Clarke v Allianz Australia Insurance Limited
[2022] NSWPIC 224
•11 April 2022
CERTIFICATE OF DETERMINATION OF MEMBER CITATION:
Clarke v Allianz Australia Insurance Limited [2022] NSWPIC 224
CLAIMANT: Sharon Clarke INSURER: Allianz Australia Insurance Limited MEMBER: Terence O’Riain DATE OF DECISION: 11 April 2022 CATCHWORDS: MOTOR ACCIDENTS - Section 6.14 of the Motor Accidents Injuries Act 2017; late claim; application for assessment of damages made before explanation for late claim made out or insurer fails to challenge late claim; dismissal of application to assess damages; dismissed under section 54 of the Personal Injury Commission Act 2020 and rule 77 Personal Injury Commission Rules; Held- application to assess damages is misconceived and dismissed.
Background
This determination relates to section 54 of the Personal Injury Commission Act 2020 and rule 77 Personal Injury Commission Rules
1.This application to assess damages is dismissed. The reasons are set out below.
2.Ms Clarke (the claimant) was injured in a motor vehicle accident on 4 July 2018.
3.The application to the Personal Injury Commission (the Commission) for assessment of damages was lodged on 2 March 2022 which is 241 days after the third anniversary of the accident being 4 July 2021.[1]
[1] 6.14 Time for making of claims for damages
(cf ss 72 and 73 MACA)
(1) …
(2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the date within which the claim must be made.
(3) A claim for damages may be made after the time required by subsection (2) (a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
(4) …
(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless—
(a) the insurer has lost the right to reject the claim on the ground of delay, or
(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or
(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.
(6) The insurer loses the right to reject a late claim on the ground of delay if the insurer—
(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or
(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.
(7) …
(8) In this section, insurer includes the person against whom a claim for damages is made.
4.Ms Clarke served a claim for damages under common law to the insurer on 28 March 2022, which was 266 days after the 3rd anniversary. This is in breach of section 6.14(2) of the Motor Accidents Injuries Act 2017 (the MAI Act).
5.The insurer submits this late claim cannot be referred for assessment unless the insurer accepts the explanation for the late claim as full and satisfactory under section 6.14(3) or Commission has made a determination pursuant to section 6.14(5)(b).
6.The insurer submits this late claim cannot be referred for assessment unless there has been a determination by the Commission pursuant section 6.14(5)(b) and therefore, the application must be dismissed.
7.The insurer submits it is premature for a Member of the Commission to consider an explanation for a late application for assessment of damages as the claimant cannot make an application at this stage, due to the prohibition pursuant to section 6.14(5)(b).
8.Ms Clarke’s counsel was not able to make any submissions that could show a way to progress the assessment application when the status of the claim is unresolved.
9.The claimant’s solicitor will need to offer Ms Clarke’s full and satisfactory explanation to the insurer, and if her explanation is not accepted then lodge an application for a miscellaneous claims assessment of that late claim dispute under Schedule 2(3)(j). Such an application can be made at any time (see section 7.42(1)).
10.I noted from the claimant’s submissions at the teleconference and in the documents filed in the portal that it has been very difficult for Ms Clarke to provide instructions due to her mental anguish. It appears that her legal representatives have been doing their best in the circumstances to assist her.
Documents considered
11.I have considered the documents provided in the application and the reply and any further information provided by the parties.
REASONS
12.The powers to dismiss proceedings in the Commission are prescribed at section 54 of the Personal Injury Commission Act 2020 (the PIC Act) and rule 77 of the Personal Injury Commission Rules (the Rules).[2]
[2] 77 Dismissal of proceedings13.The Commission does not have the power to dismiss the application unless it falls within one of the listed items.
14.Unlike applications to strike out pleadings in court, for example under UCPR r 14.28, where the court is concerned solely with the form of the pleading and where, if the application is successful, leave may be granted to amend to plead in proper form, in applications for assessment of damages the Commission is limited to a consideration of whether there is a claim to be referred for assessment.
15.Section 6.14(5) does not allow a late claim to be referred for assessment after the third anniversary of the accident unless the insurer has lost the right to challenge the claim (it has not) or the Commission has determined that the claimant has a full and satisfactory explanation for the delay (it has not) or the claim is being referred for exemption from assessment (it is not).
16.The Commission cannot, of its own motion, amend the application for damages assessment to include a miscellaneous assessment to assess whether the claimant has made a full and satisfactory explanation for lodging the claim for damages after the third anniversary of the accident, or place it in the Stood Over list while the explanation for the late claim is assessed. The application cannot be vindicated after the fact if it was filed without a claim being made.
17.There is no claim to be referred for assessment until that explanation is made out and accepted by the insurer or a miscellaneous assessment is decided in the claimant’s favour.
18.The current application for assessment of damages must be dismissed as the application is misconceived at this time because there is no current claim to be assessed.
GENERAL DIRECTIONS
19.The timetable in the directions made 24 March 2022 is vacated.
20.The claimant’s application for the assessment of damages filed with the Commission on 2 March 2022 is dismissed.
21.The parties made no submissions as to costs.
22.The claimant is not entitled to costs in respect of the application.
Terence O'Riain
Member (Motor Accidents Division)
Personal Injury Commission
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch,
(b) for proceedings by an application made under the motor accidents legislation—
(i) if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due despatch, or
(iv) there is no jurisdiction to determine the dispute to which the application relates, or
(v) the application is being used for an improper purpose or is otherwise an abuse of process, or
(vi) the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.
Note—
Section 54 of the PIC Act provides that the Commission may at any stage dismiss proceedings before it—
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
Section 54 of the PIC Act also applies to medical assessment proceedings, merit review proceedings and panel review proceedings. See rules 107, 114 and 127.
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