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AHT v AAI Ltd t/a GIO [2019] NSWDRS CA 207

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – time limits – refuse payment of weekly payments – late lodgement of claims
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 6.13, 7.36(4), 7.36(5), Schedule 2(3)(k)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.441
Cases cited N/A
Text cited N/A
Parties AHT – Claimant
AAI Ltd t/as GIO – 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

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 (the Act), about whether the Insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with s6.13 of Act.

1.  The Claimant was injured in a motor vehicle accident that occurred on 22 April 2019.

2.  The Claimant lodged a claim for statutory benefits with the Insurer on 4 July 2019.

3.  By way of letter dated 22 August 2019 the Insurer advised the Claimant that they would make payments of weekly statutory benefits from the date that the claim was made (4 July 2019).

4.  The Insurer has denied liability to pay any payments of weekly statutory benefits from the date of the accident until the date that the claim was made (4 July 2019) pursuant to s6.13(2) of the Act because the claim was not lodged within 28 days after the date of the motor accident.

5.  The Claimant lodged an internal review application with the Insurer.

6.  On 26 August the internal review conducted by the Insurer affirmed the original decision to deny payment of weekly statutory benefits from the date of the accident until 4 July 2019.

7.  The Claimant subsequently lodged the dispute with the Dispute Resolution Service and has been allocated to me to determine.

Documents considered

8.  I have considered the documents provided in the application and the reply.

Submissions

9.  In his application the Claimant acknowledges that the claim was lodged outside the 28 days from the date of the accident.  He confirms a lodgement date of 4 July 2019.

10.  He states that the Insurer refuses to make payments of weekly statutory benefits from the date of the accident until 4 July 2019 “even though I broke my leg and was clearly incapacitated from the day of the accident.”

11.  The Reply lodged on behalf of the Insurer includes an email from the Claimant to the Insurer dated 13 August 2019 setting out further facts.  That email includes the following relevant information:

a.  The Claimant was in hospital until 25 April 2019.

b.  “They” (assumed to be the relevant Anaesthetist’s office) told the Claimant that they would lodge a claim on his behalf to recover all costs.

c.  The Claimant has not dealt with CTP Insurance before and thought that “they” would sort it out.

d.  On 20 June 2019 the Claimant was advised by the Anaesthetist’s office that they were unable to lodge a claim on the Claimant’s behalf and he would need to lodge the claim himself.

e.  By the time the Claimant realised he had to lodge the claim himself he was outside the relevant 28 day time period.

12.  The Insurer submits that s 6.13(2) is clear and unequivocal with no scope for an exercise of discretion to consider late applications.

Legislation

13.  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

Reasons

14.  I have considered the documents provided in the application and the reply.

15.  Section 6.13 relevantly states as follows:

(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 period 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%.

16.  Whilst there is a discretion provided for to accept a late claim with reference to subsection (1), there is no such discretion provided for in respect of subsection (2).

17.  Section 6.13(2) is clear and unambiguous.  It must be assumed that if Parliament intended for a discretion to be provided for (such as provided in respect of s 6.13(1)), it would have done so.

18.  In a situation where no ambiguity exists in the relevant section(s) of the legislation, I am not permitted to read further words into the legislation.

19.  On the evidence before me I am satisfied that the claim for statutory benefits was not lodged within 28 days after the date of the motor accident.

20.  Accordingly, I find that the Insurer is entitled to refuse payment of weekly statutory benefits between the date of the accident and 4 July 2019, pursuant to s 6.13(2).

Costs and disbursements

21.  I make no order as to costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

22.  For the purposes of section 6.13 the insurer is entitled to refuse payment of weekly payments of statutory benefits.

23.  Effective date:  This determination takes effect on 15 October 2019.

Elizabeth Medland
DRS Claims Assessor
Dispute Resolution Services