El-Jajieh v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	El-Jajieh v AAI Limited t/as AAMI [2024] NSWPICMR 5
CLAIMANT:	Nesrine El-Jajieh
INSURER:	AAI Limited t/as AAMI
MERIT REVIEWER:	Terence O'Riain
DATE OF DECISION:	15 February 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review on preliminary issues in miscellaneous assessment application for reinstatement of claim under section 6.26(7) for claimant failing to comply with section 6.26(1) direction to provide particulars of her claim that comply with section 6.25; parties agreed that merit reviews must be resolved before miscellaneous assessment; insurer has foreshadowed applying for exemption from the Personal Injury Commission if the claim is reinstated due to issues of credit; reviewable decision is section 6.26 direction dated 25 November 2022; merit review under schedule 2(1) (x) and (z); the merit reviewer must assess whether the claimant has provided the insurer with all relevant particulars about a claim following section 6.25 and whether the insurer is entitled to give a direction to the claimant under section 6.26; Motor Accident Guidelines 8.2 clauses 4.119 and 4.120 authorise issuing section 6.26 directions and mandate examining what information is already available before seeking further information; parties provided copies of material available before section 6.26 direction was issued; merit reviewer must assess whether that material was sufficient to properly assess full value of the claim; clause 4.120 requires insurer to consider available material before requesting information; evaluation of evidence; claimant answered requests for particulars; provided information about how accident occurred, loss of earnings and injuries; claimant also provided authorities to insurer to obtain employment, medical and academic information; insurer proposed joint medical examination before issuing section 6.26 direction; section 6.26 disputes not about statutory benefits; limited to regulated costs; assessment via Teams with claimant questioned; correct and preferable; promote purpose of the MAI Act; Held – decision maker must consider whether claimant has satisfied section 6.25 and not whether claimant has failed to answer insurer’s specific request for particulars; insurer’s decision to issue a direction under section 6.26 is set aside; claimant provided all relevant particulars about her claim before 25 November 2022 and the insurer is not entitled to issue a direction to the claimant under section 6.26; claimant’s costs for these merit reviews are assessed at 16 monetary units for each merit review in accordance with the Motor Accident Injuries Regulation 2017; parties jointly applied for claims exemption following section 7.34; grounds satisfy Rule 99 (3) (a), (b) and (e) Personal Injury Commission Rules; complex factual liability and damages issues; recommended to Motor Accident Division Head to exempt claim.
DETERMINATIONS MADE:	CERTIFICATE *Issued under s 7.13(4) of the Motor Accident Injuries Act 2017* (MAI Act)** 1. The reviewable decision concerns disputes about whether (a) the claimant provided the insurer with all relevant particulars about her claim in accordance with s 6.25 of the MAI Act; and (b) if the insurer was entitled to give a direction to the claimant under s 6.26 of the MAI Act (Consequences of failure to provide relevant particulars of claim for damages), both of which are merit review matters under Schedule 2, cl 1 (y) and (z) of the MAI Act. 2. The insurer’s decision to issue a direction under s 6.26 of the MAI Act is set aside, and the following decision is substituted: (a) for the purposes of s 6.25 MAI Act the claimant provided all relevant particulars about her claim before 25 November 2022, and (b) following s 6.26 of the MAI Act the insurer was not entitled to issue a direction to the claimant under s 6.26 of the MAI Act. 3. The claimant’s costs for these merit reviews are assessed at $4,222.60 inclusive of GST in accordance with the Motor Accident Injuries Regulation 2017.

REASONS

BACKGROUND

The relevant accident occurred on 18 April 2020 and the provisions of the MAI Act apply.
The following points outline the history of the proceedings:
(a)    AAI Limited t/as AAMI (the insurer) wrote a letter dated 26 October 2022 to Nesrine El-Jajieh (the claimant) requesting particulars of her claim.
(b)    The claimant did not answer that request, so the insurer served a written direction by letter dated 25 November 2022, following s 6.26(1) of the MAI Act (the written direction).[1] This direction required the claimant to provide particulars of her claim following s 6.25 within three months, being no later than 25 February 2023.
(c)    The insurer emailed the written direction to the claimant with her then lawyers copied in.
(d)    The insurer says the claimant did not provide relevant particulars in accordance with s 6.25 of the MAI Act by 25 February 2023. Following s 6.26(3) of the MAI Act, the insurer asserts that the claim is deemed withdrawn.
(e)    The accident’s third anniversary occurred on 18 April 2023.
(f)    The claimant answered the insurer’s request for particulars dated 25 October 2022 by letter dated and emailed 28 October 2023, which was 62 days after the s 6.26 MAI Act direction deadline of 25 February 2023.
(g)    On 16 May 2023, the claimant applied for miscellaneous claims assessment seeking her claim’s reinstatement in accordance with s 6.26(4) and (7) of the MAI Act.
[1] Stephen Firth’s statement 7 September 2023 item 62.
The insurer opposes reinstatement.
Schedule 2(3)(h) of the MAI Act makes an application to reinstate a deemed withdrawn claim a miscellaneous claims assessment. The first limb of that sub-section requires the claimant to provide a full and satisfactory explanation for failing to provide the required particulars as defined under Part 6.5 of the MAI Act.
The claimant has instructed two previous solicitors in this claim before she settled on Mr Firth.
The claimant submitted her statement dated 31 May 2023 (AD1) and solicitor Jane Morgan's statement dated 16 May 2023 (A12). There are further statements listed below.
Those statements record that the claimant was unaware of both the request for particulars dated 26 October 2022 (A2) and the notice dated 25 November 2022 (A1). The claimant’s evidence is that the insurer’s email went to her junk folder, so she was not aware of the request.
The insurer's submissions dated 21 June 2023 sought a contested assessment including cross examination of the claimant and her previous lawyers in respect of the full and satisfactory explanation, and to address the allegations of injuries. The last point is in respect of the second leg of s 6.26(7) regarding the quantum threshold.
Insurer's counsel raised the possibility that this matter could be exempt from assessment because there are allegations of misleading and false statements with a complex factual matrix, which could require the calling of witnesses under subpoena and cross examining the claimant.
I note though, that to date the insurer has only issued a qualified denial dated 11 October 2022, based on the insurer requiring further information. I asked the insurer to draw my attention to any particularised denials of liability, but that is the only notice to date.
I also note the legislation does not permit the Commission to exempt the claim from assessment when it is deemed withdrawn and remit the miscellaneous assessment and merit review to the District Court. This is because no claim to exempt in that circumstance.
The Commission must deal with the merit review before it can assess the miscellaneous assessment issues. After these issues resolve then the Commission can address the exemption.
At the earlier conference on 28 June 2023 and in submissions, Mr Firth for the claimant also raised the argument that the insurer was not entitled to serve a written direction, as the available material – which the claimant provided as well as the insurer’s own investigations and its statutory benefits file – would enable the insurer, as far as practicable, to properly assess the claimant’s full entitlement to damages.
The parties have made submissions in respect of whether:
· the claimant has provided the insurer with all relevant particulars about a claim following s 6.25 (Duty of claimant to provide relevant particulars of claim for damages), and
· the insurer is entitled to give a direction to the claimant under s 6.26 (Consequences of failure to provide relevant particulars of claim for damages).
These are matters for merit review under Schedule 2(1) (y) and (z) of the MAI Act, and Regulation 10 (b) and (c) of the Motor Accident Injuries Regulation 2017 (the Regulation) specifically exempts such matters from requiring an internal review.
I also note that before the insurer issued its request for particulars that the insurer was obliged to consider the requirements in the Motor Accident Guidelines (Guidelines) in force on 26 October 2022.[2] The Guidelines requires the insurer to consider all the material already in its position before requesting further information.
[2] Version 8.2 Guideline 4.120.
During the assessment conference, I confirmed with the parties that I must decide the merit review matters before I can consider the application for reinstatement as a miscellaneous claims assessment. The latter is what the insurer terms in its submissions as the “substantive issue(s).”
Although the parties have made submissions on whether the claimant has a reasonable excuse for failing to comply with the insurer’s request dated 26 October 2022 that is not relevant to resolving the questions in this merit review.
If I find that as of 25 November 2022, when the insurer served its notice under s 6.26(1) of the MAI Act, the insurer already held sufficient information that would have enabled the insurer, as far as practicable, to properly assess her full entitlement to damages, the insurer would not have been entitled to issue that notice.
If that is the case, then the matters which ss 6.26(4), (6) and (7) of the MAI Act are concerned with do not arise. It will not be necessary to assess whether Commission can reinstate the claim if I decide the merit review issues in the claimant’s favour. The parties consented to this approach.
I hold dual appointments as a Merit Reviewer and a Commission Member. To exercise my authorised delegations under both appointments consecutively to resolve this dispute agrees with the guiding principles of the Personal Injury Commission Act 2020 (the PIC Act) and the objects of the MAI Act.

Legislative and Motor Accident Guidelines provisions

The insurer argues that the claimant failed to comply with a lawful direction given under s 6.26(1) of the MAI Act. If that is so the claimant is deemed to have withdrawn her damages claim following s 6.26(3). To establish whether it was lawful for the insurer to issue the direction the decision maker must examine whether the insurer already held sufficient material to properly assess the claimant’s full entitlement to damages, following the elements listed in s 6.25 of the MAI Act.
Sections 6.25 and 6.26 of the MAI Act are in the following terms:
“6.25 Duty of claimant to provide relevant particulars of claim for damages
(1)     A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2)     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.
6.26 Consequences of failure to provide relevant particulars of claim for damages
(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 by 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 claimant 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 or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7)     If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, 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 motor accident.
(8)     …

Guidelines version 8.2

“Claimant failure to provide relevant particulars – damages claim
4.119 Under Division 6.4, section 6.26 of the Act, if a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars of their claim within two years and six months, insurers may send a Direction to Provide Particulars form.
4.120 Before making a request for further information, the insurer must take into account all relevant information already available, including any information from a related statutory benefits claim.[TR1] ”

Evidence

The claimant relies on her statement dated 31 May 2023 and on Stephen Firth’s three statements listed below. There are documents attached to these statements.
The insurer relies on bundles of evidence and submissions.
I will refer to relevant aspects of the statements as I address the matters I must determine. I will deal with relevant evidence on the merit review issues first. If it becomes necessary, I will address the miscellaneous assessment evidence and submissions.
The statement dated 7 September 2023 annexes a request for particulars of the subject accident addressed to Ms El-Jajieh’s former solicitors from M&A Investigators dated 20 August 2020.[3]
[3] Pages 35-37 Stephen Firth’s statement dated 7 September 2023.
The request includes 48 questions about the subject accident circumstances, a question about income loss, another question about other accidents and four questions on her injuries and treatment.
Stephen Smart & Associates’ letter dated 16 October 2020 answered the M&A Investigator’s letter.[4] The letter contains detailed answers, or they referred to documents already provided to the insurer as part of the statutory benefits claim.
[4] Pages 46-49 Stephen Firth’s statement dated 7 September 2023.
The insurer's internal review decision dated 1 September 2022[5] varies the original treatment decision to allow three further psychology sessions, which it considered reasonable and necessary.
[5] Annexed at page 13 of Stephen Firth’s statement dated 21 September 2023.
The insurer’s review analyses the facts of the claimant's matter. The decision shows the insurer knew about the circumstances of the accident, the claimed injuries, the impact on her being unable to attend work and need for treatment.
The claimant’s application for personal injury benefits (claim form) dated 20 May 2020[6] indicates that the claimant has made earlier motor accident claims, albeit not providing details. The claimant provided more details in later communications and were known to the insurer before it issued its s6.26 direction on 25 November 2022. Only one previous accident claim resulted in a settlement. This was the 2015 incident against QBE that the claimant described in her amended claim form, which she provided on 22 June 2020.
[6] Pages 21-28 of Stephen Firth’s statement dated 21 September 2023.
The 2017 motor accident claim was against AAI Limited too.
The insurer also had her general practitioner's (GP) clinical notes and medicolegal reports relating to the claimant’s earlier accident on 20 October 2017, which set out the alleged injuries from an incident where the claimant alleges that a driver deliberately drove at her in the Parramatta shopping precinct. This supplements reports relating to that incident and the 2015 accident that are in the insurer’s bundle marked 2023.06.21.
Her GP Dr Kenan Ismail’s supporting certificate of incapacity from 18 April 2020 to 18 October 2020 lists the claimant’s injuries and her fitness for work relevant to this current claim.
The claimant answers question 7 of the claim form providing her employment details with Tarocash, which confirmed on the date of the subject accident she was not working due to the COVID enforced lockdowns.
On 26 May 2020, the claimant authorised the insurer to obtain her entire Tarocash personnel file.
On 28 May 2020, the insurer acknowledged receiving the claim form and providing additional information.
On 17 June 2020, the claimant emailed the insurer her Tarocash pay slips for the period 5 March 2019 to March 2020.[7] The email confirmed that Ms El-Jajieh had spent time overseas as well as working during those times.
[7] Page 30 of Stephen Firth’s statement dated 21 September 2023.
The claimant’s further email the same day sent further medical certificates and treating doctors’ reports. She also undertook to send further financial information.
On 19 June 2020, the claimant provided her tax file number to the insurer.
There is various further insurer’s correspondence, which confirms it knew the claimant’s earning status, statutory benefits, and provided her with a recovery plan for her injuries.
On 3 July 2020, the NSW police provided an accident report,[8] which outlined how the subject accident occurred. The police report was issued 2 July 2020 with the event number E74596266. The report names the insured driver as Younes Ahmad, but the insurer has not included the insured driver’s statement with its submissions.
[8] R19.
On 10 July 2020, the claimant emailed the insurer accident witness names and medical information.
On 14 August 2020, the insurer sent a liability notice confirming Ms El-Jajieh that the accident circumstances were not her fault for the purpose of her statutory benefits claim.
There was further insurer’s correspondence regarding the claimant’s fitness for work and whether payments could continue because she did not have current certificates of capacity.
There is further insurer’s correspondence which confirm that Ms El-Jajieh participated in rehabilitation, treatment, attending medical examinations, authorising the insurer to obtain her academic records, among other items relevant to establishing her economic loss and level of disability from the subject accident’s injuries. Her academic records are part of the insurer’s file.
The insurer’s letter dated 4 February 2022 thanks Ms El-Jajieh for taking an active role in her recovery and acknowledging an ongoing loss of earning capacity.
On 1 March 2022, the insurer obtained Dr Jeffrey Levi’s neuropsychological report.[9] Dr Levi interviewed and examined the claimant on 22 February 2022. This report refers to the psychological assessments and treatment the claimant had undergone because of the subject accident, addresses the circumstances of the accident and the accident’s impact on the claimant’s economic capacity and general disability.
[9] R20 insurer’s bundle marked 2023.06.21.

The insurer also requested particulars of the claim in a letter to the claimant dated 15 August 2022, which the insurer’s lawyers’ letter dated 26 October 2022 repeated.
There is also insurer’s correspondence after the insurer’s lawyers’ request for particulars dated 26 October 2022 to Ms El-Jajieh’s then solicitors providing copies of employment information and proposing to jointly instruct a medical expert to provide a report assessing impairments and earning capacity.
Another letter from Firths dated 6 April 2023, acknowledges Ms El-Jajieh did not attend an insurer’s medical examination on 11 January 2023.

Submissions

Claimant’s submissions

The claimant lodged her claim for statutory benefits through her then solicitors on 20 May 2020. From that date right through until the date the direction was issued, over two and a half years later (25 November 2022) the insurer had been managing the claimant's claim for statutory benefits and accumulated a substantial file.
The full file is before the merit reviewer and is summarised in Mr Firth’s further statement dated 21 September 2023. The merit reviewer must answer whether the insurer already possessed the information sought in the 25 November 2022 direction sufficient to satisfy the requirements of s 6.25 of the MAI Act – not the original request for particulars dated 26 October 2022. See Zahoor v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 28 for a comparable fact situation relating to this issue.
If the insurer already possessed sufficient information to properly assess the claimant's full entitlement to damages, then the insurer was not entitled to issue the notice dated 25 November 2022 and the claim is not deemed withdrawn and the claimant can prosecute her claim.
Guidelines clause 4.120, which applied when the insurer directed Ms El-Jajieh on 25 November 2022, explicitly requires insurers to consider what they already possess before requesting further information.
Zahoor involved an application for re-instatement following s 6.26 (4) of the MAI Act for failing to comply with the insurer’s direction issued to provide relevant s 6.25 MAI Act particulars of the claim. At paragraph 30, Member Castagnet notes that the “relevant particulars” are as set out in s 6.25 (2) of the MAI Act and the earlier particulars requested in that matter were not relevant to the enquiry before him, even though failing to answer the earlier request led to the insurer issuing the direction.
In that case the claimant complied with her duty under s 6.27 of the MAI Act to provide appropriate authorities to enable the insurer to obtain relevant information from third parties. Ms El-Jajieh has also cooperated with the insurer consistently.
Based on the material available to the insurer before 25 November 2022 the insurer already had enough information to assess the claimant's full entitlement to damages.
The insurer was not entitled to issue the 25 November 2022 direction.
If I approve of that submission, then it is not necessary to consider either limb of s 6.26 (7) of the MAI Act.

Insurer’s submissions

The insurer distinguishes Zahoor because it was a case where the claimant had already failed once to answer the insurer’s request for information, when it issued the later unanswered request, leading to a direction to the claimant to answer within three months following s 6.26(1) of the MAI Act.
The insurer points out that in Zahoor, the insurer admitted liability admitted for the common law damages claim. In Ms Al-Jajieh’s case, the insurer denies liability, because the insurer submitted in this proceeding that it foreshadows challenging the claimant’s credit.
Although the insurer had documents and records when it issued the 25 November 2022 direction, that is different from the insurer having sufficient information.
Compare the request for particulars dated 28 October 2022 and the ultimate response dated 25 April 2023.
The claimant latest answers provided further important particulars of which the insurer says was previously unknown, which relate to liability and quantum.
The claimant included her sister’s contact details and two persons part of the group present at the scene after the accident.
The claimant’s latest quantum particulars are as follows:
(a)    the accident allegedly injured her head, nose, neck, sternum, abdomen, back, left hip, both legs and feet plus psychological conditions including post-traumatic stress disorder, “anxiety disorder (panic)” and major depressive disorder.
(b)    She alleges greater than 10% whole person impairment from those injuries.
(c)    Present complaints were of “pain, stiffness and loss of movement” in her neck and back with radiation of symptoms into her right upper and lower limbs. She also experienced “[n]euro fatigue,” migraine headaches, dizziness, panic attacks, anxiety, and reduced concentration.
(d)    The claimant disclosed another accident which purportedly occurred in “[a]pproximately 2012” injuring her neck and back. She withdrew the claim because she made a “complete recovery,” and she was unable to recall any additional information. There was no mention of any previous accidents in 2015 and 2017.
(e)    There was a claim for past economic loss based upon total incapacity for work since the accident at a rate of $660.00 net per week (suggested to be the “average of her 2018 and 2019 earnings” from Tarocash). She specifically denied having undertaken any work since the accident. There was no claim for superannuation.
(f)    The claimant now alleges that her most likely future circumstances but for the accident would be that she would become a store manager at Tarocash and received a salary of ‘at least’ $65,000 gross per year.
The insurer submits that the Commission should understand why in this case, where the insurer is disputing liability and credit that the insurer regarded itself as not having sufficient information to enable it, as far as practicable, to properly assess the claimant’s full entitlement to damages when it issued the direction.
The insurer also submits it is relevant and tells against the claimant supplied the outstanding particulars without disputing the validity/entitlement of the request and associated direction.
The insurer’s attitude is that if it had no entitlement, then the claimant would have protested. Only recently the claimant has suggested that the insurer’s direction was invalid. Stating the insurer was not entitled to ask for more information may have had more force if that was her position as soon as the insurer requested those particulars.
The parties made extensive submissions regarding whether the claimant has provided a full and satisfactory explanation for the failure to provide the required particulars and whether the damages awarded could amount to at least 25% of the maximum damages for non-economic loss.
At the insurer’s request I listed these disputes as a contested merit and miscellaneous claims assessment under Schedule 2(3)(h) of the MAI Act on 1 December 2023.
The claimant attended and the insurer closely questioned her about her claim for damages and with leave about her explanation for failing to answer the insurer’s request for particulars.
Ms El-Jajieh answered the insurer’s counsel’s questions.
The insurer made closing submissions on the merit review points on 29 January 2024. These, among other issues, addressed findings on identical merit reviews to this dispute in recent Commission cases.

REASONS

The merit review process is before me as a preliminary issue in a miscellaneous assessment application.
In determining a merit review, according to s 7.13(1) of the MAI Act, I must decide what the "correct and preferable decision" should be, according to the relevant factual material before me with the applicable law.
I must step into the shoes of the insurer and make my own decision on the merits of the dispute – s 7.13(2), based on the information provided rather than on identifying errors in the previous decisions.
Following s 7.13(3), as Merit Reviewer I may decide to:
(a)    affirm the reviewable decision, or
(b)    vary the reviewable decision, or
(c)    set aside the reviewable decision and substitute my own decision, or
(d)    set aside the reviewable decision and remit the matter for reconsideration by the insurer in accordance with any direction made by the merit reviewer.
I am satisfied that the parties supplied sufficient information to the Commission in connection with these proceedings. There has been a hearing and the parties have made extensive submissions.
The rules of evidence do not bind me, but I may inform myself on any matter in the manner I think appropriate and as the proper consideration of this matter permits.
In this case the decision I must review is the insurer’s decision to issue its s 6.26 direction on 25 November 2022.
The questions to I must decide is not whether the claimant provided answers to the insurer’s request for particulars dated 26 October 2022 within three months of the MAI Act’s s 6.26 direction, but whether the merit reviewer standing in for the insurer has enough relevant information already available to it to decide that the claimant has complied with s 6.25 of the MAI Act. If answered in the affirmative, then a decision maker is not entitled to issue a s 6.26 direction.
The insurer submits that the answers it eventually received expanded and refined its knowledge about the witnesses to the accident, updated her claims about her medical state, a ten-year-old accident that inflicted no lasting relevant disabilities, confirmed she was alleging future economic loss based on the loss of a chance to become a Tarocash manager, and that she was alleging her injuries may exceed the permanent impairment threshold.
It may be reasonable for the insurer to refine and repeat its requests for particulars to expand its knowledge of the claim, but the insurer was not entitled to issue its direction dated 25 November 2022. After reviewing the evidence available to the insurer before it issued the direction, it is apparent that a decision maker could conclude there was already enough information to properly assess the claimant’s damages as far as practicable following s 6.25 of the MAI Act.
The factual material that was available to the insurer before 26 October 2022 that supports that outcome is:
(a)    the police report issued 2 July 2020 with the event number E74596266, which noted Ms El-Jajieh’s sister was a passenger in her car, the claimant’s answers to M&A Investigations’ request for particulars and the claim form provided enough information to assess how the accident occurred. The insurer already knew enough about the accident to decide it understood that the subject accident was not her fault when it issued the direction.
(b)    The claim form, medical reports, her GP’s certificates issued to support her claims for statutory benefits, the scans, and investigations the insurer approved, the answers to M&A’s requests for particulars contained sufficient information to assess what injuries and disabilities Ms El-Jajieh was alleging were related to the subject accident.
(c)    It was not practicable for Ms El-Jajieh to provide particulars about any further impairment, within the meaning of the MAI Act, because this is a medical question, which she is not qualified to resolve. Dr Bodel’s report dated 6 May 2021 assessing 7% permanent impairment was the only assessment with either party’s submissions, so it would only be on instructions that there had been changes since that report, that claimant could claim non-economic loss. Further evidence would be necessary to assess any entitlement. The insurer recognised this before it issued the 26 October 2022 request for particulars, because it had already proposed a joint medical examination to the claimant to assess earning capacity and impairment in its letter dated 18 October 2022.[10]
(d)    The claim form, the payslips, the claimant authorising the insurer’s access to Ms El-Jajieh’s employment information, tax information, her answers to M&A’s requests for particulars was enough to identify and quantify her claims for past and anticipate future economic loss.
(e)    It was apparent before the direction was issued that Ms El-Jajieh had not returned to Tarocash, and that the earnings loss was continuing. The payslips used to formulate the insurer’s statutory benefits payments were sufficient to establish her past losses. As far as practicable it was possible to assess the future loss would have been based at least in part on the Tarocash earnings, and that a modest promotion could have been a possibility, particularly as the insurer knew Ms El-Jajieh at least had the ability for a university to accept her. Medical evidence did not address whether that would be an indefinite claim or for a closed period.
[10] Stephen Firth’s statement 7 September 2023 item 50.
Section 6.25 of the MAI Act does not list a specific duty on a claimant to provide particulars about previous accidents although, it is relevant to assessing what injuries and disabilities the accident caused and the extent of economic losses. If there is a positive duty to provide those particulars, the claim forms and the insurer’s evidence bundle about her previous claims contained documents that sufficiently answered those questions.
The fact that the claimant did not object to answering the insurer’s lawyers’ request for particulars dated 26 October 2022 or provided additional information is not relevant to whether the insurer was entitled to issue the s 6.26 direction. Section 6.24 and objects of the MAI Act still requires the claimant to co-operate with the insurer.[11]
[11] See s 1.3 of the MAI Act, in particular s 1.3 (2)(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
The insurer submits in its closing submissions that the Guidelines do not state or infer that a claimant can discharge the positive s 6.25 duty by simply providing documents and evidence to the insurer and relying on the insurer to make assumptions from that material as to what the scope of the claim might be.
The relevant particulars referred to in Guideline 4.119 is referring to those set out in s 6.25 of the MAI Act and not just any request for particulars that an insurer says is unanswered and referred to in a subsequent s 6.26 direction. The clause recognises that insurers are well enough resourced to be relied on to properly assess the full value of the claim based on material it has if that information can satisfy s 6.25.
On reading Guidelines 4.119 and 4.120 together it is clear that before requesting more information an insurer must consider whether the available information can satisfy s 6.25.
I note that the insurer’s lawyers’ letter serving the s 6.26 notice on 25 November 2022 only refers to not answering the letter dated 26 October 2022 as signifying the claimant had not fulfilled her obligations under s 25 of the MAI Act. It does not refer to whether it has considered the other information it already had available, which may indicate it did not consider Guideline 4.120.
Section 10.7 of the MAI Act confirms the continuation of an insurer’s licence depends on complying with the provisions of the Guidelines applying to the insurer. Clause 4.120 specifically refers to the insurer which indicates it must comply with that clause to comply with s 10.7 and supports s 1.3 of the MAI Act objects.
Not complying with the Guidelines alone may not vitiate a decision, but if it conflicts with the objects of the MAI Act then it could.[12]
[12] Leeming JA in Ali v AAI Limited [2016] NSWCA 110 at [99].
As a substitute decision maker, I consider clause 4.120 requires me to evaluate the evidence I already have before I can decide whether I could issue s 6.26 direction. If the material enables me to properly assess the full value of the claim under s 6.25, then I would not be entitled to issue the direction.
It may be reasonable that an insurer may wish to clarify or repeat an already answered question to see if the claim has changed, but a gap in an insurer’s knowledge may not justify an action that eventually would mean a claim cannot proceed if a party can fill that gap fairly, and without unreasonable delay or expense.
The insurer’s closing submission that it would be unreasonable to expect an insurer to properly assess the full value of a claim without the claimant expressly stating what the claim is, could infer that a claimant must express the entire claim in one document, without the insurer considering the breadth of available relevant material to advise itself.
An insurer’s s 6.26 direction can set up a guillotine for claims, where the claim is at risk if a claimant does not answer requests for particulars in line with the insurer’s direction. That may be a reasonable outcome where a claimant has consistently demonstrated a lack of cooperation, but not where there enough information available to satisfy s 6.25 of the MAI Act.
A decision maker should weigh emphasising strict adherence against the objects of the MAI Act, the matters listed in s 6.25 and the Guidelines. Strict adherence imposes a pre-Judicature Act type scenario, whereby failing to fully plead an aspect of a case could lead to the dismissal of the whole.
In deciding what is the preferable decision to make, a decision maker may also consider the effect of decisions on dismissal of court proceedings for guidance on considering whether to issue a s 6.26 direction, as non-compliance effectively dismisses the claim.
Within the context of courts with inherent jurisdiction or under the time limitation legislation, a decision maker should only apply the effective dismissal sanction to cases that are not arguable or if there is irredeemable prejudice to the defendant. Accordingly, it is not for cases where there is an irregularity, which a party could correct with replies to requests for particulars, amending pleadings, and by affording procedural fairness.
The principle in General Steel v Commissioner for Railways (1964) 112 CLR 125 that a tribunal must not improperly deprive a plaintiff or claimant of the opportunity for the appointed tribunal to try the case could assist on deciding whether to issue a direction that could eventually deem a case withdrawn.
Further, Shepherd J stated in Trade Practices Commissioner v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685 (at [695]):
“... a court asked to strike out all or part of a pleading needs to be careful to ensure giving effect to the application does not prevent a party from making a case which it is entitled to make. One has to err on the side of caution lest one deprive a party of a case which in justice it ought to be able to bring.”
An insurer, contemplating whether to use a self-executing tool like the s 6.26 direction should consider the General Steel principle as well as Guideline 4.120. Guideline 4.120 is line with the principle that if available material signifies a case is arguable and quantifiable then it ought not be subject to a process that could lead to deemed claim withdrawal.
The word “fully” in s 6.25 MAI Act does not lock a party in once the insurer is able to appreciate the liability scenario and the probable value of a claim. The civil procedural legislation and rules governing tribunals and courts contemplate that changes to claims are possible if a tribunal provides procedural fairness.
The insurer’s submissions set out what the insurer intends to do about liability, but this is not relevant to deciding whether the insurer held sufficient information to properly assess the claim. The information Ms El-Jajieh provided before the s 6.26 direction gave her version of what happened.
Before issuing a s 6.26 direction, it is relevant to consider whether the claimant had previously demonstrated consistent recalcitrance in failing to cooperate with the insurer. The evidence indicates that since the accident happened Ms El-Jajieh was willing to provide the insurer with what it required. I note that the correspondence shows that Ms El-Jajieh missed dates and appointments, but a decision maker can balance that against her cooperation shown in earlier requests for information. There may have also been reasonable excuses for those omissions.

I should consider the insurer’s conduct too. It was being proactive in seeking to resolve the matter shortly before it issued the s 6.26 direction as it was attempting to arrange joint medical examinations and providing employment information to the claimant’s lawyers, so the decision to pivot and maintain the deemed withdrawal–even though the claimant ultimately answered the 26 October 2022 request – does not fit with the objects of the MAI Act.
The lawful and preferable decision is to decide that before the s 6.26 direction was issued there was sufficient information from its own investigations and information the claimant provided to the insurer to satisfy s 6.25 of the MAI Act. While it could be reasonable for the insurer to press for answers to the request dated 26 October 2022 and object to applying for assessment, it was not appropriate to issue the s 6.26 direction in those circumstances.
I permitted the insurer to extensively cross-examine Ms El-Jajieh. Examining my notes of the questioning and transcript I did not discern anything that would change this finding.

Exemption

The insurer asked I note that as this decision had not issued that it was still possible that I would find the subject claim has been withdrawn and would not reinstate it. That was the insurer’s primary position within its previous submissions dated 21 June 2023, 10 November 2023, and 29 January 2023.
To comply with the Commission and MAI Acts’ guiding principles the insurer takes the opportunity to apply for exemption from assessment of the “claim” (a term of convenience which should not be construed as a concession of the live procedural issues referred to above) under s7.34(1)(b) of the MAI Act, that is on the basis it is unsuitable for assessment.
The claimant consents to a discretionary exemption (which a tribunal should not construe as conceding any of the issues in dispute or allegations on which the application is based) and, in that respect, this is a joint application. These submissions are brief and follow s 7.34 of the MAI Act and Rule 99 (2) and (3)(a), (b) and (e) of the Personal Injury Commission Rules 2021.
The facts that support this application follow:
(a)    The accident occurred after midnight on 18 April 2020 at Bankstown. The claimant alleges the insured intentionally hooked his car from the lane to her left into the path of vehicle. She was unable to avoid a collision with the insured’s vehicle and suffered serious injuries.
(b)    The insured told police he was initially stationary in the far-right lane waiting to turn right onto Greenacre Road. As he commenced making the turn, the claimant attempted to overtake his vehicle on the right (that is, on the wrong side of the road) and collided with his driver's side door.
(c)    The claimant told police there were witnesses to the accident however police observed she had ‘poor excuses’ for not providing their information and which the police did not identify.
(d)    The attending police officer observed there were approximately 10 (additional) people of present at the scene who were talking both to the claimant and insured and ‘they all appeared to know one another’.
(e)    Witness details were not provided until the claimant answered the request for particulars dated 26 October 2022 in April 2023.
(f)    The insurer denies liability.
(g)    The claimant has been involved in several previous motor accidents. One occurred on 31 August 2015 and the claimant received a settlement from QBE in December 2016. The other occurred on 20 October 2017 and the claimant withdrew that claim after GIO alleged fraud.
(h)    The claimant alleged very similar injuries from those accidents as those in the context of the subject accident. Notwithstanding, the claimant denied any relevant pre-existing health conditions at the date of the subject accident within her application for statutory benefits which would not seem to have been correct.
(i)    The insurer refers to Dr Baron Levi’s opinion that there was “clear and compelling evidence” the claimant was “exaggerating her symptoms and malingering.”
(j)    There is also a dispute as to the claimant’s employment status at the date of accident. Whilst the claimant alleges an inability to work because of her injuries, objective evidence would support the contention her employment was terminated before the accident.
The insurer has placed liability/fault squarely in issue and submits it made good a challenge to the claimant’s credit which could support an allegation of false and misleading statements.
For the parties to receive a fair hearing, they submit it will be necessary to examine and cross-examine non-party witnesses under oath or affirmation.
The submission contemplates cross-examining the claimant could take several days which the Commission cannot accommodate.
The submissions state that questioning the claimant before me on confined procedural issues could not finish in half a day.
I note any witnesses would not have the protection of s 128 of the Evidence Act[TR2] NSW 1995 from incrimination in the Personal Injury Commission (Commission) if the claimant’s answers to questions established that she had made false statements.
I agree with the submission that the claim involves complex factual issues and complex damages issues to assess the claim. There are also issues of liability including fault and causation (and contributory negligence).
I recommend to the learned Motor Accident Division Head that she should exempt this claim from the Commission, so that it may proceed before the Court, as the more appropriate forum.

Costs

The claimant provided extensive submissions seeking the maximum amount of costs available under Schedule 1 of the Regulation. I accept that the claimant’s lawyers did a great deal of legal work to prepare this matter for the Commission.
I am satisfied the claimant's lawyers had done the work based on the material contained in the application. This was reasonable and necessary to prepare the merit review and the miscellaneous assessment applications.
Schedule 1 of the Regulation limits the maximum costs to 16 monetary units (to a maximum of 60 monetary units per claim) for legal services provided to a claimant or an insurer in connection with a merit review under Division 7.4 of the MAI Act involving a dispute about a regulated merit review matter. In this matter there are two merit reviews so I can allow the maximum 16 monetary units for each dispute.
The miscellaneous assessment has not proceeded so I cannot assess costs for that dispute.
The insurer has asked me to hold a further teleconference to discuss this matter of costs. However, based on the Regulation, I consider the information I already have is sufficient to decide the appropriate costs, so I decline to grant the insurer’s request on this point.

Outcome

The reviewable decision concerned disputes about whether the claimant provided the insurer with all relevant particulars about her claim in accordance with s 6.25 of the MAI Act, and if the insurer was entitled to give a direction to the claimant under s 6.26 of the MAI Act (Consequences of failure to provide relevant particulars of claim for damages), which are merit review matters under Schedule 2, cl 1 (y) and (z) of the MAI Act.

The insurer’s decision to issue a direction under s 6.26 of the MAI Act is set aside, and I substitute the following decision:
(a) for the purposes of s 6.25 MAI Act the claimant provided all relevant particulars about her claim before 25 November 2022, and
(b) following s 6.26 of the MAI Act the insurer was not entitled to issue a direction to the claimant.
I assess the claimant’s costs for these merit reviews at $4,222.60 inclusive of GST in accordance with the Motor Accident Injuries Regulation 2017.

[TR1]Is this a new sub-heading (should not be italicised) and the following text an insert? If the text is a quote, needs to be inserted within quotation marks.

[TR2]Cite in full in first instance, and needs to be in italics

[2024] NSWPICMR 5

15 February 2024