|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Statutory benefits - statutory benefits time limits - back payments - late claim - misinformation from property insurer|
|Legislation cited||Motor 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 cited||AQO v Minister fro Finance and Services  NSWCA 248|
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
|Parties||ABW - Claimant|
GIO Insurance Ltd - Insurer
|Disclaimer||This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.|
Miscellaneous Claims Assessment 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
|Insurer||AAI Limited trading as GIO|
|Date of Accident||6 July 2018|
|Insurer Claim Number||Y05837900101|
|Date of Internal Review||6 September 2018|
|DRS Decision Maker||Claims Assessor Terence STERN|
|Date of Decision||29 November 2018|
|Conference date and time||Not applicable|
|Conference venue and location||Not applicable - decided on the papers|
|Participating at the Preliminary Conference for Claimant||Alex Lopes of Slater & Gordon|
|Participating at the Preliminary Conference for Insurer||Patrick 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.
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
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.
8. Whether the Claimant is entitled to payment of weekly payments of statutory benefits from the date of the accident until 22 August 2018.
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:
1.11 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:
15. s 6.13 of the Motor Accidents Injuries Act 2017 (NSW) provides:
(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):
18. Clause 1.3 (4) provides:
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  NSWCA 248 it was said that:
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  referring to Cunneen:
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.
Dispute Resolution Service
29 November 2018