Agathe v AAI Limited t/as GIO

[2022] NSWPIC 115

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Agathe v AAI Limited t/as GIO [2022] NSWPIC 115

CLAIMANT:

Sydney Agathe

INSURER:

AAI Limited t/as GIO

MEMBER:

Brett Williams

DATE OF DECISION:

22 March 2022

CATCHWORDS:

MOTOR ACCIDENTS - Claim referred to the Commission for assessment five months late; whether the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment late; whether leave should be granted to refer the claim for assessment; section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); Walker v Howard; Karambelas v Zanic (No 2); Russo v Aiello; Hunter v Roberts; Smith v Grant; Lee v Allianz Australia Insurance Limited applied; Held- claimant relied on his lawyer; delay in large part occasioned by outstanding minor injury dispute and advice provided by lawyer; no claim for damages can be made if only injuries are minor injuries; section 4.4 of the MAI Act; claimant had provided a full and satisfactory explanation for the delay; leave granted for claim to be referred for assessment.

DETERMINATIONS MADE:

1. For the purposes of s 7.33 of the Motor Accident Injuries Act 2017 Sydney Agathe has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment.

2.     Leave is granted for the claim to be referred for assessment.

3.     The proceedings are referred to the stood over list.

Late Application

Issued under section 7.2(3) of the Motor Accident Injuries Act 2017

Background

1. Sydney Agathe was injured in a motor accident on 7 August 2018. He subsequently made a claim for damages on 18 January 2022, some three years and five months after the accident occurred. The claim was a late claim. The insurer, AAI Limited t/as GIO (GIO), rejected the claim because of the delay and sought an explanation for the delay. GIO accepted the explanation provided by Mr Agathe for the delay. In these circumstances no issue arises under s 6.14 of the Motor Accident Injuries Act 2017 (the MAI Act), GIO having lost the right to reject the claim: s 6.14(5)(a) & (6)(b).

2. In its reply GIO identified that these proceedings were commenced on 18 January 2022, more than three years after the accident. In these circumstances Mr Agathe must provide a full and satisfactory explanation for the delay and the Commission must grant leave for the claim to be referred for assessment: s 7.33 MAI Act. Neither party has raised an issue in relation to compliance with s 7.32(3).

3. At the teleconference held on 28 February 2022 GIO confirmed that it did not seek to be heard in relation to any matters arising under s 7.33 and would not be making submissions in relation to that provision. Mr Agathe sought to rely on additional evidence and submissions. Directions were made in relation to the provision of this material. The parties agreed that the s 7.33 issues could be determined on the papers.

On the papers

1. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the matters that arise under s 7.33 can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.

Evidence

1. Mr Agathe relies on his statement dated 16 March 2022. The statement records that on 17 January 2019 he received correspondence from GIO stating that it had determined the injuries he sustained in the accident were minor. Mr Agathe states that he thought his injuries would get better. He had never previously lodged a claim for a motor accident and was unaware of the timeframes. He did not know that he could ‘appeal’ GIO’s decision that his accident caused injuries were minor injuries.

2. Mr Agathe’s statement provides details of his treatment and the investigations undertaken when his injuries did not improve. On 1 June 2020 he consulted a lawyer and provided instructions to lodge an internal review in relation to GIO’s minor injury decision. On 23 July 2020 GIO’s internal reviewer affirmed the decision in relation to minor injury. On 18 August 2020 an application was lodged for the minor injury dispute to be assessed by Medical Assessors. There were delays in relation to the medical assessments due to the COVID pandemic. Mr Agathe received Assessor Paisley’s certificate in relation to the minor injury dispute about his psychological injury on 5 August 2021. The Assessor determined that his psychological injury was a minor injury. He was advised by his lawyer that he was not entitled to lodge a claim for damages at that time given the minor injury finding in relation to the psychological injury. On 3 December 2021 the certificate of Assessor Herald was received. The Assessor determined that Mr Agathe’s physical injuries were non-minor.

3. Mr Agathe states that his lawyer advised him to wait for 28 days after receipt of Assessor Herald’s certificate before making a claim for damages, so as to confirm whether GIO would seek a review  of Assessor Herald’s decision in relation to minor injury. The 28 day period elapsed on 31 December 2021. A claim for damages was subsequently made and the claim was referred to the Commission for assessment. Mr Agathe states that, while it was always his intention to make a claim for damages, he wanted to ensure that he was entitled to do so prior to making the claim and referring it for assessment.

Submissions

1. Mr Agathe relies on submissions dated 14 February 2022. As already recorded, GIO did not wish to make submissions in relation to s 7.33.

2. Mr Agathe’s submissions note that, in accordance with s 4.4 of the MAI Act, no damages may be awarded to an injured person if the person's only injuries resulting from the motor accident were minor injuries. It is submitted that it was reasonable for him to wait until there had been a determination about whether his injuries were minor injuries.

3. The submissions record that Mr Agathe’s lawyer is a sole practitioner and that he contracted COVID on 3 January 2022. The lawyer was required to isolate for 14 days. He had no staff to assist him. He returned to work on 17 January 2022. The submissions record that the lawyer was unaware that an application for assessment could be lodged with the Commission before a minor injury dispute had been determined. While these matters should have been the subject of a statement, statutory declaration or affidavit, I am prepared to proceed on the basis that they are true and correct statements of fact made by Mr Agathe’s lawyer.

4. It is submitted that the ratio in Walker v Howard [2009] NSWCA 408 permits a finding that a reasonable person would have failed to have complied with the duty or would have been justified in experiencing the same delay. It is submitted that the explanation does not need to be “perfect”. It is argued that Mr Agathe’s explanation for the delay is both full and satisfactory.

Determination

1. Section 7.33 states that a party to a claim cannot refer the claim for assessment under Division 7.6 of the MAI Act more than three years after the motor accident concerned unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules. The motor accident that gave rise to the claim occurred on 7 August 2018. These proceedings were commenced on 18 January 2022. Accordingly, the claim for damages was referred to the Commission for assessment five months late.

2. While defined for the purposes of Part 6 of the MAI Act, there is no definition in the MAI Act of “full and satisfactory explanation” for the purposes of Part 7 of the Act. I have proceeded on the basis that the term ‘full and satisfactory explanation’ used in s 7.33 means a full account of Mr Agathe’s conduct, including his actions, knowledge and belief, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of Mr Agathe would have been justified in experiencing the same delay. The meaning I have ascribed to the term ‘full and satisfactory explanation’ for the purposes of s 7.33 of the MAI Act is in material respects the same as the definitions of ‘full and satisfactory explanation’ in the MAI Act and the Motor Accidents Compensation Act1999 (MAC Act)[1]. Accordingly, the authorities that address the meaning of ‘full and satisfactory explanation’ for the purposes of the MAC Act are relevant to determining whether Mr Agathe has provided a full and satisfactory explanation as required by s 7.33 of the MAI Act. This is consistent with the approach I took in Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351 at [23] – [25].

   [1] Section 6.2 MAI Act and s 66(2) of the MAC Act.

3. For an explanation to be full it needs to be complete in the sense that it says what happened and why. Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required.[2] The acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is full[3]. The meaning of ‘full’ is to be understood in context: to enable the evaluation of the reasons for the delay. Thus all relevant information to that end is required.[4] The delay is the period during which the claimant was late in making the claim.[5]

   [2] Walkerv Howard [2009] NSWCA 408 (Walker) Allsop P at [104].

   [3] Walker Allsop P at [106].

   [4] Walker Allsop P at [57].

   [5] Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16].

4. The concept of a satisfactory explanation requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable.[6] There is a substantial spectrum of reasonableness. It is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay. The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay.[7] Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[8]

   [6] Karambelas at [17].

   [7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].

   [8] Hunter v Roberts [2019] NSWCA 116 at [20].

5. Although some relevant matters are addressed in the submissions rather than a statement from his lawyer, I am satisfied that Mr Agathe has provided a full account of his conduct, including his knowledge and belief, from the date of the accident until 16 March 2022, the date of his statement. I am satisfied that the explanation provided by Mr Agathe explains what happened and why. The explanation enables me to evaluate the reasons for the delay. I find that Mr Agathe’s explanation for the delay is full.

6. Mr Agathe had not previously made a claim for damages in relation to injuries sustained in a motor accident. He did not know, until he instructed his lawyer in June 2020, that GIO’s decision in relation to ‘minor injury’ could be the subject of a review. Once he instructed his lawyer he was given advice to wait until the minor injury dispute had been resolved before making a claim for damages and referring the claim to the Commission for assessment. He went down the medical assessment path in relation to the minor injury dispute, in accordance with his lawyer’s advice. The critical medical assessment, in terms of overcoming s 4.4, was that of Assessor Herald, who certified that Mr Agathe had sustained non-minor physical injuries. Assessor Herald’s certificate was received on 3 December 2021. Mr Agathe was advised to wait 28 days to see if GIO would seek a review of Assessor Herald’s determination. His lawyer contracted COVID in early January 2022 and was in isolation for 14 days. Upon returning to work his lawyer lodged the claim for damages and referred the claim to the Commission for assessment.

7. Section 4.4 of the MAI Act states that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were minor injuries. I accept Mr Agathe’s evidence that, until he instructed his lawyers in June 2020, he did not know he could contest GIO’s decision that his accident caused injuries were minor injuries. I also accept his evidence that he acted on his lawyer’s advice in relation to progressing the minor injury dispute; waiting for a determination of that dispute before making a claim for damages; waiting 28 days to confirm whether GIO would seek a review of Assessor Herald’s certificate; and referring the claim to the Commission for assessment. Reliance on legal representatives can constitute a satisfactory explanation for delay[9]. In these proceedings I am satisfied that it does.

   [9] Smith v Grant [2006] NSWCA 244 at [60].

8. Once Assessor Herald’s determination that Mr Agathe had suffered a non-minor injury was to hand, the damages claim was made and the claim referred for assessment with reasonable dispatch. There was a slight delay because his lawyer, a sole practitioner, contracted COVID.

9. Given the matters I have referred to at [17] – [19] I am satisfied that a reasonable person in Mr Agathe’s position would have been justified in experiencing the same delay. I find that Mr Agathe’s explanation for the delay is satisfactory.

10. Mr Agathe has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment. Leave is granted for the claim to be referred for assessment.

11. The parties submit that if leave is granted for the claim to be referred for assessment it should be referred to the stood over list. There is a medical dispute in relation to whole person impairment on foot. Having considered Procedural Direction MA1, I am satisfied that it is appropriate to refer the matter to the stood over list.

Brett Williams

Member

Personal Injury Commission