Veli v AAI Limited t/as AAMI

[2021] NSWPICMR 50

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Veli v AAI Limited t/as AAMI [2021] NSWPICMR 50
CLAIMANT:	Lorraine Veli
INSURER:	AAI Limited t/as AAMI
MERIT REVIEWER:	Brett Williams
DATE OF DECISION:	14 December 2021
CATCHWORDS:	MOTOR ACCIDENTS- Merit review matter; costs dispute arising out of two medical assessment matters; minor injury and whole person impairment; recovery of costs under section 8.10 of the Motor Accident Injuries Act 2017 (MAI Act); exceptional costs order sought; agreement in relation to minor injury dispute costs and costs in costs dispute; whether merit reviewer has jurisdiction to determine costs in connection with whole person impairment dispute; Held -section 8.10 of the MAI Act concerns the recovery of costs and expenses in connection with a claim for statutory benefits; whole person impairment disputes arise in connection with a damages claim, not a statutory benefits claim; no jurisdiction to determine costs dispute in connection with the whole person impairment assessment; proceedings dismissed.
DETERMINATIONS MADE:	1.    The proceedings are dismissed.

Background

1. This is a legal costs dispute arising out of two medical assessment matters, one in relation to whole person impairment and the other in relation to minor injury. The claimant also sought to recover the costs of these proceedings on the basis that exceptional circumstances existed that justified a costs order in accordance with

   s 8.10(4)(b) of the Motor Accident Injuries Act 2017 (MAI Act).

1. The parties have reached agreement in relation to the payment of the claimant’s costs in connection with both the minor injury dispute and these proceedings. That leaves the dispute about the claimant’s costs in connection with the whole person impairment dispute.

On the papers

1. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the proceedings can be determined on the papers. I am satisfied that sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing.

Determination

1. The cost disputes come before me in my capacity as a merit reviewer in accordance with Schedule 2 clause 1(aa) of the MAI Act. That provision empowers me to determine whether for the purposes of s 8.10 the costs and expenses incurred by the claimant in connection with a statutory benefits claim are reasonable and necessary.

1. Section 8.10(1) is in the following terms:

“8.10 Recovery of costs and expenses in relation to claims for statutory benefits

(1)   A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.

1. Section 8.10 concerns the recovery of costs and expenses in connection with a claim for statutory benefits. Whole person impairment disputes arise in connection with a damages claim, not a statutory benefits claim. Schedule 2 cl1(aa) of the MAI Act does not empower me to determine costs in connection with a damages claim.

1. The claimant concedes that the costs incurred in connection with the whole person impairment dispute related to a damages claim and not a statutory benefits claim. She argues that the damages claim could not be pursued if her injuries were assessed as being ‘minor’. Accordingly, it is argued, both disputes went hand in hand. She notes that the Medical Assessors who examined her made a determination on both the issues of minor injuries and whole person impairment. Be that as it may, it does not alter the character of the whole person impairment dispute. That dispute was in connection with a damages claim and not a statutory benefits claim.

1. The parties were not able to identify any provision that gives me the power to determine the costs dispute in relation to a whole person impairment assessment. Section 7.37 allows the Commission, when making an assessment of damages, to include in the assessment an assessment of the claimant’s costs (including costs for legal services and fees for medico-legal services) in the matter. That provision does not apply to the costs in dispute in these proceedings. I am not making an assessment of damages under Division

   7.6 of the MAI Act.

1. I find that I do not have jurisdiction to determine the costs dispute that arises in connection with the whole person impairment assessment. As the other matters in dispute have been resolved between the parties, I consider that the proceedings should be dismissed in accordance with s 54 of the PIC Act and Rule 77(b)(iv) of the Commission Rules.

Brett Williams
Merit Reviewer

Personal Injury Commission