The ACT Civil and Administrative Tribunal has ruled in favour of a man struck by a vehicle in Canberra. Photo: Google Maps.
After a man was hit by a vehicle on the side of the road, an insurance giant only wanted to fork out for 13 weeks of his care and treatment due to his delay in lodging a claim.
But the ACT Civil and Administrative Tribunal (ACAT) has now told GIO to pay for the man’s treatment from the date of the crash, even though he was found to have “slept on his rights”.
On 10 December 2023, Gregory Jon Axell was either walking or riding a scooter when he was hit by a vehicle insured by GIO and thrown to the ground, Senior Member Mark Hyman said earlier this month.
While paramedics called to the scene originally thought he was only bruised, he underwent more investigations and in February 2024 was told he needed knee surgery. He had surgery for ligament damage later that month.
Mr Axell lodged a late application for the treatment of his injuries, and while the insurer accepted liability, it stated that it was only liable for the 13 weeks of treatment prior to the application being lodged.
Most of his treatment expenses came from before those 13 weeks began. He claimed his medical treatment, including surgery, left him about $9600 out of pocket.
GIO affirmed its decision when he sought an internal review, so he took the matter to ACAT.
Under the Motor Accident Injuries Act, a person must make an application for treatment within 13 weeks of an accident, but the insurer can accept an application up to two years after the accident if there is a satisfactory explanation for why it is late.
When an insurer accepts liability, it must pay for treatment from the date of the accident. However, if the application was lodged late, benefits are paid from 13 weeks prior to the application being made.
However, if an insurer accepts liability under a late application and is satisfied there are exceptional circumstances justifying earlier payment, they may pay benefits from the date of the accident.
Mr Axell was recovering from surgery in March 2024 when he began exploring how to make an insurance claim and realised he missed the 13-week deadline.
“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,” Senior Member Hyman said.
“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.
“After tracking down the details through the police report, Mr Axell delayed lodging his claim for a further period, amounting to about nine months.”
Senior Member Hyman found GIO had applied the wrong legal test when determining whether to accept the late application, so he set its decision aside.
“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,” he said.
“The complicating factor is the elapsed time.”
The senior member said Mr Axell’s explanation for the delay was that he thought it would be better to do so when “all expenses were known”, but this was not a reasonable excuse.
“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,” he said.
“It is plain that Mr Axell 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.”
He ordered GIO to pay treatment and care benefits to Mr Axell from the date of the accident.
GIO was contacted for comment but did not respond by time of publication.
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