Curtin v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Curtin v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 403
Claimant:	Zakkary Curtin
insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Terence O'Riain
DATE OF DECISION:	4 August 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant passenger; claims lodged for statutory benefits and damages on wrong insurer GIO before accident 3rd anniversary; claimant applied to Personal Injury Commission to assess damages claim before 3rd anniversary; claimant lodged damages claim on correct insurer outside statutory time limit; claimant sought to join correct insurer to this application under rule 62 Personal Injury Commission Rules to continue application to assess damages; a late claim cannot be referred for assessment until section 6.14(5) satisfied; insurer can be joined but correct insurer joinder to application cannot cure delayed damages claim; NRMA submits application must be dismissed under section 54 of the Personal Injury Commission Act 2020 and rule 77 Personal Injury Commission Rules; Held – NRMA joined; application to assess damages is misconceived and dismissed.

INTRODUCTION

This determination relates to s 54 of the Personal Injury Commission Act 2020 and rules 62 and 77 Personal Injury Commission Rules
I intend to dismiss this application to assess damages. The reasons are set out below.
Mr Zakkary Curtin (the claimant) was injured as a passenger in a motor vehicle accident on 1 May 2019. IAG Ltd t/as NRMA Insurance (NRMA) was the insurer for that vehicle.
On 31 July 2019, the claimant’s then solicitor Law Partners sent a completed Application for Personal Injury Benefits form to NRMA. The claimant also sent an incomplete and partially illegible certificate of capacity/certificate of fitness completed by doctors at Liverpool Hospital and signed by the claimant on 25 May 2019 (but without the section 3 employment declaration completed), the same day he signed the Application for Personal Injury Benefits.
At NRMA’s request Law Partners provided a further, better copy of the certificate of capacity/certificate of fitness form, which NRMA received on 7 August 2019 (but still without the section 3 employment declaration completed) (R3).
NRMA requested a completed form, however there is no complete form on the NRMA file.
NRMA closed its original file on 4 September 2019.
On 18 March 2022, Gerard Malouf & Partners (GMP) lodged an Application for Common Law Damages against AAI Limited t/as GIO–the incorrect number plate AP93EL was noted in the form.
At the same time, a statutory benefits claim was made against GIO, using a new application for personal injury benefits form – again with the incorrect number plate noted incorrectly in the form.
On 24 March 2022, the claimant signed a statement explaining the lodgement delay which was submitted to GIO.
The application to the Personal Injury Commission (the Commission) to assess damages was lodged on 28 March 2022 against GIO. This was 34 days before the third anniversary of the accident being 1 May 2022.
GIO instructed Moray & Agnew to act in the assessment.
On 13 May 2022, GIO rejected the statutory benefits claim form on the basis that it was late, and the explanation provided was not full and satisfactory.
On 7 December 2022, GMP lodged an Application for damages under common law with NRMA as the insurer for the correct insured vehicle registered AP93PL (using the form lodged against GIO and signed on 11 February 2022). This was 235 days after the accident’s third anniversary. This is in breach of s 6.14(2) of the Motor Accidents Injuries Act 2017 (the MAI Act).[1]
[1] 6.14 Time for making of claims for damages
On 9 December 2022, Hall & Wilcox (HW) on behalf of NRMA wrote to the claimant’s solicitor (see R6) confirming the common law damages claim lodged against that insurer was late and sought a full and satisfactory explanation for the delay in lodging the application for common law damages.
NRMA confirmed it would take over the statutory benefits claim lodged against GIO. The Guidelines allow for this to occur in respect of statutory benefits claims without the need for a further claim to be lodged with the correct insurer where the claim has been lodged with the incorrect insurer.
There is no equivalent provision in respect of common law damages claims.
On 3 March 2023, NRMA issued a notice (R7) denying liability for the common law claim while investigations continue.
As of 6 April 2023 HW had not received a response to the abovementioned letter dated 9 December 2022.
On 28 March 2023, the claimant served submissions seeking that NRMA be joined to, and GIO be removed from, the present Commission dispute under rules 62 and 63 of the Personal Injury Commission Rules, along with a purported explanation for the late common law claim against NRMA.
This included an undated, unsigned claimant’s statement (a signed copy has been provided); and Mr Mitris’ affidavit dated 28 March 2023 based on his assessment of the claimant’s file. Mr Mitris was an employed solicitor with carriage of the file, which another solicitor originally managed. The affidavit notes among other things that the solicitor noted the incorrect registration number, which led to GIO being served with the claims.
I note the claimant’s statement uses sophisticated legalistic sounding wording, while it states he is an uneducated man with low literacy skills. This type of statement drafting is unhelpful and is made not thinking about a witness being able to meaningfully adopt a statement if that witness would never use that type of vocabulary.
The claimant submits that it would be more efficient for the current assessment application to remain on foot.
The claimant’s submissions suggest that the assessment of the claim for damages against NRMA can proceed in a timely manner, if NRMA were joined to the present Commission dispute.
This does not overcome the prohibition on the claim being referred for assessment which is contained in s 6.14(5) and discussed below.
NRMA disputes the claimant’s assertion case because:
(a)    NRMA rejected the purported explanation, as set out above (R8);
(b)    the insurer is conducting further investigations in relation to liability;
(c)    common law liability is yet to be determined;
(d)    the late common law claim dispute is yet to be resolved;
(e)    insufficient treating material is held upon which to make a determination as to whole person impairment, and hence entitlement to non-economic loss;
(f)    further particulars, medical records/opinions and other evidence is required to assess any claim for economic loss (the claim for loss of earning capacity has not been particularised, the purported s 6.25 particulars are lacking and have been rejected), and
(g)    the claimant was in jail with no indication as to when he would be released or available for expert medical assessments.
My teleconference report dated 23 February 2023 stated the ability to apply for an extension of time under s 6.32(3) of the MAI Act[2] is not a panacea allowing the claimant to litigate eventually. Section 6.32(3)(b) requires the claimant to satisfy a monetary threshold, as well as supply a full and satisfactory explaining the reasons for delay. It is costly to satisfy that threshold, and not satisfying that requirement could lead to a considerable loss of rights and compensation. It will also lead to further costs and delays.
[2] 6.32 Time limitations on commencement of court proceedings
The claimant has submitted the application to assess damages should continue upon a joinder of the correct Insurer because of the likely prejudice which the claimant will suffer in relation to additional costs and disbursements being accrued and the prejudicial effect of offending the limitation period so that the claimant would be required to satisfy the greater damages threshold to pursue a common law claim in Court should that ultimately become appropriate.
NRMA’s position is that the above difficulty does not displace the clear wording of s 6.14(5) discussed above. The matter cannot be referred to the Commission for assessment at this time.
Even if the matter could be referred now, and NRMA joined to the application to assess damages against GIO lodged on 28 March 2022, the joinder cannot then be backdated as if the application had been lodged against NRMA on that date.
NRMA submitted it is analogous to a litigated matter where an additional defendant is to be joined during the proceedings – the limitation period against the later added defendant is not avoided merely because the other defendants have been joined within time.
The application for common law damages against NRMA was not referred to the Commission for determination within three years.
Time therefore has not stopped running in the common law damages claim against NRMA since the accident, for the purposes of s 6.32(1) and (2).
NRMA submits there is therefore no utility in joining that insurer to the current dispute in order to save the claimant the potential future difficulty in meeting the requirements of s 6.32, because that limitation period has already expired in respect of the claim for common law damages against NRMA, and joining NRMA to the current proceedings would not be effective for the purpose of circumventing the limitation period under s 6.32.
NRMA submits it would be appropriate to dismiss this application to assess damages.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

REASONS

GIO ceased to be a proper party when it became apparent it was not the correct insurer. It is proper to discharge GIO and join NRMA to this application.
However, while it could further the MAI Act objects and s 42 of the Personal Injury Commission Act 2020 (the PIC Act) to continue this application, the argument that there is no claim to refer to assessment, while s 6.14(5) of the MAI Act is not satisfied has the greater weight. This application must be dismissed.
The powers to dismiss proceedings in the Commission are prescribed at s 54 of the PIC Act and rule 77 of the Personal Injury Commission Rules (the Rules).[3]
[3] 77 Dismissal of proceedings
The Commission does not have the power to dismiss the application unless it falls within one of the listed items.
Unlike applications to strike out pleadings in court, 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 considering whether there is a claim to be referred for assessment.
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).
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.
There is no claim to be referred for assessment until that explanation is made out and accepted by the correct insurer or a miscellaneous assessment is decided in the claimant’s favour.
The current application for assessment of damages must be dismissed as the application was misconceived at the time the application to assess damages was lodged because there was no current claim against NRMA to assess.
Removing the GIO from this application and joining NRMA will not cure the late claim for damages issues.

DIRECTIONS

AAI Limited t/as GIO is discharged and IAG Ltd t/as NRMA Insurance is joined to this application following rule 62 of the PIC Rules.
The claimant’s application for the assessment of damages filed with the Commission on 28 March 2022 is dismissed.
The parties made no submissions as to costs.
The claimant is not entitled to costs in respect of the application.

(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.

(cf s 109 MACA)
(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after--

(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person--the date of death,
except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Commission for assessment of damages and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
(3) The leave of the court must not be granted unless--

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the relevant motor accident.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.
(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.

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.

[2023] NSWPIC 403

4 August 2023