Allianz Australia Insurance Limited v Saini
[2022] NSWPIC 297
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Saini [2022] NSWPIC 297 |
| CLAIMANT: | Manoj Kumar Saini |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Injuries Act 2017 (2017 Act); claim for damages; Insurer (not Claimant) referred matter for assessment more than three years after the date of the accident; issues of Insurer’s compliance with pre-filing procedures; Insurer had not made offer of settlement and parties had not participated in settlement conference; Insurer had been attempting to obtain particulars of the claim without success; Insurer provided partial explanation for one period wishing to “protect Claimant’s rights” to go to Court; Held- Insurer complied with section 7.32 of the 2017 Act in that best endeavours had been made to obtain particulars in order to evaluate the claim and make an offer; Insurer had not provided a full and satisfactory explanation for its delay in commencing the proceedings more than 11 months after the three year anniversary of the accident. |
| DETERMINATIONS MADE: | 1. For the purposes of section 7.33 of the Motor Accident Injuries Act 2017, the insurer has not provided a full and satisfactory explanation for the delay in referring Manoj Saini’s claim for assessment. 2. The Commission does not grant leave for the insurer to refer Mr Saini’s damages claim for assessment under Division 7.6. |
STATEMENT OF REASONS
INTRODUCTION
Mr Manoj Saini was injured in a motor accident on 12 May 2018. He sustained serious injuries including a fractured sternum, fractured ribs, a right shoulder and hand injury and psychological trauma.
Mr Saini described his accident in the claim form as follows:
“I was driving vehicle [registration number] along Henry Lawson Drive in a northerly direction when vehicle [registration number] crossed onto my side of the road from the lane heading south and struck into the front of my vehicle.”
Mr Saini has made two claims against Allianz, the third-party insurer of the truck that struck Mr Saini’s motor car, a claim for statutory benefits and a claim for damages.
Mr Saini’s claims and his entitlement to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz has referred Mr Saini’s claim for damages to the Personal Injury Commission (the Commission) for assessment and the proceedings have been allocated to me.
I have held two preliminary conferences in the proceedings. Ms Walsh appeared for Allianz on both occasions however Mr Saini did not attend either teleconference.
On the last occasion, I determined I would dismiss the proceedings and provide brief reasons for doing so.
Mr Saini’s claims
On or about 1 June 2018, Mr Saini made a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly payments of lost earnings and treatment and care benefits. Statutory benefits are paid regardless of whether anyone is at fault and even if the claimant is the person at fault.
While liability for the claim was originally accepted by Allianz on 27 June 2018, liability was subsequently denied on 31 August 2018 because the claimant was charged with and convicted of a serious driving offence namely having a blood alcohol level of 0.144. Section 3.37 of the MAI Act provides that no statutory benefits are payable to persons who commit a serious driving offence “related to the motor accident”.
Mr Saini appears to have been represented by PK Simpson Lawyers in the early stages of his statutory benefits claim however on 29 October 2018, PK Simpson advised Allianz that they were no longer representing Mr Saini .
On or about 8 October 2021, Mr Saini made a claim for damages under Part 4 of the MAI Act. That claim is a “late claim” because, under section 6.14(2) of the Act a claim for damages must be made within three years after the motor accident. Mr Saini made his claim almost three years and five months after the accident. I was advised by Ms Walsh at the first teleconference that Allianz does not take issue with the lateness of the claim. I am also advised that Allianz has admitted liability for the damages claim and there is no allegation of contributory negligence.
While Mr Saini returned a blood alcohol reading in excess of the prescribed limit, thereby disentitling him to statutory benefits, his consumption of alcohol appears to have had nothing to do with the cause of the accident. According to Mr Saini and the police report, the accident was caused by Allianz’s insured driver who swerved and crossed to the incorrect side of the road and collided head on with Mr Saini’s vehicle. There does not appear to have been anything Mr Saini could have done to avoid the accident.
On the basis of Allianz’s admission of liability, Mr Saini would be entitled to damages for his non-economic losses (if he has a whole person impairment of greater than 10%) and economic losses (such as past and future loss of earnings or loss of earning capacity).
issues in the proceedings
Allianz has referred Mr Saini’s claim to the Commission for assessment in order to “preserve [Mr Saini’s] rights in relation to the 3-year time limit in circumstances where the claimant is unrepresented, and it is not yet possible to settle the claim.”
Allianz asked that the matter be placed in the “not ready list” to be reviewed in three months. This would appear to be a reference to the list maintained under rule 101 of the Personal Injury Rules 2021 (the rules) being a list of matters that have been “stood over generally”.
Pre-filing procedures
Best endeavours
Before a damages claim can be referred for assessment by the Commission, section 7.32 of the MAI Act provides that the claimant and the insurer must have used “their best endeavours to settle the claim”. Allianz submitted that there have been no settlement conferences or settlement discussions because the insurer has been trying to obtain particulars about the claim but has been unsuccessful. Mr Saini has apparently not responded to requests for documents and information about his claim made on 19 November 2021, 20 December 2021 and 28 January 2022.
It is my view that Allianz has complied with section 7.32. Section 7.32 does not require the parties to participate in a settlement conference or formally exchange offers of settlement before a claim is referred for assessment. In my view best endeavours may be endeavours to determine what the claim is worth in order to arrange a settlement conference or to make an offer to the claimant.
In this case Allianz is not in a position to settle the claim because Allianz does not have particulars about the claim so it can calculate the quantum of the claim and formulate an offer.
Full and satisfactory explanation
Section 7.33 of the MAI Act provides that “a party cannot refer a claim for assessment … more than 3 years after the motor accident … unless the party provides a full and satisfactory explanation for the delay …”
There is no definition of “full and satisfactory explanation” in Part 7 of the MAI Act (which would apply to section 7.33) or the general definition sections in Division 1.2 of the Act.
There is a definition of “full and satisfactory explanation” in Part 6 of the MAI Act (section 6.2) as follows:
“(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.
(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”
That definition clearly only applies to claimants and only for the purposes of Part 6. Part 6 includes time limits provisions and requires full and satisfactory explanations for late claims in section 6.13(3) and section 6.14(3). If a damages claim is deemed to be withdrawn under section 6.26(3), a full and satisfactory explanation is required from the claimant to reinstate it under section 6.23(6). Claims are made by injured persons not insurers on their behalf and therefore it is a matter for a claimant to make the explanation for any delay in making or pursuing the claim.
However, under section 7.32(1) either a claimant or an insurer (or both) can refer a claim for assessment. The party that referred Mr Saini’s claim to the Commission for assessment in this case is Allianz. Allianz lodged the application for assessment on 7 April 2022, 3 years and 11 months after the accident. Therefore, it is Allianz which must provide to the Commission a full and satisfactory explanation for the delay in referring the claim in order that the Commission may give leave to commence the proceedings.
In my view the phrase “full and satisfactory explanation” in section 7.33 should be given the same meaning as the definition in section 6.2 adapted in this case for the insurer. Therefore, a full and satisfactory explanation by the insurer for non-compliance with the three year limitation period imposed by section 7.33 requires:
(a) a full account of the conduct of Allianz and its claims officer, including their actions, knowledge and beliefs, from the date of the accident until the date of providing the explanation, and
(b) the explanation is not satisfactory unless a reasonable person in the position of the insurer would have failed to have complied with the duty or would have been justified in experiencing the same delay.
Allianz has provided a short explanation dated 6 April 2022 which says:
(a) the claimant lodged his damages claim on 8 October 2021;
(b) liability has been accepted;
(c) particulars were requested and followed up;
(d) Allianz awaits particulars and may request clinical notes before considering settlement;
(e) Allianz has lodged the application “to help preserve the claimant’s rights” and not affect his ability to later pursue the matter at Court; and
(f) Allianz requests the application be accepted so as not to disadvantage the claimant.
Allianz has an explanation for part of the period and that is that Mr Saini did not make his claim until 8 October 2021 at that time five months late. Allianz could not have referred the claim before then, because the claim had not yet been made.
But Allianz has not explained the delay from the date of the accident to the date the common law claim was made and Allianz has not explained why it waited six months after it received the claim before it referred the claim for assessment. While Allianz appears keen to “preserve the claimant’s rights” in relation to his ability to pursue his claim in Court, by the time Allianz referred the claim, the claimant’s rights had already been affected.
In my view Allianz has not, on the information before me, provided a full and satisfactory explanation for referring Mr Saini’s claim for assessment more than three years after the date of Mr Saini’s motor accident. It follows that Allianz should not be given leave to refer Mr Saini’s claim for assessment at this time and on the information currently before the Commission.
Is Mr Saini pursuing his claim?
Allianz has requested I defer my consideration of the dispute, refer the matter into the stood over list and await Mr Saini particularising his claim and Allianz preparing its response to the claim.
There was no appearance by Mr Saini at the first teleconference on 26 May 2022. I was advised by the Commission’s operator that five attempts were made to call Mr Saini on his mobile phone but that the call went to voice mail on each occasion.
Ms Walsh was present as a disputes officer, but she is not the claims officer at Allianz with day to day conduct of the claim. She indicated that while the claimant had messaged Allianz on 22 March 2022 to indicate he wished to proceed with the claim, the claims officer with day to day conduct of the claim (Mr Roy Rajapaske) did not appear, from her reading of the file, to have had any communication with the claimant since then, despite making efforts to contact him by phone and email.
I issued a report after the first teleconference which I am advised by the Commission was sent to the claimant via an email address.
There was no appearance by Mr Saini at the second teleconference on 9 June 2022. I was advised by the Streamlined operator that four attempts were made to call Mr Saini on his mobile phone, but he did not answer.
Ms Wash was again present. She had lodged a short report with the Commission in which the Commission was advised that Mr Rajapaske had made contact with the claimant’s wife on 3 June 2022 and she confirmed that the claimant wished to pursue his claim. Mr Rajapaske advised her that it was important for Mr Saini to provide Allianz with the particulars of his claim and the updates it was requesting and be present for the teleconference. A follow up email was sent by Allianz. A further phone call was made to the claimant on 7 June 2022 and again contact was made with his wife. Mr Rajapaske again relayed that it was important that Mr Saini participate in the teleconference. Mr Rajapaske sent a confirmatory email.
I have been advised by the Commission’s registry that Mr Saini has not lodged a reply form in response to the application lodged by Allianz. I am also advised that the Commission has had not contact from Mr Saini although the Commission’s case officer has apparently left detailed messages for Mr Saini on 27 May and 6 June 2022.
While Mr Saini’s wife has told Allianz he wishes to pursue his claim, he appears not to have taken any steps since the claim was made to further it for example, by engaging a new lawyer to represent him or providing particulars of his claim to the insurer. He does not appear to have taken any active steps in the proceedings before the Commission.
While Allianz has taken steps to “preserve Mr Saini’s rights” to “pursue the matter in Court”, the right to pursue a claim for damages is Mr Saini’s and his right to commence proceedings in the Commission and the Court has already been affected by the lateness of his claim (three years and five months after the accident) and the necessity to seek leave to commence proceedings before the Commission. If Mr Saini does not wish to exercise his rights to pursue the claim and prosecute proceedings, then my view is that Allianz cannot force the claim towards assessment.
Allianz asks that I stand this matter over and refer it into the list of stood over matters. Ms Walsh informed me that Allianz has undertaken no preparations of its own in respect of the claim other than to request particulars from Mr Saini. Allianz has not for example arranged any medico-legal examinations of the claimant or referred any issue about whole person impairment for medical assessment or requested clinical records from his treatment providers.
The Commission does not have unlimited resources, and the guiding principle enshrined in section 42 of the Personal Injury Commission Act2020 is that the Commission is to pursue the “just quick and cost-effective resolution of the real issues in dispute”. Members of the Commission must give effect to that guiding principle and the parties that appear before it must co-operate to achieve it.
At the second teleconference I expressed the view that the guiding principle is not furthered by the Commission referring a claim that is already late and requires leave to proceed into the stood over list when it is not ready and may not be pursued. Ms Walsh did not take issue with this view and agreed that the proceedings should be dismissed.
Conclusion
I do not give leave for Allianz to commence these proceedings on the basis that Allianz has not provided a full and satisfactory explanation for its delay in commencing the proceedings before the Commission.
Even if Allianz had provided a full and satisfactory explanation for commencing these proceedings late, I would not have referred this matter into the stood over list but would have dismissed the proceedings under section 54 on the basis that it is “misconceived or lacking in substance” or in accordance with rule 77(b)(v) because “the application is being used for an improper purpose”. This is because the claim is clearly not ready for assessment and is unlikely to be ready for assessment while Mr Saini is not co-operating with the insurer and not engaging with the Commission.
I am making this decision based on the current information and the facts before me at this time. Mr Saini would appear to be able to refer his claim for assessment when he is ready to do so. Alternatively, Allianz would appear to be able to refer the claim for assessment again when Mr Saini has provided particulars and the claim is otherwise ready for assessment. In either case, Mr Saini or Allianz will need to provide a full and satisfactory explanation for any delay in doing so.
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