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AAM v NRMA Insurance Ltd [2018] NSWDRS MR 013

Jurisdiction: Merit reviews

Catchwords: Verification of expenses – claimant’s legal costs – legal services for merit review - reasonable and necessary travel expenses

Legislation cited:

Motor Accident Injuries Act 2017 (NSW) ss 3.24, 7.13, 8.10, Schedule 2(1)

Motor Accident Guidelines 2017 cl 7.441

Motor Accident Injuries Regulation 2017 (NSW) reg 23, 24, Schedule 1

Parties:

  • AAM – claimant
  • NRMA Insurance Ltd – insurer

Disclaimer: This decision has been edited to remove Unique Personal Identification information including the name of the Claimant.

Merit Review Certificate

View the certificate

Issued under section 7.13(4) of the Motor Accident Injuries Act 2017

The Claim
ClaimantAAM
InsurerNRMA Insurance
Claim NumberNWRTP180022601
The Reviewable Decision
Reviewable decision‐makerSamuel Flood
Date of Reviewable decision22 May 2018
Nature of Reviewable decision

Verification of expenses

The Merit Review
Our Reference10038148
Merit ReviewerRachel Brittliff
Date of this Certificate13 September 2018

Merit Reviewer’s Determination

This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(k) of the Motor Accident Injuries Act 2017 (“the Act”), about verification of expenses. This determination is in relation to the claimant’s costs in that matter.

My determination of the Merit Review is as follows:

  • Legal Costs: In accordance with section 8.10(3) of the Act, the Authority directs the Insurer to pay the claimants legal costs as detailed by the solicitor for up to 4.5 hours of legal services in relation to the application for merit review only.
  • In accordance with regulation 23 of the Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”), no costs are payable in respect of any legal services provided in the preparation of an application for internal review.

A brief statement of my reasons for this determination are attached to this certificate.

Rachel Brittliff
Merit Reviewer
Dispute Resolution Service

Reasons for decision

Background

1.   AAM referred a matter in relation to a claim for reasonable and necessary travel expenses under section 3.24(1)(b) of the Motor Accidents Injuries Act 2017 (“the Act”) to the Authority for determination.

2.   The Authority received AAM’s application for merit review on 6 July 2018. The Authority made a determination in relation to the application on 3 September 2018 and remitted the matter back to the Insurer to make conduct a correct verification of AAM’s expenses in accordance with the relevant provisions of the Act.

3.   AAM’s solicitors have lodged a dispute in relation to costs for the preparation of the merit review matter. The application in relation to costs is dated 6 September 2018.

Documents and information

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

Submissions

The following submissions are made on behalf of AAM by her legal representative:

  • The insurer failed to accept the request for an internal review.
  • The Insurer failed to accept our submissions and essentially forced the claimant to submit the matter to the only body that could adjudicate on the issue. Once that was done they the insurer then decided to accept the claim made and attend to payment.
  • It is submitted the insurers approach to this was unreasonable and has put the claimant to unnecessary expense.
  • Claimants generally can and are forced to refer matters to DRS to assist in determinations and will only do so when insurers do not take a reasonable approach to resolving disputes. This was such a case and therefore when the insurer took the position they did there was no other avenue for relief but to refer the matter to DRS. It is therefore appropriate that the claimant be awarded costs in her favour as her solicitors and the claimant were put to the expense of making the submissions.
  • They would request therefore that an order for costs be made as this matter has involved in excess of 4.5 hours of legal representations involving conferences, reviewing material and submissions .

5.   In reply the Insurer has submitted:

  • There is no reply from the Insurer.

Legislation

6.   In conducting my review I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Guidelines effective 13 July 2018 (“the Guidelines”)
  • Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”)

Reasons

Costs

7.   Section 8.10 of the Act entitles a claimant to recoup legal costs in certain circumstances as follows:

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.

(2) The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).

(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Dispute Resolution Service.

(4) The Dispute Resolution Service can permit payment of legal costs incurred by a claimant but only if satisfied that:

(a) the claimant is under a legal disability, or

(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.

8.   The Regulation does not restrict costs in relation to merit review matters regarding verification costs.

9.   Regulation 23 of the Regulation prohibits costs for applications for internal review, accordingly any such costs are excluded from this determination.

10.   Regulation 24 sets out excluded matters. Verification expenses is not an excluded matter.

11.   Schedule 1 of the Regulation sets out the maximum costs payable for certain merit review matters. Verification expenses is not subject to any restriction under Schedule 1 of the Regulation.

12.   I am satisfied that exceptional circumstances exist whereby AAM would be unable to recover costs from the Insurer without an order by the Authority in this matter. On that basis costs are awarded as set out above.

Legal Costs

13.   This determination relates to a merit review matter, which is a reviewable decision under Schedule 2(1)(k) of the Motor Accident Injuries Act 2017 (“the Act”), about verification of expenses. This determination is in relation to the claimant’s costs in that matter.

My determination of the Merit Review is as follows:

  • Legal Costs: In accordance with section 8.10(3) of the Act, the Authority directs the Insurer to pay the claimants legal costs as detailed by the solicitor for up to 4.5 hours of legal services in relation to the application for merit review only.
  • In accordance with regulation 23 of the Motor Accident Injuries Regulation 2017 (NSW) (“the Regulation”), no costs are payable in respect of any legal services provided in the preparation of an application for internal review.

Rachel Brittliff
Merit Reviewer
Dispute Resolution Service