Lis v AAI Limited t/as GIO
[2024] NSWPIC 493
•6 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lis v AAI Limited t/as GIO [2024] NSWPIC 493 |
| CLAIMANT: | Jacek Pawel Lis |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 6 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; sections 3.11(1) and s 3.28(1); insurer declined to pay treatment benefits beyond 52 weeks on basis claimant wholly at fault; claimant sought further payments for treatment which was denied; after internal review, application for miscellaneous claims assessment lodged and referred for assessment; at preliminary conference claimant conceded he was at fault and no one or nothing else was to blame; Held – the accident was caused wholly by the fault of the claimant and the insurer had no liability to pay statutory benefits incurred more than 52 weeks after the accident; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. As a result of the operation of the above two sections, the insurer has no liability to pay the claimant any statutory benefits incurred after 14 July 2024. |
STATEMENT OF REASONS
INTRODUCTION
Jacek Lis was involved in a motor accident on 16 July 2023. He was riding his motorcycle in the Lucas Heights area when he lost control and ended up in the trees and bushes on the side of the road.
Mr Lis was injured and on 24 July 2023 he made a claim for statutory benefits with GIO, the third-party insurer of his own motorcycle.
GIO apparently accepted the claim, accepted it was the relevant insurer and has been paying Mr Lis his statutory benefits.
On 15 July 2024, Mr Lis requested the insurer continue paying for his physiotherapy for his knee injury as his knee was not stable. GIO declined to pay on the basis that liability to pay benefits beyond the first 52 weeks after the accident had been denied.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the Motor Accident Injuries Act 2017 (MAI Act). The insurer affirmed that decision and advised the claimant that his entitlement weekly benefits and treatment expenses ceased 52 weeks after the accident.
Mr Lis referred the dispute to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings were allocated to me and I held a teleconference with the parties on 3 September 2024. It was agreed that I would determine the matter on the papers.
REVIEW OF THE DOCUMENTS AND EVIDENCE
Claim form
Mr Lis’s application for statutory benefits (claim form) was dated 24 July 2023. He reports the accident occurred on 16 July at about 2.00pm and says:
“I was riding my motorbike and accidently squeezed from brake too much. The bike tilted forward and caused rear wheel to lift off the ground. When I let go of the front brake the rear wheel came down. I lost balance on the bike and squeezed steering bar at the same time squeezing accelerator. The motorbike accelerated and I went [into] the bushes / tress that were on the side of the road and hit them.”
He says the ambulance came and took him to St George Hospital and he sustained an injury to his neck, shoulder and leg.
The claimant says he is a self-employed carpenter earning about $5,000 a week.
The insurer provides a certificate of fitness dated 10 July 2024 from Dr Khosravifar stating that the claimant is fit for eight hours of work a day for three days a week to 10 August 2024. The certificate says that a recent MRI shows medial meniscus tear and the claimant needs review by Dr Musgrove.
Insurer’s liability decisions
The claimant sought legal advice from Nikolovski Lawyers who wrote to GIO on 20 March 2024 seeking information. An email was sent on 9 April 2024 by the lawyers following up GIO. GIO responded on 10 April 2024 providing documents and correspondence. No further correspondence has been provided by Nikolovski Lawyers and at the preliminary conference, Mr Lis confirmed that he did not have a lawyer and did not intend to engage a lawyer.
On 24 April 2024 GIO sent a “Liability notice – benefits after 52 weeks” to the claimant which denied liability for statutory benefits beyond the first year because, according to GIO, “you were wholly at fault and the injuries you’ve sustained aren’t ‘threshold injuries’.”
In terms of fault, the insurer says the claimant has nominated himself as the party at fault, which caused him to lose control and collide with the vegetation on the side of the road. The only information the GIO said it considered in making this decision was the Application for personal injury benefits.
On 20 June 2024 GIO wrote to Mr Lis advising, “your benefits are ending soon” as a result of the liability decision that was made. The letter refers to the date of the accident (16 July 2023) the date of the entitlement period ending (14 July 2024), and that the claim would be closed on 28 July 2024.
The claimant sent an email on 15 July 2024 querying the expenses sent, updating his work hours and asking GIO to extend payments as he knew payments were stopping soon. The insurer sent an email in response that it “cannot keep the file open for any expenses once your claim has reached its end of entitlement including treatment.”
The claimant requested an internal review on 17 July 2024 of the insurer’s decision to decline his physiotherapy. He referred to his physiotherapist’s email and that his doctor says he needs to continue his treatment.
The internal review was undertaken by Ms Maatouk on 31 July 2024. She wrote her decision explaining s 3.11 and giving reasons why Mr Lis treatment was ceased. In summary she says that he was most at fault because he lost control of his motorbike. She notes the factual circumstances of the accident are not disputed. Ms Maatouk sets out the definition of fault in s 1.4 of the MAI Act and refers to the definition of negligence in the Civil Liability Act 2002. She says that Mr Lis “failed to exercise reasonable care and skill” that he braked too hard and then accelerated too much and was therefore wholly at fault. As a result of the operation of ss 3.11 and 3.28 Mr Lis’s statutory benefits cease 52 weeks after the accident.
Application and claimant’s submissions
Mr Lis’s application form lodged with the Commission on 4 August 2024 says:
“I asked GIO if they can continue to pay for my physiotherapy as I need it to continue. I also can [only] work 3 days a week as a carpenter because of my knee so I can’t afford to pay for physio. My doctor and my physiotherapist also think that this therapy should continue as the knee is too loose and will degrade after a while of doing physical work that I do. GIO refused to pay. Please find attached letter from my physiotherapist. I just want to get better so I can continue work for many years to come so I can support my family.”
Mr Lis expressed similar sentiments at the preliminary conference. He says he is not better and just wants to improve his physical condition.
Mr Lis has provided a copy of a letter from Ms Beevers, physiotherapist dated 2 August 2024 which includes the following information:
(a) Mr Lis has had regular physiotherapy since his motor cycle accident in July 2023;
(b) he sustained a C1/2 avulsion fracture, a grade II left acromioclavicular joint (shoulder) injury, a right posterior cruciate ligament rupture (knee) and right syndesmosis (ankle) sprain;
(c) the claimant has recovered well, but there are ongoing limitations in particular in the right knee and left hand;
(d) Ms Beevers has been managing his care since May 2024;
(e) there is significant laxity in his right knee and she is concerned over the state of his knee having reviewed the MRIs and she thinks that further damage is occurring to his knee;
(f) the claimant has been compliant with his therapy and self-management techniques, and
(g) she has requested further sessions from the insurer and recommended review by an orthopaedic specialist as there are ongoing right knee issues.
Mr Lis conceded at the preliminary conference that his accident was caused by the way in which he was riding his bicycle. He said no one else and nothing else was at fault. He said that his former solicitors and GIO had explained the operation of the MAI Act and he understood that he had no further entitlement to benefits. When I asked him why he commenced the proceedings he said he just hoped there was a way he could continue to receive his treatment paid for by the insurer.
LEGISLATIVE FRAMEWORK
What is the general legislative scheme in the MAI Act?
The MAI Act established a “new scheme of compulsory third-party insurance and provision of benefits and support … to persons as a consequence of motor accidents.”
The new scheme of benefits and support includes a scheme for the payment of statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident.
However, this new scheme of benefits is not universal and does not provide everyone with everything they need for ever. Some persons are prevented from recovering any benefits at all, for example those who are charged with or convicted of a serious driving offence or those who have a workers compensation claim. For others, there are limits and restrictions in the MAI Act as to what benefits can be recovered, for how much and for how long.
Why have Mr Lis’s benefits ceased?
Sections 3.11(1)(a) and 3.28(1)(a) provide that an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
There is no definition of “wholly at fault” but a motor accident is considered to be caused “mostly by the fault” of a person if the degree of their contributory negligence is assessed as greater than 61%.
I explained at the preliminary conference that GIO is an insurer licensed to sell compulsory third-party (Greenslip) insurance to motorists and manage claims for persons injured in car accidents. I also said that the MAI Act and its regulations and guidelines contained “rules” about what can be paid and what cannot and those rules have to be followed. I also said that insurers including GIO are audited by the State Insurance Regulatory Authority of NSW and if insurers breach the “rules” there may be consequences for their license. Finally, I said that there is no discretion or scope for me to extend the 52 week period provided in the legislation or otherwise permit the payment of benefits beyond the “rules”.
CONCLUSION
Mr Lis concedes that his accident was caused by his fault. There is no evidence before me to suggest that this concession is inappropriate. Because he is at fault he has been entitled to benefits for a period of 52 weeks after the accident but in accordance with s 3.11(1)(a) and s 3.28(1)(a) he is not entitled to benefits beyond that period.
GIO has no liability to pay Mr Lis for any of the treatment he has had after 14 July 2024.
In my final remarks at the preliminary conference, I noted that had Mr Lis’s accident occurred before 1 December 2017 there was no scheme of statutory benefits in place and compensation to injured persons depended primarily on proving fault on the part of someone else. It was also noted that had his accident occurred before 1 April 2023 Mr Lis would have been entitled to statutory benefits under the MAI Act for a period of only 26 weeks. In the end I was satisfied that while Mr Lis was disappointed, he understood the decision I had to make.
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