Gul v CIC-Allianz
[2021] NSWPIC 491
•1 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gul v CIC-Allianz [2021] NSWPIC 491 |
| CLAIMANT: | Eren Gul |
| INSURER: | CIC Allianz |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 1 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act2017; claim for damages for motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitation period; damages; reasonable person in claimant’s circumstances; reliant on solicitor’s legal advice; Held – late claim can be made as claimant had a full and satisfactory explanation for delay. |
| DETERMINATIONS MADE: | 1. A late claim may be made as the Claimant has provided a full and satisfactory explanation for the delay in making the claim. 2. The Commission grants leave for the claim for damages to be referred for assessment. |
Certificate
Issued under section 7.36(4) of the Motor Accident Injuries Act 2017
The findings of the assessment of this dispute are as follows:
For the purposes of Part 6 the claimant has given a full and satisfactory explanation for non- compliance with a duty or for delay
For the purposes of section 6.14 a late claim may be made.
For the purposes of section 7.33 the claimant has given a full and satisfactory explanation for the delay and leave is granted for the claim to be referred for Assessment.
Effective Date: This determination takes effect on 1 December 2021.
Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $ $ 1,710.24. inclusive of GST.
A brief statement of my reasons for this determination are attached to this certificate.
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017 (‘the Act’)
INTRODUCTION
This determination relates to a miscellaneous claims assessment for a late claim for damages under sections 6.2, 6.14 and 7.33 of the Act.
The Claimant was injured in a motor vehicle accident on 13 April 2018.
On that day the Claimant was riding his motorbike when he came into a collision with a truck, was admitted to Royal Prince Alfred Hospital where he remained until discharge on 7 May 2018.
The Claimant had multiple fractures and underwent surgery to his leg, knee and clavicle.
The common law claim was not filed with the Personal Injury Commission (‘PIC’) until 3 June 2021 that is more than 3 years after the date of the Accident.
CHRONOLOGY
October 1999 Claimant born in Turkey June 2017 Claimant finished his high school education in Turkey and came to Australia on a student visa. 13 April 2018 The Accident 30 April 2018 Claimant submitted an Application for Personal Injury Benefits 7 May 2018 Discharged from RPAH 27 July 2018 Insurer decides that the Claimant was wholly at fault 4 August 2020 Attended the offices of Longton Legal to seek advice regarding the motor vehicle accident. 7 October 2020 Internal Review Decision by Insurer apportioning contributory negligence as against the Claimant at 20% 7 January 2021 The Claimant signs Application for damages under common law. Note, this Application was not filed at that time. 8 February 2021 Longton Legal write to Allianz Australia Insurance Limited by email: i. Attaching a copy of the Application for damages under common law dated 7 January 2021;
ii. Inviting them to admit liability; and
iii. Attaching documents relevant to economic loss.
6 May 2021 The Insurer reviews its position on contributory negligence and advised the Claimant’s solicitor that it apportioned 3 June 2021
contributory negligence at 60% to the Claimant.
The Claimant’s Solicitor filed Application for damages under common law
8 October 2021 Claimant’s Solicitor lodged an Application to the Portal for determination of:
a. Late claim dispute; and
b. Damages assessment
8 October 2021 Claimant’s Statutory Declaration
CLAIMANT’S EXPLANATION
I briefly summarise by reference to the paragraph numbers omitting those which are uncontested and are not directly relevant to this late claim dispute:
[16]24 May 2018. Conference with Mr Nelson of Beilby Poulden Costello. Mr Nelson provided a letter of advice which is Annexure A.
[19]Mr Nelson advised the Claimant by letter of 14 December 2018 (Annexure B), but he was of the view that the Claimant’s prospect of success in overturning the liability decision of the Insurer – that you were mostly at fault – was bleak and he declined to act in the matter. He drew to the Claimant’s attention that he had overlooked advising the Claimant of the time limit of 28 days to request an internal review but indicated that given it was his fault he should make an application for internal review.
[21]Mr Nelson also attached a letter of 28 August 2021 requesting the Claimant to provide details of employment. The Claimant was too depressed and wanted to forget everything. He was in a poor emotional state.
[22]He had little support in Australia.
[23]Late 2019 he attempted work at a Café but was not able to stand for the time required and had to leave on his second day.
[24]Attempted to do an internship as a Software Developer.
[24]Late 2019 attempted work as a Software Developer but was too hard by reason of the pain and he left on the fourth day.
[25]A few months after the accident his parents separated. They argued about the decision to allow the Claimant to buy a motorcycle. He felt guilty.
[26]In late 2019 enrolled in TAFE to study Software Development. It was too painful to get to campus and he dropped out after 1 or 2 weeks.
[27]On 4 August 2020 attended the offices of Longton Legal (‘LL’) to seek advice.
[28]Had not seen any other lawyers.
[29]Previously thought he should try and forget the case, and everything would get
better.
[30]Had been seeing a therapist. Decision to start university in late 2019 and he decided not to ignore his past and to seek more advice with respect to his rights concerning the Accident.
[31]5 August 2020 signed a costs agreement with LL.
[32]informed that LL had on 16 September 2020 lodged an Application for Internal Review.
[33]Informed that LL had on 8 February 2021 sent an Application for common law damages to the Insurer.
[34]LL informed him that on 3 June 2021 they had lodged an application in the PIC to challenge the liability decision and to have damages assessed.
[35]He relied on LL and followed their advice.
LEGISLATION
The legislation relevant to this late claim can be briefly summarised as follows.
A claim for damages must be made within three years after the date of the motor accident, subsection 6.14 (2) of the Act.
A claim for damages may be made after the time required by subsection 6.14 (2) (a late claim), if the claimant provides a full and satisfactory explanation for the delay in making the claim, sub-section 6.14 (3) of the Act.
If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless (b) the Commission has determined that the claimant has a full
and satisfactory explanation for the delay in making the claim, subsection 6.14 (5)(b) of the MAI Act.
Subsection 6.14 (5) relevantly provides:
“6.14 Time for making of claims for damages (cf ss 72 and 73 MACA)
(5)If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless—
(a)the insurer has lost the right to reject the claim on the ground of delay,
or
(b)the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or
(c)the claim is referred only for a certificate of exemption from assessment under Division 7.6.”
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.”
Because sections 6.14 and 6.2 both appear in Part 6 of the MAI Act and subsection 6.2(1) refers to “this Part”, the definition of “full and satisfactory” set out in section 6.2 applies to a claim for damages made under section 6.14.
A party to a claim cannot refer a claim for assessment under Division 7.6 more than three years after the motor accident unless he/she 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, section
7.33 of the MAI Act.
A claim for damages may be referred for assessment under Division 7.6 and an assessment of the amount of damages may be made, subsections 7.32 (1) and 7.36 (1)(b) of the Act.
Whether a late claim may be made in accordance with section 6.14 is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub- clause 3 (l) of the Act.
SUBMISSIONS
Insurer’s Submissions
The Insurer made submissions on 12 August 2021 and 29 October 2021. Although the Insurer’s solicitor asks me to read them in conjunction with the previous submissions of 12 August 2021, these submissions go to different issues, and I will therefore not summarise them.
I briefly summarise the subject submission of 29 October 2021:
[2]The Claimant has failed to provide a full and satisfactory explanation for the delay.
[3]Sets out the chronology. It argues (h) that the Claimant does not try to explain any of his actions, knowledge or beliefs between late 2018 and “late 2019”. Further, at (j) the Claimant does not try to explain his action, knowledge or beliefs between late 2019 and 4 August 2020.
[4]S 6.14(2) provides that a claim for damages must be made within 3 years after the accident, failing which s 6.14(3) requires the explanation.
[6]the explanation provided in the Statutory Declaration does not meet the requirements.
[7]Refers to Walker v Howard – an explanation not just a recount of what the
Claimant did.
[8]Refers to Langlands v Simovic [2002] NSWCA 57. Not enough to merely provide a chronology.
[9]Refers to Walker v Howard [2009] NSWCA 408 and Russo v Aiello [2003] HCA 53 – the test is not merely what is necessary but what is sufficient. This is a normative evaluation and requires a justification for the delay, not a demonstration that the delay caused no harm or prejudice.
[10]The Claimant’s signed Statement of 10 October 2021 does nothing more than provide the timeline with no attempt to explain how or why the Claimant failed to lodge his application within the 3 year period.
[11]The Insurer emphasises the significant gaps:
(a)the period of 12 months explanatory gap after 12 December 2018;
(b)no attempt to explain the delay between 14 December 2018 to 4 August
2020;
(c)Claimant explains that on 8 February 2021 an Application for common law damages was made and that he was not aware of the Insurer’s decision until 6 May 2021, but another month of delay followed and there is an explanatory gap in the Claimant’s relevant actions knowledge and belief as relevant to the late lodgement of the claim.
(d)from the details in the declaration the Claimant had been active and had the capacity to make the application in good time.
[12]41 months from the date of the Accident the Claimant furnished the explanation.
[13]The Claimant did not immediately seek a second legal opinion.
[14]The Claimant’s explanation is not only not full but entirely lacking.
[15]Not a satisfactory explanation a reasonable person in the position of the Claimant would not have failed to comply with the duty or have been justified in experiencing the delay.
[16]Again refers to Walker v Howard [2009] NSWCA 408 and Russo v Aiello [2003] HCA 53. There needs to be a justification for the delay not just a demonstration that it caused no prejudice.
[17]The Claimant has not attempted to provide the justification.
[18]The explanation is not satisfactory.
[19]The failure was particularly unjustified where he was in receipt of legal advice.
[20]The Claimant did not seek any second (legal) opinion for some 19 months plus to pursue his claim.
[22] Refers to Paice v Hill [2009] NSWCA 156.
CASE LAW
The NSW Court of Appeal in Karambelas v Zaknic (No. 2) [2014] NSWCA 433 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.”
Full Explanation
Once a full explanation has been given it must be found to be ‘satisfactory’. I refer to the definition set out in s 6.2.
In Russo v Aiello [2003] HCA 53 at [7] the Court held:-
“….the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it.”
The court further held at [8] that the decision is not discretionary:-
‘….no discretion is conferred. If a certain state of satisfaction exists, the proceedings must be dismissed.’
The persuasive onus is on the Insurer (Russo, paragraph 10);
“However, the onus remains on the applicant to satisfy the court that the claimant does not have a full and satisfactory explanation for the delay. The discharge of this onus ordinarily would involve specifying the respects in which the claimant's account is said not to be "full" in the relevant sense, and identifying why it is that a reasonable person in the claimant's position would not have been justified in experiencing the same delay.”
The question is not whether the Claimant possessed information but whether he gives an explanation [being something communicated to a third party] (Ibid, paragraph 12).
Determination of whether or not a full and satisfactory explanation has been given:-
“….it is an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgment.”
Prejudice is irrelevant. The High Court in Russo makes it clear that the imperative language of the Act (in that case the Motor Accidents Act 1988 but which for all intents and purposes is identical to the subject provision) renders prejudice irrelevant:-
“…leaves no room for a consideration of any "prejudice" that may be caused to the parties …. it does not confer a discretion to extend time of the type commonly found in statutes of limitation….” [Russo, paragraph 61]
CONSIDERATION
Was the Explanation Full?
The Claimant’s explanation was full in the context of this case. He had 3 years to lodge this claim for common law damages and he instructed his current lawyers in ample time, signed their costs agreement and gave them clear instructions to proceed.
As Justice Allsop said in Walker v Howard [2009] NSWCA 408 at [104]:
“The provision does not call for perfection, or… for prolix or burdensome recounting of every moment that has elapsed.”
The Claimant signed his application for Common law damages on 7 January 2021 well within the three year period and he had every reason to understand and believe that the Application would be lodged in time.
It would appear that there was a misunderstanding on the part of his solicitors which led to a failure to actually file the application in the PIC in January 2021 as against providing a copy of it to the Insurer in early February 2021.
This misunderstanding was in no way caused or contributed by the Claimant.
In Smith v Grant [2006] NSWCA 244 at [33] it was held where the Insurer had contended that the conduct of a Claimant must be taken to include the conduct of their solicitor:
“… it does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor… That being so, it follows that an explanation may be a “full explanation” without exploring the blameworthiness, or otherwise, of the solicitor.”
The Court of Appeal continued at [60]:
“…the weight of the authority in 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…”
In Howard the Court decided at [44]:
“…I am satisfied that a full account of the conduct including the actions, knowledge and belief of the Claimant, from the date of providing the explanation has been provided.”
And Satisfactory?
Would a reasonable person in the position of the Claimant been justified in experiencing the delay?
In Diaz & Anor v Truong [2002] NSWCA 265 it was held [42]:
“What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified.”
Mason P in Buller v Black [2003] NSWCA 45 held [61]:
“…a reasonable person can be in default yet have a satisfactory explanation… The standard is reasonableness, not perfection, and the reasonableness of a person placed in the actual position of the particular claimant.”
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].”
Consideration of the Reasonable Person in the Position of the Claimant
The starting point is that the Claimant was a young person in Australia by himself who had a very serious accident. He had, accepting his explanation, little support in Australia and in effect had to fend for himself. He had suffered from depression and had the trauma, as a matter of common sense for a young person, the matter of separation and divorce of his parent.
A reasonable person in the Claimant’s position would have taken the steps the Claimant had taken and relied on his Solicitors to lodge the claim for him in time having signed the Application on 7 February 2021.
CONCLUSION
The explanation which the Claimant has given is both full and satisfactory and his late claim for common law damages can be made.
LEGAL COSTS
The Claimant is entitled to regulation legal costs for determination of a miscellaneous dispute of $ 1,710.24.
Terence Stern
Member (Motor Accidents Division) Personal Injury Commission
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