Ferizovic v IAG t/as NRMA Limited
[2021] NSWPIC 485
•27 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ferizovic v IAG t/as NRMA Limited [2021] NSWPIC 485 |
| CLAIMANT: | Ermin Ferizovic |
| INSURER: | IAG t/as NRMA Limited |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 27 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Application for a late claim for an assessment; application made more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; whether a full and satisfactory explanation for delay in making the application; delay due to solicitor’s “fault”; delay due to COVID-19; solicitors office closed; Claimant’s explanation was his reliance upon his solicitor; Held - Claimant has a full and satisfactory explanation for the delay; late claim for assessment may be made more than three years after the date of the motor accident; the Claimant cannot solely rely upon a solicitors alleged negligence as a full and satisfactory explanation for delay; responsibility of a “reasonable person” in the Claimant position to supervise his solicitors conduct of the matter; claimant cannot abrogate all responsibility and rely on a solicitors alleged negligence or inaction as a satisfactory explanation for delay or failure to carry out a statutory duty; decision of Rahman v Al-Maharmeh followed; Smith v Grant distinguished; legal costs awarded, $NIL. |
| DETERMINATIONS MADE: | 1. A late claim for assessment may be made more than three years 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 for assessment. 2. The Personal Injury Commission grants leave for the claim for damages to be referred for assessment. 3. Legal costs in this matter are assessed at $NIL. |
Background and Introduction
This determination relates to a dispute about an application for a late claim for an assessment under sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017 (the MAI Act)
The Claimant, Ermin Ferizovic was injured in a motor vehicle accident on 12 March 2018 at the intersection of Blacktown Road and Marcel Crescent at Blacktown.
On 17 June 2020 the Claimant lodged an Application for common law damages,(R 2).
By letter dated 27 August 2020 the Insurer wrote a letter admitting liability for the Claimant’s claim for damages, (R5).
On 26 February 2021 Medical Assessor Shane Maloney issued a Certificate with a diagnosis of 2% of not greater than 10 % Whole Person Impairment, (AD 15). Assessor Maloney found that the following injuries were caused by the motor accident:
“Cervical spine – soft tissue injury; Right shoulder and right upper extremity – soft tissue injury/fracture right ulna and sensory loss of distal ulnar nerve; and Left shoulder – soft tissue injury.”
On 9 April 2021 the Claimant lodged an Application for Assessment of Damages for assessment of the quantum of his wage loss.
On 21 April 2021 the Claimant lodged his Schedule of Damages.
On 3 May 2021 the Insurer filed a reply to the Claimant's Application for Assessment of Damages.
On 9 July 2021 the Insurer applied in an Application to Admit Late Documents to admit its Schedule of Damages of $Nil, (R7).
The dispute comes before me to determine where 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.
Submissions
I have considered the documents provided with the Claim form, the reply and further information including: the submissions, statements from the Claimant, statements from his solicitor and medical certificates.
I will briefly summarize the submissions concerning the full and satisfactory explanation and then summarise the Claimant’s explanation.
Claimant’s solicitor’s submissions dated 21 October 2021
The Claimant’s solicitor’s submissions dated 21 October 2021 (AD 12), of relevance to the full and satisfactory explanation, submit that:
(a) the application for damages was filed about three weeks late on 9 April 2021;
(b) the reason for the late application was exclusively the solicitor’s oversight, and had nothing to do with the Claimant;
(c) the delay is trivial. The Insurer cannot (and does not) reasonably suggest that the delay has caused it any actual prejudice, or even presumptive prejudice, given the Insurer has been on notice of the Claimant's intention to prosecute his common law claim for some time;
(d) it was plainly an administrative oversight, at a time when staff were working remotely, that caused this claim to be commenced modestly late. The Insurer is not understood to be seriously contending otherwise than that the Claimant’s solicitors should fall on their sword, which they have done, by conceding the delay of not more than three weeks was their fault and not the Claimant's, and
(e) in Smith v Grant (2006) 67 NSWLR 735, it was held that the plaintiff was the party who bore the onus of providing an explanation for the delay in persuading the court that the explanation was both full and satisfactory. The test however concerned the plaintiff's explanation and not that of the solicitor and it does not require an assessment of the blameworthiness of otherwise of the plaintiff’s solicitor.
Insurer’s solicitor’s submissions dated 3 May 2021
The Insurer’s solicitor’s submissions dated 3 May 2021 (R 1), of relevance to the full and satisfactory explanation, submit that:
(a) on 9 April 2021, the Claimant lodged an Application for Assessment of Damages in relation to his alleged quantum wage loss, and
(b) the Claimant’s application was incomplete up until 21 April 2021 as it did not comply with r 100 of the Personal Injury Commission Rules 2021 (Personal Injury Commission Rules), since the Application did not include a schedule of damages containing full particulars of the amount claimed.
Insurer’s solicitor’s submissions dated 5 November 2021
The Insurer’s solicitor’s submissions dated 5 November 2021 (AD 18), of relevance to the full and satisfactory explanation, submit that:
(a) the Claimant and Claimant’s solicitor have failed to provide a full and satisfactory explanation pursuant to section 7.33 of the MAI Act;
(b) the Application should be dismissed for the Claimant’s failure to comply with section 54(c) of the Personal Injury Commission Act 2020 and clause 77(b)(ii) of the Personal Injury Commission Rules;
(c) at the first tele-conference on 26 July 2021 directions were made for the filing and serving of submissions and evidence, the Claimant failed to serve the abovementioned documents by 30 August 2021. Various statements and submissions were not filed until 12 and 14 October 2021;
(d) the Claimant’s Application was delayed an entire month, followed by a further six months (12 March 2021 - 12 October 2021) until full particulars and schedules were supplied by the Claimant’s solicitors on 12, 14 and 29 October 2021;
(e) the Commission cannot be satisfied that there has been a full and satisfactory explanation for the delay where the delay remains ongoing;
(f) pursuant to section 54(c) of the Personal Injury Commission Act 2020 and section 779(b)(ii) of the Personal Injury Commission Rules, the Commission may at any stage dismiss proceedings before it if the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President;
(g) on 26 July 2021 the Claimant’s solicitor was made aware of the Commission’s attitude towards late claims and the possibility of a dismissal of proceedings if the matter was further delayed;
(h) on 22 September 2021, the Commission issued a guiding principle of the practice and procedure of the Commission in its “News Edition 14” to all legal practitioners which advised that the practitioners are expected to prepare the claim before lodging their Application;
(i) both the Claimant and Claimant’s solicitor have failed, without reasonable excuse, to comply with numerous directions by the Commission;
(j) to allow the Claimant’s Application to proceed in spite of the ongoing delays and noncompliance would go against the Commission’s role to resolve disputes justly and efficiently in the shortest time frame, and
(k) the matter therefore ought to be dismissed.
Documents considered- Claimant’s explanation
The explanation for the late application is contained in several statements made by the Claimant and his solicitors summarised briefly as follows.
Claimant’s statement dated 2 June 2021
The Claimant’s statement dated 2 June 2021 (A 10), states that:
(a) details his education, employment history, exercise routines, medical history and social contacts;
(b) describes feeling anxious about his life and future, worried about having to find a new job and whether he will be able to continue with his work duties;
(c) returned to work and worked normally for about 6 to 12 months;
(d) around mid to late 2019 his situation deteriorated and he started feeling increased pain and soreness again;
(e) describes difficulty with performing landscaping work, housework and driving, and
(f) worries about the future, drinks and smokes more.
Claimant’s statement dated 13 October 2021
The Claimant’s additional statement dated 13 October 2021 (AD 14), states that:
(a) instructed his solicitors to prosecute a common law claim on his behalf;
(b) relied on his solicitors to prosecute his claim in a timely manner;
(c) he understood that the three-year anniversary of his accident was 12 March 2021 and that he expected his solicitors to refer the matter to the Commission for a determination of his entitlements before that date;
(d) he understood that there was an oversight, and without his knowledge, that claim was filed late (on or about 9 April 2021), and
(e) the delay in filing the application was unknown to him and was beyond his control.
Claimant’s solicitor’s statement dated 21 October 2021
The Claimant’s solicitor’s statement of Luke Power dated 21 October 2021 (AD 11), states that:
(a) the application should have been filed on or prior to 12 March 2021, but as a matter of administrative oversight only, and without any fault of the Claimant, the application was filed on 9 April 2021, about three weeks late, and
(b) at all times the Claimant has acted diligently in contacting our office and in responding promptly to requests for information and other material. Any delay in prosecuting this claim has been occasioned by this office only, at a time when a portion of our staff were still working remotely.
Samuel Nicholson’s statement dated 28 October 2021
Samuel Nicholson’s statement dated 28 October 2021 (A 16), states that he has worked with the Claimant at HL Landscapes for approximately two years. He has observed that the Claimant will often mention that he feels sore and in pain, particularly in his arms and shoulders. Since he has known the Claimant his situation has not improved. The Claimant continues to struggle with the heavier aspects of the work and requires assistance.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Under subsection 7.33 of the MAI Act a claim for assessment cannot be referred more than three years after the motor accident unless a full and satisfactory explanation for the delay is provided.
Subsection 7.33 provides:
“7.33 Time limits for referring claims and making assessment
(cf s 91 MACA)
A party to a claim cannot refer a claim for assessment under this Division more than 3 years after the motor accident concerned unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules.”
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 with a duty or for 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.
Consideration of relevant case law
As referred to above, sections 6.2 and 7.33 require that the Claimant cannot refer a claim for assessment more than three years after the motor accident unless they provide a full and satisfactory explanation for the delay in making the claim.
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 7.33 require that the Claimant provide a full and satisfactory explanation for the delay in making the application. 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 application was only submitted a little over three weeks late. The Insurer’s solicitors submit that the application was not fully complete until all the supporting evidence, submissions and explanations were supplied in October 2021. In this case the full account by the Claimant and his solicitor were not supplied until mid-October 2021 when they submitted their statements and submissions. So I have taken the relevant period for which an explanation is required is to be from 12 March 2021 (three years after the accident) until mid-October 2021 when the completed explanation 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 solicitor argue that the Claimant and Claimant’s solicitor have failed to provide a full and satisfactory explanation. The Insurer contends that the Claimant’s application was about a month late and that it did not provide full particulars and schedules until October 2021 which is about six months late. The Insurer rejects the explanation given by the Claimant’s solicitors that it was delayed because its office was closed due to COVID. Alternatively, the Insurer also submits that the proceedings should be dismissed because the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission.
The Claimant’s explanation for the delay in making his application for damages was set out in his own statements and in one made by his solicitor. The Claimant simply states that he instructed his solicitors to make and prosecute his claim in a timely manner and that he relied upon his solicitors to pursue the claim.
The Claimant’s solicitor’s explanation is attributed to an oversight by him, the delay caused by COVID closing down the office and then waiting for counsel to settle various statements and submissions. The Claimant’s solicitor also contends that the Insurer would not be prejudiced by the delay in making the application as it knew of the Claimant’s intention to pursue an application for damages.
In its written submissions dated 5 November 2021 (AD 18 at paragraph 6.9), the Insurer’s solicitors helpfully summarize the Claimant’s solicitors delay from when the application is made on 9 April 2021 until 29 October 2021 when the particulars have been supplied. Those submissions point out that the Insurer’s solicitors unsuccessfully prompted the Claimant’s solicitors on a number of occasions to respond to the outstanding request for information in support of the application made on 9 April 2021.
Having carefully reviewed all the statements and submissions I am troubled by a few aspects of the Claimant’s explanation. The Claimant’s explanation is that he was aware of the delay in making his application but he entrusted his solicitors to make and prosecute his claim in a timely manner. His statement does not detail any enquires he made or action he took to ask his solicitors what was happing with his claim from April to October 2021. There is no detailed explanation or statement from either the Claimant or his solicitor about what correspondence or telephone calls they had about the progress of the matter. Presumably the Claimant had to give instructions to his solicitors in the period from April to October 2021 to progress his claim but little of that detail is in evidence before me.
In my view there are a number of gaps in the Claimant’s explanation. Despite my reservations, I find that the Claimant’s explanation in this case is sufficient to be considered a full explanation as to why his application was late. The reasons given by him and his solicitor are sufficient to be considered a full account of the Claimant’s conduct, actions, knowledge and belief. The Claimant’s explanation satisfies the requirements of sections 6.2 and 7.33 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 the delay in providing the required particulars. 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.”
42. 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].”
In its submissions the Insurer contends that the explanation provided by the Claimant is not satisfactory.
Without repeating in detail the Claimant’s explanation, it was that he instructed and trusted his solicitors to make the application. His solicitors then, because of an oversight delayed in making the application and experienced further difficulties with their office being closed due to COVID.
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. A different claimant may have been more proactive or asked more questions about the progress of his matter from his solicitors. In this case the initial application was about four weeks late. Between April and October 2021 when the particulars, submissions and statements were supplied there is not a great deal of evidence that the Claimant took an active role in pursuing his case. Despite this lack of detail, 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.)
Claimant’s solicitors conduct and submission on failure to comply with directions
In the Claimant’s solicitor’s submissions dated 21 October 2021 (AD 12), the solicitors concede the delay of not more than three weeks was their fault and not the Claimant's. Those submissions also referred to the decision in Smith v Grant (2006) 67 NSWLR 735, (Smith), where they say it was held that the plaintiff was the party who bore the onus of providing an explanation for the delay in persuading the court that the explanation was both full and satisfactory. The test however concerned the plaintiff's explanation and not that of the solicitor and it does not require an assessment of the blameworthiness of otherwise of the plaintiff’s solicitor.
I note the decision of Smith in particular the observations of Basten JA at [60] where his Honour stated:
“Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51 at [22] (Beazley JA, Tobias JA agreeing) in relation to the 1999 Act.”
I also note the decision in Rahman where Brereton JA emphasized that the explanation for any delay is not required from the solicitors, it is the claimant who must provide his/her explanation for the claimant’s delay. As referred to above, His Honour stated at [39]:
“….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 this present matter I have taken into account the Claimant’s solicitors conduct, delay and admission of the three-week delay being their “fault”. Although it is not put in this way, the submission seems to be that a claimant could reasonably rely upon the negligent conduct or advice of his or her solicitors. Such reliance could provide a satisfactory explanation for delay in commencing proceedings. I am unsure whether by making this submission the solicitors in this case are suggesting that they may have been negligent in their conduct of or advice given to the Claimant in this case.
In this case an admission by the Claimant’s solicitors that the late application was exclusively their “fault” or an “administrative oversight” is not a satisfactory explanation. Despite what is said in Smith, a claimant cannot solely rely upon a solicitors alleged negligence. Any reasonable person in the Claimant’s position bears some responsibility to enquire into the progress of his own matter and supervise his solicitors conduct of the claim. A claimant cannot abrogate all responsibility and simply rely on a solicitors alleged negligence or inaction as a satisfactory explanation for any delay or failure to carry out a statutory duty.
I do not make any finding of negligence in this case nor do I rely on the Claimant’s solicitors submission as the sole reason or explanation for the Claimant or his solicitor’s delay in this case.
Finally, I note the Insurer’s solicitor’s submissions dated 5 November 2021 (AD 18), that Application should be dismissed for the Claimant’s failure to comply with section 54(c) of the Personal Injury Commission Act 2020 and clause 77(b)(ii) of the Personal Injury Commission Rules. Under sub-section 54(c) of the Personal Injury Commission Act 2020 and section 779(b)(ii) of the Personal Injury Commission Rules, the Commission may at any stage dismiss proceedings before it if the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission. Although I accept that the Claimant’s solicitors repeatedly failed to comply with a number of directions I made about the filing of statements and submissions it was apparent they were endeavouring to obtain and file those statements and submissions. Accordingly I will not dismiss these proceedings.
Conclusion
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging his application for damages. I find that the claim for assessment may be made more than three years after the date of the motor accident. I will issue a certificate to that effect.
Legal costs
In this late claim matter neither party made any application or submission on the awarding of legal costs for this dispute.
I assess legal costs in this matter at $NIL.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
8
0