Andriotis v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Andriotis v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 380
CLAIMANT:	Paul Andriotis
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Brett Williams
DATE OF DECISION:	11 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Application for assessment of damages; insurer purported to issue a direction in accordance with section 6.26(3) of the Motor Accident Injuries Act 2017 (MAI Act); insurer submitted that the claimant had failed to provide all relevant particulars, as required by section 6.25 of the MAI Act; insurer argued that the claim was taken to have been withdrawn; section 6.26(3) of the MAI Act; claim referred to the Personal Injury Commission (Commission) more than 3 years after the accident; whether the claimant has provided a full and satisfactory explanation for the delay to the Commission as required by section 7.33 of the MAI Act; whether the Commission should grant leave for the claim to be referred for assessment; Held – as at the date the purported section 6.26 of the MAI Act direction was issued the claimant had provided all relevant particulars about the claim that were reasonably available at that time; the insurer was not entitled to issue the direction; the claimant had provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment; leave granted for the claimant to refer his claim to the Commission for assessment.
DIRECTIONS MADE:	1. On or before 25 July 2022 the parties are to advise the Commission whether the matter is ready to proceed to assessment or whether it should be referred to the stood over list. If the latter, the parties are to confirm, by reference to Procedural Direction MA1, the basis upon which they say the proceedings should be referred to the stood over list.

INTRODUCTION

Paul Andriotis (the claimant) made a claim for damages on Insurance Australia Limited t/as NRMA Insurance (the insurer) with respect to physical and psychological injuries he suffered in a motor accident on 17 May 2018. Prior to making a claim for damages, the claimant had made a claim for statutory benefits on the insurer.
The damages claim was received by the insurer on 24 February 2020. The insurer wholly admitted liability for the damages claim in a liability notice dated 22 May 2020.
The claimant commenced these proceedings, by which he sought to refer his damages claim to the Personal Injury Commission for assessment, on 13 December 2021.
In submissions lodged with its reply, the insurer argued that the damages claim is taken to have been withdrawn as a result of s 6.26(3) of the Motor Accident Injuries Act 2017 (MAI Act), in circumstances where, it asserted, all relevant particulars about the claim were not provided to it by the claimant. The claimant disputes that he failed to provide the particulars.
As these proceedings were commenced more than three years after the date of the accident, the claim for damages cannot be referred for assessment unless the claimant 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: s 7.33 MAI Act.

A teleconference was held on 21 March 2022. Directions were made at that time for the parties to provide submissions and evidence in relation to ss 6.26 and 7.33. Those directions were subsequently varied at the request of the claimant. The material relied on by the parties has now been provided.
The parties agree that the matters to be determined under ss 6.26 and 7.33 can be decided on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.

THE SECTION 6.26 DISPUTE

The insurer argues that, as the claimant has failed to comply with s 6.26(1) of the MAI Act, he is taken to have withdrawn his damages claim: s 6.26(3). Section 6.25 is relevant to the dispute as it deals with the claimant’s duty to provide relevant particulars of his claim for damages to the insurer.
Sections 6.25 and 6.26 are in the following terms:
“6.25 Duty of claimant to provide relevant particulars of claim for damages
(1)     A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2)     For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
6.26 Consequences of failure to provide relevant particulars of claim for damages
(1)    If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2)    The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3)    If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4)    The claimant may make an application for reinstatement of the claim—
(a) to the Commission for a claim that is not exempt from assessment under Division 7.6, or
(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(5) (Repealed)
(6)    If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7)    If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
(8)    This section does not apply to a claim that, as at 2 years and 6 months since the motor accident concerned, is the subject of a determination by a medical assessor declining to make an assessment under Division 7.5 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.”

Evidence

The claimant relies on his statement dated 26 May 2022 and a statement of Paul Curtis dated 14 June 2022. I will refer to relevant aspects of the statements as I address the matters I am required to determine. The claimant has also lodged evidence with his application to the Commission, as has the insurer in its reply.

Submissions
Insurer’s submissions

In submissions dated 17 December 2021, the insurer argues that the claimant's common law claim is deemed withdrawn by operation of s 6.26(3) of the MAI Act. The insurer submits that it is clear from s 6.25 that the claimant is under a positive duty to provide it with relevant particulars about his claim given the words in s 6.25(1).
The insurer submits that, given the use of the word "must" in s 6.25(1), compliance is mandatory. It is argued that s 6.25(2) makes it clear that the duty includes an obligation to provide "full particulars" of, amongst other things, "any economic losses and other losses that are being claimed as damages".
The insurer submits that the fact that s 6.26 contemplates the sanction of deemed withdrawal for noncompliance with a s 6.26 Notice suggests that the legislature regarded noncompliance with s 6.25 as a serious matter.
The insurer argues that the claimant cannot discharge his duty under s 6.25 to provide "full particulars" of his claim by pointing to the evidence served and asking the insurer to make assumptions from that material as to what the scope of the claim might be.

Claimant’s submissions

The claimant relies on submissions dated 14 June 2022. He maintains that all relevant particulars were provided to the insurer prior to the issue of the s 6.26 direction to provide particulars.
The claimant submits that the insurer’s s 6.26 direction amounted to no more than a direction to produce information which had already been supplied by the claimant to the insurer or was available to the insurer from direct communications by the claimant’s solicitor, direct communications by the claimant with the insurer and the insurer’s third party agents and the supply of relevant material to the insurer as and when it became available. The claimant submits that the insurer is precluded from arguing that it did not already hold details of: the motor accident; the injuries sustained by the claimant in the accident; all disabilities and impairments arising from those injuries; and any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages at that time.
The claimant argues that the insurer was, as far as practicable, able to make a proper assessment of the claimant’s full entitlement to damages prior to its s 6.26 direction, when regard is had to the written communications between the claimant and the insurer, the claimant’s solicitor and the insurer and insurer’s solicitors, and the totality of the material provided by the claimant or on his behalf to the insurer, the insurer’s solicitor, the medical specialist qualified by the insurer and the insurer’s forensic accountant.
It is submitted that the insurer had in its possession particulars of the claim sufficient to make a proper assessment of the claimant’s entitlement to damages, as far as was practicable at the time. It is argued that the claimant was “left guessing” as to what precisely the insurer was seeking.
The claimant argues that the s 6.26 direction was “nothing more than a pro forma document” and at no stage had the insurer identified, either before or after issuing the s 6.26 direction, what relevant particulars had not been provided.

Insurer’s submissions in reply

In its submissions in reply dated 23 June 2022 the insurer emphasises its earlier submissions that the legislature clearly intended mandatory compliance with s 6.25 given the word "must" in that section and the mechanism in s 6.26, which can lead to a deemed withdrawal of the claim in the event of non-compliance.
The insurer submits that the clear intention of s 6.25 was to mandate that the claimant must go to the effort of providing the details required by that section, in one document, so that it is clear to the insurer what claim the claimant advances and to enhance the prospects of fruitful settlement negotiations.
The insurer canvases the legislative history of s 6.25, and relies on Atikullah v Sefton [2001] NSWCA 385 (Atikullah), a case that concerned, among other matters, s 50A of the Motor Accidents Act 1988 (MA Act).
The insurer’s submissions address the distinction between s 6.24 and s 6.25 and highlights that s 6.25(2)(d) of the MAI Act requires the claimant to provide "full details of…any economic losses and other losses that are being claimed as damages".
The insurer submits that quantification is precisely what s 6.25(d) calls for when it uses the language of "full details of…any economic losses and other losses that are being claimed as damages".
The insurer argues, on the basis of Atikullah, that the provision (whether it be s 50A of the MA Act or s 6.25 of the MAI Act) requires the claimant to provide details of what they are claiming. It is submitted that knowledge of what is being claimed is a critical step in the insurer's process of making a proper assessment of the likely quantum of the claim.
The insurer submits that the claimant failed to discharge his obligation to provide full details, in particular, of his claim for future economic loss, as required by s 6.25(2)(d). It is argued that the first time the claimant provided any details of his claim for future economic loss was on 6 December 2021 when the claimant served a report by Soutar Accountants, dated 29 November 2021, and provided a covering letter setting out Mr Soutar's calculations.
The insurer highlights that, by the time the Soutar report was served:
(a)    Over three years and six months had passed since the accident on 17 May 2018.
(b)    Almost 11 months had passed since the insurer served its s 6.26 Notice.
(c)    Over six months had passed since the limitation period in s 7.33 had expired.
Given the claimant's non-compliance with the insurer's s 6.26 Notice, the insurer submits that the claim is deemed withdrawn by operation of s 6.26(3) and cannot proceed unless reinstated pursuant to ss 6.26(4) to (7).

DETERMINATION

As recorded earlier, the term “relevant particulars” is defined in s 6.25(2) as follows:
“(2) For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
The term “relevant particulars”, as used in s 6.26, takes its meaning from s 6.25(2). In this regard, s 6.26 makes reference to the provision of all relevant particulars about the claim “as required by section 6.25”.
The insurer’s s 6.26 direction was issued on 11 January 2021. To my mind, the first matter for me to determine is whether, when the direction was issued, the claimant had failed without reasonable excuse to provide the insurer with all relevant particulars about the claim by reference to s 6.25(2). If he had not failed to provide relevant particulars s 6.26(1) was not triggered, and the insurer was not entitled to give the claimant a direction under s 6.26.
By letter dated 8 August 2018, the claimant, through his lawyers, responded to 83 questions asked by the insurer’s investigator. The response provided by the claimant in relation to the accident is, in my view, comprehensive. Further, I infer that the insurer had the details it needed about the accident to enable it to admit liability for the damages claim on 22 May 2020. I am satisfied that the claimant’s response to the investigator constituted the provision of full details of the motor accident to the insurer. The response also included details of his post-accident treatment.
With respect to his economic loss claim, under cover of a letter from his lawyers dated 14 June 2018, the claimant provided the insurer with his accountant’s Statement of Earnings dated 12 June 2018. Further financial records were provided by the claimant to the insurer’s accountant on 7 August 2019, 12 August 2019, and 26 August 2019, including details of a replacement driver he had engaged. It is perhaps worth recording at this point that at the time of the accident the claimant was operating a hire car driving business.
At the time the s 6.26 direction was issued, the insurer had available to it sufficient financial information to enable it to assess the claimant’s entitlements to weekly payments of statutory benefits under Part 3 of the MAI Act. In this regard, I note that the claimant’s weekly payments were the subject of a number of decisions by the insurer, including an internal review decision issued by the insurer on 22 August 2018, which resulted in a re-assessment of his pre-accident weekly earnings.
I also note that, when determining the claimant’s entitlement to weekly payments, the insurer would have been required to make a determination about matters including: whether he suffered a total or partial loss of earnings; the difference between his pre-accident weekly earnings and his post-accident earning capacity; and whether he had suffered a total or partial loss of earning capacity.
At the time the s 6.26 direction was issued, the claimant had provided the insurer with certificates of capacity/fitness in support of his entitlement to weekly payments of statutory benefits. These certificates included details of his injuries and work capacity.
Section 6.26(2) states that the insurer’s direction must be given in accordance with the Motor Accident Guidelines. The current version of the Guidelines, Version 8.2, includes clauses 4.119 and 4.120, which state as follows:
“Claimant failure to provide relevant particulars – damages claim
4.119 Under Division 6.4, section 6.26 of the Act, if a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars of their claim within two years and six months, insurers may send a Direction to Provide Particulars form.
4.120 Before making a request for further information, the insurer must take into account all relevant information already available, including any information from a related statutory benefits claim.”
Version 6 of the Guidelines was in force when the s 6.26 direction was issued by the insurer, and did not include clause 4.120 or a clause in equivalent terms. However, it seems to me that it would have been reasonable for the insurer, before it issued the s 6.26 direction, to have taken into account all relevant information already available to it, including the information it had in relation to the claimant’s statutory benefits claim. It may also be that to have taken such an approach could be considered to be consistent with the insurer’s duty to act towards the claimant with good faith in connection with the claim: s 6.3 MAI Act.
At the time the s 6.26 direction was issued, the insurer also had available to it certificates from Medical Assessor Rosenthal dated 7 March 2019 and Assessor Menogue dated 11 December 2020. On 11 March 2019, Assessor Rosenthal certified that the claimant had suffered a number of “minor injuries” as a result of the accident. He also certified that the multiple fractures of the left 5^th, 6^th, 7^th ribs were not minor injuries. Assessor Menogue certified that the soft tissue injuries to the claimant’s cervical spine and an aggravation of pre-existing arthritis in his thoracic spine were caused by the accident and did not give rise to a permanent impairment greater than 10%.
On 18 September 2019 the insurer wrote to the claimant and confirmed that it had been provided with requested information regarding his post-injury income, which had been received on 27 August 2019. It was also confirmed that the insurer had obtained a report from PKF forensic accountants to determine his post injury income.
The claimant was assessed by Dr Yu, at the insurer’s request. Dr Yu provided a report to the insurer dated 19 October 2018. The report makes it clear that the doctor had been provided by the insurer with records from NSW Ambulance, St George Hospital, certificates of fitness from Dr Pang and a whole body bone scan dated 29 May 2018. The report records a comprehensive history of the accident, the claimant’s social history, his past medical history, his post-accident condition and treatment, and includes an assessment of his earning capacity.

On 16 April 2020 a report of Dr Porteous, occupational physician, dated 11 March 2020, was served on the insurer by the claimant. Among other matters, the report contains details of the injuries the claimant suffered as a result of the accident, examination findings, and the doctor’s opinion as to the claimant’s fitness for work.
The insurer was also provided with a list of the claimant’s accident related injuries, in the context of a medical dispute, in correspondence from the claimant’s lawyers dated 17 April 2019.
In terms of the injuries sustained by the claimant in the accident, as at 11 January 2021, the insurer had, amongst other material, records from NSW Ambulance and St George Hospital, the certificates and reasons of Assessors Rosenthal and Menogue, together with the medico-legal reports of Drs Porteous and Yu. The insurer also had certificates of capacity/fitness completed by the claimant’s general practitioner, Dr Pang. A list of the claimant’s accident related injuries was provided in correspondence from the claimant’s lawyers dated 17 April 2019.
I am satisfied that the cumulative effect of this material is that, as at 11 January 2021, the insurer had full details of the injuries sustained by the claimant in the motor accident and the disabilities and impairments arising from those injuries as they stood at that time, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
The question then arises as to whether, as at 11 January 2021, the insurer had been provided with full details of any economic losses and other losses that are being claimed as damages sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
In this regard, it is to be noted that the insurer has made weekly payments of statutory benefits to the claimant. It has made determinations about his pre-accident weekly earnings. It has assessed his entitlements in accordance with Part 3 Division 3.3 of the MAI Act.
The claimant provided the insurer with his accountant’s Statement of Earnings dated 12 June 2018 under cover of a letter from his lawyers dated 14 June 2018. Financial records were provided by the claimant to the insurer’s accountant on 7 August 2019, 12 August 2019, and 26 August 2019.
The accountant qualified by the insurer appears to have been provided with financial records that were available to the claimant. While the accountants had been instructed by the insurer to provide an opinion to be used in the assessment of the claimant’s entitlement to payment of weekly statutory benefits, the report from those accountants, together with the financial records provided by the claimant, ought to have enabled the insurer, as far as practicable, to make a proper assessment of his past economic loss.
As to the claim for future economic loss, the insurer was aware that a claim was being made. I am satisfied that the insurer had been provided with both financial records and medical evidence that would have enabled it, as far as practicable, to make an assessment of the claimant’s full entitlements to damages for future economic loss, as the evidence stood at 11 January 2021.
As at 11 January 2021 the claimant did not have a forensic accountant’s report. The claimant’s evidence, which I accept, is that the forensic accountant was not instructed until 9 April 2021. A report was not prepared until 29 November 2021. In these circumstances, the report could not have been provided to the insurer at, or before, the time the s 6.26 direction was issued.
The other matter that should be noted is that, unlike the position in Atikullah, as at 11 January 2021, neither the insurer nor its lawyers had made a request for particulars of the damages claim that identified precisely what particulars were sought. The request made was in general terms, by reference to s 6.25, and did not reflect the fact that the insurer had accepted liability for the damages claim, or that the claimant had already provided the insurer with a significant amount of information relevant to his claim. As submitted by the claimant, given all the particulars and evidence that had been provided to the insurer, he was “left guessing” as to what precisely the insurer was seeking. In this regard, I note that neither the s 6.26 direction issued by the insurer, nor the follow up letter dated 14 September 2021, identified with any specificity the particulars that were said to be required or outstanding.
Given that one of the objects of the MAI Act is to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes, I do not consider it is reasonable to expect a claimant to provide an insurer with information that it has already been provided or is otherwise in the insurer’s possession. This would result in a duplication of work and would not be cost effective. It would add little, if anything, to the insurer’s ability to make a proper assessment of the claimant’s full entitlement to damages.
The other matter to be observed in relation to Atikullah is that, unlike the position in this claim, the insurer in Atikullah had not been making payments of statutory benefits to the plaintiff in those proceedings (Ms Sefton), there being no entitlement to statutory benefits under the MA Act. Accordingly, the insurer in Atikullah did not have available to it the range of material and information that was available to the insurer in relation to this claim.
The insurer submits that the clear intention of s 6.25 was to mandate that the claimant must go to the effort of providing the details required by that section, in one document. I reject that submission. That is not what s 6.25 says. The provision does not prevent relevant particulars being provided over a period of time, as I consider they were in this case.
In my view, a claimant can comply with the duty under s 6.25 by providing particulars about the accident, injuries and disabilities, and economic losses at different times and in different documents. While it would be ‘neater’ for the relevant particulars to be provided in one document, to do so is not mandatory. Further, a claimant can only provide information available to them at a given point in time.
The insurer’s submission that a claimant can discharge the mandatory obligation cast by s 6.25(2)(d) by providing a schedule of damages appears to place an emphasis on form over substance. A schedule of damages may add little to the insurer’s ability to make a proper assessment of a claimant’s full entitlement to damages. It is not immediately apparent how a schedule of damages in this matter would have added to the insurer’s ability to assess the claimant’s entitlement to damages in circumstances in which it had its own report from an accountant, together with certificates of capacity, reports from Medical Assessors, and medico-legal reports.
In my view, to the extent that the insurer considered the claimant had failed to provide relevant particulars of the claim, it should have made a tailored request that sought provision of only that information it did not already have and that it required to enable it, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
I find that as at 11 January 2021, the claimant had provided all relevant particulars about the claim that were reasonably available at that time and that those particulars would have enabled the insurer, as far as practicable, to make a proper assessment of his full entitlement to damages. I am not satisfied that the claimant had failed to provide the insurer with all relevant particulars about the claim when the s 6.26 direction was issued. As a consequence, I do not consider that the insurer was entitled to issue the s 6.26 direction it purported to issue on 11 January 2021.
It follows that the claimant is not taken to have withdrawn his claim. Accordingly, the matters with which ss 6.26(4), (6) and (7) are concerned do not arise.

SECTION 7.33 DETERMINATION

Section 7.33 is in the following terms:
“7.33 Time limits for referring claims and making assessment
A party to a claim cannot refer a claim for assessment under this Division more than 3 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 claimant’s submissions acknowledge that his application to the Commission was lodged on 13 December 2021, some six months and 20 days late. It is submitted that he has acted at all times in accordance with requests made by the insurer or on its behalf, and in accordance with the advice provided to him by his solicitor. It is argued that a reasonable person in his position would have experienced the same delay. In circumstances where the claimant relied on and acted on the advice of his solicitors throughout the conduct of the claim, and when his statement and that of his solicitor are taken into account, it is submitted that his explanation for the delay in referring his claim to the Commission for assessment is both full and satisfactory.
The insurer’s submissions dated 23 June 2022 record that it does not concede that the claimant has a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment.
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: Walker v Howard [2009] NSWCA 408 at [104] (Walker). 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: Walker at [106]. 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: Walker at [57]. The delay is the period during which the claimant was late in referring the claim to the Commission for assessment: Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16] (Karambelas).
The concept of a satisfactory explanation requires the making of an evaluative judgment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable: Karambelas at [17]. 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: Russo v Aiello [2001] NSWCA 306 at [17]. Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant: Hunter v Roberts [2019] NSWCA 116 at [20]. Reliance on legal representatives can constitute a satisfactory explanation for delay: Smith v Grant [2006] NSWCA 244 at [60].
The claimant has provided a comprehensive statement dated 26 May 2022. Relevant correspondence and other material is attached to the statement. The statement addresses the circumstances of the accident and canvasses in detail what transpired in relation to his claim from the time of the accident until May 2022. It addresses his interactions with his solicitor, the insurer, an investigator appointed by the insurer and the forensic accountant qualified by the insurer.
Mr Curtis, the claimant’s solicitor, has provided a statement dated 14 June 2022, which also attaches relevant documents.
I am satisfied that the statements from the claimant and Mr Curtis say what happened and why. The acts and omissions of all relevant persons have been canvassed in the explanation to allow an evaluation to be made as to whether the explanation is full. In that regard, the relevant persons are the claimant and his solicitor. I am satisfied that the statements enable me to evaluate the reasons for the delay.
I find that the claimant’s explanation for the delay in referring his claim to the Commission for assessment is full.
The claimant’s statement records that he instructed Mr Curtis to act for him in relation to his claim under the MAI Act on 4 June 2018. He states that since instructing Mr Curtis he has diligently acted on Mr Curtis’ advice, attended to all matters asked of him, and left the carriage of his claim in Mr Curtis’ hands. The claimant states that this claim is his first experience in the compensation system, not having previously made a claim for either compensation or damages. He has no legal training nor any knowledge of the regime for compulsory third party claims.
The claimant’s evidence is that, whilst he was advised that there was a three year time limit to lodge a common law claim for damages, he was not aware that this meant he would need to institute proceedings in the Commission between the date of his application for common law damages and the third anniversary of the accident. He was unaware that an application for assessment of his damages had to be lodged with the Commission by 16 May 2021.
The claimant’s evidence is that he accepted and acted on the advice of his solicitor at all times throughout the conduct of his claim and left the carriage of his claim in Mr Curtis’ hands.
In short, the claimant’s evidence, which I accept, is that prior to the claims he made in relation to the accident on 17 May 2018, he had never made a claim for compensation or damages. He was not aware of the regime in place with respect to a damages claim and relied on his solicitor to act for him in relation to the claim. The claimant states that he was not aware that his damages claim had to be referred to the Commission for assessment within three years of the accident.
I am satisfied that the claimant relied on his lawyers to provide him with advice in relation to his damages claim, including with respect to procedural requirements and time limits, to progress his claim and protect his rights.
I find that it is probable that the claimant’s solicitors did not advise him that his claim had to be referred to the Commission within three years of the accident. I find that the delay in referring the claim to the Commission was due to an omission on the part of the claimant’s solicitor.
I consider that the delay which has occurred in referring the claim to the Commission for assessment was reasonably justifiable. I have concluded that the claimant’s reliance on his solicitors constitutes a satisfactory explanation for the delay. I find that the claimant’s explanation for the delay is satisfactory.
For the purposes of s 7.33 I find that the claimant has provided a full and satisfactory explanation for the delay in referring his claim for damages to the Commission for assessment.
Leave is granted for the claimant to refer his claim to the Commission for assessment.

DIRECTIONS

On or before 25 July 2022 the parties are to advise the Commission whether the matter is ready to proceed to assessment or whether it should be referred to the stood over list. If the latter, the parties are to confirm, by reference to Procedural Direction MA1, the basis upon which they say the proceedings should be referred to the stood over list.

Member | Merit Reviewer

Brett Williams

Motor Accidents Division

Personal Injury Commission

[2022] NSWPIC 380

11 July 2022