Fernandez v Insurance Australia Limited t/as NRMA
[2022] NSWPIC 128
•25 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Fernandez v Insurance Australia Limited t/as NRMA [2022] NSWPIC 128 |
| CLAIMANT: | Jaime Alberto Florez Fernandez |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 25 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claim referred to the Commission for assessment four months late; section 7.33 of the Motor Accident Injuries Act2017 (MAI Act); whether claimant has provided a full and satisfactory explanation for the delay; meaning of ‘full and satisfactory’ explanation where not defined in the MAI Act for the purposes of section 7.33; claimant relied on lawyers; not advised about time limits to refer the claim for assessment; whether an exceptional costs order under section 8.10(4) of the MAI Act should be made; Held- a full and satisfactory explanation for the delay had been provided; it was reasonable for the claimant to rely on his lawyers; leave granted to refer the claim for assessment; section 8.10 only applies to claims for statutory benefits and not damages; no power to make costs order sought. |
| DETERMINATIONS MADE: | i) For the purposes of s 7.33 of the Motor Accident Injuries Act2017 ii) Leave is granted for the claim to be referred for assessment. |
Background
Jaime Florez Fernandez was injured in a high speed head on collision that occurred on 27 May 2018. At the time of the accident he was the front seat passenger in a vehicle driven by his friend, who was killed in the accident. The accident occurred on Gocup Road, some 10km north of Tumut. Mr Florez Fernandez subsequently made a claim for damages. The insurer, Insurance Australia Limited t/as NRMA (NRMA) admitted liability for the claim.
These proceedings were commenced on 22 September 2021, some three years and four months after the accident. The claim cannot be referred for assessment more than three years after the accident unless Mr Florez Fernandez 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: s 7.33 Motor Accident Injuries Act2017 (the MAI Act).
A teleconference was conducted on 2 November 2021. Directions were made at that time for the provision of evidence and submissions by the parties in relation to s 7.33. The parties submitted that I should determine the s 7.33 issues on the papers.
On the papers
Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the matters that arise under s 7.33 can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
Evidence
Mr Florez Fernandez relies on his statement dated 1 December 2021, his statutory declaration of 20 December 2021 and a statutory declaration of Mr Goudkamp dated 22 December 2021. NRMA has not lodged any evidence with the Commission that goes to s 7.33.
Mr Florez Fernandez’s evidence
Mr Florez Fernandez’s statement is directed to the claim for damages as opposed to the issues that arise under s 7.33. It provides background information, including his pre accident education and employment, his pre-accident health and lifestyle. The statement contains details of the accident. Mr Florez Fernandez was the front seat passenger of a vehicle driven by his friend, John. Immediately before the accident the vehicle was travelling at around 80km an hour. He heard a loud bang followed by a grinding sound. John had difficulty steering the vehicle, which suddenly veered sharply to the right, entered the opposite lane, and collided head on with a vehicle travelling in that lane. John was killed. Mr Florez Fernandez was airlifted from the scene of the accident to The Canberra Hospital.
The statement includes details of Mr Florez Fernandez’s injuries, disabilities, treatment and the impact his injuries have had on his life. He describes the difficulties he experienced when he returned to work some four months after the accident.
Mr Florez Fernandez’s statutory declaration traverses some of the ground covered in his statement in relation to the accident, his injuries, treatment, and the impact the injuries have had on his life. He provides details of his interactions with his lawyers since instructing them in June 2018. He provided instructions to his lawyers when they were sought and provided his lawyers with updates in relation to his injuries. He completed a claim for damages and returned it to his lawyers as requested.
Mr Florez Fernandez’s evidence is that he first contacted Stacks Goudkamp on 18 June 2018, having been referred to that firm by a Canberra firm. His evidence is that he was not informed about time limits associated with bringing a claim in relation to the accident by lawyers at either firm. Prior to speaking to Mr Goudkamp he had not needed to seek advice in relation to a compensation claim for injuries generally or following a motor vehicle accident. Mr Florez Fernandez’s evidence is that he was unaware of the provisions of the MAI Act and unaware of any time limits provided by the Act before the accident.
Mr Florez Fernandez’s statutory declaration records that on 8 November 2021 he was informed by his lawyers that his application for assessment of his claim had been lodged outside the three year time limit. Until this time he was not aware that there were any time limits in relation to lodging his claim or having his claim assessed. He had not been told that his claim had to be lodged with the Commission within three years of the date of the accident.
Mr Florez Fernandez’s evidence is that since he first spoke to Mr Goudkamp he has relied on him and his team to manage his claim. He believed that his lawyers were doing what needed to be done to progress his matter. It seemed to him that everything that had to be done was being done. Mr Florez Fernandez’s evidence is that he did not research the claims process as he had engaged lawyers to look after the claim for him.
Mr Goudkamp’s evidence
Mr Goudkamp’s statutory declaration provides details of the interactions between himself, members of his firm, and Mr Florez Fernandez. Evidence is provided about the correspondence between Mr Goudkamp’s firm and NRMA, including details of the claims made and evidence exchanged. Details are provided about the steps taken to progress Mr Florez Fernandez’s claim. A concession having been sought on
Mr Florez Fernandez’s behalf, on 29 August 2019 NRMA confirmed that his whole person impairment exceeded 10%. On 6 September 2019 an application for damages was sent to Mr Florez Fernandez for him to complete. On 1 October 2019 the completed application was served on NRMA. Mr Goudkamp was subsequently informed by Sparke Helmore that it had been instructed to act for NRMA in the claim. Particulars of the damages claim were sought by Sparke Helmore. Medico-legal assessments were arranged. Medical evidence was served. There were multiple exchanges between Mr Goudkamp’s firm and Sparke Helmore in relation to Mr Florez Fernandez’s treatment.Mr Goudkamp’s evidence is that Mr Florez Fernandez was not advised that there was a three year limitation period to file his application for damages with the Commission. Given that his medical condition was not stable, focus was directed towards seeing that was attended to. Submissions and a schedule of damages were served on Sparke Helmore on 21 July 2021. The parties engaged in a settlement conference in August 2021.
Mr Goudkamp’s statutory declaration annexes a range of material including reports from treating doctors, photographs of Mr Florez Fernandez’s injuries, wage and employment records, taxation records and correspondence between his firm, NRMA and Sparke Helmore.
Mr Florez Fernandez’s submissions
Mr Florez Fernandez’s submissions include an outline of his injuries, treatment and medical progress. It is recorded that he underwent surgical treatment on 5 May 2021.
Reliance is placed on Karambelas v Zaknic (No 2) [2014] NSWCA 433, Walker v Howard [2009] NSWCA 408, Smith v Grant [2006] NSWCA 244, Rahman v Al-Maharmeh [2021] NSWCA 31 and Mancini v Thompson [2002] NSWCA 38.
It is submitted that the Commission has before it the steps taken by Mr Florez Fernandez to progress his claim; the steps taken by his lawyers to progress his claim; and details of the events that have contributed to the delay of the progress of his claim, including his surgery and associated delay. It is argued that the full account which needs to be understood is Mr Florez Fernandez’s knowledge, his interaction with his solicitors and what occurred in the claim. To the extent the authorities require, a full account of such matters has been provided. It is submitted that his explanation for the delay is full.
It is submitted that, being unfamiliar with the claims process, Mr Florez Fernandez placed his faith in Stacks Goudkamp to progress his matter in an appropriate manner. It is argued that such reliance was not unreasonable, particularly in circumstances where there is no wrongdoing on his behalf. He saw progress and was not to know, by reason of the advice given, that there was any need to lodge his claim for assessment earlier than occurred.
It is noted that prior to lodging the application for the assessment of damages, steps were also being taken to comply with the obligations imposed under the MAI Act, including to ensure that the parties used their best endeavours to settle the claim as required by s 7.23(3) and particulars provided. It is submitted that a reasonable person in Mr Florez Fernandez’s position would have been justified in experiencing the same delay.
NRMA’s submissions
NRMA submits that the explanation provided by Mr Florez Fernandez is neither full nor satisfactory. NRMA relies on a number of Court of Appeal authorities, including those referred to in Mr Florez Fernandez’s submissions, together with Ellis v Reko Pty [2010] NSWCA 319, Diaz v Truong [2002] NSWCA 265, Blackburn v Allianz [2004] NSWCA 385, Dijakovic v Perez [2015] NSWCA 174, and Nominal Defendant v Browne [2013] NSWCA 197.
NRMA submits that Mr Florez Fernandez’s explanation is not full because his statutory declaration of 20 December 2021 is scant rather than fulsome. It does not, it is argued, deal with his actions, knowledge and belief in respect of key events. His statutory declaration is silent as to any advice he received about the ‘limitation period’ on every occasion he met or spoke with a representative of his lawyers. It is submitted that this means that the Commission cannot properly assess his actions, knowledge and belief on these occasions and cannot assess his actions, knowledge and belief if it does not know, or is required to speculate about, what advice, if any, Mr Florez Fernandez received about the expiration of the limitation period. While his statutory declaration provides a chronology of his medical treatment since the accident, it does not provide a full explanation of his conduct including his actions, knowledge and belief. It is also argued that the explanation is not full because there is no explanation as to why
Mr Florez Fernandez was not advised about the limitation periods.NRMA submits that as Mr Florez Fernandez’s explanation is not full, it cannot be satisfactory: Nominal Defendant v Browne [2013] NSWCA 197 at [24]. It is argued that the explanation provided is not satisfactory because no reasonable person in the position of Mr Florez Fernandez would have failed to take the appropriate steps to lodge the application for assessment of damages within the limitation period. It is submitted that a reasonable person would have done more than Mr Florez Fernandez had done. Accordingly, a reasonable person in his position would not have been justified in experiencing the same delay.
NRMA submits that a reasonable person in the position of Mr Florez Fernandez would have taken different steps, including:
(a) making enquiries with his solicitors as to whether there were any steps or time limits involved in having his claim for damages assessed; and
(b) focusing not just on his treatment but also on progressing his claim for damages against the insurer.
In relation to the suggestion that at the expiration of the time period
Mr Florez Fernandez was under stress due to his upcoming surgery, in NRMA’s submission it was not necessary for him to lodge the application for assessment of damages exactly three years from the date of the accident. He could have lodged the application prior to this date as Procedural Direction MA1 established a stood over list to which his claim could have been referred. Accordingly, it is argued that it was not necessary for Mr Florez Fernandez to wait until treatment had finished in order to lodge an application for assessment of damages. The path open to him was to lodge the application and apply to have the matter placed in the stood over list in order for him to complete treatment.NRMA argues that it was not necessary for Mr Florez Fernandez to make attempts to settle the claim prior to lodging the application for assessment of damages, in circumstances where his treatment was ongoing. In NRMA’s submission, he should have lodged the application for assessment of damages, applied to have the matter placed in the stood over list, completed treatment, provided updated particulars and then attempted settlement, all the while having complied with s 7.33 of the MAI Act.
Mr Florez Fernandez’s submissions in reply
Mr Florez Fernandez submits that the matters raised by NRMA with respect to whether his explanation is full are the very types of matters that Allsop P explained in Walker at [104] need not be included in an explanation. It is submitted that:
(a) NRMA’s submissions are silent about what key events had not been addressed and how the explanation is scant. Further, it is not clear what actions, knowledge and belief Mr Florez Fernandez should have had about such matters or deposed to having or not having;
(b) Mr Florez Fernandez has deposed to not having been told of the time limits for bringing a claim until he was told there was an issue in that regard on 8 November 2021;
(c) NRMA has not identified what conduct, including actions knowledge and belief is absent from the explanation provided;
(d) Mr Florez Fernandez’s statutory declaration is sufficiently full particularly when read with his statement in support of his claim for common law damages. They detail his knowledge about the process and the fact he relied on his lawyers to progress the matter;
(e) It matters not why Mr Florez Fernandez was not advised. It is sufficient that he was not advised and unaware of any limitation period. That is because it is his knowledge which is relevant not why his solicitors did not take a step; and
(f) Mr Florez Fernandez was not required for questioning about what he deposed to in his statutory declaration or his statement. His evidence should be accepted.
As to NRMA’s submissions in relation to whether the explanation is satisfactory,
Mr Florez Fernandez submits that if it is found that his explanation is full, the submission that it is not satisfactory on that basis falls away. It is submitted that he cannot be criticised for not doing something about which he was unaware. He was entitled to rely on his lawyers to progress his matter for him, and as far as he was aware this was occurring.
Determination
Section 7.33 of the MAI Act is in the following terms:
“7.33 Time limits for referring claims and making assessment
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.”
Despite the submissions of the parties to the contrary, the term ‘full and satisfactory explanation’ as used in s 7.33 is not defined in s 6.2 of the MAI Act. That provision commences with the clear and unambiguous words ‘For the purposes of this Part..’. The Part referred to is Part 6 of the MAI Act. Section 7.33 is found in Part 7 of the MAI Act. There is no definition of ‘full and satisfactory explanation’ in the MAI Act for the purposes of Part 7. These are matters I considered in Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351 at [13] – [25]. As I did in Lee, in order to interpret s 7.33 in a way that is harmonious, logical and consistent with the MAI Act when read as a whole, I have proceeded on the basis that the term ‘full and satisfactory explanation’ used in s 7.33 means a full account of Mr Florez Fernandez’s conduct, including his actions, knowledge and belief, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of Mr Florez Fernandez would have been justified in experiencing the same delay. The meaning I have ascribed to the term ‘full and satisfactory explanation’ for the purposes of s 7.33 is in material respects the same as the definitions of ‘full and satisfactory explanation’ in the MAI Act and the Motor Accidents Compensation Act1999 (MAC Act)[1]. Accordingly, as submitted by the parties, the authorities that address the meaning of ‘full and satisfactory explanation’ for the purposes of the MAC Act are relevant to determining whether
Mr Florez Fernandez has provided a full and satisfactory explanation as required bys 7.33 of the MAI Act.[1] Section 6.2 MAI Act and s 66(2) of the MAC Act.
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: Walker v Howard [2009] NSWCA 408 at [104]. 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: Walker at [106]. 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: Walker at [57]. The delay is the period during which the claimant was late in making the claim: Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16].
The concept of 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: Karambelas at [17]. 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. The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay: Russo v Aiello [2001] NSWCA 306 at [17]. Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant: Hunter v Roberts [2019] NSWCA 116 at [20]. Reliance on legal representatives can constitute a satisfactory explanation for delay: Smith v Grant [2006] NSWCA 244 at [60].
NRMA relies on Nominal Defendant v Browne [2013] NSWCA 197. Basten JA (Barrett and Gleeson JJA agreeing) held at [21] that the purpose of the explanation is not to explain the conduct of the solicitors. An explanation may not be ‘full’ if it does not provide some detail as to the instructions given to, and the advice received from legal representatives. In terms of whether an explanation is ‘satisfactory’ Basten JA held at [24] that there is a need to look to the actions of persons other than the claimant where those actions may form part of the position or circumstance of the claimant.
In Rahman v Al-Maharmeh [2021] NSWCA 31 Brereton JA (Meagher and Leeming JJA agreeing) held at [39] that:
“39 It must be regarded as settled that the “full account of the conduct” referred to in the first sentence of s 66(2) 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. However, this does not mean that the explanation is required to include “the actions, knowledge and belief” of solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing the proceedings…”
His Honour went on to say at [41] – [42]:
“41 …What the explanation did not include was an explanation as to why the solicitors failed to implement the appellant’s instructions and did nothing. However, that was not a matter within the control or knowledge of the appellant personally, as distinct from her solicitors, and while her account of the conduct for the relevant period was required to cover the relevant conduct of her solicitors, that requirement did not extend to including “the actions, knowledge and belief” of the solicitors.
42 It is not apparent how evidence explaining why the solicitors failed to implement the appellant’s instructions would have affected the adequacy of her explanation. Hypothetically, the solicitors might have explained that their failure to act was due to one or more of the following, in decreasing order of likelihood: (1) the departure of Mr Coxall and inadvertence by his successor until the appellant followed up; (2) neglect; (3) incompetence; (4) frustration by technological or other problems; and (5) wilful default. Whichever of those it was, which was and apparently remained unknown to the appellant herself, would have made no difference to the adequacy of the appellant’s explanation for the purpose of judging whether in those circumstances others in her position would be justified in experiencing the same delay, because every one of them was beyond the appellant’s personal control and provided an explanation for her delay. The explanation was sufficiently full to enable an assessment to be made of whether it was satisfactory. A more elaborate explanation of why the solicitors failed to act would not have contributed to an evaluation of whether or not the appellant’s explanation was a satisfactory one.”
Is the explanation full?
Mr Florez Fernandez has provided a comprehensive statement and statutory declaration. He has provided details of the accident, his hospitalisation, his injuries and his treatment. His statutory declaration contains details of his interactions with his lawyers from the time they were instructed. His evidence, which I accept, is that he did not know, and was not advised, that his claim had to be referred to the Commission for assessment within three years of the accident until informed by his lawyers on 8 November 2021 (after these proceedings were commenced) that there was an issue in this regard. His evidence is that until this time he was not aware that there were any time limits in relation to lodging the claim or a time within which an application to have his claim assessed had to be lodged. I accept Mr Florez Fernandez’s evidence that he relied on his lawyers to manage his claim and that he did not continually chase them up about “where things were at” because he believed they were doing what had to be done to progress the claim.
I reject NRMA’s submission that Mr Florez Fernandez’s explanation is scant rather than fulsome. I am satisfied that his explanation expressly addresses his actions, knowledge and belief from the date of the accident until the date his explanation for the delay was provided. It is not clear to me what additional relevant evidence Mr Florez Fernandez could have provided that would have contributed to an evaluation of whether or not his explanation for the delay was satisfactory. He saw progress in relation to his claim for damages and was not to know, by reason of the advice given, that there was any need to lodge his claim for assessment earlier than occurred.
The statutory declaration of Mr Goudkamp forms part of Mr Florez Fernandez’s explanation for the delay in referring his claim for assessment. Mr Goudkamp’s statutory declaration is comprehensive. It recounts interactions between his firm,
Mr Florez Fernandez, NRMA and Sparke Helmore. It sets out the steps taken to progress the damages claim. Critically, Mr Goudkamp’s evidence is that
Mr Florez Fernandez was not provided with advice in relation to the time limit for referring his claim to the Commission for assessment until 8 November 2021.I reject NRMA’s submission that the explanation is not full because Mr Goudkamp’s evidence does not explain why Mr Flores Fernandez was not advised about the limitation period. For the reasons explained by Brereton JA in Rahman at [39] – [42], it is Mr Florez Fernandez who must provide the explanation for the delay. While this extends to the conduct of those who have acted on his behalf so far as it is relevant to the delay, it does not mean that the explanation is required to include the actions, knowledge and belief of his lawyers. The reason why he was not advised about the time limit for referring his claim for assessment is not a matter within his control or knowledge. Further, it is not apparent how evidence explaining why the solicitors failed to provide advice in relation to the time limit for referring his claim for assessment would have affected the adequacy of his explanation.
Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required. I am satisfied that the acts and omissions of all relevant persons have been canvassed in Mr Florez Fernandez’s explanation for the delay. Those persons are Mr Florez Fernandez, Mr Goudkamp and his staff. The explanation provided by Mr Florez Fernandez enables me to evaluate the reasons for the delay in referring his claim to the Commission for assessment. I find that Mr Florez Fernandez has provided a full explanation for the delay.
Is the explanation satisfactory?
Having found that Mr Florez Fernandez’s explanation is full, NRMA’s submission that it is not satisfactory on that basis falls away.
The evidence satisfies me that Mr Florez Fernandez’s claim was referred to the Commission for assessment late because:
(a) prior to the accident he had not needed to seek advice in relation to a compensation claim for injuries generally or with respect to a motor accident specifically;
(b) prior to 8 November 2021 he was not aware that there was a time within which an application to have his claim assessed had to be lodged, nor was he told that his claim had to be lodged with the Commission within three years of the date of the accident;
(c) he relied on his lawyers to manage his claim and believed they were doing what had to be done to progress the claim; and
(d) his lawyers did not give him advice that his claim had to be referred to the Commission for assessment within three years of the date of the accident, nor did they act to ensure that he complied with this requirement.
NRMA argues that a reasonable person in Mr Florez Fernandez’s position would have done more than he did. I don’t agree. He instructed lawyers soon after the accident occurred. He provided them with updates. He relied on his lawyers to advise him and progress his claim. It was reasonable for him to do so. He provided instructions when they were sought. He was not aware that there were time limits for referring his claim for assessment. He saw progress and was not to know, by reason of the advice given, that there was any need to lodge his claim for assessment earlier than occurred. That he did not make enquiries about time limits in these circumstances is not surprising and, in my assessment, was reasonable.
I don’t accept NRMA’s submission that, in addition to focusing on his treatment, he should have focused on progressing his claim. The evidence satisfies me that he was progressing his claim through his lawyers. Among other things, the damages claim was made, medical evidence was exchanged, material relevant to the economic loss claim was provided, a concession in relation to whole person impairment was sought and given. A schedule of damages and submissions were prepared. A settlement conference was arranged. It is not clear to me, on the basis of his evidence and that of Mr Goudkamp, what other steps Mr Florez Fernandez could reasonably have taken, particularly given he was not aware that his claim was required to be referred for assessment within three years of the accident.
Given my findings about the reasons for the delay, I do not consider it necessary to address NRMA’s submissions in relation to the stood over list. The delay was not, in my assessment, due to Mr Florez Fernandez waiting until his treatment had finished.
I am satisfied that it was reasonable for Mr Florez Fernandez to rely on his lawyers to advise him about time limits and act to ensure that he complied with those time limits. Reliance on legal representatives can constitute a satisfactory explanation for delay: Smith v Grant. I find that Mr Florez Fernandez’s reliance on his lawyers was reasonable and constitutes a satisfactory explanation for the delay in referring his claim for assessment. I consider that a reasonable person in his position would have been justified in experiencing the same delay of four months. I find that
Mr Florez Fernandez has provided a satisfactory explanation for the delay.For the purposes of s 7.33 of the MAI Act, I find that Mr Florez Fernandez has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment. Leave is granted for the claim to be referred for assessment.
Costs
Mr Florez Fernandez seeks an order that he be entitled to recover his legal costs above and beyond the amount fixed by the Motor Accident Injuries Regulation 2017, relying on s 8.10(4)(b) of the MAI Act. That is, he argues that exceptional circumstances exist which justify the payment of such costs. A range of submissions are made in support of the costs order sought. I do not propose to address the submissions as, for the reasons that follow, I do not consider that the order sought can be made.
Section 8.10 is in the following terms:
“8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(1)A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4)The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—
(a)the claimant is a person under legal incapacity, or
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5)…”
As can be seen, s 8.10 deals with the recovery of costs and expenses in claims for statutory benefits: 8.10(1). A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim for statutory benefits is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission: s 8.10(3). The Commission can permit the payment of legal costs in a statutory benefits claim as provided for in s 8.10(4). Sub-section 8.10(4)(b) is relied upon in support of the costs order sought.
This dispute arises in a claim for damages, not statutory benefits. Accordingly, s 8.10 does not provide a source of power to make the costs order sought.
Brett Williams
Member
Personal Injury Commission
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