Brown v Allianz Australia Insurance Limited
[2022] NSWPIC 245
•6 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Brown v Allianz Australia Insurance Limited [2022] NSWPIC 245 |
| CLAIMANT: | David Brown |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 6 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accidents Claims Assessment, claim referred to the Personal Injury Commission more than 3 years after the motor accident, whether the claimant has provided a full and satisfactory explanation for the delay, whether the leave should be granted by the Commission; operation of Section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act) meaning of “full and satisfactory explanation where the term is defined for the purposes of part 6 of the MAI Act but not part 7; comparison with provisions in the Motor Accidents Compensation Act 1999 (MAC Act); applicability of authorities addressing the MAC Act provisions relating to full and satisfactory explanation”; |
Certificate
Issued under section 7.36(5) of the Motor Accidents Injuries Act 2017
Determination
On 28 February 2018 the David Brown (the claimant) was crossing Captain Cook Drive, Woolooware at a controlled set of lights on a pedestrian crossing. It then transpired the insured driver drove his motor vehicle contrary to a red traffic light signal through the pedestrians crossing and collided with the claimant, causing him to be thrown from his bicycle, land heavily on the roadway and sustained serious injuries.
The insurer accepted liability for the accident by letter dated 9 April 2018.
The claimant submitted an application for the assessment of damages to the Personal Injury Commission (the Commission) on 15 October 2021, more than three years after the date of the accident. In the application, the claimant seeks leave for the claim to be referred for assessment.
Pursuant to section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act) the claimant must provide a full and satisfactory explanation for the delay in referring the claim for assessment to the Commission. He also requires leave from the Commission before his claim can be referred for assessment.
At the teleconference on 21 March 2022, the parties agreed the application can be determined on the papers. Having considered both section 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2, the application can be determined on the papers.
I am satisfied sufficient information is available in regard to the application to allow me to determine the application without holding a videoconference.
Effective Date: 6 May 2022.
Relevant statutory provisions
The claimant seeks leave from the Commission for the claim to be referred for assessment in accordance with section 7.33 which is in the following terms:
“7.33 Time limits for referring claims and making assessment (cf s 91 MACA)
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.
6.2 Meaning of ‘full and satisfactory explanation’ by claimant (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 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.”
Documents considered
The solicitor for the claimant relies upon the following documentation in support of this application:
(a) Statutory declaration of Thomas Julius Goudkamp dated 14 March 2022.
(b) Statutory declaration of the claimant dated 14 March 2022.
(c) Claimant’s submissions.
The solicitor for the insurer has not lodged any submissions or documentations in Reply to this application. In such circumstances, I have assumed the insurer neither consents nor opposes this application.
Claimant’s submissions
I refer to the statutory declaration of the claimant dated 14 March 2022. I will now refer to what I consider to be relevant paragraphs of the statutory deceleration:
“(12) Ms Goodall did not inform me of any time limits associated with bringing a claim when I first spoke with her.
(13) Prior to speaking with Stack Goudkamp, I had spoken to Greg Watkins, Barrister. Greg is a family friend. He specialises in family law. He had helped me with completing the Application for Personal Injury Benefits. Greg did not inform me of any time limits associated with making a claim.
(14) Prior to speaking with Greg Watkins and subsequently Stacks Goudkamp, I had not needed to seek advice in relation to a compensation claim for injuries.
(15) I was unaware of the provisions of the Motor Accident Injuries Act 2017 and unaware of any time limits provided by the Act.”
I also not the following paragraphs:
“(35) On 4 September 2018 Sharon and I met with Ms Goodall and Mr Goudkamp. We discussed my ongoing difficulties, both physical and psychological. Mr Goudkamp explained that even though I was in considerable pain and suffering from being unemployed I could not make a claim for a lump sum until 20 months unless the insurer agreed my injuries would be assess at greater than 10% whole person impairment. He stated that this was the law. He did not mention any other time restrictions.
(40) On 7 January 2019 I received an email from Ms Goodall informing me that the insurer had agreed that my injuries would be assessed at greater than 10%. She explained that this meant I was entitled to compensation for my pain and suffering.
(53) On 12 November 2019 I received a letter from Stacks Goudkamp enclosing an application for damages under common law. I completed the application form and returned it to Ms Goodall.
(57) On 2 January 2022 Ms Goodall contacted me via email requesting updated documentation and information. She noted that there was a three-year limitation period. Her email read:‘Dear David,
Thank you for your email.
I would be grateful if you could ensure all relevant information and documents are supplied to me by the end of the month as we have a three year limitation period and a number of steps to take before we reach that point.
I look forward to hearing from you.’
(58) I responded:
Will do. Have a great day.
(59) I did not query what a three-year limitation period meant.
(60) Ms Goodall has been through, efficient and responsive. I trusted that she would attend to the necessary legal and other aspects of my claim.
(61) I continued to rely on Stacks Goudkamp and did not pause to consider or question what a ‘three-year limitation meant’.
I also refer to the following paragraphs:
“(73) On 19 February 2021 Ms Goodall contacted me via email requesting an updated on my condition, treatment and ongoing disabilities.
(74) On 1 March 2021 I received an email from Ms Goodall informing me that an informal settlement conference had been arranged to take place on 27 April 2021.(90) On 20 July 2021 I emailed Ms Goodall to express concern about the fair notice I received from Allianz. I had only ever worked outside. I am not a computer person. I am very hands on. I was missing my work which was a great part of my identity. It’s all I knew and had ever done.
(91) On 26 July I followed up my previous email to Ms Goodall requesting an update. Ms Goodall informed me that the insurer had engaged lawyers and were arranging a number of appointments for me to attend. She informed me of the work she had been doing over the past month and requested an update from me.
(110) On 2 February 2022 I received an email from Ms Goodall attaching an updated copy of Submissions and Schedule of Damages for my review. Ms Goodall requested I review the document and email her with any changes which needed to be made.
(116) I was not aware of a time period within which an application to have my claim assessed had to be lodged.
(117) I was not told that my claim had to be lodged with the Personal Injury Commission within three years of the accident.
(118) Since my first conversation with Ms Goodall and Mr Goudkamp, I have relied on them and their team to manage my claim. I would respond to them when asked about my situation or provide documents when requested. I did not continually chase my solicitors up about where things were at because I believed they were doing what had to be done to progress my matter. I was focusing on my recovery. It seemed to me that everything which had to be done was being done.
(119) I did not have any understanding of time limits in relation to my claim. I had once been told there was a three-year limitation but did not have any further information on what that related to or whether there were steps which I needed to take.
(120) I sent my emails to Ms Goodall, and received many from her, to keep her updated on my ongoing pain and suffering. I relied on Ms Goodall and Mr Goodkamp to keep notes and remind me of any important information.
(121) I had my own personal struggles with feeling unheard and overlooked by the insurance company. A lot of my time and thoughts were taken up with these concerns.
(122) I did not research the claims process as I had engaged Stacks Goudkamp to look after the claim for me.”
I also refer to the statutory declaration of Thomas Julius Goudkamp dated 14 March 2022 in summary, the statutory declaration sets out in detail a chronology of the work undertaken on behalf of the claimant and also details regarding correspondence with both the claimant and the insurer. The statutory declaration confirms on 9 December
2019, the solicitor for the claimant lodged the claimant’s application for common law damages with the insurer.
As stated above, the three year limitation period expired on 28 February 2021. I refer to paragraph 166 of the statutory declaration as follows:
“(166) The claimant was not advised that there was a three-year limitation period to file his application for common law damages with the Personal Injury Commission. On 2 January 2020 the claimant was told:
‘I would be grateful if you could ensure all relevant information and documents are supplied to me by the end of the month as we have a three-year limitation period and a number of steps to take before we reach that point.’
(167) The claimant was not provided with any further information about the limitation period.
(168) On 1 March 2021 Ms Goodall emailed the claimant asking for photographs of his scarring.”
It is apparent from the statutory declaration of Thomas Julius Goudkamp the solicitor responsible for the daily conduct of the claimant’s claim, prior to the expiration of the three year limitation period on 28 February 2021, was preoccupied arranging an informal settlement conference with the insurer in an attempt to resolve this claim. The informal settlement conference took place on 5 May 2021 at which time the claim was not able to be resolved.
It is apparent from reading of the statutory declaration of Thomas Julius Goudkamp, the solicitor for the claimant, whilst aware of the three year limitation period, was preoccupied with an attempt to resolve the claim at an informal settlement conference rather than filing the appropriate application for assessment of damages.
Furthermore, at no time was the claimant informed that the three year limitation period had expired and no such application had been lodged with the Commission. It was not until the 17 December 2021 the solicitor for the claimant explaining that issue had been taken with section 7.33 and a statement had to be prepared on his behalf. The evidence comprised in the two statutory declarations relied upon constitutes a full explanation for the delay, in that it provides a full account of the actions, knowledge and belief of the claimant from the date of the accident up until the date he completed his statutory declaration.
His explanation is satisfactory, on the basis it was reasonable for him to completely rely upon his solicitors to act on his behalf in accordance with the requirements under the MAI Act.
The explanation for the delay is set out in detail of the statutory declaration of Thomas Julius Goudkamp in which there is a full chronology of what work was undertaken from the date of receiving instructions from the claimant up until the lodgement of this application pursuant to section 7.33 of the MAI Act. Mr Goudkamp has satisfied the obligation of providing full and satisfactory explanation for the delay. The claimant’s claim for damages was required to be lodged within three years after the date of the accident by reason of section 6.14 of the MAI Act. I refer to the decision of Smith v Grant (2006) NSW CA244 which involved an appeal from the District Court where a claimant was granted an extension of time in circumstances where her solicitor had lodged an application more than three years from the date of the accident. In such circumstances the claimant was required to seek leave of the court to proceed in the court pursuant to section 109 of the Act.
The explanation summary was that the claimant was advised by her solicitor that the most appropriate method of dealing with her claim was in the CARS systems given that the insurer had admitted liability. By the time the matter was eventually lodged with CARS, the three years had expired.
The claimant’s explanation to the court was that she was guided by her solicitor’s advice. The court at first instance and on appeal accepted the claimant’s explanation was …… in deciding it was satisfactory, the court of appeal held as follows:
“The following factors weigh in favour of the conclusion that the explanation given by the claimant was satisfactory:
(1)She relied on her solicitor to take appropriate steps within the statutory framework of the 1999 Act, in order to pursue her claim for damages.
(2)She knew from an early stage that liability was conceded by the defendant’s insurer and thus that the only relevant issue was the assessment of her loss.
(3)She was aware that an assessment of damages required medical evidence and that reports were obtained from doctors, but that the extent of her injuries was in dispute.
(4)Her solicitor advised that informal settlement procedures should be pursued, but that if settlement were not achieved, an assessment could be obtained through the CARS process.
(5)That process would require (at least as a practical matter) an independent medial assessment to be undertaken by a medical assessor.
(6)The medical assessment had been sought, but there had been a significant delay in obtaining a date for a consultation from the medical assessor.”
At [60] of the Court of Appeal decision the Court held as follows:
“Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or hers solicitors, although it was negligent, such reliance could provide a satisfactory explanation for the delay in commencing proceedings.
In the claimant’s submissions at paragraph 25 the solicitor for the claimant refers to the case of Smith v Grant (2006) NSW CA244. I also refer to paragraph 42 of the submissions in which the solicitor for the claimant refers to the case of Rahman v ALMaharmeh (2021) NSW CA31.
The term “full and satisfactory explanation” used in section 7.33 needs a full account of the conduct, including the actions knowledge and belief of the claimant, from the date of the accident up until the date of providing the explanation and the explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
Given the definitions of full and satisfactory explanation in the MAI Act and the Motor Accidents Compensation Act 1999 are in material respects the same, the authorities address the meaning of ‘full and satisfactory’ explanation for the purposes of the MAC
Act are relevant to determining the claimant has provided a full and satisfactory explanation for the purposes of section 7.33.
The claimant has provided a full and satisfactory explanation for delay
I am satisfied on the documentation before me the delay was a result of an error on the part of the claimant’s solicitor. I am satisfied the claimant has given a full account of the conducts, including actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation. I find the claimant’s explanation for the delay is full. I find the claimant had no understanding of any time limits for lodging the common law claim and, in these circumstances, I am satisfied that a person in the position of the claimant would have been justified in experiencing the same delay; a period of eight months. I find the claimant’s explanation is satisfactory.
I find the claimant has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment. I believe leave should be granted for the claim to be referred to assessment.
Directions
I confirm the matter has already been listed for a further teleconference on 5 May 2022 at 3.30pm at which time I will determine the way in which the assessment will proceed and set a timetable to prepare the matter for assessment.
David Ford
Member (Motor Accidents Division)
Personal Injury Commission
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