Englen v Allianz Australia Insurance Limited
[2024] NSWPIC 516
•16 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Englen v Allianz Australia Insurance Limited [2024] NSWPIC 516 |
| CLAIMANT: | Vincent Englen |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Jeremy Lum |
| DATE OF DECISION: | 16 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claim for statutory benefits not made within 3 months after the motor accident under section 6.13; whether the claimant has provided a full and satisfactory explanation for the delay in making the claim; Held – claimant has provided a full and satisfactory explanation; the claim for statutory benefits may be made. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The claimant has given a full and satisfactory explanation for the delay in making a claim for statutory benefits in accordance with s 6.13 of the Motor Accident Injuries Act 2017. 2. Accordingly, the claim for statutory benefits lodged on 19 January 2024 may be made. |
STATEMENT OF REASONS
BACKGROUND
On 20 April 2023, Mr Englen (the claimant) was driving home with his wife travelling in the right lane of a three-laned road. As he was exiting the road, a truck travelling in the middle lane changed lanes without warning and struck the claimant’s car, pushing it into the grassy median strip.
The claimant says the motor accident caused him psychological injury (post-traumatic stress disorder) and an aggravation of pre-existing physical injuries to his neck, right shoulder, lower back and right knee.
The claimant made a claim for statutory benefits by completing his Application for Personal Injury Benefits (claim form) on 18 December 2023 which was subsequently lodged with Allianz (the insurer) on 19 January 2024.
In a decision dated 20 June 2024, the insurer did not accept liability for the claim as it was not made within three months after the date of the motor accident and it did not accept the claimant’s explanation for the delay as being full and satisfactory.
The claimant provided a statement dated 5 July 2024 to explain the delay. This was considered in the insurer’s internal review decision dated 23 July 2024 which confirmed the original decision.
On 15 August 2024, the claimant lodged at the Personal Injury Commission (Commission) an application for assessment of a miscellaneous claims dispute. The insurer lodged a reply opposing the application.
At the preliminary conference on 12 September 2024, neither party wished to provide any further documentation and requested that the matter be dealt with on the papers. I am satisfied that I have sufficient information to decide the matter on the papers.
EVIDENCE
Claimant’s statement
The claimant relies on his statement of 5 July 2024. He provides details of his background and the circumstances of the motor accident where both he and his wife were injured. He states that he did not know he was entitled to make a claim or that there were any time limits.
He arranged an appointment with a solicitor for his wife but did not ask about his own possible entitlements. At no stage during the appointment was he of the understanding that he could lodge a claim. Following the appointment, he did not think any more about his own injuries or needs as he knew he had to help his wife.
It was not until mid-December 2023, when speaking with his wife’s solicitor, that the claimant realised that he could make a claim. Upon hearing this, he instructed his solicitor to lodge a claim with the insurance company immediately.
Certificate of Capacity
A Certificate of Capacity dated 19 December 2023 indicates that the claimant was first seen by A/Prof John Gullotta on 1 May 2023 with a diagnosis of “1. PTSD secondary to MVA. 2. Exacerbation of pain right shoulder, neck and lower back”.
Treatment was analgesia, physio and psychologist review.
SUBMISSIONS
The claimant’s solicitor did not make any submissions.
The insurer’s solicitor’s submissions dated 30 August 2024 state that the claimant’s explanation is neither full or satisfactory.
With respect to whether the explanation is full, the insurer says there are “glaring omissions” namely:
(a) an account from the solicitor as to what the claimant was told about time limits at the consultation on 1 May 2023, given the claimant’s account is vague and unclear.
(b) An account of what the claimant was told about time limits and the necessity to provide a full and satisfactory explanation in December 2023.
(c) An explanation for the additional one-month delay in lodging the claim form, in light of his then understanding about the time limits.
(d) Medical evidence to support the allegation that the claimant had the understanding and resilience to take basic steps to ensure that his wife’s legal interests were protected, but did not have the capacity to do that for himself, even to the extent of asking a lawyer a simple question such as “I was injured, do I have a claim?”.
With respect to whether the explanation is satisfactory, the insurer provides submissions under two discrete two time periods.
First period (May to 18 December 2023)
The insurer says the explanation is not satisfactory because having been aware that the other driver was at fault and having sustained personal injury at the time of the accident and indeed made a claim for his wife, that he did know what to do (see a lawyer) and had capacity to arrange that very shortly after the accident.
The insurer says the claimant went into the appointment with the solicitor thinking it was for both he and his wife, indicating that he did have some understanding that he may have a claim. It is contended a reasonable person in this position would have made a basic enquiry of that lawyer at the time.
The insurer says the claimant was a person that may have been under a misapprehension but who had ready access to expert legal advice. The insurer says the claimant is analogous to the claimant in Figliuzzi v Yonan [2005] NSWSA 290.
Second period (18 December 2023 to 18 January 2024)
The insurer notes that the claimant, having completed the claim form with the medical certificate on 18 December 2023, did not lodge the document with the insurer until 18 January 2024. It is submitted that no reasonable person (being aware that the claim was already late) would have allowed any more time to elapse.
DETERMINATION
Section 6.13(1) of the Motor Accident Injuries Act 2017 provides (as relevantly) that a claim for statutory benefits must be made within three months after the date of the motor accident to which the claim relates.
However, subsection (3) provides that a claim for statutory benefits may be made after the time required if the claim is made within three years after the date of the motor accident and the claimant provides a full and satisfactory explanation for the delay in making the claim.
A “full and satisfactory explanation” by the claimant for delay is defined in s 6.2 of the Act as:
“(1) … 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.
(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.”
There has been considerable case law that has interpreted the meaning of “full and satisfactory”.
For an explanation to be full, it needs to be complete in the sense that it says what happened and why. Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required.[1] The acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is full.[2] The meaning of ‘full’ is to be understood in context: to enable the evaluation of the reasons for the delay. Thus, all relevant information to that end is required.[3] A complete explanation is needed before one turns to consider whether it is a satisfactory explanation.[4]
[1] Walker v Howard [2009] NSWCA 408 (Walker) Allsop P at [104].
[2] Walker Allsop P at [106].
[3] Walker Allsop P at [56].
[4] Laidlaw v Anor v Touma [2002] NSWCA 190 Stein JA at [19].
A satisfactory explanation requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which occurred was reasonably justifiable.[5] There is a substantial spectrum of reasonableness. It is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay.[6] The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay. Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[7]
[5] Karambelas v Zaknic (No 2) [2014] NSWCA 433 (Karambelas) Meagher JA at [16] and [17].
[6] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].
[7] Hunter v Roberts [2019] NSWCA 116 Meagher JA at [20].
Whether the explanation was “full”
From the time of the motor accident on 20 April 2023 to the time of arranging an appointment with a solicitor for his wife on 9 May 2023, the claimant has provided considerable detail about what he did or did not do and his knowledge and belief at the time. I do not have an account from the solicitor, however this is not necessary as the claimant acknowledges that given his difficulty with English, he may have misheard or misunderstood what the solicitor was saying. It was nevertheless his belief that after leaving the May appointment he could not make a claim.
Following that appointment and until mid-December 2023, the claimant says: “he did not think about his injuries or needs again because he needed to help his wife and her health following the motor accident”. He also says he was confused and did not want to think about it because he did not think he was mentally capable, a factor which is supported by his general practitioner (GP) who made a diagnosis of “PTSD” on 1 May 2023.
When the claimant spoke to his wife’s solicitor again in mid-December 2023, he was advised that he could make a claim and immediately instructed his solicitor to lodge a claim on his behalf. While his solicitor did not lodge the claim form with the insurer until about 19 January 2024, a delay of about a month, the claimant explained that this was all during the Christmas shutdown period. I accept that this is a complete explanation and there is no requirement for the solicitor to explain what happened in such a short time during a holiday period.
Contained within the claim form is the claimant’s explanation for delay. The insurer’s original decision to reject the claim is dated 20 June 2024 with the internal review decision made on 23 July 2024. The claimant’s statement is dated 5 July 2024. The delay in the period from lodgement of the claim form to the date of the provision of the claimant’s explanation is explained through the sequence of events, namely the claimant lodged the claim form and was awaiting the insurer’s decisions.
I am therefore satisfied that the claimant’s explanation was full. He has provided a complete account of his conduct, including his actions, knowledge and belief from the date of the motor accident (20 April 2023) to the date of providing the explanation (5 July 2024).
Whether the explanation was “satisfactory”
At the time of the motor accident, the claimant was aged 65, with no schooling and was in receipt of a disability support pension. He is an immigrant from another country with English as his second language. He did not know the relevant motor accident laws of Australia and has never previously made a motor accident claim.
In such a position, I consider that a reasonable person may well have held a belief, albeit mistaken, that because the truck impacted his wife’s side of the car, that only she would be entitled to make a claim.
Although also injured, the claimant’s priority was with his wife for whom he made an appointment to see a solicitor. At the interview, the claimant acted as a translator and support person for his wife. In such circumstances and particularly where the claimant “still has difficulty with English” and was not advised about time limits, I accept that a reasonable person would not inquire about their own possible entitlements.
Following the appointment, I note that thoughts of the motor accident caused the claimant distress, which was supported by his GP with the diagnosis of post-traumatic stress disorder soon after the motor accident. I accept that a reasonable person would have continued to look after their wife who was injured in the motor accident and not thought more about their own possible entitlements.
Once advised of his entitlements in mid-December 2023, the events that unfolded illustrate that the claimant acted diligently to pursue his claim with the insurer.
In the circumstances, I find that a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
Claim for statutory benefits may be made
I find that for the purposes of s 6.13 of the Act, the claimant has given a full and satisfactory explanation for the delay in making a claim for statutory benefits.
Accordingly, the claim for statutory benefits lodged on 19 January 2024 may be made.
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