Bekit v QBE (Insurance) Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bekit v QBE (Insurance) Australia Limited [2021] NSWPIC 444
CLAIMANT:	Ipek Bekit
INSURER:	QBE (Insurance) Australia Limited
MEMBER:	Terence O'Riain
DATE OF DECISION:	3 November 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claim, which is a reviewable decision under Schedule 2, clause 3 (i) of the Motor Accident Injuries Act 2017 (the MAI Act) about whether for the purposes of section 6.9 (Compliance with verification requirements—claim for statutory benefits) the claimant has sufficient cause for not complying with the motor accident verification requirements; accident verification requirements; section 6.8 of the MAI Act; Motor Accident Guidelines Edition 5.1; explanation not considered full and satisfactory; full and satisfactory; sufficient cause for non-compliance; sufficient cause; anti-fraud measure; police; police cooperation; event number; police event number; incomplete claim form; decision on the papers; Personal Injury Commission; statutory declaration; Held – the claimant has complied with the accident verification requirements under section 6.9 of the MAI Act.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The claimant has complied with the accident verification requirements under section 6.9 of the MAI Act. 2. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is nil. 3. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

This determination relates to a miscellaneous claim, which is a reviewable decision under Schedule 2, clause 3 (i) of the Motor Accident Injuries Act 2017 (the MAI Act) about whether for the purposes of section 6.9 (Compliance with verification requirements—claim for statutory benefits) the claimant has complied with the motor accident verification requirements.

Mrs Bekit has referred this dispute to the Personal Injury Commission (the Commission) because the insurer decided that Ms Bekit’s explanation for not complying with the accident verification requirements set out at section 6.8 the MAI Act and the Motor Accident Guidelines Edition 5.1 (the Guidelines)—specifically not providing the police event number as required under clause 4.17.2 of the Guidelines—is not considered full and satisfactory[1].
[1] 6.9 Compliance with verification requirements—claim for statutory benefits
I am to consider whether Ms Bekit has complied with the accident verification requirements or has sufficient cause for not complying with the verification requirements in that specific aspect.
The obligation to require that accidents are reported to police and verified has been part of the NSW motor accidents compensation schemes since 1988 when it was included in the Motor Accidents Act 1988 (MA Act) and later in section 70 of the Motor Accidents Compensation Act 1999 (MAC Act).
It was introduced as an anti-fraud measure to ensure that accidents had actually occurred before making payments on claims.[2]
[2]Section 70 disputes–a scheme issue? by Sosa Rahimi and Belinda Cassidy SIRA page 3–4
Non-compliance with the verification requirements or failing to provide a full and satisfactory explanation for non-compliance to the insurer means that the insurer does not have to deal with a claim unless the Commission determines that there is sufficient cause to excuse non-compliance.
The insurer declined to consider Ms Bekit’s claim because she has not provided the Police event number with her Application for Personal Injury Benefits (claim form).[3]
[3] A2, clause 3
Ms Bekit has provided an explanation (in accordance with clause 4.19 of the Guidelines) in her statutory declaration[4] that when she attended the police in person and by phone the police declined to provide an event number.
[4] AD4
I am satisfied that sufficient information has been supplied to the Commission in connection with the proceedings, so that I may determine this matter without a formal hearing pursuant to section 52(3) of the Personal Injury Commission Act 2020 (the PIC Act) and the Procedural Direction PIC2.
The rules of evidence do not apply to this assessment and I may look into any matter relevant to the issues in dispute in such manner as I see fit.

Jurisdiction

The Commission was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the PIC Act.
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident, clause 14D(3)(b) provides that the Act and the Guidelines continue to apply.

Background

On 7 February 2018 the claimant alleges that she was driving her car when the insured car collided with the rear of her car.
Police did not attend the scene.
The claimant lodged a claim form dated 23 April 2018.
The claimant alleges that she received injuries to the following body parts:
a.    neck;
b.    spine, and
c.     right shoulder.
It is accepted that the insurer wrote to Ms Bekit stating it would determine liability within 28 days.
The claim form included details of the insured driver.
On 22 May 2018 the insurer emailed the claimant withdrawing the undertaking to determine liability stating that the claim form was incomplete because it did not include the police event number.[5]
[5] R2
Police event numbers are normally generated after a police officer accepts a report of an incident or crime.
The insurer’s email undertook to process the application within 28 days once it received the police event number and apologised for the inconvenience the insurer’s omission had caused.
The email did not refer Ms Bekit to the Guidelines clauses relevant to accident verification including alternative steps she could take if she could not obtain an event number.[6]
[6] 4.18 If a claimant cannot provide the accident event number, the insurer must request from the claimant other information to verify the motor accident. Information requested may include:
There are no further communications on this issue until July 2020 when Ms Bekit’s lawyers applied to DRS to resolve the non-compliance issue and a minor injury dispute.
I refer to a note dated 20 May 2020 lodged with the application to resolve this dispute described as the claimant’s statement reporting the accident.[7]
[7] AD1
The statement briefly describes Ms Bekit’s unsuccessful call to NSW Police seeking an event number, without details as to when she made the call.
On 2 July 2021 I held a teleconference with the parties and the following directions were made:
a. on or before 16 July 2021 the claimant was to provide an updated statement including a narrative about steps taken to report the accident to Police, comply with clauses 4.18 and 4.19 of the Guidelines (edition 5.1) and submissions including costs, and
b. on or before 23 July 2021 the insurer would provide any further submissions in response to the claimant’s submissions and statement.
In late July 2021 Ms Bekit provided an up-to-date draft statement regarding two attempts to report the accident to police and obtain an event number.[8]
[8] AD3
Due to the Covid 19 emergency in Sydney the claimant was not able to attend on her solicitor to sign the statement.
In early August Ms Bekit provided an endorsed version of her updated statement (signed 3 August 2021).[9]
[9] AD4-Statement - Ipek Bekit
Both statements were made in English with the assistance of an interpreter and the need for interpreters is mentioned in other documentation.

Documents considered

I have considered the documents provided in the application with the reply and any further information provided by the parties.

Evidence

The claim form marked A2 contains details of the insured driver.
The insurer’s email dated 22 May 2018 refers only to the insurer overlooking the omission of the police event number when it issued the earlier acknowledgment letter—the email does not refer to any alternative means of satisfying the verification requirement.
Ms Bekit’s initial statement marked AD1 has one paragraph which recounts her telephoning the police line and being advised that the police could not provide her with a police event number.
Ms Bekit’s later and endorsed statement of nine paragraphs (marked AD4) states
Ms Bekit obtained advice from her solicitors, which included advising her that she was obliged to report the accident to police.
Ms Bekit states that sometime in or around May 2018 (before she received the insurer’s email above) she attended Merrylands police station and spoke to a male police officer.
That officer questioned her as to why she was reporting the accident several months after the accident.
Ms Bekit explained that she had childcare responsibilities, she had not been aware of the obligation to report the accident to police or that it was necessary to do so for her personal injury application.
Ms Bekit states that the police officer did not provide an event number and sent her away.
After she received the email in May 2018 above she phoned the police and provided accident details to a female officer who told her that a police event number could not be issued as the accident was too long ago.
When Ms Bekit explained that she needed the event number to complete her personal injury claim the officer told her that the insurer would assist her.
Publication on verification disputes
I also take into consideration findings made in the State Insurance Regulatory Authority’s (SIRA) publication Section 70 disputes–a scheme issue? by Sosa Rahimi and Belinda Cassidy PCA (as she then was), which is summarised below. It reveals a systemic problem with relying on police to accommodate requests to lodge reports and provide event numbers.
The Commission supplied the parties with a copy of this publication and the insurer was asked to consider its findings regarding claimants failing to obtain event numbers.
I also asked the insurer to reconsider Ms Bekit’s application in the light of these findings.
The publication analyses the possible reasons underpinning claimants’ non-compliance with accident verification requirements under the MAC Act.
This publication makes the point that the MAC Act or any guidelines does not address police responses to the claimants’ obligations to provide police event numbers for motor accident claims.
The obligation to obtain a police event number is solely a claimant’s responsibility with no obligation imposed on police to assist in the CTP claims process.
29% of the disputes about accident verification that went to assessment before CARS were contesting that police were reluctant to cooperate with claimants attempting to make reports and refused to issue event numbers.
The publication makes a number of recommendations, including insurers being given guidance on whether to insist on a police event number if the insurer has confirmed that the accident occurred with its insured.
The appendix of the publication gives examples of the police declining to accept claimants’ reports, which repeat similar circumstances to those disclosed in Ms Bekit’s statements.

Submissions

The claimant lawyers did not provide any submissions.
Insurer’s initial submissions relating to verification are as follows:
“5. The claimant has not indicated being in possession of, nor has she provided, any of the information outlined in clause 4.18 of the Guidelines.
6 Naturally, in the absence of same, the claimant is required to provide a statutory declaration addressing why. To date, this has also not been forthcoming and accordingly, the claimant has failed to fulfil the prerequisite requirements in bringing a statutory benefit claim.
7.The insurer refers to clause 4.20 of the Guidelines which dictates: A claim for statutory benefits need not be dealt with by the insurer until the: 4.20.1 motor accident verification requirements are complied with, or 4.20.2 Dispute Resolution Service (DRS) determines that sufficient cause existed to justify non-compliance.
8. Given that the claimant has neglected to comply with the verification requirements and has failed to deliver a statutory declaration for consideration by the insurer, DRS is in a position to make a determination as to whether or not there is sufficient cause to justify the non- compliance. (emphasis added)”
The insurer’s submissions in reply dated 6 August 2021 state that the test the Commission ought to apply is whether or not Ms Bekit has satisfied the test under section 6.2 of the MAI Act[10] in providing a full and satisfactory explanation for the delay.
[10] 6.2 Meaning of “full and satisfactory explanation” by claimant
The insurer cites authorities around the earlier legislation imposing the same test.[11]
[11] Diaz v Truong [2002] NSWCA 265
The insurer says Ms Bekit must account for the following time periods:
(a) date of accident until when claim form was lodged, and
(b) date from when claim was made until her explanation was given as to why she did not obtain an event number.
The insurer takes issue because of a lack of detail regarding the following:
(a)   when Ms Bekit obtained treatment and legal advice;
(b)   when she was told that she had to report the accident to police;
(c)   what happened between the time of receiving advice and attending the police station;
(d)   what efforts she made to report the incident after the officer declined to assist her;
(e)   what happened after she received the insurer’s request on 22 May 2018;
(f)    failing to define what the police meant when they told Ms Bekit it was “too long ago”;
(g)   lack of detail as to what Ms Bekit understood about her entitlement to compensation, and
(h)   no detail about further attempts to report the accident in the three years and six months since the accident.
The insurer denies that the police would decline to assist Ms Bekit because three months could not be considered too long ago but does not refer to any authority for that statement.
The insurer cannot “see” how the explanation could be full if those details aren’t provided or satisfactory.
The insurer states that a reasonable person in Ms Bekit’s circumstances would persevere after she had been rejected twice to obtain the event number.
The insurer points out that the explanation lacks input from the legal advisers who have not provided information on their efforts to obtain the event number or assist
Ms Bekit.
The insurer refers to Mancini and Blackburn submitting that the Commission must consider all reasons for the delay and that Ms Bekit’s reasons are inadequate.

Reasons

Does the claimant have sufficient cause to justify non-compliance with the verification requirements

The questions for the Commission to consider is whether or not Ms Bekit’s later statement satisfies the requirements set out at clause 4.19 of the Guidelines, or the claimant’s circumstances as set out in the statement were such that she had sufficient cause for not complying with the verification requirements, specifically not supplying an event number.
The relevant clause provides that a claimant has the alternative of providing a statutory declaration, which sets out the circumstances as to why a claimant cannot comply with an insurer’s request for information, including explaining whether or not the police have provided an event number.
The format of the statement marked AD4 includes the jurat confirming that the witness is aware of the obligation to be truthful, but it is not made in the format required for a statutory declaration before an authorised witness as required by the Oaths Act 1900.
In that case I must consider whether there is sufficient cause for non-compliance.
The insurer refers to cases regarding whether an explanation is full and satisfactory and submits that this must be considered in deciding if there is sufficient cause for non-compliance.
These are higher courts’ rulings on the MAC Act and the MA Act and deal with failing to make a claim within time limits, not failing to obtain event numbers.
Section 6.9 of the MAI Act states that whether an explanation is full and satisfactory is the relevant consideration for the insurer but directs the Commission to consider if there is sufficient cause for non-compliance.
There is no legislative definition of the phrase “sufficient cause” and in this case the phrase can be given its normal meaning.
I am to assess on the balance of probabilities whether Ms Bekit has established she had sufficient cause for not supplying an event number with her claim form, that is not complying with the verification procedure.
However, the authorities regarding explanations can assist in evaluating Ms Bekit’s explanation and her circumstances.
There are explanatory points on delay referred to in Ms Bekit’s later statement, as follows:
(a)    in April 2018 Ms Bekit’s solicitors advised her there was an obligation to report the claim to police;
(b)    she had attended on Merrylands police sometime during May 2018;
(c)    during that visit she was questioned about why she was making the police report “several months” after the accident;
(d)    her statement reads as if there was a lack of trust at Merrylands Police when the policeman questioned her but did not take details and then sent “her away”;
(e)    when the insurer wrote to Ms Bekit on 22 May 2018 regarding the need for an event number she called the police and was able to provide details of the accident to police but again faced rejection when she requested the event number, and
(f)    Ms Bekit needs assistance with the English language.
Once Ms Bekit knew what the obligations were, her attempts to comply with the need to obtain an event number were frustrated by police lack of cooperation.
The email marked R2 only referred to the event number as satisfying the verification requirements and did not refer Ms Bekit to alternative means of verifying the accident under clauses 4.18 and 4.19 of the Guidelines.
Ms Bekit’s statements dated 20 May 2020 and 3 August 2021, with the claim form, the insurer’s email requesting a police event number dated 22 May 2018[12] satisfy me that I understand how the accident occurred, the injuries and disabilities that she suffered, and why she was unable to obtain an event number.
[12] R2
The explanation is full as it addresses each point relevant to Ms Bekit’s actions regarding the motor accident sequelae, and each attempt to obtain an event number.
Ms Bekit’s later statement also confirms that the accident was reported when she called the police.
In Walker v Howard [2009] NSW CA 408 (Walker) the court held that generally what is required for a full explanation is a "chronology of the events from the date of accident to the date of the giving of the explanation explaining what happened and why. The provision does not call for perfection or prolix or burdensome recounting of every moment that has elapsed." (emphasis added).
The insurer’s submissions call for “burdensome” recounting of the reasons for delay, in spite of being able to confirm that the accident did occur with its insured.
The insurer asks me to accept that Ms Bekit should have known that she was obliged to continue to press the police to accept her report and obtain an event number.
Given the police lack of response I find that Ms Bekit’s declining to persevere could not derogate from having sufficient cause for non-compliance.
Ms Bekit’s circumstances were that she is from a non-English speaking background, trying to manage her physical condition and recover, relying on the lawyers she instructed and had been ignorant about her obligations to report the accident prior to consulting her lawyers.
The impact of the Police lack of cooperation, Ms Bekit’s circumstances, lack of information regarding alternative means of complying with the verification requirements and the explanation provided in her second statement were such that it appears that she has sufficient cause for not supplying an event number.

The SIRA publication on section 70 discloses a systemic issue where almost one third of disputes about verification under the MAC Act between 2012 and 2017 were a result of police declining to assist claimants attempting to obtain event numbers to comply with the obligations to verify the accidents occurred.
It lends authenticity to Ms Bekit’s statements about the obstacles she encountered.
I find that Ms Bekit’s attempts to obtain an event number and to report the accident to police were such that there is sufficient cause for non-compliance with the insurer’s request to obtain an event number.

Costs and Disbursements

86. There is no dispute between Ms Bekit and the insurer in respect to recovery of legal costs under section 8.8 of the Act.

87. The parties make no submissions on costs.

88. Ms Bekit's lawyers did not provide any submissions to support her application.

89. The dispute may have been avoided if her lawyers had written to the police to report the accident.

90. Even if the police had continued to refuse to provide an event number, the letter and any reply could have been relied on to satisfy the insurer.

91. Further, if Ms Bekit's initial statement observed clause 4.19 of the Guidelines and addressed what the later statement addressed then the insurer may have overturned its decision and it would have not required a teleconference to have Ms Bekit provide a statement, which addressed the circumstances fully.

92. I am not satisfied that the claimant is entitled to the payment of legal costs.

Conclusion
In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:

93. Ms Bekit has complied with the accident verification requirements under section 6.9 of the MAI Act.

94. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is nil.

Legislation

In making my decision I have considered the following legislation, guidelines and publications:
·        the MAI Act;
· Motor Accident Injuries Regulation 2017;
·        the Guidelines;
·        the MAC Act, and
·        section 70 dispute – a scheme issue? by Sosan Rahimi and Belinda Cassidy SIRA.

Terence O'Riain

Member (Motor Accidents Division)

Personal Injury Commission

A claim for statutory benefits need not be dealt with until—
(a) the motor accident verification requirements have been complied with, or
(b) the claimant provides to the insurer a full and satisfactory explanation for any non-compliance, or the Commission determines that sufficient cause existed to justify non-compliance.

4.18.1 photographs taken at the scene of the accident

4.18.2 witness statements

4.18.3 a hospital discharge summary

4.18.4 media reports

4.18.5 property damage insurance claim information

4.18.6 CCTV or dashcam footage.

4.19 If the claimant cannot provide the information requested by the insurers, they must provide a statutory declaration explaining why. It should include whether or not the NSW Police Force provided an accident event number.

(cf s 66 MACA)
(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.

Mancini v Thompson [2002] NSWCA 38 (Mancini)
Blackburn v Allianz [2004] NSWCA 385 (Blackburn)

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Citations

Bekit v QBE (Insurance) Australia Limited [2021] NSWPIC 444

Cases Citing This Decision

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Cases Cited

1

Statutory Material Cited

0

Diaz v Truong [2002] NSWCA 265

[2021] NSWPIC 444

3 November 2021