AXELL v AAI Ltd ACN 005 297 807 T/AS GIO

ORDER The Tribunal orders that:

1. The respondent’s decision of 13 January 2025 to affirm payment of treatment and care benefits to the application only from 13 weeks before the date on which he lodged his application is set aside.

2. The respondent is ordered to pay treatment and care benefits to the applicant from the date of the accident.

……………………………….. Senior Member M Hyman REASONS FOR DECISION

Introduction 1. This decision is about whether treatment and care benefits for a motor accident injury should be paid to the applicant (Mr Axell, or the applicant) by the respondent (GIO or the respondent). The applicant was walking by the side of the road, or riding a scooter either on or beside the road, in December 2023 when he was struck by a vehicle insured by the respondent. He lodged a late application with the respondent for treatment of the injuries he sustained, and while the respondent accepted liability, that liability extended only to 13 weeks before the application was lodged, when most of his treatment and care expenses dated from an earlier period. Mr Axell sought internal review of GIO’s decision, and the respondent reviewed its original decision and affirmed it. Mr Axell has now applied to this tribunal for review of the respondent’s internal review decision.

2. The matter came before the tribunal on 3 June 2025. Mr Axell represented his own interests. Ms Raisa Aniversario of Counsel appeared for the respondent. Because the review process set out in the MAI Act limits the admission of evidence after the internal review decision, no evidence was taken at the hearing, which proceeded by way of final submissions by the parties.

3. Evidence before the Tribunal comprised the application for external review, the internal review notice and statement of reasons, the notice accepting liability under a late application, the applicant’s explanation for his late application, the medical report provided with that explanation, and some further correspondence between the parties.

Issues

4. The issues before the Tribunal for resolution are: (a) whether the internal review decision to affirm the payment of care and treatment costs from 13 weeks before lodgement of the application was affected by an error of law or fact; (b) if the respondent’s decision was so affected, what remedy the Tribunal should order; (c) if the decision under review is set aside, whether the applicant’s circumstances were exceptional; (d) if so, whether the discretion to date treatment and care benefits from the date of the accident should be exercised; and (e) taking all the above into account, what decision the tribunal should make.

The legislative framework

5. The MAI Act establishes a scheme to simplify motor accident insurance in the ACT and 1 make it easier to navigate. A Motor Accident Injuries Commission is established by the 2 Act , its functions including the supervision of the scheme, the regulation of insurers 3 and issuing, monitoring and reviewing MAI Guidelines provided for in the Act.

6. The MAI Act includes some overarching provisions that govern the way in which the scheme established under the Act is to operate. The objects of the Act include “to ensure benefits are available to support all people injured in motor accidents on a no-fault basis, subject to some exclusions and limitations”; “to support people injured in motor accidents to access defined benefits”; and “to promote and encourage the early, 4 quick, cost-effective and just resolution of disputes”; the Act also requires that insurers, applicants for defined benefits and claimants act in good faith and do their best to help resolve issues between them and bring the matter to finality. Specifically, parties 5 are obliged to try to finalise applications “as justly and promptly as possible”.

7. A person who suffers a personal injury as a result of a motor accident in the ACT is 6 entitled to defined benefits, which comprise income replacement benefits, treatment 7 and care benefits, quality of life benefits, death benefits and funeral benefits. The relevant insurer for a single vehicle motor vehicle accident is the insurer for that 8 motor vehicle; defined benefits payable to a person injured in a motor vehicle accident 9 are to be paid by the relevant insurer.

1 MAI Act s 6 2 MAI Act Part 1.3 3 MAI Act s 25 4 MAI Act, ss 6(a), (c) and (d) 5 MAI Act, s 20(2)(b) 6 MAI Act s 38 7 MAI Act s 33 8 MAI Act, s 34 9 MAI Act, s 39

8. The application period for a person seeking defined benefits under the MAI Act is set at 10 13 weeks after the date of the accident, and an injured person must make an application within that application period. The insurer can accept an application for treatment and care benefits, however, up to two years after the accident if the applicant 11 offers a full and satisfactory explanation for the late application.

9. Treatment and care is defined to include medical treatment, mental health treatment and 12 pharmaceuticals; a person injured in a motor accident is entitled to treatment and care 13 expenses; treatment and care expenses are expenses for treating the injuries of a person, but do not include treatment and care that was not reasonable and necessary, or 14 that did not relate to injuries sustained in the motor accident.

10. Where an insurer has accepted liability, it must pay treatment and care benefits from the date of the accident, unless the application was lodged late, in which case benefits are paid from 13 weeks before the date the application was made. Where an insurer has accepted liability under a late application, and is satisfied on reasonable grounds that there are exceptional circumstances justifying earlier payment, the insurer may pay benefits from the date of the accident. The MAI Guidelines may provide for what might 15 be considered exceptional circumstances.

11. The MAI Act identifies certain decisions by an insurer as internally reviewable decisions, including decisions refusing to pay defined benefits from a date earlier than 16 13 weeks before a late application was lodged. The Act then allows certain people, including applicants for benefits, to seek internal review of an insurer’s internally 17 reviewable decision. The MAI Guidelines may provide for how an internal review is 18 to be conducted, and an internal review must comply with those Guidelines. An insurer must complete an internal review within 10 days of receiving an application, making a new decision affirming, amending or setting aside and substituting the

10 MAI Act, s 58 11 MAI Act, s 59 12 MAI Act, s 110 13 MAI Act, s 112 14 MAI Act, s 113 15 MAI Act, s 128 16 MAI Act s 186 and Schedule 1, Part 1.1, item 23 17 MAI Act s 187 18 MAI Act s 188 internally reviewable decision. The insurer must give the applicant notice of the new decision, a statement of reasons, and information about how to apply for external 19 review.

12. The MAI Act identifies decisions (ACAT reviewable decisions) for which applicants may seek external review by the ACT Civil and Administrative Tribunal (ACAT), including an internally reviewed decision by the insurer to refuse to pay treatment and 20 care expenses from earlier than 13 weeks before a late application was made. A 21 review by ACAT may be made “on a question of law or fact”. Section 197 of the Act sets out how a review decision by the ACAT must be made.

13. The Act is accompanied by a number of sets of Guidelines (the MAI Guidelines) made by the Commission to explain and prescribe how the Act should operate. The relevant Guidelines in the present matter are the Motor Accident Injuries (Treatment and Care) Guidelines 2023 (the Treatment and Care Guidelines). Clause 5 of the Treatment and Care Guidelines deals with the exceptional circumstances provision in section 128 of the MAI Act, specifying four particular sets of circumstances that qualify as exceptional.

The facts

14. In this matter the respondent has accepted liability but, applying section 128 of the MAI Act and clause 5 of the Treatment and Care Guidelines, has refused to pay treatment and care expenses from an earlier date than 13 weeks before the applicant lodged his application. This has had the effect of excluding most of the treatment and care expenses relating to his injury. The dispute has not extended to the facts of the matter, which appear to be not at issue.

15. The evidence, however, is scanty. I am reliant for my understanding of the relevant events on the applicant’s letter of 8 January 2025 to the insurer explaining why he was late in lodging his application. There is little in the way of corroborative evidence. But the respondent has not contested any of the evidence, and I have seen nothing that would encourage me to regard Mr Axell’s account as mistaken, exaggerated or

19 MAI Act s 191 20 MAI Act s 192 and Schedule 1, Part 1.2, item 28 21 MAI Act s 193 fabricated; but the account is rather incomplete, and I have inferred some of what follows – for example that he was on or with a scooter (because he says that he does not need to claim for the scooter); and that the police were called (because he accessed the police report in order to track down the driver of and insurer for the vehicle).

16. The accident occurred on 10 December 2023, when Mr Axell was, apparently, walking or riding a scooter. He was struck by a vehicle and thrown to the ground. An ambulance and apparently the police were called. At the time the ambulance officers told him that he had suffered bruising to his left leg but was otherwise uninjured, and could walk home. Subsequently, on 15 December 2023, his running coach suggested that he seek medical attention for his knee. After an x-ray of his knee, a GP consultation and two MRIs, and following the Christmas-New Year break, Mr Axell saw a knee specialist on 8 February 2024. The specialist identified a need for knee surgery, and the applicant says that he then realised that “this was going to become more than a simple healthcare issue”. The applicant had surgery for ligament damage on 27 February 2024.

17. Before his surgery, Mr Axell says that he contacted “an injury compensation lawyer”, who said that they could not help him, referred him to “a website” and told him he had twelve months (I assume from the date of the accident) to make a claim.

18. In early March 2024, on recovering from surgery, Mr Axell began the process of exploring how he could make an insurance claim. He then discovered that he had lost the details about the accident, the vehicle and the driver, and was obliged to obtain access to the police report. Once he had the details, he began the process of completing the claim form. It was at that point that he discovered that he had missed the 13-week deadline for lodging a claim. He says that he then decided “to wait until all expenses were known and present my claim, complete, without any further back and forth. Had I been able to speak to a lawyer I may have acted earlier.”

19. The applicant works in the defence area, and said that he was under a great deal of pressure from his work. In addition, he was unable to have a mobile phone with him during work hours, so it was difficult or impossible for the insurer to get in touch with him. The arguments of the parties

20. The applicant took the position that the respondent had failed to identify his 22 circumstances as exceptional when it should have. The respondent pointed to the operation of section 128 of the MAI Act and clause 5 of the Treatment and Care Guidelines, asserting that, together, these left the insurer with no choice but to deny the 23 applicant’s claim for payment from earlier than 13 weeks before it was lodged. In the alternative, if that construction of the Act and Guidelines was wrong, the respondent sought an explanation of how the “exceptional circumstances” test ought to be 24 applied.

Consideration

21. Section 193 of the MAI Act states that an external review of an insurer’s decision proceeds “on a question of law or fact”. It is accepted that this means that the review is not a merits review, that is, an enquiry into what the correct or preferable decision is on the available evidence, but rather an enquiry whether the decision was taken according 25 26 27 to law: Neish v NRMA; Williams v GIO; Montgomery v NRMA. Was the decision not to backdate the payment of treatment and care affected by an error of fact or law?

22. As explained above, the date from which the respondent decided treatment and care benefits were to be paid was derived from section 128 of the MAI Act and clause 5 of the Treatment and Care Guidelines. Section 128 of the Act reads as follows:

128 Treatment and care benefits—period payable (1) This section applies if a relevant insurer accepts liability under section 65 for an application for defined benefits. (2) The period for which treatment and care benefits are payable— (a) starts on— (i) the date of the motor accident, if—

22 Transcript of proceedings, 3 June 2025, page 4 23 Transcript of proceedings, 3 June 2025, pages 11-12 24 Transcript of proceedings, 3 June 2025, page 21 25 [2022] ACAT 24 26 [2021] ACAT 100 27 [2024] ACAT 60 (A) the insurer accepts liability for an application made during the application period; or (B) the insurer accepts liability for a late application and is satisfied on reasonable grounds that there are exceptional circumstances justifying the earlier payment of treatment and care benefits; or (ii) if the insurer accepts liability for a late application and is not satisfied under paragraph (a) (i) (B)—the date that is 13 weeks before the date of the application; and (b) ends 5 years after the date of the motor accident. (3) The MAI guidelines may make provision for the kinds of circumstances that may be exceptional circumstances for subsection (2). 28

23. A late application is one made more than 13 weeks after the date of the accident. The effect of section 128 is that where an insurer accepts liability for a late application, as here, benefits are payable only from 13 weeks before the date of application, unless the insurer is satisfied, on reasonable grounds, that there are exceptional circumstances, and that those circumstances justify earlier payment, in which case the benefits are payable from the date of the accident.

24. Paragraph 128(2)(a)(i)(B) establishes a discretion to be considered by the insurer, and like discretions generally, requires that two decisions are made: the first decision is to determine whether the preconditions for the discretion are met – in this case, whether the circumstances are “exceptional”. If that test is met, the discretion is enlivened, and a separate decision then arises, whether the discretion should be exercised.

25. Turning then to the first of those decisions, the question in each case will be whether the circumstances of the particular applicant are exceptional. Subsection (3) points to the potential for some guidance to be obtained from the Treatment and Care Guidelines. The relevant entry in the Guidelines is clause 5, which reads as follows:

26. EXCEPTIONAL CIRCUMSTANCES - LATE APPLICATIONS (Section 128) These guidelines make provision for the kinds of circumstances which may be regarded as exceptional circumstances for a late application for back-paying treatment and care expenses to the date of an accident. 5.1 Exceptional circumstances

28 NAI Act, ss 58, 59 5.1.1 If a late application is made for defined benefits an insurer is to back-pay treatment and care expenses to the date of an accident, in the following exceptional circumstances: ▪ The late application is for a person that died from injuries resulting from the motor accident, at a date after the motor accident; ▪ The late application is for an injured person that was hospitalised for at least 4 weeks during the initial application period; ▪ A close relative, spouse or child of the injured person died from injuries resulting from the motor accident or was hospitalised for at least 4 weeks during the initial application period; or ▪ The delay in making a complete application is a direct result of errors or mistakes made by an MAI insurer in relation to handling an application from the injured person, during the initial application period.

26. The decision-maker for the respondent interpreted clause 5 to mean that exceptional circumstances obtained only on the four specified occasions. But that is not what the clause says. On a plain reading it merely says that, whenever they occur, the circumstances specified are to be treated as exceptional; and, by implication, in every other case the insurer is left to determine whether the circumstances in that particular case are exceptional.

27. The test posed here by section 128 of the MAI Act and clause 5 of the Treatment and Care Guidelines runs parallel to the “exceptional circumstances” test considered by the 29 Full Federal Court in Oreb v Willcock. Section 106KA of the Health Insurance Act 1973 (Cth) established a discretionary decision to be taken where there were exceptional circumstances and regulation 11 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth), made under that Act, specified certain circumstances where the test might be met. Black CJ and Wilcox J concluded that the test was engaged in two ways: either through the application of the usual meaning of the English word “exceptional”, or else by application of the specified circumstances in regulation 11. In a similar way there are two ways of applying the test in the present instance: either through determining whether an applicant’s circumstances are “exceptional” in the normal sense, under section 128 of the MAI Act, or by establishing that the applicant’s circumstances fall within those specified in clause 5 of the Treatment and Care Guidelines.

29 [2005] FCAFC 196

28. Apart from the plain sense of the words in the clause, there is another reason why the construction adopted by the respondent cannot be accepted. The discretion established by section 128 – the exceptional circumstances exception – is very broad. The respondent is left to consider the circumstances of the applicant, in all their possible variety, and determine whether they are exceptional. The construction of clause 5 of the Guidelines adopted by the respondent would have the effect of removing any element of discretion, by narrowing the operation of the exception to four tightly prescribed circumstances, and limiting the discretion to those four circumstances and those four only. This would in effect mean that the MAI Commission, in making the Treatment and Care Guidelines, had replaced the broad discretion of the legislature with a narrow and effectively non-discretionary fettering of that discretion. Indeed, the respondent’s construction effectively implies that the exercise of the decision-maker’s discretion is to be at the behest of the Commission – something, I am sure, that was not intended by the Commission. 30

29. In Re Perder Investments Pty Ltd v Elmer the court stated: The principle underlying the rule against replacement of a statutory discretion by a statutory prohibition is simply respect for Parliamentary sovereignty. Where Parliament says that in certain circumstances there is a discretion to grant permission, then no official may replace that law by one to the opposite effect -for example, by a law requiring that in no circumstances shall permission be granted.

30. In the present matter the construction adopted by the respondent does not amount to a prohibition, but it would nevertheless represent an extreme fettering of the discretion granted by the legislature, and cannot be regarded as a construction that should be adopted if an alternative is available.

31. Ms Aniversario maintained that the construction of clause 5 adopted by the respondent was open to it. I do not agree; for the reasons given above, the reading I have advanced there is the only way in which the clause can be read. It is my conclusion that the respondent applied the wrong test in determining the application of the exceptional circumstances provision in section 128 of the MAI Act to the applicant, and the decision was therefore affected by an error of law. The decision is set aside.

Did the applicant’s circumstances meet the “exceptional circumstances” test? 30 [1991] FCA 212, [21] (Pincus J)

32. Where a decision is set aside under the MAI Act, the Tribunal must choose between substituting its own decision and remitting the matter to the insurer for reconsideration, 31 32 with directions where the Tribunal so decides. In Hernandez v AAI Ltd t/as GIO I noted that the MAI Act is silent about how a substitute decision is to be taken, but the apparent way forward is for the Tribunal to weigh up the facts and apply the MAI Act and any relevant guidelines to the facts as found – that is, to take a decision on the merits of the applicant’s case, relying only on the evidence that was available to the respondent when the decision was taken, or has been subsequently admitted. The alternative path, in which the Tribunal remits the matter to the insurer, with or without directions, leaves the Tribunal with a great deal more discretion.

33. In the present instance, the respondent asked at the hearing that, if the decision under review were set aside, the application of the “exceptional circumstances” test should be explained. That implies that the Tribunal should make a decision in substitution for the decision under review, as that would in turn require that I determine whether the applicant meets the “exceptional circumstances” test, and then, if he does so, determine whether those circumstances justify the exercise of the discretion to backdate the payment of benefits.

34. The phrase “exceptional circumstances” appears in various legislative contexts, in Commonwealth, State and Territory statutes. In Ho v Professional Services Review 33 Committee No 295 (Ho) Rares J considered the meaning of the phrase (in section 106KA of the Health Insurance Act 1973 (Cth)) at some length, citing the statement in 34 R v Kelly (Edward): We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

35. Rares J further noted that a decision regarding exceptional circumstances requires that the circumstances as a whole be taken into account, in that each single circumstance

31 MAI Act, s 197 32 [2025] ACAT 45 33 [2007] FCA 388 34 [2000] QB 198 at 208 (Lord Bingham of Cornhill CJ) may not stand out as exceptional, but taken together they may meet that test. He concluded that: It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA (2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

36. The decision in Ho has been widely followed and stands as the accepted authority on the subject. It was adopted by the Full Bench of then Fair Work Australia in Nulty v 35 Blue Star Group Pty Ltd (Nulty). That case involved a missed statutory deadline, and the Full Bench noted that mere ignorance of the deadline did not of itself constitute an exceptional circumstance.

37. An alternative, similar, frequently used phrase is “special circumstances”, which appears in, for example, the Social Security Act 1991 (Cth), where there must be special circumstances (other than financial hardship alone) for an applicant if a debt arising from overpayment is to be waived (section 1237AAD). The provision has been the subject of extensive judicial comment. In Angelakos v Secretary, Department of 36 Employment and Workplace Relations (Angelakos) Besanko J canvassed a number of cases in which the Federal Court had commented on the test (not all of which related to the debt provisions). Earlier authority had focused on whether the circumstances were “unusual, uncommon or exceptional” (see Beadle v Director-General of Social 37 Security ), but in successive cases the question was raised whether that test was unduly 38 demanding. In Dranichnikov v Centrelink the Full Court of the Federal Court noted that opinion was tending to cohere around the concept that all that was needed was that the case was simply different from the ordinary or out of the usual run. In Secretary, 39 Department of Social Security v Hales French J commented as follows: The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. … The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which 35 [2011] FWAFB 975, at [13-14] 36 [2007] FCA 25, at [26-33] 37 1984 AATA 176 38 [2003] FCAFC 133 39 [1997] FCA 1565 could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. … to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.’ 40

38. In Groth v Secretary, Department of Social Security Kiefel J said that the special circumstances test: .. would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. ... 41

39. In Riddell v Secretary, Department of Social Security , the Full Court of the Federal Court commented as follows: Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.

40. In Angelakos Besanko J made his own focused comment on the distinction between “out of the ordinary” and uncommon” on the one hand, and “exceptional” on the other, as follows: I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

41. From the above it does not appear that there is a significant difference between special and exceptional circumstances, each of them requiring circumstances that are unusual or out of the ordinary, although the comments by Besanko J in Angelakos suggest that “exceptional” sets a more demanding test. The Explanatory Statement accompanying

40 [1995] FCA 1708 41 [1993] FCA 261 the Bill for the MAI Act provides no indication whether the adoption of the “exceptional circumstances” test was intended to be more demanding than a “special circumstances” test.

42. From the above one can draw the following conclusions about the assessment to determine whether an applicant meets the exceptional circumstances test. (a) The first step is to test whether the applicant’s circumstances fall within the four particular cases specified in clause 5 of the Treatment and Care Guidelines. If they do, the person’s circumstances are exceptional; if they do not, the circumstances are to be tested against the usual meaning of the word. (b) All the applicant’s circumstances, taken together, are to be taken into account. (c) There is no single formula or set of standard criteria to be applied; the question is whether the circumstances meet the usual meaning of “exceptional” – whether they are out of the ordinary, unusual, special or uncommon; but they do not need to be extraordinary or unique. Clearly, the more unusual the circumstances the easier it will be for the conclusion to be drawn that they are exceptional; but while the words of Besanko J in Angelakos might suggest that “exceptional” is more unusual than “special”, the comments of Rares J in Ho would encourage any such distinction to be made cautiously. In marginal cases, whether circumstances are exceptional is the kind of judgment on which reasonable minds might differ. (d) The test is intended to be broad and flexible, in order to take account of the wide range of possible circumstances that might need to be considered. (e) Following Nulty, ignorance of the MAI Act is not of itself an exceptional circumstance; but the phrase “of itself” suggests that in a particular case, ignorance of the Act might be taken into account as one of several circumstances contributing to the making of the decision.

43. Turning then to Mr Axell, the circumstances to be considered include the following: (a) He was using the road or footpath as a pedestrian or in riding a scooter when struck by the insured’s vehicle (the police report not having been filed, I am unaware of the details). (b) After examination by paramedics he was advised to walk home, thinking himself uninjured. (c) An injury became apparent a short time later. (d) The Christmas-New Year break caused further delay, in obtaining imaging of the injured knee. (e) By the time Mr Axell had surgery he was close to the 13 week deadline, and by the time of his recovery from surgery he was apparently past it. (f) Having not been in a vehicle at the time of the accident Mr Axell had no insurer of his own to help him through the process. (g) Having thought he was uninjured, he had not secured the details of the vehicle with the thoroughness that he would have applied if conscious of an injury requiring medical treatment. (h) After tracking down the details through the police report, Mr Axell delayed lodging his claim for a further period, amounting to about nine months.

44. This list does not include Mr Axell’s ignorance of the MAI Act, in line with the view stated in Nulty. Mr Axell appears not to have been trained in the law, but only a moderate amount of research would have led him to the MAI Act, and although the legislation is not without its complexities, the clear identification of Part 2.3 of the Act, headed “Application for Defined Benefits”, should have provided a signal of where to start. Mr Axell is plainly an educated person. I have not taken his ignorance of the MAI Act into account.

45. As for the advice that Mr Axell said he sought from “an injury compensation lawyer”, he says that advice was to the effect that he should consult “a website” and that he had twelve months to make a claim. But the quality of the evidence is very poor – there is no documentary corroboration, the lawyer is not named, the website is not identified and the content of the lawyer’s advice is entirely hearsay.

46. Mr Axell does not meet the test set in clause 5 of the Treatment and Care Guidelines. Nevertheless, the events do seem in the main to be out of the ordinary or uncommon, especially the accident having occurred when he was not in a vehicle, the advice that he was uninjured and the delayed onset of injury; and the loss of the details about the vehicle seems a direct result of the paramedic advice at the accident that he was uninjured. While some of the other events are unexceptional in themselves, I have no hesitation in finding that Mr Axell’s circumstances, taken as a whole, were exceptional.

47. The events adequately explain missing the 13-week deadline, but the further nine months’ delay detracts from the picture. Ms Aniversario focused on that aspect, pointing to the way in which the MAI scheme was intended to allow motor accident injury matters to be resolved quickly. In my view these considerations are best taken into account when contemplating whether to exercise the discretion – that is, they go to whether the exceptional circumstances justify the backdating of benefits, and, accordingly, are considered below.

Do the circumstances justify the backdating of the treatment and care benefits?

48. Section 128 establishes that benefits may be paid from the date of the accident for a late application for which the insurer has accepted liability where the insurer is “satisfied on reasonable grounds that there are exceptional circumstances justifying the earlier payment”. I think in most cases the discretion, once enlivened, will be exercised, although it is easy enough to imagine exceptional circumstances which would fail to justify earlier payment – an unexpected and remarkable stroke of good fortune for the applicant, for example, might not encourage an insurer to make such an adjustment. The wording of section 128 means that the focus throughout is on the applicant’s circumstances – these circumstances, taken as a whole, must be exceptional, to enliven the discretion, and must be such as to justify the bringing forward of the date for payment of treatment and care benefits. Generally speaking, the circumstances will justify the exercise of the discretion where it would be unfair, or unjust, or unreasonable, to deny the benefits to the applicant.

49. In the present instance, Mr Axell’s circumstances would seem to suggest that he should receive the benefits. A person struck by a vehicle while walking or on a scooter should not be left without recourse unless there has been some foolish or unlawful element in use of the road - and no suggestion along those lines has been made in this matter. The complicating factor is the elapsed time. If he had lodged his application in, say, March or April 2024 it would have been easier to reach the conclusion that, in all the circumstances, benefits should be paid from the date of the accident. But Mr Axell delayed by about nine months in lodging his application, and his only explanation for the delay is that he thought it would be better to lodge his application when “all expenses were known”. I do not regard this as a reasonable excuse, as he cannot have known with any certainty whether further medical attention to his knee may have been needed at some later time.

50. Mr Axell provided a what he says is a complete list of his treatment and care amounts claimed, as set out in the following table. Provider Treatment and care Date Amount ($) M Wood Physiotherapy 29/1/24 110 Dr Mark Porter Initial surgical consult 15/2/24 170 Dr Mark Porter Surgery 26/2/24 5,095 Capital Chemist Pharmaceuticals 27/2/24 114.13 Dr Trevor K Law Surgical assistant 1/3/24 1,019 Dr Senthan Anaesthetist 3/4/24 1,200 Ponniah Donjoy Post-surgical brace 8/3/24 820 Emily Hargreaves Physiotherapy 12/3/24 110 Emily Hargreaves Physiotherapy 18/3/24 110 Emily Hargreaves Physiotherapy 2/4/24 110 Emily Hargreaves Physiotherapy 9/4/24 110 Emily Hargreaves Physiotherapy 18/4/24 110 Emily Hargreaves Physiotherapy 23/4/24 110 Emily Hargreaves Physiotherapy 1/5/24 110 Emily Hargreaves Physiotherapy 2/7/24 110 Emily Hargreaves Physiotherapy 18/7/24 Angus Whittle Physiotherapy 1/8/24 125 Angus Whittle Physiotherapy 24/10/24 105 Dr B Pillalomarry GP medical report 18/11/24 130 Dr B Pillalomarry GP medical report 8/1/25 130

51. Of the above expenditures, Mr Axell was reimbursed by the respondent a total of $365 being the two medical report fees charged by Dr Pillalomarry and the final physiotherapy appointment with Angus Whittle. This left him $9,643.13 out of pocket (assuming all the expenses were referable to the accident).

52. An examination of the above list reinforces the impression that the delay in making the claim is difficult to regard as anything except neglect by the applicant of his own interests. By early April 2024 he had sustained most of the expenses, with a string of physiotherapy appointments all that was to follow. Mr Axell did not act with anything approaching expedition in making his claim, and his explanation during the hearing – that his work was exceptionally demanding and busy over the period – does not seem adequate; even when busy, people can mostly manage to attend to their essential interests.

53. It is plain that Mr Axell has slept on his rights. Yet the circumstances of Mr Axell’s claim remain exceptional, in my view, and apart from the delay in making the claim, certainly point to reasonable justification of the earlier payment. Ms Aniversario pointed to the importance of prompt resolution of applicants’ claims as an essential part of the MAI scheme, noting that, under the earlier scheme that it replaced, applicants with complex or contested claims had waited as long as eight years for resolution. I accept the importance of avoiding delay, as a central part of the scheme, and I note that promptness is recognised in both the objects of the MAI Act and in the “good faith” 42 provisions. In each case, however, the need for “quick” or “prompt” resolution of applications is associated with a requirement for “just” outcomes. I note, too, that the reference to promptness (and to justice) seems to relate only to applications that have already been made and claims that have already been lodged. The objects of the Act include ensuring that benefits are available to people injured in motor accidents “subject to some exclusions and limitations”, and it seems that Mr Axell has encountered one of those exclusions. But the objects also include supporting injured people in accessing benefits; and that encourages me to believe that, at the margins, people should have access to benefits rather than be denied them. In the present instance, it seems to me therefore that the wish for a just outcome should prevail: the respondent has before it Mr Axell’s itemised claims; the lapse of time is not so great as to have led to lost evidence and documentation; the respondent’s interests do not seem otherwise to be prejudiced; the circumstances that Mr Axell has called to attention all relate to or are ancillary to, the accident; and those circumstances seem to me to be plainly exceptional.

54. In my view, the respondent should pay the applicant’s claim from the date of the accident. Naturally, each expense would need to be justified against the criteria in section 113 of the MAI Act.

Conclusion

42 MAI Act, ss 6(d), 20(2)(b)

55. The decision under review is set aside. In substitution I have decided that treatment and care benefits for the applicant are to be paid from the date of the accident.

ORDER The Tribunal orders that: 1. The respondent’s decision of 13 January 2025 to affirm payment of treatment and care benefits to the application only from 13 weeks before the date on which he lodged his application is set aside. 2. The respondent is ordered to pay treatment and care benefits to the applicant from the date of the accident.

……………………………….. Senior Member M Hyman

*************** Amendment [1 August 2025] [Correcting the name referenced in paragraph 5 from Motor Accident Insurance Commission to Motor Accident Injuries Commission]