Faiz v QBE Insurance (Australia) Ltd
[2022] NSWPIC 41
•3 February 2022
| 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 provided as to why the claim was lodged late after the accident, (R 13).
On 14 October 2020 the Claimant’s solicitors made an application for internal review, (R 14).
On 28 October 2020 the Insurer made a determination on internal review confirming the original decision, (R 15).
During November and December 2020 the Insurer requested several times for the Claimant and her solicitors to produce a certificate of fitness, (R 18 to R 24).
On 5 March 2021 the Claimant’s solicitors sent a copy of the Certificate of Fitness from Dr Ashraf Aboud to the Insurer. The certificate was dated 4 March 2021 and it noted that the Claimant was first seen by Dr Aboud on 3 February 2021, (R 25).
On 28 April 2021 the Claimant’s solicitors sent a copy of the Claimant’s statement offering an explanation for the late claim to the Insurer, (R 27).
The dispute comes before me to determine if a late claim can be made and whether the Claimant has provided a full and satisfactory explanation for the delay in making the claim for an assessment of statutory benefits. There is also another dispute about whether or not the Claimant has been complied with the motor accident verification requirements.
Submissions
I have considered the documents provided with the application, the reply and further information including the parties submissions and the statement and emails from the Claimant.
I will first briefly summarise the submissions concerning the full and satisfactory explanation and then summarise the Claimant’s explanation.
Claimant’s solicitor’s submissions dated 20 May 2021
The Claimant’s solicitors submissions dated 20 May 2021 (A 1), outline a timeline and a history of the conduct of matter and then in paragraph 18 briefly summarise the Claimant’s full and satisfactory explanation as follows:
(a) the Claimant suffered from panic attacks which prevented her from attending appointments with the doctors, lawyers, or the police;
(b) the Claimant could not afford a phone, and could not make or receive phone calls;
(c) the Claimant was homeless and lived in refuges with her two children;
(d) the Claimant had no means to find out the police event number and lodge her claim; and
(e) the Claimant did not have a regular doctor and so found it difficult to obtain and give to the Insurer a certificate of fitness.
Insurer’s solicitor’s submissions 11 June 2021
The Insurer’s solicitors made submissions dated 11 June 2021 (R 1). In summary their submissions are:
(a) an incomplete claim form was forwarded to the Insurer on 25 August 2020; the Claimant did not comply with clause 4.20 of the Motor Accident Guidelines (with regard to providing a signed authority) until 14 September 2020 and did not comply with clause 4.21 of the Motor Accident Guidelines (with regard to provision of a Certificate of Fitness) until 5 March 2021;
(b) notice of the claim was not properly provided in accordance with the Motor Accident Guidelines until 5 March 2021;
(c) the Claimant’s statement dated 26 March 2021 does not provide a full and satisfactory explanation for the late lodgement of the Application for Personal Injury Benefits;
(d) the Claimant has not complied with the accident verification requirements in section 6.9 of the MAI Act and the claim cannot proceed until it is complied with and the accident has been properly verified;
(e) an account of the solicitors conduct is relevant to whether the explanation provided is “full”;
(f) the Claimant’s statement dated 26 March 2021 is not a full and satisfactory explanation for the late lodgement of her application;
(g) the Claimants’ explanation is not a full and satisfactory because she had previous lawyers and there is no evidence about what advice they gave the Claimant;
(h) there is no evidence about whether the Claimant sought any assistance from her solicitors to obtain the police event number;
(i) the Claimant does not provide an explanation as to why she could not obtain a Certificate of Fitness and lodge her Claim Form when she was able to communicate and lodge the relevant documentation relevant to her permanent residency and Centrelink benefits;
(j) the Claimant’s statement is inconsistent because she details receiving medical treatment from at least four different medical providers but notes that her mental health made it very difficult to attend appointments with doctors, lawyers or the police;
(k) the Claimant gives no evidence about when she was unable to attend her lawyers or the police due to her anxiety symptoms and does not explain how her panic attacks stopped her from following any advice she received from her legal advisors to lodge her claim form; and
(l) the matter cannot proceed until the verification requirements are dealt with pursuant to section 6.9 of the MAI Act.
Documents considered- Claimant’s explanation
The explanation for the late application is contained in a statement dated 28 April 2021 and a number of emails from the Claimant summarised briefly as follows.
Claimant’s statement dated 28 April 2021
The Claimant’s statement dated 28 April 2021 (AD 1), states that:
(a) the collision occurred between an Uber car in which she was a back seat passenger and another car at the intersection of Harris Street and Prospect Highway Fairfield while both vehicles were turning;
(b) after the accident she sat in the back seat of the car but did not speak to police or ambulance officers who attended the scene of the accident;
(c) she left the scene of the accident and got a bus to a medical centre in Blacktown where she experienced a panic attack;
(d) she has two young children aged 3 and 4;
(e) since February 2020 she worked in aged care and disability services;
(f) she returned to work the day after the accident;
(g) since January 2020 she has had hospital and medical treatment for panic attacks which prevented her from attending other appointments with the doctors, lawyers, or the police;
(h) between May to December 2020 she was homeless and had to move between various refuges;
(i) between May to December 2020 she was treated by different doctors and a psychologist for her panic attacks;
(j) because of poor financial circumstances she could not keep her phone and she couldn’t receive calls and could not know that people were trying to contact her;
(k) the refuges she resided had extremely poor internet and phone facilities which prevented her from making or answering phone calls or accessing her Uber account;
(l) she had no way of accessing the police event number to lodge her claim; and
(m) as she was frequently homeless and moving from various refuges, she did not have regular doctors which she could attend for completion of medical certificates.
Claimant’s email dated 10 November 2020
The Claimant sent an earlier email dated 10 November 2020 (R16). Her email stated that she’d had “a rough year” and that she did not have access to the internet to allow her to give her late explanation. She wrote:
(a) her claim commenced in the middle of the COVID pandemic;
(b) she had a few different email addresses;
(c) her file was with different lawyers;
(d) she was trying to see a physiologist and physiotherapist;
(e) she was dealing with a separation, losing her job, her house, not being financially stable;
(f) she had two children with her full time; and
(g) she was living in a refuge with no family in Australia.
The Claimant sent another email dated 19 November 2020 (R 20). Her email stated that she went to a to a medical centre within an hour of the incident for treatment for a panic attack and that she realised within two days that she had to lodge a claim.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Section 6.9 of the MAI Act provides that a claim for statutory benefits need not be dealt with until the motor accident verification requirements have been complied with or a full and satisfactory explanation has been given for any non-compliance.
“Claim” is defined in section 1.4 of the MAI Act to mean a claim for statutory benefits or a claim for damages.
Section 6.9 provides:
“6.9 Compliance with verification requirements—claim for statutory benefits
A claim for statutory benefits need not be dealt with until—
(a)the motor accident verification requirements have been complied with, or
(b)the claimant provides to the Insurer a full and satisfactory explanation for any non-compliance or the Commission determines that sufficient cause existed to justify non-compliance.”
Section 6.8 of the MAI Act gives a definition of motor accident verification requirements as follows:
“6.8 Motor accident verification requirements
(cf s 70 MACA)
(1) The Motor Accident Guidelines may set out the obligations of claimants relating to the verification of the motor accident concerned (the motor accident verification requirements for a claim).
(2) The motor accident verification requirements may include a requirement for the motor accident to be reported to the NSW Police Force within a specified period after the motor accident.
(3) The Authority is to take all reasonable steps to ensure public awareness of the motor accident verification requirements.”
Under section 6.13 of the MAI Act a claim for statutory benefits must be made within three months after the date of the motor accident or a claim can be made after that time if a full and satisfactory explanation for the delay in making the claim is provided.
Section 6.13 provides:
“6.13 Time for making of claims for statutory benefits
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either—
(a) the claim is made within 3 years after the date of the motor accident, or
(b) the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.
(4) In addition, a claim for statutory benefits under Division 3.4 in respect of an injury for which compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the Workers Compensation Act 1987 has been payable may be made within 3 months after the compensation ceases to be payable.”
The meaning of “full and satisfactory” is set out in section 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by claimant
(cf s 66 MACA)
(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.
(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.”
Whether for the purposes of Part 6 (Motor accident claims) the Claimant has given a full and satisfactory explanation for non-compliance for the delay is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (h) of the MAI Act. I also note that whether for the purposes of section 6.9 (Compliance with verification requirements—claim for statutory benefits) the motor accident verification requirements have been complied with is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (i) of the MAI Act.
I will now consider operation of the legislation and the evidence and submissions about the full and satisfactory explanation, the late claim and the motor accident verification requirements.
Consideration of relevant case law
As referred to above, sections 6.2 and 6.13 require that a claim for statutory benefits must be made within three months after the date of the motor accident or a claim can be made after that time if a full and satisfactory explanation for the delay in making the claim is provided.
There is considerable case law about the meaning of the phrase “full and satisfactory”. Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) case discussed the meaning of sub-section 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 6.2 of the MAI Act.
The NSW Court of Appeal in Karambelas Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include 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’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party Insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed”.
Is the explanation full?
Sections 6.2 and 6.13 require that the Claimant provide a full and satisfactory explanation for the delay in making the claim for statutory benefits. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the Claimant from the date of the accident until the date of providing the explanation.
In this matter the Claimant’s solicitors argue that the initial application was only submitted a few days late. The accident occurred on 17 May 2020 and the initial incomplete application was made on 20 August 2020, (R 2). In this case partial explanations were provided by the Claimant by emails dated 10 and 19 November 2020 and a detailed statement by the Claimant was supplied on 26 April 2021. I have taken the relevant period for which an explanation is required to be from 17 May 2020 until 26 April 2021 when the Claimant’s detailed statement was provided.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”.
In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In its submissions the Insurer’s solicitors argue that the Claimant and Claimant’s solicitor have failed to provide a full and satisfactory explanation. The Insurer’s solicitors make a number of persuasive submissions as to why they say the Claimant’s explanation is not full. They submit that the Claimant has not given a full explanation about a number of issues. These issues include that she knew within two days that she had to lodge a claim and that she had seen other lawyers. The Insurer’s solicitors argue that no explanation is given about what advice she received or actions she took as a result of that advice . There is no explanation about why she could not lodge the police event number earlier or what advice or assistance she got from her solicitors. The Claimant does not provide an explanation as to why she could not obtain a Certificate of Fitness and lodge her Claim Form when she was able to communicate and lodge the documentation for her permanent residency and Centrelink benefits. The Insurer’s solicitors also submit that Claimant’s statement is inconsistent because she details receiving medical treatment from at least four different medical providers but states that her mental health made it very difficult to attend appointments with doctors, lawyers or the police.
In my view, after considering all of the evidence and submissions, I find that the Claimant’s explanation in this case is sufficient to be considered a full explanation as to why her application was late. The reasons given by her and her solicitor are sufficient to be considered a full account of the Claimant’s conduct, actions, knowledge and belief. The Claimant’s explanation was that she was suffering from panic attacks, she was homeless with two young children to care for and living in refuges. She did not have a phone or reliable internet access. I would also note that her initial application, although incomplete, was made within a few days after the three-month time limit. This is not a case where a Claimant can be criticised for taking no action for months before making her application. Although I acknowledge the Insurer’s solicitors have pointed to a number of gaps and deficiencies in the Claimant’s explanation, my finding is that her explanation is “full” and satisfies the requirements of sections 6.2 and 6.13 of the MAI Act.
Is the explanation satisfactory?
I will now turn to a consideration of whether the Claimant’s explanation is “satisfactory”.
Section 6.2 requires that the Claimant provide a full and satisfactory explanation for her delay. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the Claimant would have been justified in experiencing the same delay.
The concept of a reasonable person in the position of the Claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) 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 has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
As summarised above, the Insurer’s solicitors contend that the explanation provided by the Claimant is not full and satisfactory.
In my view, the statement from the Claimant gives an explanation which supports a finding that a reasonable person in the position of the Claimant would have been justified in experiencing the same delay. I am satisfied there is sufficient evidence before me to support a finding that the reasonable person in the Claimant’s position would have experienced the same delay. The relevant test is whether a hypothetical reasonable person in the Claimant’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306). Without repeating in detail the Claimant’s explanation it was that she was suffering from panic attacks, homeless and living in refuges and did not have a phone or reliable internet access. Given the reasons stated by the Claimant, I find that a reasonable person in the position of the Claimant would have been justified in experiencing the same delay.
Motor accident verification requirements
The motor accident verification requirements are referred to in sections 6.8 and 6.9.
In their submissions the solicitors for the Insurer argue that the Claimant has not yet complied with the accident verification requirements, (R 1). The solicitors submission is that the matter cannot proceed until the verification requirements are dealt with pursuant to section 6.9 of the MAI Act. The solicitors submit that initially the claim form contained the wrong accident date and a Police Event Number was not provided.
The solicitors for the Claimant note in their submissions, (A 1), that on 19 October 2020 the Insurer served on the Claimant a copy of the police report dated 29 September 2020. Although neither party has produced a copy of the police report
I conclude from this submission that both parties now have a copy of the police report which may contain the Police Event Number. I would also expect the Claim form would include a reference to Police Event Number but although both parties refer to the Claim form neither party produced it.Section 6.9 requires that claim for statutory benefits need not be dealt with until one of three conditions are met. These conditions are either:
· motor accident verification requirements have been complied with; or
· the claimant provides to the Insurer a full and satisfactory explanation for any non-compliance; or
· the Commission determines that sufficient cause existed to justify non-compliance.
Based on the evidence and submissions before me I am satisfied of two of these conditions. I find and I am satisfied that the motor accident verification requirements have been complied with and also that the Claimant has provided to the Insurer a full and satisfactory explanation for any non-compliance. Regarding the first condition , it seems that the Claimant and her solicitors have now provided the correct accident date and the Insurer has the Police Event Number and the Police Report. Regarding the second condition , the Claimant and her solicitors have provided to the Insurer a full and satisfactory explanation for any non-compliance which was initially not providing the correct accident date and a Police Event Number. Without repeating the details, the Claimant’s explanation for her non-compliance was that she was suffering from panic attacks, was homeless and living in refuges and did not have a phone or reliable internet access. I have found above that the Claimant has provided a full and satisfactory explanation for her late claim. Also, by relying on that explanation, I am satisfied and find that she has provided to the Insurer a full and satisfactory explanation for her non-compliance with the verification requirements.
I note the Insurer’s solicitors submissions dated 11 June 2021 (R 1) seem to maintain their argument that the matter cannot proceed until the verification requirements are dealt with pursuant to section 6.9 of the MAI Act. Even if the Insurer’s solicitors maintain this submission, the test is not whether or not the Insurer is satisfied with the explanation. The statutory test is whether Claimant provides to the Insurer a full and satisfactory explanation for any non-compliance. As I have found in this case that a full and satisfactory explanation has been provided, I also find that statutory test is satisfied .
Conclusion
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging her application for statutory benefits. I find that the claim for statutory benefits may be made more than three months after the date of the motor accident. I also find that the motor accident verification requirements have been complied with; or that the Claimant has provided to the Insurer a full and satisfactory explanation for any non-compliance. I will issue a certificate to that effect.
Legal costs
In this late claim matter neither party made any application or submission on whether or not legal costs should be awarded for this dispute.
I have carefully considered the submissions, evidence and statements before me provided by both the Claimant’s and Insurer’s solicitors. Based on the submissions and information before me, and in the exercise of my discretion, I find the legal work provided by the Claimant’s solicitors in this case was reasonable and necessary. Under sections 8.3 and 8.10 of the MAI Act and the Motor Accident Injuries Regulation 2017, I assess the amount of legal costs to paid by the Insurer to the Claimant in the amount of $1,000 plus GST.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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