Whittington v AAI Limited t/as AAMI

[2022] NSWPIC 567

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Whittington v AAI Limited t/as AAMI [2022] NSWPIC 567

Claimant:

Wade Whittington

insurer:

AAI Limited t/as AAMI

Member:

Bridie Nolan

DATE OF DECISION:

24 August 2022

CATCHWORDS:

MOTOR ACCIDENTS -  Miscellaneous claims assessment; whether the insurer is entitled to refuse payment of statutory benefits in accordance with section 6.10 of the Motor Accidents Injuries Act 2017 (2017 Act); whether section 50A of the Limitation Act 1969 (1969 Act) operates to extend time on time stipulated in section 6.12 of the 2017 Act; whether section 85 of the 1969 Act regarding modification or suspension of limitation or other statutory time periods during COVID-19 pandemic applies; Held –  no extension of time granted.

determinations made:

1.   For the purposes of section 6.12 notice of the claim has been given on 2 November 2021.

2.   For the purposes of section 6.13 the insurer is to refuse payment of weekly payments of statutory benefits from the date of the accident until 2 November 2021.

3.   Effective Date: This determination takes effect on 2 November 2021.

4.   Legal Costs: The claimant is self-represented and not entitled to costs.

Reasons for Decision

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

Background

1. This matter constitutes a miscellaneous claims assessment as to whether the insurer is entitled to refuse payment of statutory benefits in accordance with s 6.13 of the Motor Accidents Injuries Act 2017 (the MAI Act): schedule 2(3)(k) of the MAI Act.
2. The claimant alleges injuries following a motor vehicle accident on 5 September 2021.
3. In a chronology which he prepared for me, in respect of his application, he sets out a timeline of the incapacity that his injury caused him; namely four nights spent in St Vincent’s Private Hospital until 8 September 2021, a period of incapacity by reason of heavy doses of pain medication, attendance at treatment, attendances with his general practitioner, until he lodged his personal injury claim form on 2 November 2021.
4. The insurer acknowledges receipt of the Application for Personal Injury Benefits on 2 November 2021, by letter dated 4 November 2021.
5. By letter dated 30 December 2021, the insurer advised the claimant that weekly payments of statutory benefits would commence from 2 November 2021.  On 5 January 2022, the insurer advised that it was not permitted to make any weekly payments for statutory benefits in respect of any period before the Application for Personal Injury Benefits was lodged.
6. By notice dated 11 January 2022 the claimant requested an internal review which was undertaken, and by letter dated 17 January 2022 affirmed the earlier decision.

Documents Considered

1. I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions

8. The claimant submits that he is entitled to be paid weekly benefits from the date of the accident because he can explain the reasons for his delay.
9. The insurer relies upon a suite of decisions to support its contention that the wording in section 6.13 (2) of the MAI Act is unambiguous and provides no discretion to me to extend the period of 28 days from the date of the motor accident.

Reasons

10. As has been well established in several decisions of the Personal Injury Commission (the Commission), there is no capacity to extend time.
11. Section 6.12 of the Act is in clear proscriptive terms, stipulating that if a claim for statutory benefits is not made within 28 days after the date of the motor vehicle accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.  Within this provision, there is no mechanism by which time can be extended. 
12. The Limitation Act 1969 (NSW) does not apply so as to assist the claimant. Section 50A of the Limitation Act provides that Division 6 of Part 2 of that Act does not apply to a cause of action or a claim under the Motor Accidents Compensation Act 1999 (NSW). However, it is, however, silent with respect to its application with respect to the MAI Act.
13. Relevantly, section 6.32(5) of the MAI Act provides that the Limitation Act does not apply to, or in respect of proceedings in respect of a “claim”. In section 1.4 of the MAI Act, “claim” is defined to mean “a claim for statutory benefits or a claim for damages”. While this may be in and of itself enough to resolve the question, it may be argued that the context in which the provision appears relates to the latter defined claim: “a claim for damages” and does not operate to exclude the Limitation Act’s operation to a claim for statutory benefits.
14. It is important to consider that the Limitation Act, pursuant to section 50A of that Act, applies to “a cause of action for damages that relate to the death of or personal injury to a person.” “Cause of action” is not defined in the Act, although “action” includes a “proceeding in a court”. A “cause of action”, however, in the context of section 50A of the Limitation Act cannot be read in isolation and must be read as its composite expression: “a cause of action for damages that relate to the death of or personal injury to a person”.
15. In my view, the reason why section 6.32(5) of the MAI Act refers specifically to the Limitation Act not applying in respect of a “claim” (a claim for damages, as it is there concerned), is because of the dual definition of claim within the MAI Act, namely, that a claim means a claim “for statutory benefits or a claim for damages”. Clearly the latter would constitute “a cause of action for damages” as referred to in section 50A of the Limitation Act, hence the need for the inclusion of s 6.32(5) of the MAI Act to specifically exclude the application for the Limitation Act. However, for the reasons that follow a claim for statutory benefits would not be “a cause of action for damages” as referred to in section 50A of the Limitation Act.
16. “Statutory benefits” are defined as “statutory benefits payable under Part 3 of the Act”.  Part 3 relates to statutory benefits payable in respect of a death or injury resulting from a motor accident.  Pursuant to section 3.1 of the MAI Act, if a death or injury to a person result from a motor accident in this State, statutory benefits are payable in respect of the death or injuries provided in this Part.  Sub-section 3.1(2) of the MAI specifically provides that statutory benefits are payable (except as otherwise provided in this Part) whether or not the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle, or even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.
17. Within section 3.1(2) of the MAI Act lies the relevant discrimen: a cause of action for damages denotes a tort, namely, that the negligence of another has caused damage for which damages are available at law. Statutory benefits are a creature of the MAI Act and do not fall within the definition of a “cause of action for damages” per se, as they are paid indiscriminately to tortfeasors and those to whom tortfeasors are liable alike. Therefore, a claim for statutory benefits does fall within the definition of a “cause of action for damages” as contemplated by section 50A of the Limitation Act and, in those circumstances, section 50F, which arises for consideration in the application of Division 6 of Part 2 of the Limitation Act, cannot have any application to a claim for statutory benefits. Section 3.40 of the MAI Act makes that distinction: If a claimant recovers 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 then, the claimant ceases to be entitled to any further statutory benefits under Division 3.3, and the amount of any statutory benefits already paid under Division 3.3 in respect of the injury concerned is to be deducted from the damages and is to be paid to the person who paid the statutory benefits.
18. I advised the claimant of the effect of this statutory interpretation at the preliminary teleconference in this matter.  I deferred handing down my decision until such time as I could consider the effect of relevant COVID-19 regulations, promulgated by reason of the public health emergency restrictions by the COVID-19 pandemic, on the extension of time to make applications.
19. I have had occasion to consider those health orders and regulations.

20.Relevantly, the Interpretation Act 1987 (NSW) was modified to include Part 12, which provided special provisions for the COVID-19 pandemic. In particular, the Limitation Act included s 85, which provided a regulation making power to modify or suspend limitation and other statutory time periods. It permitted a circumstance where, either pursuant to the Interpretation Act or the Act containing the limitation period, a regulation making power which modified or suspended the period under the Act in which a certain thing needed to be done.  Indeed, s 6.13 of the MAI Act provides that the regulations may amend the time in which a claim for statutory benefits may be made: s 6.13(1) of the MAI Act.  Conversely, s 6.13(2) of the MAI Act does not make a similar provision with respect to the operation of the regulations.  I have searched the NSW Legislation public health orders and regulations made with respect to the COVID-19 pandemic.  I am unable to locate any regulation which otherwise extends the time in s 6.13(1) or 6.13(2) of the MAI Act.

21.Accordingly, the claimant is not entitled to be paid statutory benefits before the date of lodging his claim on 2 November 2021. 

Costs and Disbursements

22.As the claimant is self-represented, he is not entitled to costs, so I make no direction with respect to costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

23.For the purposes of section 6.12 of the MAI Act notice of the claim has been given on 2 November 2021.

24.For the purposes of section 6.13 of the MAI Act the insurer is to refuse payment of weekly payments of statutory benefits from the date of the accident until 2 November 2021.

25.Effective Date: This determination takes effect on 2 November 2021.

26.Legal Costs: The claimant is self-represented and not entitled to costs.

Legislation

27.In making my decision I have considered the following legislation and guidelines:

• MAI Act

•  Motor Accident Injuries Regulation 2017

• Limitation Act 1969 (NSW)

•Motor Accident Compensation Act 1999 (NSW)