CERTIFICATE OF DETERMINATION OF MERIT REVIEWER	
	
Citation:	BFH v Allianz Australia Insurance Limited [2023] NSWPICMR 2	
		
ClaimanT:	BFH	
		
Insurer:	Allianz Australia Insurance Limited	
		
Merit Reviewer:	Katherine Ruschen	
		
DATE OF DECISION:	12 January 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (CLA Act); as applied by section 3.39 of the 2017 Act; limitation on statutory benefits in relation to certain mental harm; section 30 of the CLA Act; meaning of close member of the family of the victim; meaning of being put in peril; meaning of pure mental harm; Held – the reviewable decision is affirmed.	
		
Determinations made: 	CERTIFICATE OF DETERMINATION
Issued under s 7.13(4) of the Motor Accident Injuries Act 2017
The reviewable decision is about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (CLA) (as applied by s 3.39 of the Motor Accident Injuries Act 2017 (the MAI Act) (Limitation on statutory benefits in relation to certain mental harm)) and is therefore a merit review matter under Schedule 2(1)(t) of the MAI Act.
1.	The reviewable decision is affirmed.	

STATEMENT OF REASONS
introduction
1.	A dispute has arisen between BFH (the claimant) and the insurer about the claimant’s entitlement to payment of statutory benefits under the MAI Act, including weekly benefits and the cost of treatment and care.
2.	The claimant’s mother-in-law, BHE (the victim), was killed in a motor accident on 16 September 2022.
3.	The claimant lodged an application to compensate relatives and made a claim for statutory benefits under the MAI Act on the basis the claimant says he requires counselling as a result of the circumstances of the motor accident and has had to take time off work to:
(a)	care for the victim’s spouse (the claimant’s father-in-law), who had suffered a stroke five years earlier and is unable to care for himself, and
(b)	support other family members who were involved in the motor accident.
4.	In addition to the victim, the vehicle in which the victim was travelling at the time of the accident contained five other persons understood to be the claimant’s sister-in-law and brother-in-law and three children of the claimant’s sister-in-law and brother-in-law.
5.	The claimant was not involved in the motor accident and did not witness the victim being put in peril or being killed or injured as a result of the motor accident.
6.	On 20 October 2022 the insurer determined the claimant was not entitled to statutory benefits as he is not a person who is eligible to bring a claim for pure mental harm under s 30 of the CLA.
7.	The claimant requested an internal review of the insurer’s decision dated 20 October 2022.
8.	On 8 November 2022 the insurer issued their internal review decision, which affirmed the original decision that the claimant is not entitled to statutory benefits by reason of s 30 of the CLA.
9.	The claimant seeks a merit review of the insurer’s internal review decision dated 8 November 2022.
SUBMISSIONS 
10.	The claimant submits that as a result of the accident it was necessary for him to take time off work to provide support to his father-in-law and to other family members injured in the motor accident. The claimant submits this has resulted in a loss of income and that in the following “unique” circumstances, he should be entitled to statutory benefits:
(a)	the severity of the accident
(b)	serious injury to the claimant’s sister-in-law, brother-in-law and their three children in addition to the death of the victim;
(c)	the victim’s surviving spouse (the claimant’s father-in-law) suffered a stroke five years ago and is unable to look after himself, and
(d)	the claimant’s father-in-law resides on a rural property requiring the claimant to also attend to livestock on that property.
11.	In addition to requesting weekly benefits for loss of earnings the claimant has requested statutory benefits for treatment and care in the form of counselling for himself to assist him to cope with the consequences of the motor accident.
12.	The insurer submits:
(a)	section 30 of the CLA limits an entitlement to statutory benefits for pure mental harm to “close members of the family”, as defined in s 30 or persons who witnessed the victim being injured, killed or put in peril;
(b)	the claimant is not a person who falls within the definition of “close member of the family” for the purpose of s 30 of the CLA;
(c)	the claimant did not witness the victim being injured, killed or put in peril;
(d)	the claimant is therefore not entitled to statutory benefits, and
(e)	further and in the alternative, there is no evidence the claimant has suffered a recognised psychiatric injury, as required by s 31 of the CLA for a person in the claimant’s position to be entitled to statutory benefits.
REASONS 
Facts
13.	The claim arises out of a tragic motor accident in which the claimant’s mother-in-law was killed and several other extended family members (understood to be all in-laws of the claimant) were seriously injured. The driver of the second vehicle involved in the accident was also killed.
14.	The claimant was not involved in the motor accident and therefore does not suffer any physical injury as a result of the motor accident. The claimant was not at the scene of the motor accident when it occurred or during its immediate aftermath. The claimant did not witness the victim being put injured, killed or put in peril. 
15.	As the claimant was not involved in the motor accident his ability to claim statutory benefits is limited to a potential ability to claim statutory benefits for pure mental harm, if he meets the criteria specified in the legislation to be entitled to make such a claim.
Legislation 
16.	Pursuant to s 3.39 of the MAI Act Part 3 (Mental harm) of the CLA applies to payment of statutory benefits under Part 3 of the MAI Act in connection with an injury in the same way as it applies to the award of damages in connection with an injury.
17.	Under Part 3, s 30(2) of the CLA the claimant is not entitled to statutory benefits for pure mental harm unless:
(a)	he witnessed, at the scene, the victim being killed, injured or put in peril, or
(b)	he is a close member of the family of the victim.
18.	Pursuant to s 30(5) of the CLA "close member of the family" of a victim for the purpose of sub-s 2 means:
(a)	a parent of the victim or other person with parental responsibility for the victim, or
(b)	the spouse or partner of the victim, or
(c)	a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d)	a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
Is the claimant a close member of the family under s 30 of the CLA?
19.	The claimant is not a parent, spouse or partner, child or stepchild or other person for whom the victim had parental responsibility, brother, half-brother or stepbrother of the victim or any other person involved in the motor accident. He is the victim’s son-in-law, is brother-in-law to two other persons injured in the accident and uncle to the three children of those two persons who were also involved in the motor accident. “Close member of the family” under s 30(5) does not include son-in-law, brother-in-law or uncle. Accordingly, the claimant is excluded as close member of the family for the purpose of s 30 of the CLA. 
20.	Prior to the CLA the common law position regarding persons who could make a claim for pure mental harm was broader. However, in respect of claims under the MAI Act the CLA displaces the common law because:
(a)	section 3.39 of the MAI Act provides:
“That in respect of statutory benefits payable in relation to mental harm, Part 3 (Mental Harm) of the CLA applies to the payment of statutory benefits ... in connection with an injury in the same way it applies to the award of damages in connection with an injury subject to any necessary modifications prescribed by the Regulations.”
(b)	the CLA displaces the common law in respect of payment of statutory motor accidents by operation of s 3.39 and Part 3 of the CLA.
21.	This is supported by decisions dealing with the provisions of the CLA such as the decision of the New South Wales Court of Appeal in Harrison v Melhem NSW Law Reports [2008] 380 (Harrison). Although the Court dealt with s 15 of the CLA, the principles adopted in that decision are equally applicable to the operation of s 3.39 of the MAI Act and Part 3 of the CLA.
22.	Reference is made in Harrison to a passage in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (Gifford) where McHugh J said at [36]:
“Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the presumption of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.”
23.	At [11] in Harrison, Spigelman J said:
“For these reasons I do not find the presumptions against abrogation of common law doctrines or of common law rights to be of any assistance in resolving the proper interpretation of s15(3) of the CLA.”
24.	The CLA is clear and unambiguous in its application. Section 30 establishes a clear limitation on those persons who can bring a claim for pure mental harm. Accordingly, if the claimant does not fall within one of the specified categories of persons under s 30 of the CLA he is not entitled to payment of statutory benefits under Part 3 of the MAI Act.
25.	As set out above, the claimant does not fall within one of the specified categories of persons under s 30 of the CLA. Accordingly, he is not entitled to payment of statutory benefits under Part 3 of the MAI Act.
Did the claimant witness, at the scene, the victim being put in peril? 
26.	There is no contention by the claimant that he witnessed, at the scene of the accident, the victim being killed or injured. For completeness, however, the wording of s 30(2) is disjunctive using the word “or” and accordingly, the claimant only needs to fall under one of s 30(2)(a) or (b) and does not need to satisfy both. 
27.	The claimant was not involved in the motor accident. He was not at the scene when it occurred or at any time during the immediate aftermath. The claimant is not identified as a witness in the police report and lived some distance away from the rural location of the accident. Accordingly, the claimant is not a person who witnessed, at the scene of the accident, the victim being killed, injured or put in peril.
28.	As the claimant is neither a close family member, as defined in s 30 of the CLA nor a person who witnessed the victim, at the scene of the accident, being killed, injured or put in peril he does not meet the criteria under either s 30(2)(a) or (b) and therefore is not entitled to statutory benefits under the MAI Act.
Pure mental harm 
29.	Pursuant to s 3.39 of the MAI Act the whole of Part 3 of the CLA applies to a claim for statutory benefits relating to mental harm in the same way it applies to an award of damages for negligence.
30.	Accordingly, s 31 of the CLA is also relevant and provides that “there is no liability to pay damages [or in this case, statutory benefits] for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness”. As this section also applies to claims for statutory benefits under the MAI Act in the same way it applies to claims for damages (because of s 3.39 of the MAI Act) no statutory benefits are payable to the claimant unless he suffers a recognised psychiatric illness.
31.	Whilst the claimant has requested statutory benefits for the provision of counselling there is no evidence the claimant suffers a recognised psychiatric illness. The medical evidence is limited to a certificate of capacity from the claimant’s general practitioner dated 12 October 2022 which proposes counselling for the claimant but does not contain a diagnosis of any psychiatric (or other medical) illness or condition.
32.	Accordingly, even if the claimant met one of the criteria in s 30 of the CLA to be entitled to claim statutory benefits he is not entitled to payment of statutory benefits of any kind, whether that be weekly benefits or the cost of treatment and care, as there is no evidence, he suffers a recognised psychiatric illness as required by s 31 of the CLA.
“Unique” circumstances
33.	The claimant says his circumstances are unique by reason of the severity of the motor accident, serious injury to multiple family members in addition to the death of the victim, his father-in-law’s inability to care for himself and the requirement to tend to livestock on his father-in-law’s rural property. 
34.	There is no doubt that the claimant’s situation is both tragic and likely extremely difficult. However, regardless of this or whether the circumstances are unique there is no flexibility in the MAI Act to allow statutory benefits outside the scope of s 30 and 31 of the CLA, regardless of the reasons. As set out above, s 30 of the CLA is a limiting provision, which limits an entitlement to statutory benefits under the MAI Act to certain specified persons. It is a limitation that is clear and unambiguous in its terms and cannot be ignored. In the circumstances of a person such as the claimant a view might be taken that this ostensibly produces an unfairness. However, as stated by Harrison AsJ at [70] in Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481 (22 April 2022) “… one cannot construe an Act to accommodate a particular circumstance, no matter how unfair that circumstance may be”.
35.	Accordingly, the claimant is not entitled to statutory benefits in the alternative, because of unique circumstances, as there is no provision for this in the MAI Act or Part 3 of the CLA.
Conclusion
36.	The claimant is the son-in-law of the victim. In-laws are excluded from the definition of “close member of the family” for the purpose of s 30 of the CLA. The claimant does not fall within the definition of close member of the family in s 30 of the CLA in respect of any other family member injured in the motor accident.
37.	The claimant did not witness, at the scene of the accident, the victim (or any other person) being killed, injured or put in peril.
38.	As the claimant is neither a close member of the family of the victim (or any other person involved in the motor accident) for the purpose of s 30 of the CLA and did not witness, at the scene, the victim (or any other person involved in the accident) being killed, injured or put in peril, pursuant to s 3.39 of the MAI Act the claimant is not eligible for payment of statutory benefits under the MAI Act.
39.	Accordingly, the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA and s 3.39 of the MAI Act.
40.	The reviewable decision is therefore affirmed.
LEGISLATION AND GUIDELINES
41.	In making this decision, I have considered the following
•	the application, reply and supporting documentation;
•	MAI Act;
•	the CLA;
•	the Motor Accident Injuries Regulation 2017; and
•	the Motor Accident Guidelines.