Beecroft v Allianz Australia Insurance Limited
[2024] NSWPIC 135
•18 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Beecroft v Allianz Australia Insurance Limited [2024] NSWPIC 135 |
| CLAIMANT: | Gary Beecroft |
| INSURER: | Allianz |
| MEMBER: | Hugh Macken |
| DATE OF DECISION: | 18 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim; full and satisfactory explanation; no compliance with duty; significant deficiencies in material; medical treatment; made aware of time limitations; unrelated health issues; claimant’s state of mind; in the position of a particular claimant; Held – application denied. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of Part 6 the claimant has not given a full and satisfactory explanation for non-compliance with a duty or for delay. 2. For the purposes of s 6.13 MAI Act a late claim may not be made. 3. A brief statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
The claimant brings this miscellaneous claims assessment application pursuant to schedule 2, cl 3, paragraph h of the Motor Accident Injuries Act 2017 (MAI Act). It is a claim for statutory benefits which has been declined by the insurer consequent on the insurer’s denial of liability, on 8 August 2023, because the insurer maintains that the claimant has not provided a full and satisfactory explanation for his not making a claim for statutory benefits within three months as prescribed by s 6.13 of the MAI Act.
Following the allocation of the dispute this matter was the subject of a preliminary conference on 31 January 2024 at 10.30am. At that conference significant deficiencies in the material provided by the claimant were identified and directions were made for the claimant to put on further material and submissions before 16 February 2024 and for the insurer to put on any further material or submissions before 1 March 2024.
This has now occurred with the claimant now relying on two statements. The first dated
1 February 2023 and the second being a further statement dated 15 February 2024. The insurer has provided further submissions dated 28 February 2024. Both parties have requested that this matter be dealt with “on the papers” and based on all the material provided on the portal without a need for a face to face assessment.
Section 6.13 of the MAI Act provides that a claim for statutory benefits must be made within three months after the date of the motor accident to which the claim relates. It allows a claim to be made within three years after the date of the accident if the claimant provides a full and satisfactory explanation for the delay in making the claim. The claim must include a full account of the conduct, including actions, knowledge and belief of the claimant and the explanation must be such that a reasonable person in a position of the claimant would have been justified in experiencing the same delay (Karambelas v Zaknic No. 2 [2014] NSW CA 443). I note that this is a matter which the parties request be dealt with by an examination of material only. It will turn on the most relevant material which is contained in the two statements of the claimant. In the short statement dated 1 February 2023, the claimant notes that he received an email from Allianz Insurance shortly after the accident. This followed correspondence between the claimant and Transit Systems. Thereafter on
18 August 2020 the insurer corresponded with the claimant stating that the accident needs to be reported to the police, an application for personal injury benefits be completed and a medical certificate to be completed by his general practitioner (GP). The claimant did not attend to these matters.
The evidence
The claimant was a passenger on a bus on 17 July 2020 when he fell and sustained injury. Documents provided with the material would indicate that there was correspondence between the claimant and Transit Systems. On 20 July 2020, some three days after the accident, the claimant was emailed and advised that should he wish to make a claim he ought to contact Allianz. The claimant did so and on 18 August 2020 received correspondence from Allianz advising that he would need to report the accident to the police and complete and return an application for personal injury benefits (APIB). The claimant did not do this. In his original statement the claimant said:
“I recall that I received an email from Allianz Insurance sometime not long after the accident.”
He goes on to state that Allianz confirmed that they were the insurer for the bus and gave him a claim number. Thereafter he states:
“After communicating with Allianz and receiving a claim number from them I assumed that I had a claim for compensation on foot.”
The claimant’s statement is silent as to what happened over the next two years or so. He says that he continued to have medical treatment and did not realise that a claim was not lodged until May 2022. This period between August 2020 and May 2022 is a period in which the claimant implies that he was unaware of the need to do anything further. That is, he was unaware of the need to put in an APIB. This is notwithstanding that the clinical notes in January 2021 make reference to the claimant needing a CTP certificate completed for insurance. This was also noted in the GP’s notes in March 2022. The claimant states that:
“Initially I believed that I had a claim with Allianz and they were paying for my treatment.”
This is not supported by the material. Indeed the insurer was notifying the treatment providers of the claimant as late as March 2022 that a duly made claim had not been submitted to them and accordingly medical treatment would not be paid for.
The claimant then states that in late May 2022 he realised that a claim had not been made and contacted PK Simpson Lawyers. He states that on 30 May 2022 he spoke with a solicitor in their office who assisted him in completing the forms and that this was the first time he was made aware of the time limitations. The difficulty for the claimant is that the claim form was not lodged until July 2023, some 14 months after he spoke to a solicitor and was made aware of the need to complete a claim form. There is no information provided by the claimant in his statement dated 1 February 2023 in respect to this second period.
In a statement dated 15 February 2024 the claimant states that:
“I understand that PK Simpson attempted to contact me a number of times in 2022 and 2023 by phone. I often had difficulty taking phone calls as I had a number of family issues at the time.”
It was not until January 2023 when the claimant states:
“I was advised that a late claim explanation was required by the insurer.”
At the time of providing a statement the APIB had still not been lodged. I am not satisfied that an explanation of the delay between May 2022 and July 2023 is either full or satisfactory. The claimant was aware that a claim needed to be made and did not do so. He was aware that the time limits were pressing, indeed had passed, and still did not attend to this. I did not consider that a reasonable person in a position of the claimant having been made aware of these matters would neglect to take any steps to remedy this situation.
The claimant states that there had been an incorrect postal address saved in his solicitor’s system and accordingly correspondence was not received. There is no corroboration of this.
In respect to the delay between the beginning of 2023 and the lodgement of the APIB in
July 2023 the claimant simply states:
“There were numerous phone chase ups and my APIB was not lodged until early July 2023.”
The insurer submits that this is neither a full explanation nor a satisfactory one and I concur with this submission. The submissions lodged on behalf of the claimant assert that the claimant was of the belief that he had a claim on foot with Allianz notwithstanding that there is a significant amount of documentation and material which confirms that a claim had not been lodged. In any event, the explanation must cover the totality of the period between the date of the accident and lodgement of the claim form. The claimant agrees that by May 2022 he was advised that no claim had been lodged and that a claim had to be lodged forthwith. A further 14 months passed before the claim was lodged. A statement that simply “there were numerous phone chase ups” does not support any assertion made by the claimant that his explanation for the delay is full. As was stated in Russo v Aiello [2003] HCA 53 the word “full” takes its meaning from the context. It refers to the conduct bearing upon the delay and the state of mind of the claimant. The only material that addresses the state of mind of the claimant is in his statement dated 15 February 2024:
“I often had difficulties taking phone calls as I had a number of family issues at the time. I was undergoing medical treatment for unrelated health issues which took up a lot of my time and attention.”
This does not give any reason as to why, having been made aware of the need to lodge the APIB, he did not do so. There is no detail in respect to the advice given by the solicitors nor the attempts made by the solicitors to contact the claimant. There is no material in respect to what effect, if any, any unrelated health issues would have on the claimant’s state of mind in the period May 2022 to July 2023. There is nothing in the material to allow any consideration of what a reasonable person, in a position of the claimant, would have sought to do having been advised of the need to provide an APIB to the insurer.
As was stated in Buller v Black [2003] NSWCA 45 “the standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant.” It is for the claimant to establish that a person placed in the actual position of this particular claimant would have acted as the claimant acted. This requires material addressing the claimant’s state of mind, his domestic circumstances, his health circumstances, his mental state and the degree of interaction between himself and his solicitors, who had advised him of the need to make a claim. There is nothing in the material that does this and accordingly it follows that the claimant has not made out a full and satisfactory explanation for the reason for the delay.
Conclusion
I am not satisfied the claimant has made a full and satisfactory explanation for the delay in lodging his application for statutory benefits. Accordingly, the application is declined.
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