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AEU v NRMA Insurance [2019] NSWDRS CA 124

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Statutory benefits – weekly payments – no discretion to extend the time period – entitled to refuse payments – legal costs

Legislation cited:

  • Limitation Act 1969
  • Motor Accident Injuries Act 2017 (NSW) ss 6.13, 7.36, Schedule 2
  • Motor Accident Injuries Regulation 2017 Schedule 1 Part 1 s 3 & Part 6 s 22
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • AEU – claimant
  • NRMA Insurance – insurer

Disclaimer: This 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 section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines

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

ClaimantAEU
InsurerNRMA Insurance 
Date of Accident23 June 2018
DRS Reference10095551
Date of Internal Review17 April 2019
DRS Claims AssessorHelen K Wall
Date of Decision11 June 2019
Conference date and timeTeleconferences on 3 June 2019 at 9:00am and 11 June 2019 at 9:30am
Attendances for ClaimantMr Chris Long of Messrs PK Simpson Compensation Lawyers 
Attendances for InsurerMs Mei Khoo of NRMA Insurance

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

1.  For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits in respect of the period from the date of the accident to the date the claim was made.

2.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $NIL.

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

Helen K. Wall
Decision Maker
Dispute Resolution Service

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 weekly payments in accordance with s6.13.

1.  Section 6.13(2) requires a claim form for statutory benefits to be made within 28 days of the accident.

2.  It is common ground that in the present claim the accident occurred on 23 June 2018 and the claim was made on 18 September 2018.

3.  The Insurer submits that there is no discretion to extend the time for making of the claim.

4.  The Insurer denied liability for weekly payments by decision dated 17 October 2018 and confirmed this in an Internal Review Certificate dated 17 April 2019.

Documents considered

5. I have considered the Application and the Reply and have had two telephone conferences with the parties. Following the first telephone conference the Insurer provided correspondence dated 4 June 2019 noting as follows:

“Further to the recent PC yesterday, I have now had the opportunity to obtain further instructions.
I am instructed to advise that the Insurer’s position is maintained.”

6. A further telephone conference was held on 11 June 2019 and neither party had anything further to submit.

Submissions

7. The Claimant’s solicitor concedes that there is no discretion in section 6.13(2). The Claimant through his solicitor expressed disappointment at having been asked to provide a Statement for his late lodging of the claim, by the Insurer, which he attended to.

8. I have noted the lengthy Statement of the Claimant, but the Insurer freely submits that I have no discretion.

9. The Insurer’s submission is that there is no discretion to extend the time period of 28 days in section 6.13(2).

Legislation

10. In making my decision/conducting my review 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.

Reasons

11. I have considered the documents provided in the application and the reply and further information between the parties at the telephone conference.

Conclusion

12.  I am satisfied that the Claim for statutory benefits was not made within 28 days of the accident. I find the Insurer is entitled to refuse payments for statutory benefits from the date of the accident to the date the claim was made that is 18 September 2018.

Costs and disbursements

13. As the Claimant has been unsuccessful in this application, I decline to award costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

14. For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits from the date of the accident 23 June 2018.

15. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $NIL.

Helen K. Wall
Decision Maker
Dispute Resolution Services