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Sukkar v Insurance Australia Limited t/as NRMA Insurance

Sukkar v Insurance Australia Limited t/as NRMA Insurance

Case [2022] NSWPIC 566 20 July 2022

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CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sukkar v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 566
Claimant:	George Sukkar
insurer:	Insurance Australia Limited t/as NRMA
Member:	Bridie Nolan
DATE OF DECISION:	20 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; statutory benefits; whether for the purposes of section 3.1 of the Motor Accident Injuries Act 2017 (2017 Act) statutory benefits are payable in respect of death or injury resulting from motor accident; whether claimant involved in a “motor accident” for the purposes of section 1.4 of the 2017 Act; claimant sustained injuries as a result of momentary loss of attention to check whereabouts of vehicle with which he had earlier briefly collided; Held –determined claimant’s injuries were caused by the use or operation of a vehicle; statutory benefits found to be payable.
determinations made:	1. For the purposes of section 3.1 the death of or injury to a person has resulted from a motor accident in this State. 2. Effective Date: This determination takes effect on 7 April 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 exclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This is an application for determination of a miscellaneous claims assessment matter regarding whether the claimant is entitled to be paid statutory benefits for an injury, which he says arose from an incident in which he was involved, which he says was a motor vehicle accident for the purposes of the Motor Accident Injuries Act 2017 (NSW) (the MAI Act).
This matter has been referred to me pursuant to Schedule 2 of the MAI Act. The claimant casts the dispute as being a miscellaneous claims assessment matter arising under Schedule 2, cl 3(n), which permits me to determine any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in the schedule. The insurer casts the dispute as arising under Schedule 2, cl 3(b) of the MAI Act, which provides for a determination as to whether for the purposes of s 3.1 (statutory benefits payable in respect of death or injury resulting from motor accident, the death or injury to a person has resulted from a motor accident in this state).
In my view, the insurer’s submission is correct: the dispute arises under Schedule 2,
s 3(b) of the MAI Act.
By letter dated 4 August 2021, the insurer accepted liability for statutory benefits, for 26 weeks from the date of “your motor accident”. It indicated that it accepted that the claimant had satisfied the requirement of due inquiry and search.
In a revised undated liability notice, issued on or about 8 October 2021, the insurer denied liability for the claim. Section 6.19 (5) of the Act permits the insurer, having earlier accepted liability, to subsequently deny liability.
On 12 October 2021, the claimant requested an internal review of…

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

AGLC: Sukkar v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 566
Case: [2022] NSWPIC 566
Decision Date: 20 July 2022

CaseChat Overview and Summary

In Sukkar v Insurance Australia Limited t/as NRMA Insurance, the claimant sought a determination regarding the applicability of statutory benefits under the Motor Accident Injuries Act 2017. The claimant sustained injuries while momentarily distracted by checking the whereabouts of a vehicle he had earlier briefly collided with. The insurance company, NRMA Insurance, disputed the claim for statutory benefits, arguing that the claimant's injuries did not arise from a motor accident as defined by the Act.

The court was tasked with deciding whether the claimant's injuries qualified for statutory benefits under the 2017 Act, specifically whether the claimant was involved in a "motor accident" as defined in section 1.4 of the Act, and if so, whether the statutory benefits were payable under section 3.1 for injuries resulting from that motor accident. The court had to examine whether the claimant's momentary distraction and subsequent injury constituted an event that occurred as a result of the use or operation of a motor vehicle.

The court concluded that the claimant's injuries were indeed caused by the use or operation of a vehicle, as the momentary distraction leading to the injuries was directly linked to the earlier collision. The claimant's actions were a direct consequence of the initial motor accident, thus satisfying the criteria for the application of statutory benefits. The court held that the statutory benefits were payable under section 3.1 of the 2017 Act for the injuries sustained by the claimant.

The court ordered that the insurance company, NRMA Insurance, was liable to pay the statutory benefits to the claimant for the injuries sustained as a result of the motor accident.

Orders