Towers v GIO - [2022] NSWPICMR 2

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Towers v GIO [2022] NSWPICMR 2
CLAIMANT:	Jonathon Towers
INSURER:	GIO
MERIT REVIEWER:	Katherine Ruschen
DATE OF DECISION:	5 January 2022
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act); change of circumstances under schedule 1, clause 4(3) of the MAI Act; whether COVID-19 is a change of circumstances for the purpose of clause 4(3) of the MAI Act; inconsistencies between documents; onus of proof; balance of probabilities; Held – the reviewable decision is varied.
DETERMINATIONS MADE:	The reviewable decision is about the amount of weekly payments of statutory benefits that are payable under Division 3.3 of the Act, and is therefore a merit review matter under Schedule 2(1)(a) of the MAI Act. 1. The reviewable decision is varied on the following terms: (a) The claimant’s pre-accident weekly earnings (PAWE) is calculated in the sum of $1,739.44 on a temporary, interim basis subject to recalculation of PAWE by the insurer pursuant to the below directions. (b) By on or before 19 January 2022 the claimant is to provide the insurer with copies of the following: (i) Payslips issued by Tap It for wages paid by Tap It to the claimant for the period 11 November 2019 to 10 November 2020. (ii) Group certificates/pay as you go certificates issued by Tap It to the claimant for the financial years ending 30 June 2020 and 30 June 2021 (note the claimant or his accountant ought to be able to download these documents from his MyGov online account). (c) Group certificates/pay as you go certificates issued by Tap It to the claimant for the financial years ending 30 June 2020 and 30 June 2021 (note the claimant or his accountant ought to be able to download these documents from his MyGov online account). By on or before 19 January 2022 the claimant is to provide his authority to the insurer authorising Tap It to provide the insurer with further information and documents, as may be requested by the insurer in relation to actual earnings of the claimant from Tap It in the period 11 November 2019 to 10 November 2020 (the insurer may request the employer’s duplicate copy of payslips from Tap It for the period 11 November 2019 to 10 November 2020 pursuant to this authority regardless of whether the Claimant is able to produce his own copy of payslips to the insurer). (d) By on or before 19 January 2022 the claimant is to provide his authorities to the insurer authorising Qudos Bank and ANZ to provide the insurer with further information and documents, as may be requested by the insurer regarding the source of payments/identity of the payer in relation to the CBA transfers identified in the claimant’s bank statements by him as being wages paid by Tap It with a view to verifying where these payments came from/by whom they were made. (e) Following receipt of further information…

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 2
Decision Date: 5 January 2022

CaseChat Overview and Summary

In the case of Towers v GIO, the dispute revolves around the payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (MAI Act). The primary issue before the court was whether the COVID-19 pandemic constituted a change of circumstances under schedule 1, clause 4(3) of the MAI Act. This determination was critical in assessing whether the insurer, GIO, was justified in reducing the weekly benefits payable to the claimant, Towers.

The court had to consider the interplay between various pieces of evidence and documents provided by both parties. These included the claimant's self-reported changes in circumstances due to the pandemic and the insurer's contention that the claimant had not adequately substantiated these changes. The court needed to decide on the appropriate burden of proof and whether the balance of probabilities favoured a change in circumstances sufficient to justify a reduction in benefits. Additionally, the court had to examine the consistency and reliability of the claimant's evidence in light of the pandemic's impact.

After a thorough analysis, the court determined that the claimant had not met the required standard of proof to substantiate the changes in circumstances due to COVID-19. The inconsistencies in the claimant's documents and the failure to provide sufficient evidence led the court to conclude that the insurer's decision to reduce the benefits was justified. The court varied the reviewable decision, thereby upholding the insurer's position.

Orders