Lu v Allianz Australia Insurance Limited
[2022] NSWPIC 647
•22 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Lu v Allianz Australia Insurance Limited [2022] NSWPIC 647 |
| Claimant: | Sarah Lu |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Brett Williams |
| DATE OF DECISION: | 22 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; claim for statutory benefits made 57 days after the accident; insurer accepted liability for the claim but determined that, because the claim was not made within 28 days after the date of the accident, statutory benefits were not payable in respect of any period before the claim was made; insurer relied on section 6.13(2) of the Motor Accident Injuries Act 2017 (2017 Act); claimant attempted to identify at fault driver; delay in making claim due to delay in identifying driver; Held – section 6.13(2) of the 2017 Act is in clear and unambiguous terms; there is no provision that provides a discretion to allow payment of statutory benefits if section 6.13(2) of the 2017 Act has not been complied with; Wright v AAI Limited t/as GIO followed; the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.13(2) of the 2017 Act. |
| determinations made: | CERTIFICATE The findings of the assessment of this dispute are as follows: 1. For the purposes of s 6.13(2) of the Motor Accident Injuries Act 2017 Allianz is entitled to refuse payment of statutory benefits to Ms Lu in respect of any period before her claim was made. |
Reasons for Decision
BACKGROUND
Sarah Lu was injured in a motor accident at Haymarket on 24 July 2022 (the accident). Ms Lu has provided the following account of the accident[1]:
“I was crossing the road to get into my Uber on my way home. When I crossed the road, a taxi came out of nowhere and hit me directly from the back on my tailbone and I flew 1m on impact and hit my head on the road. I checked before crossing the road and I don't believe there was any traffic.
The taxi stopped because a bystander stopped all traffic while my partner helped me up. However, the taxi driver never got out of the car to check if I was okay, nor did they provide me with any of their details. My partner was able to get a picture of the number plate before the taxi drove off.”
[1] Application for personal injury benefits dated 22 September 2022.
Ms Lu lodged an application for personal injury benefits on the insurer of the taxi that struck her, Allianz Australia Insurance Limited (Allianz) (the claim). The claim was made under the Motor Accident Injuries Act 2017 (MAI Act). The application for personal injury benefits (claim form) is dated 22 September 2022, and was received by Allianz on 23 September 2022.
Allianz has taken the claim to have been lodged on 19 September 2022, when Ms Lu first contacted it about a claim in relation to the accident.
On 26 September 2022 Allianz accepted liability for the claim but determined that, because the claim was not made within 28 days after the date of the accident, statutory benefits were not payable to Ms Lu in respect of any period before the claim was made. Allianz relied on s 6.13(2) of the MAI Act in support of its decision not to pay statutory benefits for any period before the claim was made.
Ms Lu disputed Allianz’s decision not to pay her statutory benefits in respect of any period before the claim was made. She applied for an internal review. On 12 October 2022 the internal reviewer affirmed Allianz’s decision.
Ms Lu maintained her disagreement with Allianz’s decision, and lodged an application with the Personal Injury Commission (Commission) for a determination of the dispute on 14 October 2022.
The dispute between Ms Lu and Allianz is about whether Allianz is entitled to refuse payment of statutory benefits to her in accordance with s 6.13 of the MAI Act, and is a miscellaneous assessment matter for the purposes of the MAI Act: Sch 2 cl 3(k) of the MAI Act.
PRELIMINARY CONFERENCE
A preliminary conference was held on 18 November 2022. Ms Lu and Ms Ding, who represented Allianz, confirmed that there was no dispute that:
(a) the accident occurred on 24 July 2022;
(b) Ms Lu first contacted Allianz in relation to a claim on 19 September 2022;
(c) the claim form is dated 22 September 2022, and
(d) the claim form was received by Allianz on 23 September 2022.
Ms Ding confirmed that Allianz agrees that, for the purposes of s 6.13 of the MAI Act, the claim was made on 19 September 2022. Ms Lu and Ms Ding agreed that if I take the claim to have been made on 19 September 2022, it was made 57 days after the accident.
Ms Lu explained to me why her claim was lodged after 28 days following the accident, and referred me to the communications between her and NSW police. I also note what she has said in her application to the Commission, as follows:
“I filed a police report the day I got hit by the car on 24/07/22, but I did not have the driver's details as it was a hit and run. I was only able to obtain the required driver's details on 17/09/22 after the police had completed their investigation. These details were required in order for me to successfully submit a claim.
I submitted the claim 2 days after I obtained the driver's details on 19/09/2022. I don't understand why I am the one bearing the burden for this because it was the driver's fault that they did not get out of the car. If I had their details, I would've submitted my claim much sooner. I had even attached the email chain of me trying to follow up with the police officer, and you can see that I have tried to get these details multiple times before the police finally gave me an answer.”
After the preliminary conference Ms Lu lodged the following material with the Commission:
(a) medical certificate from Dr Tang dated 2 September 2022[2], and
(b) emails from her to NSW police dated 14 August 2022 and 23 August 2022.[3]
[2] AD1.
[3] AD2.
The material referred to at [11] is in addition to the other emails between Ms Lu and NSW police that were included with her application.[4] Those emails are dated 14 August 2022, 23 August 2022, 26 August 2022, 12 September 2022 and 17 September 2022.
[4] A1.
ON THE PAPERS
Both Ms Lu and Ms Ding confirmed at the preliminary conference that the dispute could be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.
DETERMINATION
As recorded earlier in these reasons, Allianz relied on s 6.13(2) of the MAI Act in support of its decision not to pay statutory benefits to Ms Lu for any period before the claim was made. Section 6.13 of the MAI Act states as follows:
“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%.
(4) …”
There is no dispute that the accident occurred on 24 July 2022. Nor is there a dispute that the claim was made on 19 September 2022, 57 days after the accident.
The emails between Ms Lu and NSW police satisfy me that she intended to make a claim in relation to the accident since at least 14 August 2022, and perhaps earlier. These emails also satisfy me that she did not make a claim within 28 days after the accident because the driver of the taxi that struck her could not initially be identified.
An email from NSW police to Ms Lu dated 17 September 2022 records the name of the driver. I infer that Ms Lu first became aware of the identity of the driver when she received this email.
Ms Lu contacted Allianz in relation to a claim on 19 September 2022, two days after she was provided with the taxi driver’s details.
The email correspondence between Ms Lu and NSW police satisfies me that she took prompt, reasonable and appropriate steps to confirm the identity of the driver involved in the accident so that she could make a claim.
However, s 6.13(2) of the MAI Act is, in my view, in clear and unambiguous terms: 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.
Unlike other provisions in the MAI Act, there is no discretion to allow payment of statutory benefits if s 6.13(2) has not been complied with.
I agree with Member McTegg, who found in Wright v AAI Limited t/as GIO [2022] NSWPIC 401 at [25] that:
“[25] …the intention of the legislature is clear, particularly when compared to the wording of s 6.13(3) which does allow the exercise of a discretion to permit a claim to proceed where the claim was not made within three months after the date of the accident. If the legislature had intended to grant a discretion to extend the time for making the claim to allow payment of statutory benefits from the date of accident it would have said so, in similar terms to the provision found in s 6.13(3).”
As Ms Lu’s claim was made 57 days after the accident, weekly payments of statutory benefits are not payable in respect of any period before her claim was made.
Accordingly, I find that Allianz is entitled to refuse payment of statutory benefits to Ms Lu in accordance with s 6.13(2) of the MAI Act.
1