Clark v QBE Insurance (Australia) Limited
[2023] NSWPIC 158
•6 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Clark v QBE Insurance (Australia) Limited [2023] NSWPIC 158 |
| CLAIMANT: | Sean Clark |
| INSURER: | QBE |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 6 April 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment as to whether for the purposes of Part 6 the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay; insurer asserted that claimant had failed to provide relevant particulars pursuant to section 6.25; claimant’s legal representative changed firms and was overwhelmed with workload and failed to comply with a direction under section 6.26; claimant’s own statement short and essentially explains that he relied on his legal representatives; Held – explanation both full and satisfactory; claimant did what would be expected of a reasonable person in his position; maximum regulated costs awarded. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: For the purposes of Part 6 the claimant has/ has not given a full and satisfactory explanation for non-compliance with a duty or for delay For the purposes of section 6.15 a claim may/ may not be rejected for non-compliance Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,000 plus GST. 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
INTRODUCTION
This determination relates to a miscellaneous claims assessment dispute as to whether for the purposes of Part 6 (motor accident claims) of the Motor Accident Injuries Act 2017 (MAI Act), the claimant has given a full and satisfactory explanation for the non-compliance with a duty or for delay. Specifically, the insurer submits the claimant failed to provide relevant particulars pursuant to s 6.25 of the MAI Act.
Mr Sean Clark, (the claimant), is a 49-year-old male who alleges injury arising from a motor accident occurring on 12 February 2020.
The application to the Personal Injury Commission (Commission) is brought on behalf of the claimant, seeking reinstatement of a claim for damages pursuant to s 6.26(6) of the MAI Act. The application to the commission is dated 12 December 2022.
I have held one teleconference with the parties on 30 January 2023. Directions were made as to the provision of further material by the parties. That material has now been provided.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Legislative framework
Section 6.25(1) of the MAI Act provides that all relevant particulars about a claim for damages is to be provided to the insurer by the claimant as “expeditiously as possible” after the claim is made. Section 6.25(2) provides:
“For the purposes of this section, relevant particulars, about a claim are full details of-
a)The motor accident concerned, and
b)The injuries sustained by the claimant in the motor accident, and
c)All disabilities and impairments arising from those injuries, and
d)Any economic losses and other losses that are being claimed as damages,
Sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
Section 6.26 of the MAI Act relevant provides as follows:
1) “If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may be a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
2) The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
3) If the clamant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
4) The claimant may make an application for reinstatement of the claim –
a)To the Commission for a claim that is not exempt from assessment under Division 7.6, or
b)To a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6
5) (Repealed)
6) If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court of Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
…”
Section 6.2 of the MAI Act sets out what constitutes a full and satisfactory explanation. It provides as follows:
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 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. “
Schedule 2 cl (3)(h) of the MAI Act provides that a dispute as to whether for the purposes of Part 6 (motor accident claims) the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay, is a miscellaneous claims assessment matter.
Section 7.42 of the MAI Act provides that a miscellaneous claims assessment matter may be referred to the Commission for assessment. The assessment of such dispute is binding on the parties to the dispute.
BACKGROUND
The claimant lodged a Common Law Damages Application (the claim) on the insurer on 20 December 2021.
The insurer admitted liability for the claim on 21 December 2022.
By way of letter dated 21 February 2022 the insurer requested particulars of the claim from the claimant, purportedly so the insurer could make a proper assessment of the claimant’s entitlement to damages. See s 6.25 above.
On 24 August 2022 the insurer issued a direction pursuant to s 6.26 upon the claimant, advising that the claimant had failed to provide all relevant particulars about the claim after a period of two years and six months following the accident.
As set out above, s 6.26 requires a claimant to respond within three months of the direction to provide a response. If the direction is not complied with within three months, the claim is taken to have been withdrawn.
In this case, the claimant did not comply to the direction and consequently the application before me seeks a reinstatement of the claim.
The insurer advised the claimant’s legal representative via letter dated 29 November 2022 that the claim was taken to have been withdrawn pursuant to s 6.23(3).
The application has been brought prior to the third anniversary of the motor accident, and as such the application is made pursuant to s 6.26(6).
The insurer denies that the claimant’s injuries exceed the 10% whole person impairment threshold for entitlement to damages for non-economic loss.
This decision was the subject of an internal review dated 15 November 2022. The internal review affirmed the original decision.
The claimant provided a letter dated 30 November 2022, purportedly providing the required particulars. The insurer’s representatives responded on 14 December 2022 advising its view that the particulars provided did not satisfy the requirements of s 6.25.
Further particulars were provided on behalf of the claimant by way of letter dated 27 January 2023.
THE EXPLANATION
Statement of Ian Roche dated 8 December 2022
The claimant’s legal representative, Ian Roche has provided a statement dated 8 December 2022.
He submits that only his conduct should be scrutinised as he has acted on behalf of the claimant throughout all relevant periods.
Mr Roche first had responsibility for the management of the claimant’s matter since instructions were received by the claimant to Mr Roche’s former employer, Shaddicks Lawyers. He is unable to state precisely when instructions were first given as he does not have possession of the file from the original firm.
The records held by Mr Roche suggest to him that he first assisted the claimant in completing the claim for damages in about November 2021. He had his first conference with the claimant on 13 December 2021.
Mr Roche acknowledges having received the insurer’s request for further particulars dated 21 February 2022, through Moray & Agnew. He states that it is clear that he took no steps at the time to address the content of the request.
Following this date the insurer obtained a medical report from Dr Wallace, which included an assessment of whole person impairment of 5%.
Mr Roche and his staff were obtaining medical records up until August 2022.
On or around 22 August 2022, Mr Roche received notice from his former employer regarding a planned redundancy with the firm intending to cease all personal injury work in approximately 30 days. As part of the process the firm communicated to all personal injury clients.
Mr Roche decided that the best course for himself was to set up his own practice in order maintain professional continuity and also “in an effort to protect clients of the firm from jeopardy as a result of the change.”
The claimant was approached by Mr Roche, and the claimant agreed that Mr Roche maintain management of the claim. Arrangements were made to transfer the matter from Shaddicks. Mr Roche states: “for various reasons it was not possible to effect a proper changeover until 2 November 2022.”
Mr Roche notes that the Moray & Agnew issued a s6.26 notice on 23 August 2022, which was the time he was informed about his redundancy.
Mr Roche explains that the claimant attended an assessment organised by him on 23 August 2022 with Dr Hopcroft. A report dated 30 August 2022 included a whole person impairment assessment of 13%.
The report of Dr Hopcroft was forwarded to the insurer and Mr Roche states he had a telephone call to discuss the matter with the insurer’s legal representative.
On 20 October 2022 Mr Roche lodged an application to resolve a dispute regarding whole person impairment with the commission. The application was rejected due to an internal review having occurred.
An internal review was subsequently requested from the insurer and the review affirmed the original decision that the claimant’s injuries do not reach the non-economic loss threshold.
Due to the then three year time limitation to commence proceedings in the commission, Mr Roche lodged an application with the commission for an assessment of damages. It is not clear from the statement exactly when this occurred, but it appears it was prior to the three year anniversary of the accident of 12 February 2023.
Mr Roche states that he then started preparing an evidentiary statement of the claimant.
The insurer’s notice that the claim is taken to have been withdrawn pursuant to s 6.26 was received.
Mr Roche states that he submitted particulars four days after the expiration of the s 6.26 time limit.
Statement of Ian Roche dated 27 February 2023
Following receipt of the insurer’s reply in these proceedings, Mr Roche has lodged a further statement. He states that he now has the benefit of access to the claimant’s file from his former employer. As such he is now able to clarify certain events prior to and post the expiry of the time fixed by the s 6.26 notice. The statement also deals with the insurer’s contention that the original letter providing instructions was not sufficient for the purposes of s 6.25.
Mr Roche briefed counsel in October 2022. Counsel replied on 18 November 2022, and Mr Roche was enabled to focus upon certain questions to the claimant about his work history in particular. A request for a large amount of information was made to the claimant, and began to be supplied in tranches.
Due to the insurer having alleged a paucity of information in respect of particulars, Mr Roche resolved to attempt to remedy the issue by providing comprehensive particulars of the claim.
The claimant was away over the Christmas break which caused an absence between 20 December 2022 and 25 January 2023. Mr Roche thereafter met with the claimant and finalised a letter of particulars dated 27 January 2023 on the 26 January 2023.
An appointment with a rehabilitation was made to take place on 9 May 2023.
Mr Roche concludes:
“At this point I should say that I do not conceded that my original letter of particulars dated 30 November 2022 is not in compliance with the statutory requirements. That said, and without seeking to be argumentative, I concede that had (sic) better information been available to me at that time and in a meaningful form rather than snippets of information, I would have been in a position to provide more fulsome particulars.”
Statement of the claimant dated 11 December 2022
The claimant states: “throughout the time that Mr Roche has acted for me I have relied completely upon his skill and judgement in dealing with the matter, including what I now understand to be a complex series of timeframes.”
The claimant also states that he is aware that Mr Roche’s changeover from Shaddicks lawyers to his own firm was difficult and involved the management of many clients including obtaining files. The claimant’s file was not obtained until November 2022.
Mr Roche explained to the claimant that he failed to comply with the timeframe to provide particulars. The claimant further states that Mr Roche informed the claimant that he has provided the best particulars he can at that stage.
The claimant goes on to state:
“I have complete faith in Mr Roche, and he went through a difficult time from about August to November this year. I certainly am aware that no one is perfect. I am also aware that if my claim is not able to be reinstated I will suffer significant prejudice as a result. My earning capacity has been significantly affected as a result of this injury. Details relating to those matters have been given to Mr Roche, and they will now form part of the claim.”
SUBMISSIONS
Short written submissions dated 12 December 2022 are provided in support of the application. They essentially refer to submissions set out in the statement of Mr Roche. Those submissions can be summarised as follows:
a.The prejudice which the claimant will suffer should the claim not be reinstated is substantial.
b.The claimant was reliant on Mr Roche in every respect to carry out all the various steps required.
c.The changeover from Shaddicks Lawyers to Mr Roche’s own firm as a sole practitioner was complex.
d.Mr Roche took around 50 files with him to his new firm and the workload associated with same was “enormous.” When at Shaddicks, Mr Roche had support staff including paralegals. In his own firm he has had no support staff and he has struggled until recently to comply with all of the demands associated with such a client base.
e.Mr Roche submits that “for various unrelated reasons” he has not been able to arrange to collect the whole file from Shaddicks Lawyers. He had some documents, and for a limited period had access to his old email account.
f.He further states: “there are gaps in the factual scenario I have outlined, due to my not having access to all communications between the insurer, Moray & Agnew and Shaddicks Lawyers.”
Insurer’s submissions dated 12 January 2023
These submissions refute that the claimant had at the time provided sufficient particulars as required by s 6.25.
As such, the submissions assert that a full and satisfactory explanation has not been provided in circumstances where all relevant particulars have not been provided and the failure to do so is ongoing.
Insurer’s further submissions dated 20 March 2023
The insurer noted the further particulars provided by Mr Roche, dated 27 January 2023 (received on 30 January 2023). The insurer now concedes that the particulars provided comply with the requirements of s 6.25 of the MAI Act. However, calls upon copies of the 2021 and 2022 taxation returns, notices of assessment and payment summaries.
The insurer submits that the relevant period over which the claimant must provide a full and satisfactory explanation is 25 November 2022 to 30 January 2023 (from the expiration of the s 6.26 notice to the provision of the required particulars to the insurer).
The submissions refer to the statement of Mr Roche dated 8 December 2022, and that a number of concessions made do not amount to an explanation for delay. Those being:
a) At paragraph 10: “I am unable to explain how I simply omitted to pay regard to the notice issued requiring the provision of the particulars, and the time fixed for the provision of that information expired without my response to it.”
b) At paragraph 12: “four days after the expiry of the time I submitted particulars which were then available to me to the insurer. There is no reason why this could not have been attended to in time.”
c) At paragraph 14(f): “There are gaps in the factual scenario I have outlined, due to my not having access to all communications between the insurer, Moray & Agnew and Shaddicks Lawyers.”
It is further submitted that the claimant’s explanation does not amount of a “full account’ from the claimant of his actions, knowledge and belief concerning the delay. In this regard, the insurer refers to the statement of the claimant dated 11 December 2022, and notes no further statement is provided.
REASONS AND FINDINGS
Is the explanation full?
Pursuant to s 6.2 of the MAI Act, a decision is full if the explanation is a full account of the conduct, including the actions, knowledge and belief of the claimant.
It is true that the claimant’s own statement is brief. That in itself does not mean that the explanation is not full. It may be that the short account encompasses an explanation of the relevant conduct, actions, knowledge and belief of the claimant.
There is an abundance of case law on both the meaning of “full” and the meaning of “satisfactory” for the purposes of .2 (and its predecessor – s 66 of the Motor Accident Compensation Act 1999). I do not propose to set out a lengthy summary of all case law. However, it is appropriate to refer to some relevant decisions.
For instance, in Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or…the prolix or burdensome recounting of every moment that has elapsed.”
On the question of where an explanation is to come from, Brereton JA in the decision of Rahman v Al-Maharmeh [2021] NSWCA 31 at [39] found:
“while the ‘full account of the conduct’ referred to in the first sentence of s66(2) MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that he explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
The claimant’s explanation is essentially that the claimant relied upon Mr Roche’s skill and judgment to take care of his claim, including what he has now learned to be a complex set of time limits. In addition, he notes the handover from Shaddick’s to Mr Roche’s own firm was a difficult period for Mr Roche.
It is clear the explanation is short. However, given the essence of the explanation there is little else that could be set out. The claimant relied upon his legal representatives. He was not aware of the specific requirements of s 6.25 and s 6.26 of the MAI Act. The provisions are somewhat obscure, and in my view it would not be reasonable to expect a claimant to be aware of the intricacies of the such provisions. When he became aware he followed the guidance of his legal representative.
Mr Roche has set out the steps he has taken to rectify the non-provision of s 6.25 particulars and the circumstances he was in at the relevant times. Specifically, he was dealing with a no-doubt stressful and complicated transition from a redundancy in one firm and the setting up of his own firm whilst handling a portfolio of personal injury claim files.
When considering the explanation provided by Mr Roche and the claimant a full account has been provided as to the steps taken to rectify the delay in providing particulars, and the fact that the claimant provided information as it was requested by him from Mr Roche. This includes the delay occurred over the Christmas/New Year period when the claimant was travelling.
Based on the above, I accept the explanation as being full.
Is the explanation “satisfactory”
Section 6.2(2) provides that an explanation is satisfactory if a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
As noted above, the claimant’s own statement is short. Again, I repeat my finding that the length of the explanation does not necessarily mean that it falls foul of the requirements of s 6.2. I have noted that the essence of the claimant’s explanation itself is such that a lengthy statement is not required. The heart of the claimant’s explanation is that he relied upon his legal representative to look after his claim.
As I have found above, the complexities of s 6.26 are somewhat obscure and I accept that a reasonable person in the position of the claimant would not have been aware of the specific requirements of the provision.
From the information provided by Mr Roche, I find that the claimant complied with his legal representative’s requests for information in a reasonably timely manner, noting the short delay over the Christmas/New Year break when he was travelling.
Noting that the time period in question overlaps with the period where Mr Roche was made redundant and set up his own firm, I find a reasonable explanation has been provided for the delay in providing s 6.25 particulars. Firstly, the claimant was not aware of the requirement until some time after, and the time limit lapsed as a result of Mr Roche’s temporary loss of focus on the claim as he was negotiating the stressful transition to setting up his own firm.
Whilst the insurer has highlighted a number of concessions made by Mr Roche as to why certain steps were not taken, when the concessions are read in the context of the whole of Mr Roche’s statements, it is clear that the lack of details are explained by the fact that Mr Roche was preoccupied with the situation that he found himself in. In addition, he did not have the benefit of the original file held by Shaddick’s.
It is apparent that sufficient particulars were not provided until around 27 January 2023. However, in the context of the changeover from Shaddick’s to Mr Roche’s own firm in around November 2022, and given the Christmas/New Year break I consider the further delay to be explained in a satisfactory manner. I do consider that a reasonable person in the position of the claimant, and indeed the claimant’s legal representative, would have experienced the same or similar delay.
For the above reasons, I consider the explanation to be satisfactory.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1, cl 3(2)(h) of the Motor Accident Injuries Regulation 2017 (the Regulation), legal costs may be awarded.
Schedule 1, cl 3(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The current value of a monetary unit is $112.53.
I have not received submissions from either party as to costs.
I have found in favour of the claimant in the dispute before me. I therefore consider it appropriate to award legal costs. Utilising my experience and judgment I award legal costs in the amount of $1,000 plus GST.
CONCLUSION
For the purposes of s 6.26 of the MAI Act the claimant has given a full and satisfactory explanation for non-compliance for a delay in providing particulars pursuant to s6.25 of the MAI Act.
Legal costs; the amount of the claimant’s costs assessed in accordance with the regulation is $1,000 plus GST.
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