Sharma-Datt v AAI Limited t/as GIO - [2022] NSWPICMR 72

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	Sharma-Datt v AAI Limited t/as GIO [2022] NSWPICMR 72
ClaimanT:	Vinesh Vikash Sharma-Datt
Insurer:	AAI Limited t/as GIO
Merit Reviewer:	Ray Plibersek
DATE OF DECISION:	5 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit Review; claim for “reasonable and necessary” legal costs for minor injury dispute; physical injury; claim for maximum regulated legal costs; sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017 (2017 Act); Held – claimant not awarded maximum regulated legal costs; awarded $1,100 plus GST; parties unable to resolve a dispute over small amount; dispute is in stark contrast to the exhortations contained in the objects of the 2017 Act and section 42 of the Personal Injury Commission Act 2020 which encourages the early resolution of claims and the quick, cost effective and just resolution of disputes; parties have not acted in a way that is proportionate to the importance and complexity of the small amount of legal costs in dispute; Personal Injury Commission required to divert its scarce resources to deal with a dispute about a small amount of legal costs; claimant’s solicitors did not provide any detailed description or itemisation of the legal work done by them on the minor injury dispute; claim for additional payment of $302.97 under Schedule 1 Part 2 of the Regulations refused as it relates only to legal services provided in connection with a claim for damages; no exceptional circumstances exist to justify additional legal costs.
Determinations made:	Certificate Issued under s 7.13(4) of the Motor Accident Injuries Act2017 1. The insurer is to pay the claimant’s reasonable and necessary legal costs assessed at $1,100 plus GST totalling $1,210 for solicitors professional legal services for the minor injury dispute invoice dated 22 October 2020 in accordance with the Motor Accident Injuries Act 2017 and Motor Accident Injuries Regulation 2017.

BACKGROUND

The claimant, Mr Vinesh Vikash Sharma-Datt , was injured in a motor car accident on 31 May 2018. He was driving a car which stopped in a line of traffic. His vehicle was hit from behind and he received numerous soft tissue injuries.
In this case there is a dispute between the claimant and the insurer about the payment of Mr Sharma-Datt’s legal costs. The claimant’s solicitors are seeking payment of an invoice dated 22 October 2020 totalling $2,159.44 (inclusive of GST) for a minor injury dispute, (A 3).
On 29 July 2020 the claimant’s solicitors made an application for a minor injury under the Motor Accident Injuries Act2017 (MAI Act).
The claimant’s solicitors disputed the insurer’s determination that the claimant’s injuries were a minor injury.
The claimant’s solicitors lodged an application to review the insurer’s minor injury determination in accordance with Division 7.5 Schedule 2 sub-cl 2(e) of the MAI Act.
In a Medical Assessment Certificate dated 20 October 2020 Medical Assessor Shane Moloney determined that some of the claimant’s injuries were caused by the motor accident and some were not. The injures were described as: neck, cervical spine,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMR 72
Decision Date: 5 December 2022

CaseChat Overview and Summary

Sharma-Datt was involved in a motor accident and made a claim for compensation under the Motor Accident Injuries Act 2017 (2017 Act) against AAI Limited trading as GIO. The dispute before the court concerned the claimant's request for "reasonable and necessary" legal costs associated with the minor injury claim. The primary issue was whether the claimant was entitled to the maximum regulated legal costs allowed under the legislation or a lower amount deemed reasonable and necessary for the case.

The court examined the provisions of sections 8.3 and 8.10 of the 2017 Act, which outline the criteria for awarding legal costs in minor injury claims. The court noted that the parties were unable to resolve a dispute over a relatively small amount of legal costs, which contrasted sharply with the objectives of the 2017 Act and the Personal Injury Commission Act 2020, both of which encourage early and cost-effective resolution of claims. The claimant's solicitors did not provide a detailed description or itemisation of the legal work performed, which complicated the assessment of the reasonableness of the legal costs claimed.

The court decided that the claimant was not entitled to the maximum regulated legal costs but awarded $1,100 plus GST as a reasonable amount for the legal services rendered. The claim for an additional payment of $302.97 under the regulations was rejected because it related only to legal services provided in connection with a claim for damages, and no exceptional circumstances were present to justify the additional costs. The decision emphasised the importance of parties acting proportionately to the importance and complexity of the amount in dispute, and the need to avoid diverting the Commission's resources from more significant cases.

Orders