El Shaimy v Transport Accident Commission
[2024] NSWPIC 627
•10 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | El Shaimy v Transport Accident Commission [2024] NSWPIC 627 |
| CLAIMANT: | Adam El Shaimy |
| INSURER: | Transport Accident Commission |
| MEMBER: | Gary Victor Patterson |
| DATE OF DECISION: | 10 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claim assessment; whether late claim can be made; the claimant was injured whilst travelling as a passenger on a bus along Stoney Creek Road in Berkshire Park; the vehicle at fault in the accident was registered in Victoria; an application for personal Injury benefits was served on the Nominal Defendant and the claim was allocated to NRMA Insurance; claimant provided an explanation for the delay in lodging his claim form more than three months after the accident; NRMA admitted liability for ongoing statutory benefits after twenty-six weeks, whilst investigations were continuing; Medical Review Panel determined that the claimant had a non-threshold injury more than three years after subject accident; an application for common law damages was served on insurer, who referred it to Transport Accident Commission as the insurer on risk for common law damages; claim rejected as being late; Held – Member satisfied as to full and satisfactory explanation for delay in making the claim; late claim may be made. |
| DETERMINATIONS MADE: | CERTIFICATE FOR MISCELLANEOUS CLAIMS Issued under Division 7.6 Subdivision 3 of the Motor Accident Injuries Act 2017 (late claims) |
STATEMENT OF REASONS
INTRODUCTION
This determination relates to whether Adam El Shaimy (the claimant) has provided a full and satisfactory explanation for the delay in making a claim for modified common law damages after three years from the date of the motor accident as required under s 6.14(3) of the Motor Accident Injuries Act 2017 (the MAI Act).
This miscellaneous claim dispute has been referred for assessment under Part 7, Division 7.6, Sub-division 3 and Schedule 2, cl 3(h) and (l) of the MAI Act.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the PIC Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Direction PIC 2, the documents that are before me, including the parties’ submissions that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing and that this is the appropriate course in the circumstances.”
BACKGROUND
The claimant was injured whilst travelling as a passenger on a bus along Stoney Creek Road in Berkshire Park on 6 May 2019. The vehicle at-fault in the accident was registered in Victoria.
An application for Personal Injury Benefits was served on the Nominal Defendant on 22 October 2019 and the claim was allocated to NRMA Insurance.
On 13 November 2019, NRMA requested the claimant provide an explanation for lodging the Application for Personal Injury Benefits more than three months after the accident.
On 20 November 2019, the claimant provided an explanation for the delay in lodging his claim form.
On 22 November 2019, NRMA admitted liability for ongoing statutory benefits after 26 weeks, whilst investigations were continuing.
On 2 December 2019, NRMA forwarded correspondence denying liability for ongoing statutory benefits, on the basis that the claimant had a “minor” injury.
In June 2023, a Medical Review Panel determined that the claimant had a non-threshold injury.
On 3 October 2023, an Application for Common Law Damages was served on NRMA.
On 15 November 2023, NRMA informed the claimant he could make a common law claim against the Transport Accident Commission (TAC) if he wished, and that NRMA could send him the relevant application, if he required.
On 12 March 2024, an Application for Common Law Damages was served on the TAC.
On 20 March 2024, the TAC requested a full and satisfactory explanation for the delay in serving the Application for Common Law Damages. Statements by the claimant and his solicitor were provided.
On 8 April 2024, Carroll & O’Dea Lawyers confirmed by correspondence dated 4 April 2024 that they had been engaged to act on behalf of the TAC.
On 28 May 2024, Carroll & O’Dea Lawyers confirmed that the TAC rejected the claimant’s explanation for the delay, as being neither full nor satisfactory.
On 10 July 2024, TAC concedes that it has not been prejudiced by the claimant’s delay in making his common law damages claim.
On 10 July 2024, TAC concedes that the relevant period for the purpose of explaining the delay is from 6 May 2022 to 12 March 2024 as particularised in paragraph 61 of Ms McKay’s submissions dated 3 June last.
On 10 July 2024, TAC concedes that there are no credit issues and that it does not need to question either the claimant or his solicitor. I suggested that, in those circumstances, assessment on the papers would be appropriate. The claimant agreed. TAC reserved its position. TAC did not subsequently indicate any opposition.
I suggested that the parties should consider informal resolution of the dispute in view of the following special circumstances:
(a) the involvement of two insurers (NRMA and TAC), and
(b) the relevant facts arose during the COVID19 lockdown period during which the normal operation of the Personal Injury Commission (Commission) was interrupted.
It is not meant to indicate that either of the foregoing factors is relevant to my consideration and determination of the dispute.
The current miscellaneous claim dispute was registered with the Commission on 12 June last.
DOCUMENTS CONSIDERED
The claimant relied upon the following documents which I have considered:
(a) claimant’s submissions dated 3 June 2024;
(b) claimant’s first statement dated 29 March 2024;
(c) claimant’s second statement dated 2 April 2024;
(d) claimant’s third statement dated 3 June 2024;
(e) statement of Catherine McKay (claimant’s solicitor) dated 30 March 2024 (47 pages;
(f) second statement of Ms McKay dated 3 June 2024 (1 page);
(g) rejection explanation for late claim from Carroll & O’Dea dated 28 May 2024;
i.Certificate of Determination and Statement of Reasons of Review Panel dated 7 June 2023 that the claimant’s lumbar spine injury is not a threshold injury for the purposes of the MAI Act;
ii.medico-legal report of Dr James Bodel dated 11 March 2024;
iii.police report dated 22 April 2024;
iv.complete application seeking review of Medical Assessment Certificate (MAC) dated 11 September 2022 (122 pages);
v.Application to Admit Late Documents dated 8 May 2023 (83 pages), and
vi.further submissions dated 5 August 2024 in reply to insurer’s further submissions dated 3 July 2024.
The insurer relied upon the following documents which I have considered:
i.insurer’ submissions in reply dated 3 July 2024;
ii.s 6.20 Liability Notice dated 14 June 2024 confirming that TAC admits breach of duty of care but denies liability to pay damages on the ground of delay;
iii.annexure to Liability Notice comprising:
Claims forms
iv.Application for Personal Injury Benefits, and
v.Application for Damages under common law;
Evidence
vi.NSW police report dated 6 February 2020;
vii.Businsure Form dated 7 May 2019;
viii.NSW Police Government Information (Public Access) Act 2009 (GIPA) documents issued to McKay Compensation Lawyers – dated 22 April 2024;
Statutory benefits claim
ix.letter from McKay Compensation Lawyers to the nominal defendant (with annexures) dated 22 October 2019;
x.letter form McKay Compensation Lawyers to NRMA (with annexures) dated 20 November 2019;
xi.NRMA – Liability Notice – Benefits up to 26 weeks – dated 22 November 2019;
xii.NRMA – Liability Notice – Benefits After 26 weeks – dated 2 December 2019;
xiii.claimant’s Application for Internal Review to NRMA dated 5 December 2019;
xiv.letter from NRMA enclosing Certificate of Determination Internal Review dated 14 April 2020 confirming its earlier decision;
xv.Application (with annexures) in the Dispute Resolution Service (DRS) lodged by the claimant on 27 April 2020;
xvi.Commission certificate of Medical Assessor Mohammed Assem dated 16 August 2022 (against NRMA);
xvii.Commission Review of Medical Assessment (Member Cassidy and Medical Assessors Stubbs and Moloney) dated 7 June 2023;
xviii.NRMA – Further Liability Notice – Benefits After 26 weeks – dated 15 November 2023;
Common law damages claim
xix.email from McKay Compensation Lawyers to NRMA (with annexures) dated 3 October 2023;
xx.letter from McKay Compensation Lawyers to TAC dated 12 March 2024;
xxi.letter from TAC to McKay Compensation Lawyers dated 20 March 2024;
xxii.letter from McKay Compensation Lawyers to TAC (with annexures) dated 30 March 2024;
xxiii.second statement from Adam El Shaimy dated 2 April 2024;
xxiv.letter to McKay Compensation Lawyers dated 28 May 2024;
xxv.statement of Catherine McKay dated 3 June 2024;
xxvi.statement of AdamEl Shaimy dated 3 June 2024;
Treating medical evidence
xxvii.Certificate of Capacity dated 16 July 2019;
xxviii.Workers Doctors Records;
xxix.MRI cervical and lumbar spine and left knee dated 28 August 2019;
Claimant’s medico-legal reports
xxx.Dr James Bodel, orthopaedic surgeon, dated 11 March 2024, and
xxxi.the documentary material submitted by TAC comprises some 500 pages.
LEGISLATION
The following legislation applies:
(a) the MAI Act, and
(b) Motor Accident Injuries Regulation 2017 and Guidelines
Mr El Shaimy seeks a determination with respect to a miscellaneous claims assessment matter. I have jurisdiction to assess this miscellaneous claim pursuant to Schedule 2(3)(h) and (l) of the MAI Act.
LATE CLAIM – CLAIM FOR DAMAGES
A claim for damages must be made within three years after the date of the accident.[1] Nevertheless, ss 6.14(3) and 6.14(4) of the MAI Act relevantly state:
“6.14(3) – A claim for damages may be made after the time required by sub-section 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.
6.14(4) – Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in such explanation.”
[1] Section 6.14(2) of the MAI Act.
Section 6.2 of the MAI Act prescribes the meaning of a full and satisfactory explanation as follows:
“6.2(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.
6.2(2) – The explanation is not a 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.”
ISSUES IN DISPUTE
The issues that I am to decide, having regard to the parties’ submissions, are as follows:
(a) did Mr El Shaimy relevantly have a full and satisfactory explanation for the delay in making the claim when his explanation was first given?
(b) Can the late claim be made?
APPLICABLE AUTHORITIES – LATE CLAIM
The period for which a “full and satisfactory” explanation is required
At general law, the period to be explained is from the date of the motor accident until the date of giving the explanation.[2] In this case, the parties agree that the relevant period for explanation of the delay, in making the claim, is from 6 May 2022 (three years post-accident) to 12 March 2024 (the date upon which the explanation was given).
[2] McNamara v Fitzgibbons [2005] NSWCA 274 and Hickey Transport Pty Limited v Gordon [2008] NSWCA 167.
“Full” explanation
The “full account of the conduct” required by s 6.2 of the MAI Act is an account of the acts or decisions of the claimant and all relevant persons, including those acting or purporting to act on the claimant’s behalf, if their conduct is relevant. Such an explanation may be “full” even though it does not recount in perfect detail every moment that has elapsed within that period.[3]
· Nominal Defendant v Browne [2013] NSWCA 197 and cases therein cited.
[3] Dahdah v Witte [2023] NSWCA 304.
“Full” means “complete” so all relevant information is to be provided. The focus of the statutory concept of a satisfactory explanation is upon justifying the delay rather than excusing it.
“Satisfactory” explanation
The test of “satisfactory” is objective as to whether a reasonable person, in the position of the claimant, would have been justified in experiencing delay.[4] An explanation for a delay in commencing a motor accident claim will be “satisfactory” if at least one hypothetical person within a spectrum of reasonable persons would have experienced the same delay.[5]
[4] Walker v Howard [2009] NSWCA 408. See also Hunter v Roberts [2019] NSWCA 116 and Rahman v Al-Maharmeh [2021] NSWCA 31.
[5] See Dahdah above.
Both limbs must be satisfied
The term “full and satisfactory” is a composite expression. If an explanation is found to be incomplete, it is unnecessary to consider whether or not it is relevantly satisfactory. Even if an explanation relevantly is full, it may not justify a reasonable person, in the position of the claimant, experiencing the same delay. That is, even though the explanation relevantly is full, it may not be satisfactory.
SUBMISSIONS
In her initial submission dated 3 June 2024, the claimant’s solicitor sets out the chronology of events that have occurred since the date of the subject accident. The insurer takes no issue with that chronology. Of particular note are the following:
(a) NRMA accepted the claimant’s explanation for lodging his Application for Personal Injury Benefits more than three months after his injury.
(b) On 28 April 2020, the claimant’s application was lodged in the DRS for determination of minor injury dispute. That application was not referred to a Medical Assessor for determination until 4 August 2022 due to the effects of the COVID19 pandemic and the temporary cessation of DRS medical assessments.
(c) On 24 August 2022, Medical Assessor Assem certified that the claimant had a minor injury.
(d) On or about 11 September 2022, the claimant submitted an Application for Review of Medical Assessor Assem’s certificate.
(e) On 18 October 2022, the President’s delegate accepted the claimant’s application and referred the matter to a Review Panel for reassessment.
(f) On 7 June 2023, the Review Panel (comprising Member Belinda Cassidy, Medical Assessor Geoffrey Stubbs and Medical Assessor Shane Moloney) certified that the claimant’s lumbar spine injury is not a threshold injury for the purposes of the MAI Act.
(g) On 3 October 2023, an Application for Common Law Damages was served on NRMA.
The claimant submits that his statement dated 29 March 2024 sets out chronologically the sequence of events that transpired from the date of the subject accident on 6 May 2019 until the date he provided his statement.
The claimant also submits that his second statement made on 2 April 2024 sets out his beliefs at all relevant times which (so it is submitted) is relevant to whether his explanation is full and satisfactory.
The claimant’s submissions then deal with the four bases upon which TAC relies for rejecting the claimant’s explanation as not being full.
It is submitted for the claimant that the insurer does not specify for which periods there are said to be gaps in the history provided so as to enable the claimant to fill those gaps.
It is submitted that the claimant’s solicitor has given satisfactory evidence about what advice was given (and not given) to the claimant concerning relevant time limits, in relation to the subject accident and his previous motor accident in 2012, for which the same solicitor represented him.
The claimant confirms his belief at paragraphs 6 and 7 of his statement dated 2 April 2024 that he did not believe he was entitled to a common law claim until June 2023 which was after the three-year limitation period had expired.
Paragraphs 61 to 87 of the initial submissions made by Ms McKay on behalf of the claimant deal with what occurred between 6 May 2022 and 12 March 2024 which the parties agree is the relevant period for explanation for the purpose of delay. It is not necessary to summarise those detailed submissions.
The claimant submits in conclusion as follows:
(a) he has provided an explanation for the delay which is full because he has explained what happened and why. It is not necessary that he recount every single moment but provide sufficient recall to enable an evaluation of the reasons for the delay. The claimant’s solicitor has explained her actions and beliefs to the extent that they contributed to the delay.
(b) The claimant’s explanation for the delay is satisfactory because, by reference to an objective stand, a hypothetical person in the claimant’s position could have reasonably experienced the same delay.[6]
(c) This requires consideration of the particular circumstances in which the delay occurred. There had been a significant change to the legislation on 1 December 2017, whereby the Nominal Defendant became liable for claims in which the vehicle responsible for the accident was registered inter-state, and which could give rise to more than one insurer responding to a claim at the same time, where both statutory and common law rights applied.
(d) This also requires consideration of the unique circumstances arising from COVID19, the subsequent lockdown in society, the difficulty in accessing treatment and the delays caused by the assessment of medical disputes in the Commission.
(e) But for the advent of COVID19, it would have been expected the minor “threshold” injury dispute would have been determined well before the three-year limitation period. That would have resulted in the claim for common law damages becoming available before that time, rather than over a year later. There would have been considerably less delay in serving the application upon TAC after it was served upon NRMA.
[6] Karambelas v Zaknic (No.2) [2014] NSWCA 433 and Dijakodic v Peres [2015] NSWCA 74.
The insurer’s submissions in reply are dated 3 July 2024 and deal at length with was the claimant’s knowledge from the date of the accident until the explanation is provided. Reference is made to what was the claimant’s knowledge of time limits in relation to his 2012 motor accident and the subject motor accident. Much of the insurer’s submissions deal with matters that occurred (or did not occur) prior to 6 May 2022 which the parties agree is the commencement date for the claimant’s explanation. The insurer submits that what the claimant understood had occurred in relation to his first accident, and what his knowledge of that and the time limits were, “is clearly an issue in the present case”. The insurer submits that the evidence is unsatisfactory as to what the claimant was told of the time limits in relation to the first motor accident. Submissions are made that are critical of the claimant’s solicitor and her evidence.
It is submitted that the claim for damages must be made within three years after the date of the motor accident which, it is submitted, is a mandatory requirement. The insurer submits that the law on this issue has been well-established and should have been well-understood by the claimant’s solicitor.
The insurer submits that nothing in the MAI Act or the Guidelines prevents a claim for damages being lodged before the process of determining minor/non-minor injury was determined.
In conclusion, the insurer submits as follows:
“The evidence presented by the claimant from himself and his solicitor is far from satisfactory in explaining the delay. As noted above, there are areas that are difficult to understand and explanations that are far from full.
It is still unclear, after provision of this evidence, what the claimant understood about time limits in relation to lodging common law claims under the Motor Accident Injuries Act. Evidence that should be available on this point, such as file notes from his solicitor which would have identified whether he was told about time limits in relation to the previous accident and, for that matter, in relation to the present accident, is absent.
It is, perhaps, the most important issue in such application as this. Yet the evidence he provides is anything but clear as to his knowledge of these matters.
In those circumstances, the application should be dismiss because the explanation is neither full, nor, in particular, satisfactory.”
Ms McKay made further brief submissions on 5 August 2024 in response to the insurer’s submissions. It is not necessary to summarise those further submissions as they take the matter no further.
DISCUSSION
I reject the insurer’s submission that the claimant’s knowledge of what he understood had occurred in relation to his first accident is an issue in the present case. His claim arising from his first accident was under a separate Act and regulatory regime not directly of relevance to his present claim.
I also reject the insurer’s submission that it is a mandatory requirement to make a claim for damages within three years after the date of the motor accident. That clearly is not the case provided a full and satisfactory explanation for the delay is provided.
I accept the claimant’s submission that the insurer has not specified for which periods there are said to be gaps in the history provided so as to enable the claimant to fill those gaps.
I accept the claimant’s submission that the claimant’s solicitor has given satisfactory evidence about what advice was given (and not given) concerning relevant time limits in relation to the subject accident. I note the insurer’s concession that credit is not in issue. I note also that the insurer was content for the claim to be assessed on the papers without requiring the claimant and/or his solicitor to attend for questioning.
I reject the insurer’s submission that the claim for damages could have been lodged before the process of determining the medical dispute concerning minor/non-minor injury was completed. I expect that, should such an application have been made without evidence of entitlement, TAC may have sought to have it dismissed.
I accept that there are special circumstances in this case warranting my finding in the claimant’s favour. Those factors include the following:
(a) the involvement of two insurers (NRMA and TAC), and
(b) the relevant facts arose during the COVID19 lockdown period when the normal operation of the Commission was interrupted.
I accept the claimant’s submission in that regard.
DECISION
I am satisfied that a reasonable person, in the position of the claimant, would have been justified in experiencing the delay. Further, I am satisfied that at least one hypothetical person, within a spectrum of reasonable persons, would have experienced the same delay. For those reasons, I am satisfied that the claimant’s explanation relevantly is satisfactory.
I also am satisfied that the claimant’s explanation relevantly is full, for the reasons stated. I note that it is not necessary for the claimant to recount in perfect detail every moment that has elapsed within the period for explanation. As stated, I am satisfied with the evidence provided by the claimant and his solicitor, in relation to that matter.
CONCLUSION
For the reasons that I have stated, the late claim can be made.
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