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ABB v GIO General Ltd [2018] NSWDRS CA 028

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWeekly payments – time limit to make a claim – liability beyond 26 weeks – claims lodged outside time limit - second reading speech
Legislation CitedMotor Accidents Injury Act (NSW) ss 1.3, 6.13, 7.36(4), Schedule 2(3)(k)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.445
Limitation Act 1969 s 50A, 50F
Interpretation Act 1987 s 33, 34
Cases CitedN/A
Text CitedN/A
Parties ABB - Claimant
GIO General Ltd - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3)(k) of the Act to be a miscellaneous claims assessment matter

ClaimantABB
InsurerGIO
Date of Accident25 March 2018
DRS Reference10041096
Insurer Claim NumberY056389003
Date of Internal Review20 July 2018
DRS Decision MakerPhilip Watson
Date of Decision16 October 2018

The findings of the assessment of this dispute are as follows:

  1. For the purposes of section 6.13 the insurer is not entitled to refuse payment of weekly payments of statutory benefits.
  2. Effective Date: This determination takes effect on 16 October 2018.

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

Philip Watson
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Services

Reasons for decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(k) of the Motor Accident Injuries Act 2017, about whether the Insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with section 6.13.

1. This is a dispute between the Claimant, ABB, and the Insurer, GIO, in respect of the date of commencement of weekly statutory benefits, under section 6.13 of the Motor Accident Injuries Act 2017 (“the Act”).

2.  The Claimant was injured in a motorcycle accident at Yass on 25 March 2018.  According to his statement, he collided with the rear of a ten tonne truck and as a result was thrown some six metres into the air and then landed on the road, fracturing his pelvis and sacrum.  He also suffered injuries to his left leg and according to the Hospital records has also suffered nerve damage to his back, right leg and foot.

3.  The Claimant was airlifted by helicopter to the Canberra Hospital where he underwent multiple surgeries for his injuries, as a result of which he was heavily sedated and he remained in that Hospital until 5 April 2018.  Those surgeries included the insertion of two titanium rods into his pelvis and three screws to repair the hamstring muscle in his left leg.  He was then transferred by Ambulance to Campbelltown Hospital where he remained until 14 April 2018.  He was then transferred to Camden Hospital where he remained until 30 April 2018.  He then returned to Campbelltown Hospital and was finally discharged on 8 May 2018, 44 days after his accident.

4.  The Claimant says that for six and a half weeks he was completely bedridden and finally allowed to sit upright at a 30 degree angle.  The Claimant says that now, almost six months after the accident, he is still recovering from his injuries and undergoing physiotherapy.

5.  The Claimant says that he was unaware of his right to make a claim for statutory benefits and only became aware when he received invoices for his admission to Canberra Hospital and enclosed therewith was a letter advising that he should claim through his CTP insurer.  He says he was not advised by any of the Hospitals, nor anyone else, about his ability to make such a claim, nor the time limit for so doing.

6.  At the time of the accident, the Claimant was employed as a truck driver and he has not been able to return to employment since his accident.

7.  The Claimant has been assisted in this claim by his sister, Ms KH, and it was she who contacted the accounts department of Canberra Hospital on 14 May 2018 to enquire about the lodgement of the CTP claim in New South Wales.  She was referred to the Roads and Maritime Service, ascertained that GIO was the relevant Insurer and she was provided a phone number to contact.  The Insurer agrees that first contact was made on 14 May 2018.  The Claimant subsequently completed an Application for Personal Injury Benefits on 24 May 2018 and this was lodged with the Insurer on 14 June 2018.

8.  On 5 July 2018, the Insurer wrote to the Claimant advising that it had accepted liability for his statutory benefit claim up to 26 weeks from the date of accident.  That letter further advised that weekly entitlements would begin from 14 June 2018.

9.  The Claimant was dissatisfied with that decision and lodged an Application for Internal Review with the Insurer seeking that his weekly payments commence as and from the date of the accident.  The Insurer considered this application by way of internal review and issued its Internal Review Decision on 20 July 2018.

10.  In that decision the Insurer confirmed its original decision that weekly statutory benefits would begin from 14 June 2018.  The Insurer indicated that the Claimant was not entitled to any back payment of weekly statutory benefits to the date of the accident.

11.  In that decision, the Insurer accepted that the Claimant had suffered multiple injuries and had not been discharged from Hospital until 8 May 2018.  The Insurer also accepted that the Claimant did not have any knowledge of the CTP Scheme nor how to lodge a claim.  It further acknowledged that the Claimant had not been advised of this in any of the Hospitals that he had attended.

12.  I note that since the introduction of the Act, hospitals in New South Wales have been advised to assist persons admitted after motor vehicle accidents to lodge a claim for personal injury benefits.  Unfortunately this did not occur with the Claimant, because he was immediately transferred to Canberra Hospital in the Australian Capital Territory, where the Act does not have application.  I accept, as the Insurer has, that the Claimant was similarly not advised when later transferred to hospitals in New South Wales.

13.  The Insurer however referred to section 6.13 of the Act (to which I will refer) and submitted that, pursuant to section 6.13(2), payments of statutory benefits could not be made from the date of the accident, as the claim had been made more than 28 days after the accident.  In so doing, the Insurer, in its decision, said “Unfortunately, there does not appear to be scope for the Insurer to exercise discretion”.

14.  The Claimant, being again dissatisfied with that decision, lodged this application on 1 August 2018.  The matter was allocated to me to assess and I held teleconferences with the parties on 26 September 2018 and 9 October 2018.

15.  As the dispute has not been able to be resolved between the parties, the matter requires a determination.

Documents considered

16. I have considered the documents provided in the Application and the Reply and all further information provided by the parties.

17.  The Claimant included with his Application the Insurer’s Review Decision, his written submissions, his Application for Personal Injury Benefits and various hospital records and accounts.

18.  The Insurer included with its Reply its submissions, copies of its decisions, correspondence between it and Ms KH, the Application for Personal Injury Benefits, Certificate of Fitness and further correspondence.

19.  Following the first teleconference I received from the Claimant his handwritten statement and a typed statement from Ms KH.  The Insurer also made further written submissions.

Submissions

20.  The Claimant’s initial submissions referred to the circumstances of the accident and his hospitalisation.  The submissions then indicated the grounds upon which the Claimant sought a review.

21.  The Claimant submitted that he was never advised that he could make a claim with his CTP Insurance and that he did not have a GP at the time of the accident with whom he could have the forms completed.  He submitted that his physical capacity was impacted due to the serious nature of his injuries and that he had had no income since 25 March 2018.

22.  He further submitted that he had not been eligible to receive any Centrelink benefits.

23.  He submitted that he was not advised by the staff at any of the hospitals where he was admitted about his ability to make a claim and that he was not initially advised that he was already late in the lodgement of his claim.  He submitted that his limited capacity due to his injuries should be taken into consideration.  He noted that the Insurer had advised him that it could not exercise any discretion to back date his payments.

24.  In the subsequent statements from the Claimant and his sister, it was noted that the Claimant was physically incapacitated, unable to move and completely bedridden for the first seven weeks of hospitalisation as a result of his injuries.  It was also noted that he was mentally incapacitated, as he was heavily sedated and medicated because of the severity of his injuries.  Ms KH says that it was evident early on that the Claimant had no capacity to make any decision regarding his affairs and so she has been assisting him.

25.  The Insurer’s written submissions with its Reply accepted that the Claimant was not discharged from hospital until 8 May 2018 and did not have any knowledge of the CTP Scheme.

26.  The Insurer again referred to section 16.13(2) of the Act and submitted that as the Claimant had lodged his claim outside the timeframe provided in that sub-section, that payments of weekly statutory benefits were not payable in respect of any period before the claim was made.  It submitted that it had no discretion in this regard.

27.  The Insurer however submitted that it was prepared to accept that notice of the claim had been made when first contact was made with it, this being 14 May 2018.  It submitted that the Claimant would be entitled to weekly payments of statutory benefits from 14 May 2018 but not prior thereto.

28.  At the first teleconference on 26 September 2018, I drew the Insurer’s attention to the provisions of section 50F of the Limitation Act, 1969.  I will refer to this further.  I asked the Insurer to consider whether the provisions of that Act had application in these circumstances.

29.  I received the Insurer’s supplementary submissions on 4 October 2018.  Those submissions confirmed that the Insurer did not dispute that the Claimant was incapacitated for a substantial period after the accident.  As to the application of the Limitation Act, the Insurer submitted that the legislators never intended for section 50F of that Act to apply in personal injury matters subject to their own Acts.  It noted the exclusion in the Limitation Act to a cause of action under the Motor Accidents Compensation Act, 1999.

30.  It further submitted that the Limitation Act 1969 has just not yet been amended to reflect the new legislation, meaning the Motor Accident Injuries Act 2017.

Legislation

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

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017
  • Limitation Act 1969
  • Interpretation Act 1987

Reasons

32.  I have considered all of the documents provided in the Application and Reply and the further information and submissions provided by the parties.  The Motor Accident Injuries Act 2017, introduced for the first time a regime of statutory benefits for weekly payments for loss of income and treatment expenses for all persons injured in motor accidents in New South Wales, with some minor exceptions.  Those exceptions are not relevant here.

33.  It was in respect of those benefits that the Claimant lodged his Application for Personal Injury Benefits.  As I have noted, the Insurer says that it is unable to make weekly payments of statutory benefits prior to 14 May 2018 when the Claimant first made his claim.  It refers in this regard to section 6.13(2) of the Act.

34.  Section 6.13 of the Act is in the following terms:

“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 date 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%.”

35.  The Insurer says that the provisions of section 6.13(2) are clear and it is unable to make weekly payments of statutory benefits in respect of any period before the claim is made, as the Claimant’s claim was not made within 28 days after the accident.  That is certainly the effect of that subsection, standing alone.  However further consideration is required.

36.  Section 33 of the Interpretation Act, 1987 is in the following terms:

“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule, or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object”.

37.  Section 34 of the Interpretation Act 1987 provides for the consideration of extrinsic material in the interpretation of Acts and statutory rules including, relevantly, any explanatory note or memorandum relating to the Bill for the Act or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made.  Consideration may also be had to the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or a member of a motion that the Bill for the Act be read a second time in that House (section 34(2)(e) and (f)).

38.  The objects of the Act are set out in section 1.3.  These include, relevantly:

“1.3(1)   This Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents.

(2)  For that purpose, the objects of this Act are as follows:

.......
(b)  to provide early and ongoing financial support for persons injured in motor accidents.
……

(4)  In the interpretation of a provision of this Act or the Regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects”.

39.  Sections 3.6 and following provide that an earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits.  There is no dispute here that the Claimant was an earner and has such an entitlement.

40.  The only issue is whether section 50F of the Limitation Act 1969 has application in these circumstances to extend time and provides an entitlement for the Claimant to weekly payments of statutory benefits from the date of the accident on 25 March 2018 to 14 May 2018.

41.  Section 50F of the Limitation Act 1969 is relevantly in the following terms:

“50F  EFFECT OF DISABILITY ON LIMITATION PERIOD

(1)  If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability.

(2)  A person is

“under a disability” while the person:

(a)  is a minor, but not while the minor has a capable parent or guardian, or

(b)  is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person.

(3)  In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person.

(4)  In this section:

“…….

incapacitated person” means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of the action in respect of the limitation period for which the question arises, by reason of:

(a)  any disease or any impairment of his or her physical or mental condition,

…….”

42.  The Insurer does not dispute that the Claimant was incapacitated within the meaning of that section, in that he was incapable of or substantially impeded in the management of his affairs by reason of impairment of his physical or mental condition.  It is clear that the Claimant was an incapacitated person within the meaning of that section for a continuous period of 28 days or more and was therefore, for the purposes of that section, “under a disability”.

43.  Accordingly if the section has application, then the limitation period for the Claimant is suspended for the duration of the disability.  That would be at least until 8 May 2018.

44.  The Motor Accident Injuries Act 2017 contains no provision to ameliorate the effects of section 6.13(2).  In addition there appears to be no such provision in either the Motor Accident Injuries Regulation 2017 nor the Motor Accident Guidelines 2017.

45.  I have already made reference to the relevant objects of the Act as set out in section 1.3 of the Act.

46.  The Second Reading Speech for the Motor Accident Injuries Bill 2017 was delivered by the Minister for Finance, Services and Property, Mr Victor Dominello, on 9 March 2017.  In that Speech the Minister said, inter alia, “The NCTP (New Compulsory Third-Party) will give people injured in accidents fast access to statutory benefits in the form of weekly income support and medical treatment and care”.  He further said “NCTP will extend coverage by providing a six-month safety net for all at-fault drivers”.

47.  The Minister also said “Part 7 of the bill establishes a new and enhanced dispute resolution model.  If disputes do arise in a claim, this new model requires much more robust decision-making by insurers, and provides an independent dispute resolution service for disputes to be resolved independently, flexibly, fairly, cost-effectively and quickly”.

48.  That Second Reading Speech however made no reference to the limitation imposed by section 6.13 of the Act.  Neither did the Second Reading Speech by the Hon. David Clarke in the Legislative Council on 29 March 2017.

49.  The explanatory note to the Motor Accident Injuries Bill 2017 noted, amongst the Features of the new motor injuries scheme:

“(d)No-fault statutory benefits will be payable by insurers for motor accidents.  Statutory benefits will include weekly payments for loss of earnings, payment of treatment and care expenses and payment of funeral expenses.  Statutory benefits will be payable for loss of earnings or for treatment and care for up to six months after the motor accident regardless of fault”.

50.  As to Division 6.1, which contains section 6.13, the explanatory note said only:

“This Division deals with preliminary matters relating to Part 6, including the making of Motor Accident Guidelines by the Authority dealing with the handling of claims and the definition of an expression used in the Part”.

51.  As noted, there is no relevant provision within the Act, nor the Regulations and/or Guidelines made thereunder, which expressly exclude the application of the Limitation Act 1969.

52.  Section 50F of that Act is contained within Division 6, headed “Personal Injury Actions”.  Section 50A provides:

“(1)This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

…….

(3)  This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999”.

53.   The term “damages” is not defined within the Limitation Act.  As ordinarily understood, “damages” would include payment for loss of income, as statutory benefits are designed to do, in a modified form.

54.  The term “damages” is defined within the Act 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”.  Awards of damages are contained within Part 4 of the Act.  The definition makes it clear that those damages are separate to statutory benefits.  Not all persons entitled to statutory benefits are entitled to damages.

55.  I am satisfied that the definition of “damages” within the Act is in respect of those additional entitlements, as a term to define and differentiate such entitlements and claims from claims for statutory benefits.  However, it does not, in my view, restrict the term “damages” as contained within the Limitation Act.  It is clear that a claim for statutory benefits is a cause of action for damages that relate to the death of or personal injury to a person and is a claim brought under statute, namely the Act.

56.  That interpretation promotes the objects of the Act as noted in the Act itself, the explanatory note to the Bill and the Second Reading Speech by the Minister.

57.  The persons most likely to not be able to comply with section 6.13 of the Act, due to inability rather than inaction, are those most seriously injured.  Such persons would necessarily need to rely upon others to make a timely claim on their behalf or not be able to, as the Claimant here.  Noting the stated intention to provide early and ongoing financial support for persons injured in motor accidents, Parliament cannot, in my view, have intended that section 6.13 of the Act would preclude early financial support for those persons most seriously injured.  The amelioration is found within section 50F of the Limitation Act.

58.  The Insurer, as I have already noted, submits that the legislator never intended for section 50F of the Limitation Act 1969 to apply in personal injury matters subject to their own Acts.  As I have noted, I can find no reference in the Act, Regulations or Guidelines which would exclude the application of the Limitation Act to statutory benefits.  Section 6.32 of the Act provides that the Limitation Act does not apply to or in respect of proceedings in respect of a claim, being court proceedings on claims for damages.  There is no similar restriction within the Act in respect of the application of the Limitation Act in regard to claims for statutory benefits.  The Insurer has not referred me to any other extrinsic material which would limit its application.

59.  The Insurer further submitted that the Limitation Act 1969 has just not yet been amended to reflect the new legislation.  It made this submission because of the exclusion of the provisions of the Limitation Act 1969 to a cause of action on a claim under the Motor Accidents Compensation Act 1999.  Again, the Insurer has not referred me to any extrinsic material in support of that submission.  I note however that the Motor Accidents Compensation Act 1999 did not contain any provision for statutory benefits nor a provision in equivalent terms to section 6.13(2).

60.  I have noted the provisions of section 33 and 34 of the Interpretation Act providing for regard to be had to the objects of the Act and extrinsic material.  I have referred to these above.

61.  As I have stated, one of the objects of the Act is to provide early and ongoing financial support for persons injured in motor accidents (1.3(2)(b)).  Section 1.3(4) provides that a construction that promotes the objects of the Act is to be preferred.

62.  In my view, the proper construction of section 6.13 of the Act is that it is subject to the provisions of section 50F of the Limitation Act 1969.  Neither that Act nor the Act excludes its operation for a claim for statutory benefits and the Claimant was clearly under a disability for a continuous period of 28 days or more so as to suspend the running of the limitation period provided in section 6.13.  The act is beneficial legislation and should be interpreted beneficially.

63.  This interpretation promotes the object of the Act to provide early and ongoing financial support for persons injured in motor accidents and for a flexible and fair resolution of this dispute, as referred to by the Minister in his Second Reading Speech, noted above.

Conclusion

My determination of the Miscellaneous Claim is as follows:

64.  For the purposes of section 6.13 the insurer is not entitled to refuse payment of weekly payments of statutory benefits between 25 March 2018 and 14 May 2018.

65.  Effective Date: This determination takes effect on 16 October 2018

Philip Watson
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Service