AFQ v GIO Insurance [2019] NSWDRS CA 143

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction	Miscellaneous Claims Assessment
Catchwords	Statutory benefits claim – weekly benefits – application for personal injury benefits – time limit – limitation period – legal costs
Legislation cited	Motor Accident Injuries Act 2017 (NSW) ss 6.13(1), 6.13(2), 6.13(3), 6.32(5), Schedule 2(1)(f), Schedule 2(3)(h) & (k) Motor Accident Injuries Regulation 2017 Motor Accident Guidelines 7.441 Limitation Act 1969 ss 50A, 50F
Cases cited	N/A
Text cited	N/A
Parties	AFQ – Claimant GIO Insurance – Insurer
Disclaimer	This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

Reasons for decision

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

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 Claimant is entitled to weekly benefits in respect of any period prior to the date on which the claim was lodged in circumstances in which the Application for Personal Injury Benefits was not lodged within the 28 day period but the Claimant alleges that there is a proper explanation for the delay.

Background

1. I briefly summarise the facts chronologically:

7 October 2018	The Claimant was injured in a motor vehicle accident
27 October 2018	Date of Application for personal injury benefits
22 November 2018	Received by GIO Claims Team
7 February 2019	GIO advised that weekly benefits would be made from 22 November 2018 - the date of receipt of the Claim Form
22 February 2019	The Claimant lodged an Application for Internal Review arguing that he should be entitled to weekly benefits from the date of the accident and not from the date when the Claim Form was lodged as he was unfit for work from the date of the accident
4 April 2019	Internal Review Decision confirming the adverse decision of 7 February 2019

The materials considered

(i) Application for personal injury benefits

(ii) Insurer's reply

(iii) Application for Internal Review

(iv) Internal Review Decision

(v) Application to Dispute Resolution Service for Determination of a Miscellaneous Dispute

Submissions made on behalf of the Claimant

3. I briefly set out the following submissions made on behalf of the Claimant:

'6. That the reasons why the Claimant failed to lodge the Claim Form within the 28 day time limit was because of his physical incapacity and that in those circumstances the Insurer was not justified in refusing weekly payments and statutory benefits between the date of the accident and the date of the receipt of the Claim Form.

7. The Insurer bases its reasons on section 6.13(2) of the Act. The Claimant, however, submits that section 50(F) of the Limitation Act 1969 applies which provides :

'(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 during the duration of the disability.

(2) A person is under a disability while the person:

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

4. The submission for the Claimant is that, noting his ongoing physical and psychological injuries, he fell under the above definition.

5. The submission continues that the Claimant spent a number of weeks in hospital receiving extensive treatment, that he had never been involved in a claim of this nature previously, that he was unaware of the time limits and that he has not returned to work since the accident.

The Insurer submits

6. The Insurer submits in brief that the 28 day time limit is mandatory and that the Limitation Act and Section 50F of the Limitation Act does not apply.

Legislation

7. The MAI Act sets out the time for making claims for statutory benefits.

8. Clause 6.13 (2) provides:

'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'.

Consideration

9. Section 50 (F) of the Limitation Act 1969 refers to an 'incapacitated person' who in the Act is defined to mean:

'A person who is incapable of or substantially impeded in, the management of his or her affairs in relation to the cause of 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......'

10. Section 50 (F) provides:

'(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.

"Action " is defined as to include any proceeding in a court.'

11. Section 50A of the Limitation Act 1969 deals with the kinds of causes of action which are covered:

'(1) This division applies to a cause of action for damages that relates 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.'

12. Section 6.13 (2) of the MAI Act is quite specific in its terms and does not contain any provision for an explanation for the delay.

13. In Section 6.13 (3) there is provision for an explanation for the delay if a claim is not made within 3 months from the date of the accident and there is also provision for an explanation for the delay in Section 6.14 (3) in respect of a claim for damages not made within time.

14. It is clear that it was not the intention of the legislation to allow an extension of time by provision of an explanation for delay in respect of Section 6.13 (1).

15. Section 6.13 (1) is not a provision which deprives a Claimant of a remedy but rather one which states that benefits are not to be payable in respect of any period prior to the making of the claim.

16. Section 6.32 (5) of the MAI Act provides that the Limitation Act does not apply in respect of proceedings concerning a common law claim for damages.

17. This leaves the question as to whether the Limitation Act 1969 applies in a statutory benefits claim?

18. Division 6 of that Act applies to personal injury claims and Section 50A (1) applies the whole of the division to 'a cause of action for damages relating to the death of or injury to a person'.

19. This is a claim for statutory benefits and is not a cause of action at all for damages.

20. The submission on behalf of the Claimant fails primarily for the reason that the Limitation Act does not apply and there is no provision in the MAI Act which permits an extension of the 28. day period with which compliance is mandatory.

21. Given the express terms of the legislation the application fails.

Legal Costs

22. It is important that Claimants have access to proper legal advice in disputes under the Act where costs are available. This is not a dispute scheme where costs are restricted to costs following the event and in proper circumstances costs are available even to a Claimant who loses the application in the particular dispute under consideration. It cannot be said that the Claimant's solicitor acted unreasonably in advising his client to seek to challenge the time from which statutory benefits were payable and there may, perhaps, have been some degree of uncertainty, at least, in the mind of that particular solicitor (i.e. for the Claimant) when there was an opportunity in other sections to provide an explanation for the delay where the Claimant was under a clear disability and where the Solicitor formed an honest, though mistaken belief, that the Limitation Act applied. The Claimant sought to apply Section 50(F) of the Limitation Act 1969. The Claimant was clearly under a disability for the purpose of that Act. The flaw in the argument, however, was that Section 50(F) only applies to a cause of action for damages which is not the case here.

23. The Claimant's solicitor did go to considerable effort in putting together the Application and in advising his client, in preparing submissions and advising generally. Notwithstanding that he was wrong, as it turns out, it is fair and reasonable that there be some provision for legal costs though not in the amount of $1,633.00 but in a lesser amount which I assess at $816.50 plus GST.

Dated: 13 August 2019

Terence Stern
DRS Claims Assessor
Dispute Resolution Services