Faiz v QBE Insurance (Australia) Ltd - [2022] NSWPIC 41

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Faiz v QBE Insurance (Australia) Ltd [2022] NSWPIC 41
CLAIMANT:	Rameen Faiz
INSURER:	QBE Insurance (Australia) Ltd
MEMBER:	Ray Plibersek
DATE OF DECISION:	3 February 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment application for a late claim for statutory benefits after three months after the motor accident; sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017 (MAI Act); whether a full and satisfactory explanation for delay in making the application for statutory benefits; whether Claimant provided a full and satisfactory explanation for non-compliance with the motor accident verification requirements under sections 6.8 and 6.9 of the MAI Act; Held - Claimant had a full and satisfactory explanation for delay in making the application for statutory benefits; delay due to personal hardship; panic attacks, periods where homeless; no access to phone and internet; Claimant provided a full and satisfactory explanation for non-compliance with the motor accident verification requirements; late claim may be made; legal costs awarded, $1,000 plus GST.
DETERMINATIONS MADE:	1. A late claim for statutory benefits may be made more than three months after the date of the motor accident in this case as the Claimant has provided a full and satisfactory explanation for the delay in making the claim under sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017. 2. The Claimant has provided to the Insurer a full and satisfactory explanation for non-compliance with the motor accident verification requirements under sections 6.8 and 6.9 of the Motor Accident Injuries Act 2017. 3. Legal costs in this matter are assessed under sections 8.3 and 8.10 of the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 at $1,000 plus GST.

Background and introduction

This determination relates to a dispute about an application for a late claim for statutory benefits under sections 6.2, 6.8, 6.9 and 6.13 of the Motor Accident Injuries Act 2017 (the MAI Act).

On 17 May 2020, Rameen Faiz, (the Claimant) was injured in a motor vehicle accident. She was a passenger in an Uber vehicle that collied with another car in the left side back seat where she was sitting.
On 20 August 2020 the Claimant’s solicitors sent an unsigned and incomplete Application for Personal Injury Benefits to QBE (the Insurer), (R 2).
On 21 August 2020 the Insurer replied by email rejecting the application because the alleged at fault vehicle registration details were incomplete.
By letter and email dated 27 August 2020 QBE requested an explanation for the late claim and also requested a completed and signed claim form from the Claimant, (R 4 and R 5).
During September 2020 there were several phone calls between the Claimant, the Insurer and the Claimant’s solicitors seeking information or following up on her late claim application. (See documents R 6 to R 12).
On 22 September 2020 the Insurer issued a Liability Notice for benefits up to 26 weeks rejecting the claim because a sufficient explanation had not been…

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: [2022] NSWPIC 41
Decision Date: 3 February 2022

CaseChat Overview and Summary

In the matter of Faiz v QBE Insurance (Australia) Ltd, the plaintiff, Ms Faiz, sought statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) after a motor accident. The defendant, QBE Insurance (Australia) Ltd, contested the application on the basis that it was lodged more than three months after the accident and that Ms Faiz had not complied with the verification requirements under the MAI Act. The dispute was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issues the court had to address were whether Ms Faiz had a full and satisfactory explanation for the delay in making her application for statutory benefits and whether she had provided a full and satisfactory explanation for her non-compliance with the motor accident verification requirements. The court considered the circumstances leading to the delay and non-compliance, including Ms Faiz's personal hardships and circumstances that impeded her ability to comply with the statutory requirements in a timely manner.

The court found that Ms Faiz had a full and satisfactory explanation for the delay in making her application for statutory benefits, which was due to her personal hardships, including panic attacks and periods of homelessness. The court also found that Ms Faiz had provided a full and satisfactory explanation for her non-compliance with the verification requirements, as she had been unable to access a phone and the internet during the relevant period. Accordingly, the court held that the late claim for statutory benefits could be made. The court also awarded Ms Faiz legal costs in the amount of $1,000 plus GST.

In conclusion, the court found in favour of Ms Faiz and allowed her claim for statutory benefits, notwithstanding the delay and non-compliance with the verification requirements. The court recognised the exceptional circumstances that Ms Faiz had faced and found that she had provided a full and satisfactory explanation for her delay and non-compliance. The court also awarded Ms Faiz legal costs in the amount of $1,000 plus GST, which the defendant, QBE Insurance (Australia) Ltd, was ordered to pay.

Orders