Wright v AAI Limited t/as GIO
[2022] NSWPIC 401
•1 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wright v AAI Limited t/as GIO [2022] NSWPIC 401 |
| CLAIMANT: | Jake Curtis Wright |
| INSURER: | AAI Limited trading as GIO |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 1 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.13(2); statutory weekly payments; statutory interpretation; no discretion; the claimant was injured in a motor cycle accident on 26 January 2022; claim for statutory benefits made on 25 February 2022; claim not made within 28 days of date of accident; no entitlement to statutory weekly payments before 25 February 2022; claimant asked for discretion to be exercised in his favour; Held – no room for statutory interpretation; no discretion; if claim not made within 28 days of accident no entitlement to weekly statutory payments before claim made; decision of insurer upheld. |
| DETERMINATIONS MADE: | Issued under section 7.36(5) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of section 6.13(2) the insurer is entitled to refuse payment of weekly payments of statutory benefits 2. A brief statement of my reasons for this determination are attached to this certificate. |
REASONS FOR DECISION
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
Jack Wright (the claimant) sustained injury in a motorcycle accident on 26 January 2022 (the accident). He sustained a fracture to the right clavicle, bruised ribs and a sore neck. He was conveyed to Maitland Hospital and underwent surgery at Gosford Private Hospital.
At the time of the accident the claimant was working with Bis Industries Limited. His pre-accident weekly earnings were $2,648.31.
AAI Limited trading as GIO is the insurer liable to pay statutory benefits under the Motor Accident Injuries Act, 2017 (MAI Act).
The claimant lodged an Application for Personal Injury Benefits with the insurer on 25 February 2022.
The insurer acknowledged receipt of the Application by letter dated 2 March 2022.
In a letter dated 15 March 2022 the insurer advised the claimant that weekly payment of statutory benefits would commence from 25 February 2021 being the date the claimant lodged the Application for Personal Injury Benefits.
The claimant sought an internal review of the insurer’s decision on 16 March 2022.
On 23 March 2022 the insurer issued an internal review decision affirming the earlier decision.
The claimant lodged an application in respect of the Miscellaneous Claims Dispute with the Personal Injury Commission (the Commission) on 6 May 2022 although the application was not registered until 16 May 2022.
I am satisfied that it is appropriate to determine the matter on the papers.
RELEVANT LEGISLATION
Section 6.13 of the MAI Act is in the following terms:
(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%.
(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.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and any further information provided by the parties.
SUBMISSIONS
Claimant’s submissions
In his application the claimant asserted the decision to decline his entitlement to receive statutory benefits for the period 26 January 2022 to 25 February 2022 was unfair and unreasonable where his application was only two days out of time. Mr Wright indicated he was not aware of his entitlement to bring a compulsory third party claim, where he was at fault for the accident, until 25 February 2022. As soon as he was given that advice, he took steps to lodge his claim the same day. He asked that I exercise my discretion and extend the time frame for lodgement of the claim.
Insurer’s submissions
The insurer provided submissions referring to a clear line of authority that the wording of s 6.13(2) is unambiguous and no discretion to extend time exists.
Those decisions are as follows:
· Palisi v AAI Limited t/as GIO [2021] NSWPIC 480;
· AAS v NRMA Ltd [2021] NSWPICMR 11;
· AMR v AAI Limited (GIO) (Claims Assessment) [2020] NSWSIRADRS 128;
· AOG v GIO (Claims Assessment) [2020] NSWSIRADRS 174;
· AMJ v AAMI Insurance Ltd (Claims Assessment) [2020] NSWSIRADRS 119;
· ALP v GIO Insurance (Claims Assessment) [2020] NSWSIRADRS 99;
· AKU v QBE (Claims Assessment) [2020] NSWSIRADRS 76;
· AHT v AAI Ltd t/as GIO (Claims Assessment) [2019] NSWSIRADRS 207;
· AFQ v GIO Insurance [2019] NSWDRS CA 143;
· AEU v NRMA Insurance (Claims Assessment) [2019] NSWSIRADRS 124;
· ACD v GIO General Limited [2018] NSWDRS CA 056, and
· ABW v GIO Insurance Ltd [2018] NSWDRS CA 049.
The insurer submitted it understood the decision in ABB v GIO General Ltd (Claims Assessment) [2018] NSWSIRADRS 28 (16 October 2018) (ABB) is the only decision where it has been held that s 50F of the Limitation Act 1969 (LA) may be applied to extend the time prescribed by s 6.13(2) where an injured person could show that they were incapacitated for a continuous period of 28 days or more while they were not a protected person.
However, the insurer noted in ABB, the Member adopted a construction of the word ‘damages’ contained in s 50A of the LA to include a claim for statutory benefits under the MAI Act on the basis damages ‘would include payment for loss of income, as statutory benefits are designed to do, in a modified form’. However, the Member’s construction in ABB failed to have regard to the meaning of ‘damages’ in its context.
The modern approach to statutory construction was summarised by Brennan CJ at [69] in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28:
“. . . the process of construction must always begin by examining the context of the provision that is being construed”.
The insurer noted the approach taken by the Member in AMJ v AAMI Insurance Ltd (Claims Assessment) [2020] NSWSIRADRS 119 (AMJ) is consistent with the approach described by Brennan CJ and ought to be preferred. Having considered the meaning of ‘damages’ in its context of the phrase ‘a cause of action for damages’, the Member was not persuaded that ‘a cause of action for damages’ extended to a claim for statutory benefits which by operation of s 3.1(2) includes a claim by an injured person against themselves.
The insurer also referred to the recent decision of Member Plibersek in Kennedy v GIO Insurance (Australia) Ltd [2022] NSWPIC 62 where he came to the same conclusion as the Member in AMJ noting:
· that the words used in s 6.13(2) are clear;
· no ambiguity arises in s 6.13(2) requiring the Member to resort to the rules of statutory interpretation and the Interpretation Act 1987, and
· section 50F of the Limitation Act 1969 does not apply because the claim is one for statutory benefits which is not an ‘action’.
TELECONFERENCE ON 30 JUNE 2022
I conducted a teleconference with Mr Jake Wright, his mother Ms Tracey Wright and Mr Ian Izzard on behalf of the insurer on 30 June 2022.
Fortunately, I was informed Mr Wright has made a good recovery.
I explained to the claimant that there was no discretion under the legislation for me to extend the time for lodgement of the claim for statutory benefits. I informed Mr Wright that in all likelihood I would have been prepared to extend the time frame if the discretion to do so was available.
REASONS
I agree with the current line of authority that there is no room for statutory interpretation. Section 6.13(2) makes it clear there is no entitlement to payment of statutory benefits for any period before the claim is made if the claim is not made within 28 days of the date of the motor accident.
Indeed, the intention of the legislature is clear, particularly when compared to the wording of s 6.13(3) which does allow the exercise of a discretion to permit a claim to proceed where the claim was not made within three months after the date of the accident. If the legislature had intended to grant a discretion to extend the time for making the claim to allow payment of statutory benefits from the date of accident it would have said so, in similar terms to the provision found in s 6.13(3).
The MAI Act provides a very clear distinction between statutory benefits under Part 3 and an award of damages under Part 4. Section 1.4 of the MAI Act defines statutory benefits as benefits payable under Part 3 of the MAI Act whilst damages is defined to mean 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.
Whilst the impact of s 6.13(2) might seem harsh or arbitrary it is clear it is not discretionary. Where the claim for statutory benefits was not made within 28 days after the date of the motor accident the claimant is not entitled to receive weekly payments of statutory benefits for the period before the claim was made.
CONCLUSION
In accordance with s 6.13(2) of the MAI Act the insurer is not required to pay weekly payments of statutory benefits for the period before the claim was made, that is, before 25 February 2022.
The claimant is not legally represented so there is no order for costs.
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