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ABW v GIO Insurance Ltd [2018] NSWDRS CA 049

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits - statutory benefits time limits - back payments - late claim - misinformation from property insurer
Legislation citedMotor Accidents Injury Act (NSW) s 1.3(2)(b), 1.3(4), 6.13
Motor Accident Injuries Regulation 2017
Interpretation Act 1987 (NSW) s 33
Cases citedAQO v Minister fro Finance and Services [2016] NSWCA 248
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Text citedN/A
Parties ABW - Claimant
GIO Insurance Ltd - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

ABW Certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

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

ClaimantABW
InsurerAAI Limited trading as GIO
Date of Accident6 July 2018
DRS Reference10052366
Insurer Claim NumberY05837900101
Date of Internal Review6 September 2018 
DRS Decision MakerClaims Assessor Terence STERN
Date of Decision29 November 2018
Conference date and timeNot applicable
Conference venue and locationNot applicable - decided on the papers
Participating at the Preliminary Conference for ClaimantAlex Lopes of Slater & Gordon
Participating at the Preliminary Conference for InsurerPatrick Jagoszewski of Suncorp

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

1.  That pursuant to 6.13 (2) of the Motor Accidents Injury Act 2017 (NSW) the Claimant is not entitled to receipt of payment of statutory benefits in respect of the period between the date of the accident and the date the claim was made namely between 6 July 2018 and 22 August 2018.

2.  The Claimant’s legal costs to be paid by the Insurer are assessed at $1,760.00    inclusive of GST.

Terence Stern
Claims Assessor
Dispute Resolution Services
Dated: 29 November 2018

REASONS FOR DECISION

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

INTRODUCTION

1. The Claimant was involved in a motor vehicle accident on 6 July2018.

2. As a result of what the Claimant alleges to be misinformation provided to him by Allianz Australia Limited (‘Allianz’) on or about 16 July 2018 he did not lodge his claim with the CTP Insurer in time.

3. Allianz was the property Insurer not the CTP Insurer.

4. The Claimant alleges that on 16 July 2018 Allianz advised him that loss of income and medical expenses would be covered by it.

5. The Claimant alleges that he only became aware of the fact that Allianz was the property Insurer and would not cover his loss of income and medical expenses on or about 20 August 2018 when as a result of an enquiry made by his physiotherapist, he was informed that he would need to lodge a claim for medical treatment and therapy with the CTP Insurer GIO Insurance.

6. On 29 August 2018 GIO confirmed acceptance of liability for statutory benefits up to 26 weeks from the date of the accident to 4 January 2019 with the first payment to be made for the period commencing on 22 August 2018 of $1,787.37.

7. The Claimant applied for an internal review and on 6 September 2018 the reviewer decided that the decision of the claims team should be affirmed and that weekly statutory benefits would commence from 22 August 2018.  Further, the Claimant was informed that he was not entitled to back payment of weekly statutory benefits between the date of the accident and 22 August 2018.

THE ISSUES

8. Whether the Claimant is entitled to payment of weekly payments of statutory benefits from the date of the accident until 22 August 2018.

DOCUMENTS CONSIDERED

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

SUBMISSIONS BY THE CLAIMANT

10. The Claimant made submissions by letter from Slater & Gordon of 14 November 2018 which I briefly summarise:

1.1  MVA 6 July 18
1.2  claim by Insurer on Allianz on 11 July 18
1.3  Claimant spoke to Allianz on 16 July 18
1.4  Claimant told his loss of income and expenses would be covered
1.5  not aware he had to lodge a claim with GIO
1.6  20 August 18 physiotherapy session lead to lodgement of claim form
1.7  Claimant immediately contacted GIO and alleges he was advised that his loss of income would be covered from the date of the accident
1.8  22 August 18 lodged claim form
1.9  advised that he would not be paid prior to 22 August 18
1.10  Claimant alleges that he was mislead by Allianz and GIO

1.11  only reason he did not lodge a claim form on time was due to incorrect information

11. The submission goes on to argue that the correct interpretation of 6.13 (2) must take into account the objects of the Act and must promote those objects.

12. The submission continues that the interpretation contended for by the Insurer is unfair and unjust.

13. Further the submission is that pursuant to 1.3(4) the Insurer can exercise a discretion and further objects of the Act.

SUBMISSIONS BY THE INSURER

14. The Insurer made a submission on 21 November 2018 which I briefly summarise:

(i) 6.13(2) is prescriptive
(ii) the Claimant is not entitled to back payments
(iii) the interpretation of the Claimant is incorrect

LEGISLATION

15. s 6.13 of the Motor Accidents Injuries Act 2017 (NSW) provides:

(1) a claim for statutory benefits must be made within 3 months after the date of  the motor accident to which the claim relates…..

(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

THE INTERPRETATION OF 6.13.(1)

16. The statutory context of the Act is relevant and it is necessary to take into account the primary objects of the Act in arriving at the proper interpretation of 6.13.(1) and (2).

17. The objects are set out relevantly in 1.3 (2) (b):

‘……to provide early and ongoing financial support for persons injured in motor accidents’.

18. Clause 1.3 (4) provides:

‘In the interpretation of a provision of this Act……a construction that would promote the object of thisAct or the provision is to be preferred to a construction that would not promote those objects’

19. s 33 of the Interpretation Act 1987 (New South Wales) provides that in the interpretation of a provision of an Act a construction that would promote the purpose to object is to be preferred to an interpretation that would not do so.

20. In  AQO v Minster for Finance and Services [2016] NSWCA 248 it was said that:

[73]‘The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. The exercise must begin with a consideration of the text…….’

21. A legislative instrument is to be construed on the basis prima facie that its provisions are intended to give effect to harmonious goals.  When the conflict appears to arise from the language of the provision the conflict is to be alleviated by adjusting the meaning of the competing provision to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [cited at 73] from Project Blue Sky case.

22. At [75] referring to Cunneen:

[75] ‘The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words and not merely at some later stage when ambiguity might be thought to arise’.

DISPOSITION

23. The language of 6.13.1 and 2 is crystal clear. There is no room for competing interpretations, no ambiguity and no lack of clarity.

24. This is not the sort of situation where an interpretation can be affected by the context including the objects of the legislation.

25. In effect if there are two competing constructions which could reasonably be given to the language of the Act it is imperative to take the context including the objects into account.

26. The interpretation of the Insurer is correct and the decision of the internal review was correct.

COSTS AND DISBURSEMENTS

27. The Motor Accident Injuries Regulation 2017 provides at Schedule 1, Part 1 (3) (1) for the maximum sum of $1,600.00 for both the Claimant and Insurer’s legal costs for an individual regulated miscellaneous claims assessment matter.  Schedule 1, Part 3(2)(3) lists the dispute before me as a regulated miscellaneous claims assessment matter.

28. Section 7.42 provides that in assessing such a dispute, subdivision 2 applies. Section 7.37 is in subdivision 2 and provides that I have power to assess a Claimant’s costs (when assessing a claim for damages).  I am proceeding on the basis that this section also gives me jurisdiction to assess the Claimant’s costs (but not the Insurer’s costs) in a miscellaneous claims assessment matter.

29. I am satisfied that the Claimant is entitled to the payment of legal costs. I allow the Claimant’s costs at $1,600.00 to which GST is added (under cl 35 of the Regulation) making the total awarded for costs $1,760.00 inclusive of GST.

Terence Stern
Claims Assessor
Dispute Resolution Service
29 November 2018