George AAI Limited t/as AAMI
[2022] NSWPIC 545
•30 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | George AAI Limited t/as AAMI [2022] NSWPIC 545 |
| Claimant: | Jijo Moolethadithil George |
| insurer: | AAI Limited t/as AAMI |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 30 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for damages; reinstatement of claim application; no dispute about failure to provide particulars; no dispute with form or timing of notice to provide particulars; no dispute that the claim is taken to be withdrawn; claims to be reinstated if claimant has a full and satisfactory explanation for the failure to provide the particulars; insurer concedes explanation is full; explanation is that unsophisticated claimant relied on his solicitor and his solicitor failed to diarise the date for the provision of particulars; Held – claimant has a full and satisfactory explanation for his failure to comply with the duty to provide particulars under section 6.25 of the 2017 Act; it was reasonable that he relied on his solicitor and did not follow up his solicitor; claim reinstated under s 6.26(6) of the 2017 Act. |
| determinations made: | 1. Jijo George has a full and satisfactory explanation for his failure to comply with his duty to provide the AAMI with relevant particulars of his claim for damages under s 6.25. 2. Jijo George’s claim for damages (made against AAMI on or about 4 May 2021) arising out of his accident on 27 February 2019 is reinstated under s 6.26(6). 3. Jijo George is given leave under s 7.33 to refer his claim for assessment. |
STATEMENT OF REASONS
introduction
Mr Jijo George was involved in a motor accident on 27 February 2019 and says he sustained injury to his neck, back, chest, shoulders, joints and lower abdomen.
On 8 March 2019 he made a claim for statutory benefits against AAMI, the third-party insurer of the vehicle that caused his accident. The claim was made under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act). On 7 June 2019, AAMI advised
Mr George that liability for benefits beyond the first 26 weeks after the accident was denied on the basis that the claimant’s only injuries sustained in the accident were minor injuries[1].[1] This information is found in the insurer’s internal review decision at page 39 of the insurer’s bundle.
On or about 4 May 2021, Mr George made a claim against AAMI for damages under Part 4 of the MAI Act[2]. On 3 August 2021, AAMI admitted fault on the part of its insured in respect of the accident but denied liability for the claim on the basis that the claimant’s only injuries sustained in the accident were minor injuries[3]. On 16 September 2021, after internal review, AAMI reversed that decision[4].
[2] Document A6 at page 26 of the claimant’s bundle is the email serving the claim form. The actual claim form is not before me.
[3] Document A7 at page 27 of the claimant’s bundle.
[4] A copy of the application for internal review is document A8 at page 30 of the claimant’s bundle and the internal review decision is document A11 at page 37. The insurer accepted that the claimant had sustained a PTSD injury in the accident although alleged that injury had now recovered.
On 6 September 2021, AAMI issued a written direction to the claimant seeking the provision of relevant particulars about the claim[5]. The particulars were not provided and by operation of the legislation the claim was taken to be withdrawn.
[5] The direction is at page 34 of the claimant’s bundle and was accompanied by a three page covering letter which is document A9 at page 31.
Mr George wants to pursue his claim and sought the reinstatement of it by lodging an application with the Personal Injury Commission (the Commission). The claimant’s solicitor had indicated on the Commission’s electronic application form that:
(a) the dispute category was a “merit review”, concerning “insurer direction re particulars”;
(b) the dispute information was “failure to provide particulars in accordance with s 6.26”, and
(c) the requested outcome was “the claim to be reinstated”.
The submissions accompanying the application confirmed that the claimant sought reinstatement of the claim.
The Commission allocated the proceedings to Merit Reviewer Ruschen who determined on 24 April 2022 that the real issue in the proceedings was the reinstatement of the claim under s 6.26(4) and that, as a Merit Reviewer, she had no power to determine that dispute.
On 8 August 2022 the proceedings were allocated to me to be determined as a Member of the Commission and I held a teleconference with the parties on
27 September 2022.[6]
LEGISLATIVE FRAMEWORK
[6] On 1 September 2022 I was allocated a related set of proceedings filed in August 2022 (for the assessment of damages) and the two matters were set down for a teleconference on the same date and time.
The provision of particulars
Section 6.25(1) imposes a duty on a claimant to provide to the insurer against which the claim for damages is made “all relevant particulars” of the damages claim, “as expeditiously as possible after the claim is made”.
What constitutes relevant particulars is defined in s 6.25(2) as being:
“… full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
Failure to provide particulars and reinstatement of the claim
The consequences for failure to provide the particulars are set out in s 6.26 as follows:
“(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2) The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3) If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4) The claimant may make an application for reinstatement of the claim—
(a) to the Commission for a claim that is not exempt from assessment under Division 7.6, or
(b) …
(5) (Repealed)
(6) If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the … Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.”
Section 6.2 of the Act provides a definition of “full and satisfactory explanation” as follows:
“(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.”
Jurisdiction
Part 7 of the MAI Act provides for the assessment of claims for damages and the resolution of disputes that arise in connection with claims for damages and claims for statutory benefits. Schedule 2 to the MAI Act declares certain matters to be disputes and divides them into three types, merit review matters, medical assessment matters and miscellaneous claims assessment matters.
Schedule 2(1) declares the following disputes to be merit review matters:
“(y) whether the claimant has provided the insurer with all relevant particulars about a claim in accordance with section 6.25 (Duty of claimant to provide relevant particulars of claim for damages)” , and
(z) whether the insurer is entitled to give a direction to the claimant under section 6.26 (Consequences of failure to provide relevant particulars of claim for damages),”
Schedule 2(3) to the Act declares the following to be a miscellaneous claims assessment matter:
“(h) 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.”
SUBMISSIONS
Claimant’s submissions
The claimant’s submissions on the s 6.26 reinstatement matter are dated
25 February 2022[7].[7] The submissions are document A5 in the claimant’s bundle of documents.
The claimant says he relies on a statement from his solicitor and his own statement and says:
(a) “the crux of the statements explains that the claimant relied on his solicitors to arrange a joint medical examination [with the insurer] and then provide particulars” [1.3];
(b) a request for a joint medical examination was made on the day the s 6.26 direction was received (6 September 2021) but the insurer did not respond until 21 February 2022 and he has been unable to provide full particulars as a result [1.4];
(c) the insurer is not prejudiced [1.5];
(d) the s 6.26 direction was overlooked [1.6];
(e) the insurer has not raised a s 6.26 issue but the claimant must apply for reinstatement of the claim [1.7];
(f) the insurer denied liability for the damages claim on the basis that the claimant had only minor injuries and that an internal review was required to overturn that decision [2.2, 2.3 and 2.8];
(g) while liability was denied and before the internal review decision had been made, the direction to produce particulars was received [2.4, 2.6];
(h) the insurer had never requested particulars of the claim before it issued the direction [2.5];
(i) when liability was admitted, the claimant’s solicitor requested the insurer agree to a joint medical examination [2.9];
(j) the solicitor asked a member of staff to diarise the due date for the particulars but this date was missed [2.7, 2.10];
(k) in early 2022, on returning to work after the holiday break, the claimant’s solicitor discovered the date had been missed and that the insurer had not responded to the invitation to participate in a joint medico-legal examination [2.11 and 2.12], and
(l) the claimant’s solicitor arranged his own medico-legal examination with
Dr Dryson on 4 March 2022 [2.14].The claimant’s solicitor submits he overlooked the s 6.26 date due to an administrative error, he was waiting for the insurer to engage in the joint medico-legal examination and he was experiencing a busy Christmas/New Year period [3.1]. The claimant’s solicitor accepts “he was at fault in this instance” [3.5].
The claimant submits he relied on his solicitors, he has not made any previous motor accident claims and his solicitor’s error should not be attributed to him [3.3, 3.6].
Insurer’s submissions
The insurer’s submissions[8] outline the history of the various applications and cites the relevant legislation before saying at [2.3] that the claimant has not provided a satisfactory explanation for his failure to provide the particulars.
[8] The submissions are dated 24 March 2022 and are document R1 in the February 2022 proceedings. Submissions dated 7 September 2022 dealing with the reinstatement of the claimant are document R1 in the August 2022 proceedings provide additional history but do not add any additional arguments.
The insurer submits in response to the matters raised by the claimant’s submission at [3.2 and 3.3]:
(a) a medical examination is not necessary in order for a claimant to provide particulars, and
(b) the Christmas period has no relevance bearing in mind the particulars were due on 6 December 2021.
The insurer submits that the evidence suggests the claimant’s solicitor explained to the claimant what the s 6.26 direction was and had not contacted his solicitors between
16 September 2021 and 24 February 2022 and quotes paragraph 12 of the claimant’s statement where he had forgotten about the “3 month rule” and “wholly relied on my lawyers”. AAMI says at [3.7] that a reasonable person in the position of Mr George who was aware of the notice and the claim could be withdrawn, “would have taken proactive steps to contact his solicitor to ensure the notice had been complied with and would not have ‘forgotten’”.The insurer also notes that the claimant has still not provided the particulars.
review of the evidence
Claimant’s evidence
Mr Weng advised me at the teleconference that his client was unsophisticated, and that English was his second language. Mr George had no tertiary qualification but may have obtained trade qualifications in India before he arrived in Australia in 2012. Mr George had worked as a cleaner since arriving in Australia. Mr Weng advised that he provided information to the claimant’s wife and received instructions from his client through his wife due to his client’s lack of proficiency in the English language.
The medico-legal report of Dr Dryson dated 25 March 2022[9] noted the claimant had ceased work after the accident and had not returned to work. Dr Dryson documents complaints of cervical spine pain, bilateral shoulder pain, thoracic and lumbar spine pain and right hip pain. He records that a chest contusion has resolved and that the claimant continues to have symptoms of post-traumatic stress disorder. He was of the view Mr George “has a well-entrenched chronic pain syndrome and the outlook is poor”. He recommended a pain management program and encouragement to utilise a home-based exercise program.
[9] Document A4 in the claimant’s bundle.
In a separate impairment assessment Dr Dryson expressed the view that the claimant’s chronic pain syndrome had not stabilised, and he therefore did not undertake an impairment assessment suggesting the claimant be reassessed after six months of pain management treatment.
Mr George has provided a statement[10] which includes an attestation from his wife that she has interpreted it to him and he understands it and it is correct. He says:
(a) he received an email dated 6 September 2021 from the insurer but did not understand it “due to my limited English speaking skills” and that he rang his lawyers on 8 September 2021 [2-3];
(b) his lawyers explained it and said they would provide the particulars but would not be able to do so until a medic-legal specialist had seen him and they recommended a joint medico-legal examination would provide a cheaper and faster outcome [4-5];
(c) he was advised that liability was denied because of “minor injury” and that an internal review would be sought and he was concerned at the time it takes having been assessed by the Commission previously in respect of other medical disputes [6-8];
(d) he was advised that liability had been admitted on internal review and that the insurer had been approached in regards to a joint medico-legal examination [9];
(e) he next heard from his lawyers on 24 February 2022 and that he understood his claim was withdrawn [10];
(f) he relied on his lawyers and understood the joint medico-legal examination would assess his injuries [11], and
(g) he had forgotten about the three month anniversary of the notice and was not aware that it direction had expired in December 2021 “I wholly relied on my lawyers who had previously informed me that everything was under control”.
[10] The statement is dated 25 February 2022 and is document A 15 at page 110 of the bundle.
The statement of Mr Weng[11], supports the arguments set out in the claimant’s submissions:
(a) he explains the steps he took in the claim at [3-7];
(b) he recounts a telephone call he received from his client on
8 September 2021 concerning the s 6.26 notice at [8];(c) he says he received no communication from the insurer between
16 September 2021 and 18 January 2022 at [11];(d) his practice is to diarise dates and follow ups at [12] and [13], and
(e) he was busy during November and December with informal settlement conferences and did not undertake a file review until 14 January 2022 [14-17].
[11] The statement is dated 25 February 2022 and is document A14 at page 67 of the bundle.
Insurer’s evidence
There is on the Commission’s file, a letter dated 6 September 2021, sent to Mr George at his home address.[12] The letter refers to his damages claim and a “phone discussion on 06/09/2021 with regards to providing particulars for your claim”. This letter refers to the particulars which the Act says must be provided but there is no mention of the “reasonable excuse” provision and no request for the claimant to provide a reason or excuse for the failure to provide the particulars. The letter then asks the claimant to provide the following “relevant particulars, documents or records”:
(a) personal details including a passport photo and a copy of his driver license, passport, birth certificate and so on;
(b) details of his injuries, treatment (which was being provided by the insurer through the statutory benefits claim), disabilities, treatment providers (for three years before the accident and continuing) as well as all medical report from three years before the accident;
(c) details of accidents before or after the current accident including dates and places of those accidents, injuries sustained in those accidents, the names and addresses of all the people who had treated the claimant after those accidents and so on;
(d) details of economic loss being claimed including employment details, average earnings, any alteration in duties or work since the accident, total wage loss claimed (the insurer may have had this information already through the statutory benefits claim), the amount of future economic loss claimed, sick leave details, workers compensation, income protection details;
(e) details of any claim for accommodation or travel expenses;
(f) details of all employees and jobs for the three years before the accident;
(g) copies of tax returns and group certificates or statements from Centrelink and all details of any benefits received from Centrelink, and
(h) if a claim for non-economic loss is made the insurer pointed out that in their view the claimant had no entitlement on the basis the degree of his whole person impairment was not greater than 10%.
[12] Document R2 in the Commission’s reinstatement file was lodged by the insurer but there is no reference to it in the submissions.
This letter appears to be what has been for decades commonly known as a request for “further and better particulars” of a claim. It is a letter that appears to be an attempt to request both relevant particulars of the claim (within the meaning of s 6.25) and documents and information in support of the claim (which is a request made under s 6.24).
I note that there is a second letter dated 6 September 2013 which is headed “direction to provide particulars”[13]. It too is addressed to the claimant at his residential address. It refers to “previous correspondence” with space for a date, but no date is included. It also suggests “we attempted to call you” again with space for a date but no date is included.
[13] Document A9 at page 31 of the claimant’s bundle.
It refers to “your obligation to comply with our request” and under the heading “determination” says “as you have failed to supply all relevant particulars for your claim, we now issue a written direction …”.
The actual direction to provide particulars document is unsigned and undated and does not make any reference to “reasonable excuse” and therefore the reference to s 6.25 is incomplete and potentially misleading.
The two letters dated 6 September 2021 are inconsistent one refers to a telephone call having been made and the other refers to no telephone call occurring. One contains a request for particulars, documents and information and the other says that due to those particulars, documents and information not being provided, the written direction is being issued.
There is no other evidence provided by the insurer although I note the insurer’s internal review decision refers to 28 documents including medico-legal reports from both
Dr Keller (27 December 2019) and Dr Vickery (24 August 2020) and a number of treatment related documents including referrals and requests for allied health treatment and a number of certificates of capacity. The internal review also suggests that there have been three treatment disputes determined by the Commission or its predecessor[14].[14] The Dispute Resolution Service of the State Insurance Regulatory Authority.
Issues to be determined
It is clear that the application before me is an application to reinstate a claim. Such an application can involve many issues and disputes.
Disputes about whether particulars have been provided
There may be a dispute about whether the claimant has or has not provided particulars within the meaning of s 6.25 – this would be a merit review matter declared as such by Schedule 2(1)(y).
There is no such dispute in Mr George’s case. Mr Weng confirmed at the teleconference that Mr George concedes he had not provided the particulars by
6 September 2021; he did not provide the particulars within the three months as directed and, he has not yet provided the required particulars.
Disputes about the entitlement to issue the written direction
There may be a dispute about whether the insurer was entitled to issue the s 6.26(1) direction for the provision of particulars – this too would be a merit review matter declared as such by Schedule 2(1)(z).
Section 6.26(1) provides that the direction may be issued if the claimant has failed to provide the particulars and does not have a “reasonable excuse” for providing them. This suggests the insurer may be required to make an enquiry of the claimant first before issuing the notice or by the claimant proactively providing the excuse before the two year six month mark.
This has not been disputed in Mr George’s case, but Mr Weng did indicate that in circumstances where the claimant’s injuries have not stabilised and his medico-legal expert was unable to assess whole person impairment, Mr George is still unable to provide “particulars of impairments” as required by s 6.25(2)(c). That may very well be a “reasonable excuse” contemplated by s 6.26(1) had Dr Dryson’s report been available at that time.
Disputes about the validity of the notice
There could be a dispute about whether the notice issued by the insurer was valid as to time (whether it was issued two years and six months after the accident) or form (whether it complied with the form of the notice prescribed by the Act). This does not appear to have been listed separately in Schedule 2, but is likely to be an inherent power for either Merit Reviewers or Members to determine depending about the substance of the dispute before them.
In Mr George’s case there is no dispute about the validity of the notice or the timing of it in any event.
Disputes about reinstatement
Finally, there could be a dispute about whether the claim should be reinstated by the Commission under s 6.26(4) and in accordance with s 6.26(6) or (7) depending on when the proceedings seeking the reinstatement were commenced.
Mr George concedes that his claim is taken to be withdrawn by operation of s 6.26(3) and that the claim needs to be reinstated.
The parties agree that Mr George’s application to reinstate his claim was made on
25 February 2022, less than three years after the date of the accident and therefore s 6.26(7) applies.As the reinstatement of the claim by the Commission under s 6.27(7) requires consideration of whether the claimant has a full and satisfactory explanation for not complying with the duty imposed upon him under s 6.25 (being the duty to provide relevant particulars of the damages claim to the insurer) this would appear to be a miscellaneous claims assessment matter for a Member to determine under Schedule 2(3)(h).
In Mr George’s case, he is required to give a full and satisfactory explanation for his non-compliance with the duty imposed upon him by s 6.25(1). That is, he must give a full and satisfactory explanation for his failure to provide the insurer with relevant particulars of the claim “as soon as possible after the claim was made” and also his failure to provide the particulars by 6 December 2021 in accordance with the written direction issued by the insurer.
CONSIDERATION OF THE ISSUES
The insurer concedes in its submissions and confirmed at the preliminary conference that the explanation provided by the claimant is full and that the only issue to be determined by me is whether the explanation if satisfactory.
Section 6.2(b) provides the test of satisfactoriness as, “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”.
Some of the principles from the cases which have dealt with “satisfactoriness” include:
(a) prejudice to the insurer is irrelevant - the High Court in Russo v Aiello[15] said “...The focus of the statutory concept of a satisfactory explanation is upon justified delay, rather than excusing it” because the insurer did not suffer any harm. In the case of a failure to comply with a duty (as opposed to a claim or proceedings that are late) there is arguably no need to consider excuse or justification;
(b) the reasonable person has some of the attributes of the particular person - in Walker v Howard[16] the NSW Court of Appeal said that the position of a claimant with a disability includes that disability. Young, JA noted that what should be attributed to the hypothetical reasonable person in the position of the claimant includes the age, gender and capacity of the claimant as well as the claimant’s cultural background;
(c) the explanation is the claimant’s explanation in that it belongs to the claimant but it may be provided by his legal advisors and others - see Hickey’s Transport v Gordon[17], and
(d) in the case of someone with limited capacity (such as a child) the focus is on the claimant’s conduct however the knowledge and belief of the tutor are relevant considerations - see Sharif Zraika (by his tutor Halima Zraika) v Walsh[18].
[15] [2003] 215 CLR at 463 per Gleeson CJ.
[16] [2009] NSWCA 408.
[17] [2008] NSWCA 167.
[18] [2014] NSWSC 1774 at [25] in particular.
The question to be asked in Mr George’s case is whether a reasonable person in his position, with his attributes, would have failed to comply with the duty and the focus for me is not on whether the claimant’s solicitor’s conduct was reasonable or otherwise.
The claimant’s explanation for the failure to comply with the duty involves the claimant’s solicitor’s failure to diarise and follow up the s 6.26 direction. The insurer says Mr Weng being busy in the Christmas period is irrelevant as by then the time for provision of the particulars had passed. The claimant’s submissions and Mr Weng’s statement indicate that Mr Weng was busy in November and December with informal settlement conferences and did not review the file until after New Year. Mr Weng has fairly fallen on his sword and taken responsibility for his part in the failure to provide the particulars.
The insurer also submits that Mr Weng did not need to wait for a medico-legal examination and could have provided the particulars without further delay. With respect to the insurer, I do not agree. The definition of relevant particulars requires the provision of particulars of injuries, disabilities and impairments. Impairments of course are relevant to whether a claim for non-economic loss can be made. Mr Weng is a solicitor and not a medical examiner and may not have the required expertise to provide sufficient particulars of Mr George’s impairments.
While I have no information about when Mr Weng first received instructions or when the reports of Dr Keller and Dr Vickery were served, it is questionable whether joint medico-legal examinations could occur in a situation where the insurer was already committed to its own experts. Whether Mr Weng was correct to wait for the insurer’s response to the invitation to participate in joint examinations or whether he should have simply retained Dr Dryson much earlier than he did, is not a matter that needs to be determined but is a further part of the claimant’s explanation for the failure to provide the particulars.
The claimant’s explanation also involves his own conduct. He received the notice, rang his solicitors two days later and had a further conversation with his solicitor after the insurer admitted liability for the damages claim. He then waited for his solicitor to contact him again.
The insurer says Mr George was aware of what the notice was about and the consequence of failure to comply with it and appears to suggest should have diarised a date before 6 December 2021 and followed up his solicitor to ensure the particulars had been provided and his claim had not been withdrawn.
Would a reasonable person in the position of the claimant have failed to provide the particulars?
The correspondence from the insurer about particulars was included in two lengthy letters and a direction. The requests for information and documentation were extensive and, in my view, overwhelming for someone with no previous claims experience. In my view a reasonable person being an unsophisticated cleaner, for whom English is a second language and who has been a resident of Australia for about 10 years would have been confused by the two letters from the insurer dated 6 September 2021 and the notice. In my view a reasonable person in the position of the claimant would be unlikely to diarise a date to follow up his solicitor, particularly as he has said he relied on his solicitor to look after his case. The claimant has handed over responsibility for the provision of particulars to his solicitor and is entitled to rely on his solicitor’s expertise to do so.
RESOLUTION OF THE ISSUES
Should the claim be reinstated?
I am satisfied that the claimant’s explanation for his failure to provide the particulars required by s 6.25, is full and satisfactory.
It follows therefore that the claim for damages made by Mr George on or about 4 May 2021 is reinstated by operation of s 6.26(6)[19].
[19] The claimant requested I make a finding in accordance with s 6.14 that Mr George could make a late claim. In my view it is not necessary to make such a finding. Mr George’s claim was made on time, was taken to be withdrawn and it is that claim that has now been reinstated. It was not and is not a late claim.
Should leave be given to refer the damages claim for assessment?
As the claim has been reinstated, the claim can now refer his claim for assessment. The claimant first referred his claim for assessment on 25 February 2022 within three years of the date of the accident, but those proceedings were dismissed[20]. A further application was lodged on 16 August 2022 seeking both the reinstatement of the claim and the assessment of the claim for damages[21]. Those proceedings were commenced more than three years after the date of the accident, but no leave has been given to do so.
[20] Proceedings 10491243/22 were dismissed because as the claim had been withdrawn there was no claim to be assessed.
[21] Proceedings 10529577/22 which I will refer to as the “16 August 2022 proceedings”.
The parties agree that in order to avoid any further delay or disputation that I should give leave to the claimant under s 7.33 to refer his claim to the Commission for assessment.
I am satisfied that it is appropriate to give the claimant leave to commence the 16 August 2022 proceedings. The explanation given in February 2022 relevant to the failure to provide particulars is also relevant to the claimant’s delay in commencing proceedings. A considerable part of the delay between February and August 2022 involved no fault on the part of the claimant or his solicitor but was caused by the initial allocation of the dispute to a merit reviewer and the subsequent confusion as to what to do next.
Should costs be awarded?
Having been successful in the application, the claimant seeks costs in the sum of $1,710.
While the insurer concedes the reinstatement dispute is a regulated miscellaneous claims assessment matter and that those sorts of matters would ordinarily attract costs, the insurer says that legal costs should not be awarded in this matter. The insurer relies on section 8.10(1) which only permits the recovery of “reasonable and necessary” legal costs and says that costs were incurred in this matter because it was the claimant who failed to provide particulars and failed to comply with the duty and the direction. I note section 8.10(1) only applies to the costs of a statutory benefits claim and the matter before me is a damages claim.
While section 8.3 or the Motor Accident Injuries Regulation does not appear to prohibit the awarding of costs in a miscellaneous claims assessment matter such as Mr George’s, the awarding of costs is a matter for the exercise of a discretion. The insurer’s submission that the costs in this matter were only incurred because of the claimant’s conduct and the conceded omission of his solicitor persuades me that in the exercise of my discretion, and in the circumstances of this matter, I should not allow the claimant any legal costs in relation to these proceedings.
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