El Shaimy v Transport Accident Commission - [2024] NSWPIC 627

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 627
Decision Date: 10 November 2024

CaseChat Overview and Summary

The case of El Shaimy v Transport Accident Commission involved a claimant who sustained injuries while travelling as a passenger on a bus in Berkshire Park. The vehicle responsible for the accident was registered in Victoria. The claimant subsequently applied for personal injury benefits under the Motor Accident Injuries Act 2017. The claim form was lodged more than three months after the accident, and an explanation for the delay was provided. The claim was served on the Nominal Defendant and allocated to NRMA Insurance, which admitted liability for ongoing statutory benefits after twenty-six weeks while investigations were ongoing. More than three years after the accident, a Medical Review Panel determined that the claimant had a non-threshold injury. An application for common law damages was subsequently served on the insurer, who referred it to the Transport Accident Commission as the insurer on risk for common law damages. The claim for common law damages was rejected by the Commission on the basis that it was late.

The central legal issues before the court were whether the late claim for common law damages could be accepted and if the explanation provided for the delay in lodging the claim was satisfactory. The court had to consider the provisions of the Motor Accident Injuries Act 2017, particularly those concerning late claims and the criteria for accepting such claims. The court also needed to assess the explanation given by the claimant for the delay in making the claim and determine whether it was full and satisfactory under the relevant statutory provisions.

The court examined the explanation provided by the claimant for the delay in making the claim and found it to be full and satisfactory. The Member was satisfied that there were legitimate reasons for the delay and that the claimant had acted reasonably in the circumstances. The court acknowledged that while the claim was late, the circumstances justified accepting it. The court also considered the ongoing statutory benefits that had been paid by the insurer, which further supported the acceptance of the late claim. The court ultimately held that the late claim for common law damages could be accepted.

The final orders of the court allowed the late claim for common law damages to proceed. The Transport Accident Commission was directed to assess the claim on its merits and determine the appropriate compensation for the claimant. The court's decision provided relief to the claimant, who had suffered a non-threshold injury as a result of the motor accident.

Orders