Tomkins v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 209
•9 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Tomkins v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 209 |
| Claimant: | Darryn Tomkins |
| insurer: | Insurance Australia Limited t/as NRMA |
| SENIOR Member: | Brett Williams |
| DATE OF DECISION: | 9 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether for the purposes of section 6.13(2) the insurer is entitled to refuse payment of statutory benefits to the claimant in respect of any period before his claim was made; where the parties agree that the claim was not made within 28 days after the date of the accident; because accident occurred before 1 April 2023, clause 8A of the Motor Accident Injuries Regulation 2017 does not apply to the claim; Wright v AAI Limited t/as GIO and Lu v Allianz Australia Insurance Limited followed; Held – section 6.13(2) is in clear and unambiguous terms; if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made; there is no discretion available to the Personal Injury Commission to allow payment of statutory benefits if section 6.13(2) has not been complied with; the insurer is entitled to refuse payment of statutory benefits to the claimant in accordance with section 6.13(2). |
| determinations made: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 1. For the purposes of s 6.13(2) of the Motor Accident Injuries Act 2017 the insurer is entitled to refuse payment of statutory benefits to the claimant in respect of any period before his claim was made. 2. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
BACKGROUND
Darryn Tomkins (claimant) was injured in a motor accident at Banora Point on
5 September 2022. He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).On 25 October 2022 the insurer issued a liability notice accepting liability for the statutory benefits claim for up to 26 weeks. However, as the claim was received more than 28 days after the date of the accident, the insurer determined that it would make payments of weekly compensation from the date the claim was received, 14 October 2022.
The claimant sought an internal review of the insurer’s decision not to pay weekly benefits before 14 October 2022. On 28 November 2022 the internal reviewer affirmed the insurer’s decision.
The claimant commenced these proceedings on 25 January 2023. The dispute is about whether the insurer is entitled to refuse payment of statutory benefits for a period before the claim was made, in accordance with s 6.13 of the MAI Act, and is a miscellaneous assessment matter: Schedule 2 cl3(k).
PRELIMINARY CONFERENCE
A preliminary conference was held on 23 February 2023. The insurer confirmed that it did not act on behalf of the Nominal Defendant.
The following matters were agreed by the parties:
(a) the accident occurred on 5 September 2022;
(b) 28 days after the accident was 3 October 2022;
(c) the claim was not made within 28 days after the date of the accident;
(d) the claim was made on 14 October 2022;
(e) the claim was made 39 days after the date of the accident, and
(f) no Federal issue arises in the proceedings.
Directions were made for the provision of further submissions. The parties agreed that the dispute could be determined on the papers.
ON THE PAPERS
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.
SUBMISSIONS
The claimant’s submissions acknowledge that the claim was not made within 28 days after the date of the accident. The claimant asks the Commission to exercise a discretion to allow weekly payments to be made for periods before the claim was made.
The claimant also refers to, and relies on, s 6.13(3). However, that provision relates to s 6.13(1), and the making of a late claim in certain circumstances, and not to s 6.13(2).
The claimant asks the Commission to look at the circumstances of the claim, including the impact the injuries he sustained in the accident have had on his work capacity, and take into consideration that he was not aware of the legislative requirements with respect to his entitlements.
The insurer submits that the MAI Act and the Motor Accident Guidelines set clear timeframes relating to a claimant’s entitlement to weekly payments of statutory benefits after a claim is made. The insurer submits that, consistent with s 6.13(2) and cl 4.15 of the Guidelines, if a claim for statutory benefits is not made within 28 days after the date of the motor accident, it is entitled to refuse payment of weekly payments of statutory benefits for any period before the claim was made. The insurer argues that there are no provisions within the MAI Act which allow for any discretion to be exercised by it with respect to this issue. Accordingly, the insurer submits that, as the claim for statutory benefits was not made within 28 days after the date of the accident, the claimant is not entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident.
DETERMINATION
Section 6.13 is in the following terms:
“6.13 Time for making of claims for statutory benefits
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made, unless permitted by the regulations.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either—
(a)the claim is made within 3 years after the date of the motor accident, or
(b)the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.
(4) In addition, a claim for statutory benefits under Division 3.4 in respect of an injury for which compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the Workers Compensation Act 1987 has been payable may be made within 3 months after the compensation ceases to be payable.”
Section 6.13 was amended by s 30 of the Motor Accident Injuries Amendment Act 2022 (Amendment Act) to insert “, unless permitted by the regulations” after “claim is made” in s 6.13(2). The amendment commenced on the date of assent to the Amendment Act, 28 November 2022.
Clause 8A of the Motor Accident Injuries Regulation 2017 (Regulation) permits the payment of weekly payments of statutory benefits for a period before a claim is made in certain circumstances. However, cl 8A(4) states that the clause does not apply to a motor accident occurring before 1 April 2023. As the accident with respect to which this claim relates occurred on 5 September 2022, cl 8A does not apply to it.
As has been determined by the Commission in a number of decisions, s 6.13(2) of the MAI Act is in clear and unambiguous terms: if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made (unless permitted by the regulations): see for example Wright v AAI Limited t/as GIO [2022] NSWPIC 401 and Lu v Allianz Australia Insurance Limited [2022] NSWPIC 647.
Given the matters agreed by the parties as recorded at [6], the clear and unambiguous terms of s 6.13(2), and the absence of applicable regulations for the purposes of s 6.13(2), weekly payments of statutory benefits are not payable to the claimant in respect of any period before his claim was made. There is, in my view, no discretion available to the Commission to make a determination to the contrary.
Accordingly, I find that, as the claim was not made within 28 days after the date of the accident, the insurer is entitled to refuse payment of statutory benefits to the claimant in accordance with s 6.13(2) of the MAI Act.
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