Bromhead v AAMI
[2022] NSWPIC 340
•30 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Bromhead v AAMI [2022] NSWPIC 340 |
| Claimant: | Nicole Bromhead |
| insurer: | AAMI |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 30 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; the application was one day late; whether the Claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of “full and satisfactory explanation” in the context of section 7.33 under Part 7 of the 2017 Act; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the 2017 Act the Claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list. |
INTRODUCTION
The claimant, Nicole Bromhead, is a 40-year-old woman who suffered injuries in a motor accident on 9 November 2018.
The claimant claims that in the motor accident, she sustained a head injury, injuries to her neck, her back, her legs, her shoulders and her right ankle. She claims that since the accident, she has also developed a psychological injury.
On 2 December 2018, the claimant made a claim for payment of statutory benefits. Specifically, she sought payment from the insurer for treatment and care expenses.
On 31 December 2018, the insurer accepted liability for those payments for the first 26 weeks.
On 4 March 2019, the insurer notified the claimant that it accepted liability to continue to make those payments beyond 26 weeks because she was not at fault for the motor accident and that she did not sustain a minor injury.
The claimant subsequently received payments for statutory benefits to date.
Until at least September 2021, the claimant dealt directly with the insurer for the process of making and receiving payments for her claim for statutory benefits.
On 13 September 2021, the claimant received an email from the insurer attaching the report of Dr Thomas Newlyn dated 30 June 2021. In that email, the insurer informed the claimant that she had a right to make a claim for common law damages and that she had a period of three years from the date of the accident to do so. It was brought to the claimant’s attention that the three-year limitation period would expire on 9 November 2021.
On 7 October 2021, the claimant sought legal representation. On 18 October 2021, the claimant engaged Shine Lawyers to act on her behalf.
On 8 November 2021, Shine Lawyers lodged a claim for common law damages with the insurer on the claimant’s behalf.
PROCEDURAL ISSUE
On 10 November 2021, the claimant applied to have her claim for common law damages referred to the Personal Injury Commission (the Commission) for assessment pursuant to s 7.32(1) of the Motor Accident Injuries Act2017 (the MAI Act).
The referral was one day outside the time permitted for referral under s 7.33 of the MAI Act.
Section 7.33 of the MAI Act provides that a party cannot refer a claim for assessment more than three years after the date of the motor accident 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.
ORDERS SOUGHT BY THE CLAIMANT
The claimant seeks leave from the Commission for her claim to be referred for assessment.
The claimant also seeks a direction that her claim be referred to the stood over list pursuant to cl 10(a) of Procedural Direction MAI1, pending the conclusion of a medical assessment of her permanent impairment by the Commission.
In support of her application seeking leave and by way of a full and satisfactory explanation, the claimant has provided the Commission with the following material:
(a) The claimant’s signed statement dated 10 November 2021.
(b) The statutory declaration of the claimant’s legal representative, Natalee Davis sworn on 10 November 2021.
(c) The claimant’s submissions dated 18 March 2022.
I have considered this material.
THE INSURER’S POSITION
In its reply submissions to the Commission on 22 December 2021, the insurer submitted that the application is premature and should be dismissed.
During the course of a teleconference conducted by the Commission with the parties on 28 January 2022 to discuss the procedural issue, the insurer conceded that the application should be referred to the stood over list.
STEPS TAKEN BY THE CLAIMANT TO PROGRESS THE CLAIM FOR DAMAGES
On 8 November 2021, the insurer received the claimant’s claim for common law damages and issued a request for s 6.25 particulars.
On 26 January 2022, the claimant replied to the s 6.25 particulars.
The insurer has obtained clinical records from a number of treating doctors and hospitals. However, there are a number of medical records still outstanding.
The claimant is in the process gathering treating medical records and economic loss documents.
The insurer has obtained medico-legal reports from the claimant’s treating psychiatrist, Dr Thomas Newlyn and from psychologist, Alicia Tyler.
On 22 April 2022, the insurer has notified the claimant that the insurer does not concede that the degree of the claimant’s permanent impairment arising from her injuries is greater than 10%.
On 29 April 2022, the claimant lodged an application for medical assessment of her permanent impairment with the Commission. The medical assessment has not yet been arranged.
DISCUSSION
Section 7.33 of the MAI Act provides that a party to a claim cannot refer a claim for assessment by the Commission 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.
In the present case, the three-year anniversary of the motor accident occurred on 9 November 2021. The application to refer the claim for assessment was therefore one day late.
Section 7.33 is found in Part 7 of the MAI Act. Part 7 deals with “Dispute Resolution”. The phrase ‘full and satisfactory explanation’ is not defined in Part 7.
Part 6 of the MAI Act deals with “Motor Accident Claims” and relevantly sets out the duties of a claimant in making a claim (including making a late claim) and the duties of the insurer in handling a claim.
A meaning for the phrase ‘full and satisfactory explanation’ by a ‘claimant’ is found in s 6.2 in Part 6 of the MAI Act. Section 6.2 however, expressly stipulates that the meaning of the phrase is “for the purposes of this Part”, that is, Part 6 of the MAI Act.
I am therefore not persuaded that the meaning given to the phrase ‘full and satisfactory explanation’ under Part 6 should be applied when considering a party’s explanation for the delay for the purpose of s 7.33 of the MAI Act under Part 7 of the MAI Act.
Different considerations apply to obligations for making a claim for damages on time and referring a claim for damages for assessment on time.
The duty to make a claim on time rests solely with a claimant. Thus, any delay in making the claim requires the claimant to provide 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”[1] and “the explanation is not satisfactory 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.”[2]
[1] Section 6.2(1) of the MAI Act.
[2] Section 6.2(2) of the MAI Act.
Under Part 7, either a claimant or an insurer, as a party to a claim, may refer the claim for assessment. If the referral is more than three years from the date of the accident, the party who makes the application is required to provide a “full and satisfactory explanation” for the delay.
I find that the enquiry about whether there is a “full and satisfactory explanation” for the delay in referring a claim for assessment for the purposes of s 7.33 is contained within Part 7 itself. I consider that the enquiry is informed by the referring party’s actions in compliance with s 7.32(3) of the MAI Act. The period of enquiry should be from the date that the claimant was eligible to make her claim for damages to the date of referral of the claim for assessment.
Section 7.32(3) of the MAI Act provides that parties to a claim must use their best endeavours to settle the claim before referring it for assessment by the Commission.
According to s 6.14(1) of the MAI Act, a claim for damages cannot be made before the expiration of 20 months after the motor accident unless the claim is in respect of injury resulting in a degree of permanent impairment that is greater than 10%.
In the present case, the insurer did not at any stage concede the permanent impairment threshold. Therefore, by virtue of the provision of s 6.14(1), the claimant could not have commenced her claim for damages until 9 July 2020.
The period of enquiry is therefore from 9 July 2020 to 10 November 2021.
During the period between 9 July 2020 and 18 October 2021, the claimant was not legally represented.
Nevertheless, in August 2020, the claimant was able to lodge an internal review of the insurer’s decision not to concede the threshold for the degree of her permanent impairment.
On 4 August 2020, the insurer advised that it would issue a letter to confirm that the threshold would not be conceded. Further, the claimant was advised that as she was not legally represented, the insurer would proceed to lodge a medical assessment with the Dispute Resolution Service (as the Commission’s predecessor was then known) to resolve the dispute.
From the material before me, it does not appear that the insurer took this step to progress the claim.
On that basis, I am satisfied that there was nothing more that the claimant, as a self– represented litigant, could have reasonably done except to wait in expectation that this step was being taken by the insurer to progress the claim.
In her statutory declaration, Ms Davis deposed that due to an administrative oversight, the three-year limitation period was inappropriately recorded in her diary as 11 November 2021 instead of 9 November 2021. I accept her explanation as full and satisfactory for the delay of one day in referring the claim for assessment.
In the period between the date of their instructions on 18 October 2021 to 8 November 2021, I am satisfied that Shine Lawyers have taken reasonable steps to progress the claimant’s claim for damages. These steps have been previously outlined.
Given the nature and extent of the claimant’s claim for damages, I expect that by the time the medical dispute is determined, the parties would have had sufficient time to obtain and lodge the remainder of their medical and economic loss evidence with the Commission.
CONCLUSION
I am required to determine whether the claimant has provided a full and satisfactory explanation for delay and, if so, whether I should exercise my discretion to refer the claim for assessment.
I am satisfied that, for the purposes of s 7.32(3), the claimant has acted reasonably to progress her claim to a resolution prior to making her application to the Commission to refer her claim for assessment. In my view, there is no practical utility in pursuing a settlement of the claim until the medical assessment dispute is concluded.
I am satisfied that, for the purposes of s 7.33, the claimant has provided a full and satisfactory explanation for the delay in referring her claim for assessment.
Having regard to ss 1.3(4) and (5) of the MAI Act, s 4(2) and s 42 of the Personal Injury Act 2020, I am satisfied that I should grant the claimant leave to refer her claim for assessment.
ORDER
The claimant is granted leave to refer her claim for assessment by the Commission.
DIRECTION
Pursuant to rule 101(2)(a) of the Personal Injury Commission Rules 2021 and cl 10 (a) of Procedural Direction MA1, I direct that the proceedings be referred to the stood over list until 16 December 2022.
The parties have liberty to restore the proceedings for hearing or any other directions prior to that date.
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