QBE Insurance (Australia) Limited v Lay

[2023] NSWPIC 281

DECISION OF PRESIDENT’S DELEGATE 

Citation:

QBE Insurance (Australia) Limited v Lay [2023] NSWPIC 281

CLAIMANT:

Peter Lay

INSURER:

QBE Insurance (Australia) Limited

PResident’s Delegate:

Jeremy Lum

DATE OF DECISION:

13 June 2023

CATCHWORDS:

MOTOR ACCIDENTS - Delegate of President rejecting application for review of merit review decision of Merit Reviewer; interpretation of a “pending” claim for damages on foot; whether claimant entitled to weekly payments of statutory benefits beyond 104 weeks under section 3.12(1) and subsection 3.12(2)(a) of the Motor Accident Injuries Act 2017; Held – the review application is not accepted and will not be referred to a Merit Review Panel.

Orders made:

Statement of Reasons for Decision

         Issued under section 7.15 of the Motor Accident Injuries Act 2017

Under the Delegation of the President: Item 19, Table of Delegations “A” – Personal Injury Commission Act 2020, PIC Regulation and Scheme regulations

DECISION
I am not satisfied that there is reasonable cause to suspect that the merit review was incorrect in a material respect.  Accordingly, the review application will NOT be referred to a Merit Review Panel.

BACKGROUND  

1. Peter Lay (the claimant) was injured in a motor accident on 6 September 2019.

2. The claimant made an application for payment of statutory benefits to which the insurer accepted liability and the claimant was paid weekly payments as well as payments for treatment and care.

3. There is a significant history relating to the insurer’s decision to cease weekly payments of statutory benefits after 104 weeks because the claimant was considered to have not made “a lawful pending claim for damages”.  That background is set out in the Merit Reviewer’s determination and will not be repeated here.

4. This merit review application concerns the Merit Reviewer’s determination that the claimant’s injury is the subject of a pending claim for damages and is therefore entitled to weekly payments of statutory benefits beyond the maximum period of 104 weeks under section 3.12(1) and sub-section 3.12(2)(a) of the Act.

1. QBE (the applicant) seeks to have the determination of Merit Reviewer reviewed on the basis that it was incorrect in a material respect.  They rely on the particulars set out in the application and supporting documentation. 

2. Peter Lay (the respondent) does not agree that a review is warranted and addresses the issues raised by the applicant.

3. Section 7.15 of the Act provides that if the Delegate of the President is satisfied that there is reasonable cause to suspect that the decision determining the review was incorrect in a material respect, the review application will be referred to a Merit Review Panel.

SUBMISSIONS AND REASONS

1. I have considered the applicant’s submissions, together with the references to legal authorities, on why the applicant considers there to be no legal basis for the claimant’s “pending” claim for damages.  

2. While I acknowledge that the applicant has made very detailed submissions, there is no reasonable cause to suspect that the Merit Reviewer’s determination is incorrect in a material respect.

3. The Merit Reviewer noted that the claimant made a claim for damages on 31 May 2022.  That claim for damages is pending because the claim, including liability for the claim, was found by the Merit Reviewer to be “determined by others”.  There is nothing in schedule 2(1)(b) or section 3.12 of the Act that requires the Merit Reviewer to go further and make such a determination.

4. As the Merit Reviewer states at paragraph 43 of the Certificate reasons, section 3.12(3) of the Act provides that the maximum weekly payment period ends if the pending claim for damages is withdrawn, settled or finally determined after the period of 104 weeks after the motor accident concerned (my emphasis).  This supports the Merit Reviewer’s above finding in my view.

CONCLUSION

1. For the above reasons, the review application is not accepted and will not be referred to a Merit Review Panel.

1. In making this decision, I have considered the following:

• The application, reply and supporting documentation.

• The certificate including the reasons issued by Merit Reviewer Castagnet, the application for merit review, the response and all the documents provided prior to the merit review.

• Motor Accident Injuries Act 2017 (NSW) (the Act).