Watton-Cerruto v Insurance Australia Limited t/as NRMA Insurance Limited
[2021] NSWPIC 517
•10 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Watton-Cerruto v Insurance Australia Limited t/as NRMA Insurance Limited [2021] NSWPIC 517 |
| CLAIMANT: | Donna Watton-Cerruto |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance Limited |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 10 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claimant made a right-hand turn into a driveway; collision when overtaken by unidentified vehicle; claimant injured; ten month delay in making a claim for statutory benefits; application for a late claim for statutory benefits; Nominal Insurer denies liability; whether a due enquiry and search has been made for unidentified vehicle; whether the Claimant has provided a full and satisfactory explanation for the delay in making her claim; sections 2.30 , 6.2 and 6.13 of the Motor Accident Injuries Act 2017 (MAI Act); Held – late claim for statutory benefits may be made under subsection 6.13 (3)(a) of the MAI Act; Claimant has provided a full and satisfactory explanation for the delay; Claimant’s explanation for delay was search for unidentified vehicle and continuing injuries after surgery; claim against the Nominal Defendant under section 2.30 of the MAI Act; due inquiry and search not required for unidentified motor vehicle as the claim is for statutory benefits(not damages); regulated legal costs awarded, $1,700 plus GST; penalty legal costs refused. |
| DETERMINATIONS MADE: | 1. A claim for statutory benefits may be made under subsection 6.13 (3) (a) because the Claimant has provided a full and satisfactory explanation for the delay in making the claim. 2. The Claimant may make a claim against the Nominal Defendant under section 2.30. 3. A due inquiry and search does not have to made to establish the identity of the other motor vehicle concerned as the claim is for statutory benefits. 4. The Insurer is to assess and pay statutory benefits to the Claimant from and after the date of the application being 25 August 2020. 5. The Insurer is to pay legal costs to the Claimant assessed at $1,700 plus GST. |
Background and Introduction
This determination relates to a dispute about due enquiry and search to establish the identity of a motor vehicle under section 2.30 of the Motor Accidents Injuries Act 2017 (the MAI Act); and whether the Claimant has given a full and satisfactory explanation for non-compliance for delay under Part 6 and sections 6.2 and 6.13 of the MAI Act.
On 11 October 2019 the Claimant, Ms Donna Watton-Cerruto, was driving a vehicle on Sheffield Road, Bowral, and attempting to make a right-hand turn into a driveway near 25 Sheffield Road. As the Claimant was turning right an unknown vehicle overtook the Claimant’s vehicle on her right-hand, or drivers side, impacting with the Claimant’s front right-hand wheel.
The Claimant states that as she was about halfway through the right turn, a lime green Holden Commodore appeared down her right side and collided into the driver’s side front wheel, (A3). The impact with the wheel caused her steering wheel to rapidly turn and bend her left wrist causing a left wrist and left arm fracture.
The Claimant states that she spoke to the Holden driver and agreed to meet at Bowral hospital immediately after the accident.
The Claimant states that immediately after the accident she went to Bowral hospital to seek treatment for her broken left wrist and arm however the Holden driver did not attend as arranged.
The Claimant lodged an Application for personal injury benefits dated 25 August 2020, (A 7).
By letter dated 29 September 2020 the Insurer wrote a letter stating that her claim for statutory benefits (weekly payments and treatment and care) for 26 weeks from the date of the accident was declined, (A 9).
The reasons given in the Insurer’s letter was that the Claimant had failed to undertake due inquiry and search and provide the Insurer with the details of the steps that she taken to identify the vehicle alleged to be at fault. The letter also stated that as the application was received more than three months after the accident, she needed to provide a full and satisfactory explanation for the delay in making the claim.
The Insurer’s letter stated in part:
“Reason for the decision
Section 2.30 of the Motor Accident Injuries Act 2017 (the Act) provides that a claim for Statutory Benefits cannot be made against the Nominal Defendant unless due inquiry and search has been made to establish the identity of the unidentified vehicle.(Emphasis added).
In our email dated 10 September 2020 we asked you to undertake due inquiry and search and provide us with the details of the steps that you have taken to identify the vehicle alleged to be at fault.
Unfortunately, as your application was received more than three 3 months after your accident, you need to provide a full and satisfactory explanation for the delay in making your claim when sending back your completed form. The explanation must be a signed statement that includes full details of your actions, and knowledge from the date of the accident until the date you provide your explanation.”
On 1 October 2020 the Insurer was sent factual investigation report containing a record of interview with Senior Constable Andrew Bailey of Southern Highlands Police station held on 18 September 2020. The report also included photographs of the accident scene,(R 16).
By letter dated 27 November 2020 the Claimant’s solicitors wrote and enclosed the Claimant’s signed statement regarding the late lodgement of her claim; and a copy of an advertisement placed in the Sydney Morning Herald on 10 November 2020, (A 10).
By letter dated 10 March 2021 the Claimant’s solicitors wrote and stated in their letter:
“As detailed above, you are in receipt of multiple statements and submissions relating to the liability of our client’s claim.
Despite numerous attempts to contact NRMA, we have not received any further correspondence regarding your liability position.”
The dispute comes before me to determine whether a due enquiry and search has been made and whether the Claimant has provided a full and satisfactory explanation for the delay in making her claim.
Submissions
I have considered the documents provided with the claim form, the reply and further information including: the submissions, statements from the Claimant, statements from her husband and correspondence.
In their submissions, (A 1), the Claimant’s solicitors characterise this dispute as having the following three aspects or issues:
“1. Whether for the purposes of section 2.30 (Claim against Nominal Defendant
where vehicle not identified) there has been due enquiry and search to
establish the identity of a motor vehicle.
2. Whether for the purposes of Part 6 (Motor accident claims) the claimant has
given a full and satisfactory explanation for non-compliance with a duty or for
delay.
3. Whether the insurer is entitled to refuse payment of statutory benefits in
accordance with section 6.13 (Time for making of claims for statutory benefits).”I will briefly summarize the submissions concerning the due enquiry and search and also the full and satisfactory explanation and then summarise the Claimant’s explanation. I will then consider the three aspects of the dispute raised by the Claimant’s solicitors including whether the Claimant needs to show a due enquiry and search has been made to make a claim for statutory benefits.
Claimant’s solicitor’s submissions
The Claimant’s solicitor’s submissions undated (A 1), submit that:
(a) the Claimant provided her statement satisfying the requirement to undertake a due search and inquiry in accordance with section 2.30 of the MAI Act (A3) to the Insurer on 27 November 2020, (A 9);
(b) the Claimant provided her explanation for the claim being submitted late in her statements dated 26 November 2020 (A3) and 27 November 2020 (A9). She attempted to locate the driver of the vehicle in the immediate time following the accident, while actively seeking independent legal advice;
(c) in addition to providing her own evidence as to the delay in lodgement, the Claimant and her husband also complied with multiple requests from the Insurer providing three statements and responses to questionnaires; and
(d) penalty legal costs should be awarded because of the Insurer’s failure to engage with the Claimant’s solicitors on liability.
Insurer’s solicitor’s submissions dated 24 June 2020
The Insurer’s solicitor’s submissions dated 24 June 2020 (R 1), are in reply to the claim for an award of legal costs against the Insurer. In summary they provide:
(a) a detailed summary of the background including communications and statements provided by the Claimant and her solicitors to the Insurer; and
(b) detailed submissions on what legal costs should be awarded.
Documents considered- Claimant’s explanation
The explanation for the late application is contained in several statements and questionnaires made by the Claimant summarised briefly as follows. I note some of the Claimant’s statements appear to be based on answers she gave to questions asked by investigators which are also referred to below.
Claimant’s email dated 20 September 2020
The Claimant, in an email addressed to the Insurer dated 20 September 2020 (R 12), stated that:
“Reason for late injury claim
I didn’t originally intend to submit a claim for injuries I suffered in a car accident on 11/ 10/2019 I thought that after a bit of time I would recover from the injuries
I sustained but unfortunately after about 6 months it became obvious that the trauma to my left arm & shoulder where ongoing still causing me pain. I decided to file the injury claim after realising my injury & the effects could be long lasting”
Claimant’s statements dated 23 November 2020 and 26 November 2020
The Claimant’s statement dated 23 November 2020 (A 3), and additional statement dated 26 November 2020 (A 4) and also answers to questions dated 22 September 2020 (R 17), in summary record :
(a) details her driving history and experience;
(b) details the circumstances of the accident;
(c) describes going to the hospital after the accident and waiting for the Holden driver and her treatment and surgery at the hospital;
(d) Police and Ambulance did not attend the accident scene;
(e) describes in detail the scene of the accident Sheffield Road, Bowral;
(f) husband retuned to the accident location following the accident and doorknocked the surrounding houses however he was unable to locate any witnesses or the lady they saw on the day who nearly got hit by the car;
(g) first consulted her solicitors on 17 August 2020, had a tele-conference with Law Partners Personal Injury Lawyers;
(h) at the hospital did not tell her anything about making a claim but she knew about CTP but at the time didn’t think she needed it;
(i) her car insurer did not provide any advice in relation to her entitlement to lodge a CTP claim;
(j) she placed a message on the Southern Highlands Facebook Notice Board page seeking witnesses to the accident;
(k) by 1 September 2020, she had been unable to identify the driver at fault, her solicitors lodged the Application for Personal Injury Benefits claim form; and
(l) she placed an advertisement in the Sydney Morning Herald on 10 November 2020, seeking witnesses or information regarding the accident. No response was received.
Questionnaire dated 16 December 2020
The Claimant provided responses to a questionnaire dated 16 December 2020 (A 5), which states that:
(a) details driving history and previous loss of driver licence;
(b) describes in detail accident and road conditions;
(c) describes damage and repairs to vehicle;
(d) details visit to hospital and search for witnesses to accident;
(e) details ongoing medical treatment; and
(f) previous work history and current work arrangements.
Questionnaire dated 5 February 2021
The Claimant’s husband, Mr John Watton-Cerruto provided responses to a questionnaire dated 5 February 2021 (A 6), which states that:
(a) details ownership and condition of car;
(b) details weather and road conditions;
(c) describes slowing on the road and turning into driveway when hit by the other car;
(d) describes the other car hitting the wheel which caused the steering wheel to spin and injure his wife;
(e) describes going to the hospital;
(f) describes other driver; and
(g) attempts made by Claimant to locate the vehicle and driver involved in the accident.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Under subsections 2.30(1) and (2) of the MAI Act an action for the recovery of damages against an unidentified vehicle cannot be made against the Nominal Defendant unless due inquiry and search has been made to establish the identity of the unidentified motor vehicle.
Subsections 2.30(1) and (2) of the MAI Act provide in part:
“2.30 Claim against Nominal Defendant where vehicle not identified
(cf s 34 MACA)
(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.”
Under subsection 6.13 of the MAI Act a claim for statutory benefits may be made after the time required if the claimant provides a full and satisfactory explanation for the delay in making the claim.
Subsection 6.13 provides for time limits when making a claim for statutory benefits:
“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.
(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%.”
The meaning of “full and satisfactory” is set out in section 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by claimant
(cf s 66 MACA)
(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”
Whether for the purposes of section 2.30 (Claim against Nominal Defendant where vehicle not identified) there has been due inquiry and search to establish the identity of a motor vehicle is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (a) of the MAI Act.
Whether for the purposes of Part 6 (Motor accident claims) the Claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (h) of the MAI Act.
Does the Claimant need to show a due enquiry and search to make a claim for statutory benefits?
I will first address the issue of whether the Claimant needs to show a due enquiry and search has been undertaken to make a claim for statutory benefits.
The Insurer’s notice of liability letter dated 29 September 2020, (A 9), incorrectly stated that a claim for statutory benefits cannot be made against the Nominal Defendant unless due inquiry and search has been made. A correct summary of section 2.30 is that a claim for damages cannot be made against the Nominal Defendant unless due inquiry and search has been made,(emphasis added).
Section 2.30 of the MAI Act actually provides that in “… an action for the recovery of damages …” a claim cannot be made against the Nominal Defendant unless due inquiry and search has been made to establish the identity of the motor vehicle concerned, (emphasis added).
The application before me concerns the payment of statutory benefits (for lost wages and medical expenses) not damages.
Damages is defined at s 1.4 of the MAI Act as : damages means damages (within the meaning of the Civil Liability Act 2002) in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, but does not include statutory benefits.
In this matter the definition of damages specifically excludes statutory benefits.
I find in this case, being a claim for statutory benefits, that subsections 2.30(1) and (2) of the MAI Act did not apply. In their terms that section only applies to a claim for damages. The consequences of such a finding mean that the Claimant did not have to show due inquiry and search had been made for the unidentified vehicle before a claim for statutory benefits can be made.
This interpretation of section 2.30 is consistent with the objects of the MAI Act and the “no-fault” nature of the MAI Act. The payment of limited benefits without the need to decide or show fault is clearly stated in the legislation and expressed in the Second Reading speech.
If I am wrong in my interpretation of section 2.30, I find there has been due enquiry and search to establish the identity of a motor vehicle by the Claimant and her solicitors to attempt to find the unidentified Holden driver who struck her vehicle. The Claimant’s enquiry and search are detailed in her statements and those of her husband summarised above.
I will now turn to consider whether the Claimant has provided a full and satisfactory explanation for the delay in making her claim.
Application of sections 6.13 and 6.2
In this case the accident occurred on 11 October 2019 and the application for personal injury benefits is dated 25 August 2020. This is delay of about 10 months and 2 weeks between the date of the accident and the date of the application for statutory benefits.
A claim for statutory benefits must be made within three months after the date of the accident, subsection 6.13 (1) (a).
If a claim for statutory benefits is not made within 28 days after the date of the accident, weekly payments of statutory benefits are not payable for any period before the claim is made, subsection 6.13 (1) (b).
A claim for statutory benefits may be made after three months after the accident if the claimant provides a full and satisfactory explanation for the delay in making the claim and the claim is made within three years after the date of the motor accident, subsection 6.13 (3) (a).
In the present case, because of the approximate 42-week delay, a claim for statutory benefits may be made under subsection 6.13 (3) (a) if the Claimant provides a full and satisfactory explanation for the delay.
I note that subsection 6.13 (1) (b) operates to preclude the payment of weekly payments of statutory benefits to the Claimant for any period before the claim is made by the Claimant which was on 25 August 2020.
As referred to above, sections 6.2 and 6.13 provide that the Claimant may make a claim for statutory benefits within three years after the motor accident if the claimant provides a full and satisfactory explanation for the delay in making the claim.
I will now briefly consider the meaning of the phrase “full and satisfactory” in the context of this case.
Consideration of relevant case law
There is considerable case law about the meaning of the phrase “full and satisfactory”. Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) case discussed the meaning of subsection 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 6.2 of the MAI Act.
The NSW Court of Appeal in Karambelas Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until ‘the date of providing the explanation’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed”.
Is the explanation full?
Sections 6.2 and 6.13 require that the Claimant provide a full and satisfactory explanation for the delay in making the application. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”.
In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In numerous emails and letters from the Insurer and the Insurer’s solicitors to the Claimant and her solicitors, the Insurer contends that the Claimant has not a made a due enquiry and search has not provided a full and satisfactory explanation for the delay in making her claim. (See summary in R 1).
The Claimant’s explanation for the delay in making her application for statutory benefits is detailed in her own statements and questionnaires and those made by her husband. The Claimant states that she initially thought she would recover from the injuries but then after suffering ongoing pain from left arm and shoulder she realised that her injury and its ongoing effects could be long lasting. She then consulted her lawyers and commenced her claim. She states that her husband retuned to the accident location following the accident and doorknocked the surrounding houses to locate any witnesses. The Claimant posted a notice on the Southern Highlands Facebook Notice Board. She also placed an ad in the Sydney Morning Herald after making her application for statutory benefits. The Claimant states that she attempted to locate the driver of the vehicle while actively seeking legal advice.
In my view, I find that the Claimant’s explanation in this case is sufficient to be considered a full explanation as to why her application was delayed. The reasons given by her are sufficient to be considered a full account of the Claimant’s conduct, actions, knowledge and belief. The Claimant’s explanation satisfies the requirements of sections 6.2 and 6.13 of the MAI Act.
Is the explanation satisfactory?
I will now turn to a consideration of whether the Claimant’s explanation is “satisfactory”.
Section 6.2 requires that the Claimant provide a full and satisfactory explanation for the delay in providing the required particulars. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the Claimant would have been justified in experiencing the same delay.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
61. In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
In its submissions the Insurer contends that the explanation provided by the Claimant is not satisfactory.
Without repeating in detail the Claimant’s explanation, once she had realised that her pain from the left arm and shoulder was ongoing and the effects could be long lasting she began searching for the other driver and sought legal advice.
In my view, the statements and the detailed replies to the Insurer from the Claimant gives an explanation which supports a finding that a reasonable person in the position of the Claimant would have been justified in experiencing the same delay. I am satisfied there is sufficient evidence before me to support a finding that the reasonable person in the Claimant’s position would have experienced the same delay. The relevant test is whether a hypothetical reasonable person in the Claimant’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306.)
Conclusion
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging her application for statutory benefits. I find that the claim for statutory benefits may be made within three years after the date of the motor accident. The Claimant may make a claim against the Nominal Defendant under section 2.30 of the MAI Act. Because the claim is for statutory benefits (not damages), a due inquiry and search does not have to made to establish the identity of the other motor vehicle. I will issue a certificate to that effect.
Legal costs
In this matter both parties have made submission on the awarding of legal costs for this dispute.
The Claimant’s solicitor’s submit that penalty legal costs should be awarded because of the Insurer’s failure to engage with the Claimant’s solicitors on liability, (A 1). The Claimant’s solicitor’s referred to section 6.21 of the MAI Act which provides that if an insurer denies liability the Commission may impose a costs penalty if they are of the opinion that there was no reasonable denial of liability. In this dispute, the Claimant argued that the Insurer had constructively denied liability by way of their lack of response. There is no reasonable basis for the Insurer not to have accepted liability for the Claimant’s claim. The Claimant requested the Commission impose a costs penalty upon the Insurer by way of increasing the costs awarded against the Insurer for its unreasonable decision to deny of the claim.
In its written submissions the Insurer opposes the award of a cost penalty against the Insurer, (R 1). The Insurer argues that under Schedule 1 Part 1 sub-clause 3 (2) (b) the Motor Accidents Injuries Act 2017 (the MAI Regulation) whether the Nominal Defendant has lost the right to reject a claim under section 2.31 (Rejection of claim for failure to make due inquiry and search to establish identity of vehicle) of the MAI Act for failure to make due inquiry and search to establish the identity of a vehicle, is defined as a “regulated miscellaneous claims assessment matter”. Under Schedule 1 Part 1 sub-clause 3 (1), the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim).
The Insurer argues that an award of legal costs is discretionary. The discretion to award such costs must be exercised in a manner consistent with the framework of the legislation and the legislative intent. The Insurer submits that in light of the Insurer’s original decision to deny liability and the continued investigation of the accident, it was not reasonable for the Claimant to refer the dispute to the Commission for determination. There was a valid basis to disentitle the Claimant for continuing statutory benefits. The Insurer submits that a Commission Member would not be satisfied that a cost penalty should be awarded against the Insurer. The Member should decline to exercise his/her discretion pursuant to section 6.19 of the MAI Act and determine that the Claimant is not entitled to the payment of legal costs beyond the regulated fee.
Having considered the submissions of the Claimant and the Insurer and relevant legislation, I conclude that the Insurer is to pay regulated legal costs to the Claimant assessed at $ 1,700 plus GST. I am not of the opinion that the Insurer acted with no reasonable basis for its denial of liability for the claim. The claim was made late. The Insurer was entitled to thoroughly investigate the claim, ask the Claimant for a detailed and full explanation of the reasons for her delay and test the Claimant’s version of events.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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