Cabrita v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 230
•20 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Cabrita v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 230 |
| CLAIMANT: | Jose Cabrita |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 20 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (the Commission) for assessment more than 3 years after the motor accident; 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 (the MAI Act); meaning of “full and satisfactory explanation” in the context of section 7.33 of the MAI Act; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the MAI 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, Jose Cabrita, is a 57-year-old man who suffered injuries in a motor accident on 6 April 2018 when the insured vehicle made a right-hand turn in front of his motor scooter at the intersection of Church Street and John Street, Lidcombe.
On 8 January 2020, the claimant made a claim for common law damages with the insurer.
On 8 April 2020, the insurer admitted liability for the claim.
PROCEDURAL ISSUE
On 18 October 2021, the claimant applied to have his claim for common law damages referred to the Personal Injury Commission (the Commission) for assessment pursuant to section 7.32(1) of the Motor Accident Injuries Act2017 (the MAI Act).
The referral was about five and a half months outside the time permitted for referral under section 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 his claim to be referred for assessment.
The claimant also seeks a direction that his claim be referred to the stood over list pursuant to clause 10(a) of Procedural Direction MAI1, pending the conclusion of a medical assessment of his permanent impairment by the Commission.
In support of his application seeking leave and by way of a full and satisfactory explanation, the claimant has provided the following material:
(a) The claimant’s statutory declaration sworn on 31 January 2022 (9 pages).
(b) The statutory declaration of the claimant’s legal representative Thomas Julius Goudkamp sworn on 8 February 2022 (31 pages including attachments).
(c) The claimant’s submissions undated by lodged with the Commission on 9 February 2022.
THE INSURER’S POSITION
On 1 February 2022, the Commission was advised by the insurer that it had considered the claimant’s explanation and that no issue is taken by the insurer with respect to the late referral of the claimant’s application for the assessment of his claim.
Given the date of the insurer’s advice to the Commission, I assume that the insurer had taken that position on the basis of the claimant’s statutory declaration only.
STEPS TAKEN BY THE CLAIMANT TO PROGRESS HIS COMMON LAW CLAIM
On 13 January 2020, the insurer received the claimant’s claim for common law damages.
On 14 February 2020, the claimant received a request from the insurer (through its solicitors Hall & Wilcox Lawyers), requesting particulars.
By letter of 27 February 2020 the claimant, (through his solicitors, Stacks Goudkamp) requested the insurer to concede that the whole person impairment arising from his injuries is greater than 10%.
By letter of 8 April 2020, the insurer admitted liability for the claimant's claim for damages.
By letter of 9 April 2020, the insurer advised that it did not concede the claimant's whole person impairment was greater than 10%.
On 27 May 2020, the claimant served the insurer with his tax returns and notices of assessment for the financial years ending 30 June 2012 to 30 June 2019.
On 5 June 2020, the insurer served the report of Dr Thomas Rosenthal dated 1 June 2020. In reliance upon Dr Rosenthal’s assessment of the claimant’s whole person impairment at 3%, the insurer re-affirmed its decision not to concede that the permanent impairment threshold.
On 19 June 2020 and 23 July 2020, the insurer requested further particulars from the claimant.
On 19 February 2021 the claimant requested updated documents and a current list of payments from the insurer.
On 23 March 2021, the claimant provided the insurer with updated documents and particulars.
In his report of 8 April 2021, Dr Eugene Gehr assessed the claimant’s whole person impairment at 13%.
On 13 April 2021, the claimant served the report of Dr Gehr and again requested the insurer to concede the permanent impairment threshold.
On 17 May 2021, in the absence of a reply from the insurer, the claimant lodged an application for medical assessment of his permanent impairment with the Commission.
On 30 June 2021, the insurer advised the claimant that it maintained its decision not to concede the permanent impairment threshold for damages for non-economic loss. On 1 July 2021, the claimant requested an internal review of the insurer’s decision. On 15 July 2021, the insurer re-affirmed its decision.
On 18 October 2021, the claimant lodged an application with the Commission to resolve the medical dispute regarding his permanent impairment.
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 6 April 2021. The application to refer the claim for assessment was therefore lodged about five and half months 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 section 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 section 7.33 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 section 7.33 is contained within Part 7 itself. I consider that the enquiry is informed by the referring party’s actions in compliance with section 7.32(3) of the MAI Act. The period of enquiry should be from the date that a claimant made his or 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 section 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 section 6.14(1), the claimant could not have commenced his claim for damages until 6 December 2019.
The period of enquiry is therefore from 6 December 2019 to 18 October 2021.
During that period, the claimant took appropriate steps to progress his damages claim. As previously noted, the claimant made his claim on 8 January 2020.
The claimant has served the medical evidence and economic loss evidence upon which he seeks to rely. He has provided section 6.25 particulars to the insurer. He has taken steps to lodge his application to resolve the medical assessment dispute with the Commission.
Subject to the outcome of the medical dispute and the service of any refresher medical evidence, it is apparent that the claimant has completed all necessary steps to have his claim ready for settlement or assessment.
I consider that the claimant has acted reasonably in making, preparing and advancing his claim towards a resolution, within the short window of time allowed to by the MAI Act.
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 section 7.32(3), the claimant has acted reasonably to progress his claim to a resolution prior to making his application to the Commission to refer his claim for assessment. I am satisfied that, for the purposes of section 7.33, the claimant has provided a full and satisfactory explanation for the delay in referring his claim for assessment.
Having regard to sections 1.3(4) and (5) of the MAI Act, section 4(2) and section 42 of the Personal Injury Commission Act2020, I am satisfied that I should grant the claimant leave to refer his claim for assessment.
The parties agree that there is no practical utility in pursuing a settlement of the claim until the medical assessment dispute is concluded. I agree that the claim should be referred to the stood over list.
ORDER
The claimant is granted leave to refer his claim for assessment by the Commission.
DIRECTION
Pursuant to rule 101(2)(a) of the Personal Injury Commission Rules 2021 and clause 10 (a) of Procedural Direction MA1, I direct that the proceedings be stood over generally.
The parties have liberty to restore the proceedings for hearing before 19 November 2022.
Member Maurice Castagnet
Motor Accidents Division
Personal Injury Commission
0
0
2