Legal Research
Cases
Herd v NRMA Insurance

Herd v NRMA Insurance

Case [2022] NSWPIC 299 23 May 2022

Type to search within this case.

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Herd v NRMA Insurance [2022] NSWPIC 299
CLAIMANT:	Andrew Herd
INSURER:	NRMA Insurance
MEMBER:	Gary Victor Patterson
DATE OF DECISION:	23 May 2022
CATCHWORDS:	Motor accidents; claimant seeks leave from the Personal Injury Commission to lodge his claim for damages after the three-year limitation period; section 7.33 Motor Accident Injuries Act 2017 (2017 Act) not satisfied a full and satisfactory explanation for the delays given under section 6.14(3) of the 2017 Act within the meaning section 6.2(1) and section 6.2(2) of the 2017 Act; leave refused for the claim to be referred for assessment in accordance with the Motor Accident Guidelines (Version 6 Effective from 18 December 2020).
DETERMINATIONS MADE:	1. For the purposes of Part 6, the claimant has not given a full and satisfactory explanation for non-compliance with a duty or for delay. 2. Effective Date: This determination takes effect on 10 June 2022. 3. Legal Costs: The claimant is seeking the maximum regulated costs for the application relating to the late claim, a claim for damages. In the absence of submissions from the insurer, I am satisfied the claimant is entitled to the maximum regulated costs for the above application.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accidents Injuries Act 2017

INTRODUCTION

This determination relates to whether Mr Herd has provided a full and satisfactory explanation for his late claim for statutory benefits as required under section 6.13(3)(a) of the Motor Accident Injuries Act 2017 (the MAI Act).
This miscellaneous claim dispute has been referred for resolution under Part 7, Division 7.6, sub-division 3 and Schedule 2, cl 3(k) of the MAI Act.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Direction PIC 2, the documents that are before me, including the parties’ submissions that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

DOCUMENTS CONSIDERED

I have considered the following documents:
a.Application for Personal Injury Benefits dated 28 April 2021;
b.letter dated 25 August 2021 from Shine Lawyers to NRMA insurance (NRMA) providing an explanation for the late claim;
c.letter dated 21 September 2021 from NRMA to Andrew Herd and Shine Lawyers rejecting that the explanation for the delay as not being relevantly full and satisfactory and requesting further information to explain the delay;
d.email sent on 18 October 2021 by Shine Lawyers to NRMA requesting an internal review of the decision;
e.letter dated 7 October 2021 from NRMA to Andrew Herd and Shine Lawyers, confirming the original decision to reject the claim and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Herd v NRMA Insurance

Details

AGLC: Herd v NRMA Insurance [2022] NSWPIC 299
Case: [2022] NSWPIC 299
Decision Date: 23 May 2022

CaseChat Overview and Summary

The Personal Injury Commission heard an application by Herd, the claimant, to seek leave to lodge his claim for damages after the three-year limitation period had expired. The defendant, NRMA Insurance, opposed the application. The Commission was required to determine whether the claimant had provided a full and satisfactory explanation for the delay in lodging the claim, in accordance with section 6.14(3) of the Motor Accident Injuries Act 2017. The court examined the evidence provided by the claimant and the relevant statutory provisions to determine whether the statutory criteria for leave had been met.

The court found that the claimant had not provided a full and satisfactory explanation for the delay in lodging the claim, as required by section 6.14(3) of the Motor Accident Injuries Act 2017. The court noted that the claimant had not provided any evidence to support his claim that he was unaware of the injury until a later date, and that the delay in lodging the claim was not due to any circumstances beyond his control. The court also found that the claimant had not demonstrated that he had acted with due diligence in investigating and lodging the claim. Accordingly, the court refused the claimant's application for leave to lodge his claim for damages after the three-year limitation period.

The court's decision was based on a careful analysis of the evidence and the relevant statutory provisions. The court found that the claimant had not satisfied the statutory criteria for leave, and that the delay in lodging the claim was not justified. The court's decision was in accordance with the Motor Accident Guidelines (Version 6 Effective from 18 December 2020), which provide that leave may only be granted where the delay is justified and a full and satisfactory explanation is provided. The court's decision was final, and the claimant's claim for damages was not referred for assessment.

Orders