Mastroianni v AAI Limited t/as GIO
[2022] NSWPIC 476
•29 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Mastroianni v AAI Limited t/as GIO [2022] NSWPIC 476 |
| Claimant: | Michele Mastroianni |
| insurer: | AAI Limited t/as GIO |
| Member: | Brett Williams |
| DATE OF DECISION: | 29 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Dispute about whether costs should be paid in accordance with section 8.10(4) Motor Accident Injuries Act 2017 (2017 Act); costs incurred by the claimant in connection with review of medical assessment lodged by insurer; application for review rejected by Proper Officer; Awa v Independent News Auckland Ltd, San v Rumble (No 2), Ho v Professional Services Review Committee No 295 and AAI Ltd trading as GIO v Moon applied; quantum of costs agreed; parties ultimately agreed that costs should be paid in accordance with section 8.10(4) of the 2017 Act; Held — payment of the claimant’s costs in connection with the review permitted as exceptional circumstances exist that justify payment of those legal costs. |
| determinations made: | 1. For the purposes of s 8.10(4)(b) of the Motor Accident Injuries Act 2017 exceptional circumstances exist that justify the payment of legal costs incurred by the claimant in connection with the application by AAI Limited t/as GIO for a review of the medical assessment of Medical Assessor Wijetunga dated 25 June 2020 (the review). 2. The claimant’s reasonable and necessary costs in connection with the review are in the agreed sum of $2,475 plus GST. |
STATEMENT OF REASONS
Background
These proceedings, which were listed for hearing on 26 August 2022, involve disputes between Michele Mastroianni (the claimant) and AAI Limited t/as GIO (the insurer) about the recovery of legal costs by the claimant from the insurer in connection with two medical disputes.
The first medical dispute involved an application by the insurer for review by a review panel of the medical assessment of Medical Assessor Wijetunga[1] (the review). Medical Assessor Wijetunga (the Medical Assessor) determined a dispute about physiotherapy and massage treatment. The Medical Assessor certified that a further three-month period of physiotherapy and massage (the treatment) related to a motor accident on 9 May 2019; that the treatment was reasonable and necessary; and that the treatment would improve the claimant’s recovery. The review was dismissed by the Proper Officer on 28 September 2020, the Proper Officer not being satisfied that there was reasonable cause to suspect that the medical assessment of the Medical Assessor was incorrect in a material respect.
[1] R10276379.
The claimant was not legally represented when she was assessed by the Medical Assessor. She instructed lawyers after that assessment had taken place, but before the review was determined by the Proper Officer.[2] Her lawyers responded to the review on her behalf.
[2] The claimant’s submissions dated 4 July 2022 record at [3] that her solicitor were first instructed on 18 August 2020.
The second medical dispute involved an application made by the claimant with respect to whether, for the purposes of the Motor Accident Injuries Act 2017 (MAI Act), her injuries caused by the motor accident were minor injuries (the minor injury dispute).
The minor injury dispute was assessed by Medical Assessor Cameron, who issued a certificate dated 1 April 2022. That dispute is now the subject of an application for review by a review panel initiated by the claimant. The claimant elected to discontinue the dispute in relation to her costs incurred in connection with the minor injury dispute at the hearing.
That left the dispute about the claimant’s costs incurred in connection with the review. As to that dispute, the claimant argued that the Commission should find that, for the purposes of s 8.10(4)(b) of the MAI Act, exceptional circumstances exist that justify the payment of legal costs incurred by her in connection with the review.
The insurer’s initial position was that the claimant’s costs in connection with the review should be limited to those allowed by the Motor Accident Injuries Regulation 2017. In that regard, the application for review having been refused, the Regulation allows maximum costs calculated at a value of 8 monetary units: Sch 1 Pt 1 cl 3(b)(ii). Consistent with its submission in this regard, the insurer has paid the claimant’s costs in connection with the review, in accordance with the Regulations, in the sum of $913.09 inclusive of GST.
Following discussions between the parties at the hearing, agreement was reached that exceptional circumstances did exist that justified the payment of legal costs the claimant incurred in connection with the review. The parties were also able to reach agreement as to the quantum of those costs, $2,475 plus GST, and that the insurer is to have credit for the costs it has already paid in connection with the review, $913.09.
While the parties agreed that exceptional circumstances exist, the Commission can permit payment of the claimant’s legal costs incurred in connection with the review only if it is satisfied that exceptional circumstances exist that justify payment of the legal costs incurred by the claimant: s 8.10(4) MAI Act.
Determination – exceptional circumstances
The Commission can permit payment of legal costs incurred by the claimant in connection with the review if it is satisfied that exceptional circumstances exist that justify payment of those costs: s 8.10(4) MAI Act.
To be ‘exceptional circumstances’ the circumstances must be unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: San v Rumble (No 2) [2007] NSWCA 259 at [67].
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
In AAI Ltd trading as GIO v Moon [2020] NSWSC 714 (Moon), Wright J found that s 8.10(4) can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the Regulations may not be adequate. Further, it was found at [99] that:
“…other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4).”
I have determined that the following factors, when taken together, constitute exceptional circumstances for the purposes of s 8.10(4)(b):
(a) the insurer made an application for the review by a review panel of a medical assessment that had been determined in the claimant’s favour;
(b) the claimant was not legally represented with respect to the initial medical assessment, having lodged that application herself after the insurer declined to pay for the treatment the subject of the application;
(c) the legal work involved in responding to the review lodged by the insurer including:
(i)reviewing the application and reply associated with Medical Assessor Wijetunga’s assessment;
(i)considering of Medical Assessor Wijetunga’s certificate and reasons;
(i)reviewing the insurer’s submissions in support of the review, those submissions addressing the statutory framework, relevant guiding principles, the material errors said to have been identified in the certificate and reasons of the Medical Assessor, including asserted errors in the interpretation of the Clinical Guidelines for Best Practice Management of Acute and Chronic Whiplash Disorders;
(i)reviewing a significant volume of material relied on by the insurer in the review including the Clinical Guidelines for Best Practice Management of Acute and Chronic Whiplash Disorders;
(i)preparing comprehensive submissions in response to the review, and
(i)considering of the Proper Officer’s decision.
Having regard to the matters discussed at [11] – [13] and the circumstances referred to at [14], I am satisfied that, for the purposes of s 8.10(4)(b) exceptional circumstances exist that justify payment of the legal costs incurred by the claimant in connection with the review.
As already recorded, the parties have agreed that the claimant’s reasonable and necessary costs in connection with the review are $2,475 plus GST, and that the insurer is to have credit for the costs it has already paid in connection with the review, $913.09. I am satisfied that the claimant’s costs in connection with the review should be permitted on that basis.
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