Rymer v Allianz Insurance

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER

CITATION:

Rymer v Allianz Insurance [2021] NSWPICMR 45

CLAIMANT:

Christophe Rymer

INSURER:

Allianz Insurance

MERIT REVIEWER:

Ray Plibersek

DATE OF DECISION:

7 October 2021

CATCHWORDS:

MOTOR ACCIDENTS- Medical Review Panel; reasonable and necessary spinal surgery; dispute about legal costs and expenses by the claimant; claim for exceptional circumstances legal costs; section 8.10(4)(b) of the Motor Accidents Injuries Act 2017; insurer submitted exceptional circumstances did not exist only allowed regulated legal costs ; AAI Limited v Moon and San v Rumble (No. 2) [2007] NSWCA 259 considered; Held-  finding that exceptional circumstances exist; volume and complexity of the medical material; difficulty in obtaining instructions from claimant with diagnosed depression; claimant entitled to recover about 40 % of  legal costs claimed as reasonable and necessary; consideration of objects of Motor Accidents Injuries Act 2017.

DETERMINATIONS MADE: 

1.     The Insurer is to pay the Claimant’s reasonable and necessary legal costs assessed at $28,000 plus GST totalling $30,800 for solicitors costs and Counsel’s fees of $4,050 plus GST totalling $4,455.

2.     This determination takes effect on 7 October 2021.

Background

1. There is a dispute between the Claimant, Christophe Rymer and the Insurer about the payment of his legal costs. The Claimant solicitors are seeking $69,548.60 for their solicitors costs and $4,455 for barristers fees. The Insurer’s view is that Claimant lawyers are only entitled to a total of the maximum regulated legal costs of $1,826.

2. In legal terms, the issues for determination are whether under sections 8.3, 8.10 of the Motor Accident Injuries Act 2017 (the MAI Act), costs and expenses incurred by the Claimant are reasonable and necessary and whether the Claimant is entitled to be paid or recover legal costs for any legal costs beyond the maximum amount fixed by the MAI Act and Motor Accident Injuries Regulation 2017 ( the Regulation) .

1. The Claimant was injured in a motor vehicle accident on 8 December 2018. He was driving his motorcycle along Pittwater Road and Oliver Street, Manly.

2. On 12 December 2018, the Claimant lodged an application for statutory benefits with Allianz, the Insurer of the other vehicle involved in the accident.

1. On 19 March 2019 the Insurer issued a Liability Notice - Benefits After 26 Weeks, which advised the Claimant that in the Insurer’s opinion his injuries were minor.

1. The Claimant disputed the Insurer’s internal review decision on liability and lodged a review application with the Dispute Resolution Service (DRS) on 7 May 2019.

1. On 17 April 2019, the Claimant's treating orthopaedic surgeon, Dr Saravanja issued a  request to the Insurer for approval of spinal surgery at C7-T1 Anterior Cervical Discectomy and Fusion.

1. In a letter dated 17 May 2019 the Insurer denied the Claimant’s request for the spinal surgery.

1. On 22 May 2019 the Claimant requested an internal review of the Insurer’s decision to not approve the surgery.

1. On 28 May 2019 the Claimant had the spinal surgery at his own cost.

1. On 2 July 2019 the Claimant lodged an application for review…