanced. On that basis, the cessation of weekly payments of statutory benefits on 6 September 2021 was justified.
The insurer concedes that section 4.1 of the MAI Act potentially does not preclude the claimant from lodging a claim for damages. However, it maintains that such a claim cannot succeed, relying upon the comments of Meagher JA in Whitefield v Melenewycz [2016] NSWCA 235. The deeming of a driver to be negligent under the no-fault provisions of section 5.1 of the MAI Act does not entitle the claimant to sue for damages against his own third-party insurer.
RELEVANT LEGISLATION
It is appropriate to set out the relevant legislative provision.
Section 3.12 provides as follows :
3.12 Cessation of weekly payments to other injured persons after maximum weekly payments period
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than the maximum weekly payment period after the motor accident concerned.
(2) The maximum weekly payment period is as follows—
(a) 104 weeks, unless the person’s injury is the subject of a pending claim for damages (whether or not the insurer has accepted liability),
(b)156 weeks if the person’s injury is the subject of such a pending claim and the degree of any permanent impairment of the injured person as a result of the injury is not greater than 10%,
(c)260 weeks if the person’s injury is the subject of such a pending claim and the degree of permanent impairment of the injured person as a result of the injury is greater than 10%.
(3) The maximum weekly payment period ends if any such pending claim for damages is withdrawn, settled or finally determined after the period of 104 weeks after the motor accident concerned.
CONSIDERATION
Section 3.12 (1) and sub-section 3.12 (2)(a) of the MAI Act provide that the claimant is not entitled to weekly payments of statutory benefits after 104 weeks unless his injury is the subject of a pending claim for damages.
The claimant has suffered a non-minor injury. It is apparent from his claim for weekly payments of statutory benefits that the claimant has an ongoing claim for economic loss. He is therefore entitled to make a claim of damages.[1] Indeed, the claimant has made it clear that he intends to do so. Pursuant to section 6.14(2) of the MAI Act, the claimant may make a claim for damages within three years from the date of the accident. In its submissions to the Commission, the insurer now concedes that section 4.1 of the MAI Act does not preclude the claimant from making a claim for damages.
[1] See sections 4.4 and 4.6 of the MAI Act.
It appears that the claimant proceeds on the premise that if he is entitled to make a claim for damages, he is entitled to make a claim for weekly payments of statutory benefits beyond 104 weeks.
In my view however, the fact that the claimant is entitled to make the claim for damages is irrelevant for the purposes of section 3.12 of the MAI Act. I consider the words “pending claim for damages” to mean that the claim for damages is on foot rather that an entitlement to make the claim. I am fortified in my view by the words “whether or not the insurer has accepted liability”. Those words can only be of relevance to a claim that has already been made.
It was unfortunate that the insurer expressed its decision to cease making weekly payments of statutory benefits beyond 104 weeks in the terms it did. It was misleading to suggest to the claimant that its decision was based on the claimant being “precluded from making damages claim” or that the “the claimant cannot make a claim for damages”.
It appears that the claimant has proceeded to make an internal review application based on these misleading statements. The appropriate course of action should have been simply to make his claim for damages by 6 September 2021.
I note that to date, the claimant has not made a claim for damages. According to the provisions of sub-section 3.12 (2)(a) of the MAI Act, there is no pending claim for damages. It follows that the insurer is entitled to cease weekly payments of statutory benefits after 104 weeks from the date of the accident.
It also follows that the review decision is affirmed.
COSTS
There are no regulated costs allowed for this merit review type. I therefore make no order as to costs.
CONCLUSION
The reviewable decision is affirmed.
Merit Reviewer Maurice Castagnet
Motor Accidents Division
Personal Injury Commission