Herd v NRMA Insurance
[2022] NSWPIC 299
•23 May 2022
| 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 providing reasons for the outcome of the internal review;
f.Certificate of Determination – Internal Review;
g.claimant’s submissions dated 31 March 2022 provided by Shine Lawyers, and
h.NRMA submissions dated 3 May 2022 in Reply to claimant’s Application.
BACKGROUND
Mr Herd was involved in a motor vehicle accident on 22 May 2020 on Highclere Avenue, Banksia, about 7:30 pm. He was driving a Hertz rental truck on an uphill slope. He changed gears to reverse when he experienced a brake failure. The truck commenced rolling back downhill. It collided with two cars that were parked on Mr Herd’s left hand side.
It is submitted for Mr Herd that this collision was one that was unavoidable by the claimant due to failure of the braking system which is not controverted by the insurer.
Mr Herd’s Personal Injury Claim Form indicates that he suffered injuries to his lumbar spine and both hands. I have not been provided with a Certificate of Capacity nor other medical evidence of those injuries. It is submitted for Mr Herd that he also suffered a psychological injury with a steady decline in his own mental health of which no evidence has been provided.
Mr Herd is 76 years of age. He is unemployed and has received no statutory benefits. He acted as his wife’s carer during the COVID19 pandemic as the regular carer could not attend their residence.
It is submitted for Mr Herd that he knew nothing about the CTP claims process until around mid-March 2021 when he saw a television advertisement for his lawyers.
Mr Herd signed his Application for Personal Injury Benefits on 28 April 2021 after consulting with his lawyers.
That claim form was sent to the insurer by Shine Lawyers on 28 June 2021 and was received by the insurer on 2 July last. That was approximately 14 months after the date of the motor accident. The claim was made 11 months late.
The insurer issued a letter on 5 July 2021 advising Mr Herd that the insurer was unable to accept his Application for Personal Injury Benefits as it was received more than three months after the motor accident. The insurer requested a full and satisfactory explanation to be provided for the delay in making the claim. I do not have a copy of that letter.
Shine Lawyers wrote to NRMA on 25 August 2021 providing an explanation for the delay in making the claim.
By letter dated 21 September 2021, NRMA rejected Mr Herd’s explanation for the delay in making the claim, as it was not considered relevantly full and satisfactory and requested a further explanation for the delay.
Neither Mr Herd nor Shine Lawyers responded to that letter.
By email sent on 18 October 2021 to NRMA, Shine Lawyers sought an internal review of the rejection.
By letter dated 27 October 2021, NRMA informed Mr Herd and Shine Lawyers that the original decision, to reject the explanation for delay in making the claim, was confirmed.
The current miscellaneous claim’s dispute was registered with the Personal Injury Commission on 12 April last.
LEGISLATION
The following legislation applies:
a. the MAI Act, and
b. Motor Accident injuries Regulation 2017 (Regulations) and Guidelines.
Mr Herd seeks a determination with respect to a miscellaneous claim assessment matter.
I have jurisdiction to determine this miscellaneous claim pursuant to Schedule 2(3)(h) and (i) of the MAI Act.
LATE CLAIM – CLAIM FOR DAMAGES
A claim for damages must be made within three years after the date of the accident, section 6.14(2) of the MAI Act. Nevertheless, sections 6.14(3) and 6.14(4) of the MAI Act relevantly state:
“6.14(3) – A claim for damages may be made after the time required by subsection 2 (a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
6.14(4) – Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in such explanation.”
Section 6.2 of the MAI Act prescribes the meaning of a full and satisfactory explanation as follows:
“6.2(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, form the date of the accident until the date of providing the explanation.
6.2(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.”
SUBMISSIONS
It is submitted for Mr Herd by his solicitor as follows:
a. Mr Herd asserts that he had no knowledge whatsoever that there is a strict time limit of three months to lodge an Application for Personal Injury Benefits in New South Wales;
b. as a result of his persistent physical and psychiatric symptoms, which are a consequence of the subject accident, Mr Herd has continued to experience considerable difficulty in his recovery;
c. Mr Herd had little to no knowledge about the CTP claims process;
d. Mr Herd had never been involved in any other motor vehicle accidents in Australia, in which some injury, impairment or disability was suffered. As a result, he had minimal knowledge about the CTP claims process;
e. since the date of the accident, Mr Herd has also been disturbed and troubled by property damage claims by the other two parties involved. Mr Herd’s ongoing involvement in these claims has also contributed to the overall delay;
f. Mr Herd completed his move to Wentworth Point on 10 January 2021 from Banksia. At around the same time, he was burdened by multiple traffic infringements, due to being on heavy medication and issues with his wife’s health, along side a steady decline in his mental health;
g. Mr Herd did not think that personal injury claim was possible until around mid-March 2021, which was when he saw a television advertisement for Shine Lawyers. He decided to make first contact with Shine Lawyers due to the extent of his psychological and physical injuries at that point, and the continued deterioration of same;
h. Mr Herd only thought to seek legal advice about potentially bringing a personal injuries claim when he had noticed a television advertisement of Shine Lawyers that encouraged him to reach out for some recommendations about his legal entitlements;
i. until such time that Mr Herd first liaised with Shine Lawyers, he did not know that there is a time limit for lodging a CTP claim;
j. Mr Herd did not know that he could pursue a claim for compensation even if Hertz had maintained to date that he had not purchased any insurance cover for the hire vehicle;
k. Mr Herd was advised by Shine Lawyers that he needed to obtain a Certificate of Fitness from his treating general practitioner (GP). However, there were delays in obtaining the Certificate of Capacity due to his hesitation about seeing his regular GP in person, due to COVID-19 related concerns;
l. around this time, Mr Herd’s partner increased her drinking habits, which meant that he needed to increase his care of her as the pandemic in New South Wales had worsened, resulting in his not being able to focus on completing his claim documents. It is said that Mr Herd’s partner is an alcoholic;
m. Mr Herd posted his claim form to Shine Lawyers when they advised him that it could be lodged without a Certificate of Fitness;
n. Shine Lawyers promptly lodged the Application for Personal Injury Benefits on 28 June 2021 without delay, and
o. Mr Herd disputes the insurer’s assertion that his late lodgement explanation is not full or satisfactory. He maintains that he has provided a detailed timeline from the date of the accident up to when his claim was lodged. That should be taken to be adequate enough to explain why his claim was lodged late.
In their letter dated 25 August 2021, Shine Lawyers gave similar explanations, with the addition of the following:
i.there were general delays in Mr Herd’s completing the Application for Personal Injury Benefits as he is currently 75 years old and experiences difficulty in uploading documents to his computer. He experienced internet outages at home for a consecutive period of about six weeks. In addition, he had issues trying to connect his scanner to his laptop;
ii.Mr Herd attended his GP on 21 July 2021, once the impact of the COVID19 virus in NSW calmed down, in order to have the Certificate of Capacity completed, and
iii.Mr Herd believed that his psychological injuries, along with the injuries to his hands, back and thigh muscles, would dissipate with time. The opposite has proved to be the case. Mr Herd has obtained no real relief to treatment so far which made him realised that he needed to lodge a claim.
On those bases, Mr Herd asked the insurer to accept the explanation as full and satisfactory.
The insurer’s submissions (R1) are as follows:
a. the time for making a claim is prescribed in section 6.13(1) as three (3) months from the date of the motor accident to which the claim relates. An exception to this time limit is found in section 6.13(3) which provides that a claim for statutory benefits may be made after the time prescribed in sub-section (1), if the claimant provides a full and satisfactory explanation for the delay in making the claim and the claim is made within three years after the date of the motor accident, and
b. the insurer submits that Mr Herd has not provided a full and satisfactory explanation for the delay in making his claim, and that his claim for statutory benefits may not be made.
Is the explanation for delay “full”?
c. the insurer submits that Mr Herd has not provided a full account of his conduct, including his actions, knowledge and belief from the date of the accident until the date of providing the explanation as required by section 6.2 of the Act;
d. the insurer submits that the explanation provided by Mr Herd is not considered full for the following reasons:
e. the insurer wrote to Mr Herd on 21 September asking for further information about his late claim and did not receive a response. This letter included questions such as:
i.dates of GP appointments, and specialist appointments, and
ii.names and phone number of all witnesses.
f. the insurer notes that there is no explanation as to why the television in March 2021 prompted the claimant to seek legal advice. Had he never seen a television advertisement promoting legal services up until this point? What was it about his injuries that contributed to this need for advice? and
g. the insurer submits that Mr Herd’s omissions are such that the explanation provided is not a full account of his conduct, including his actions, knowledge and beliefs.
Is the explanation for delay ‘satisfactory’?
h. the insurer submits that Mr Herd’s explanation for the delay in making his claim is not considered to be satisfactory for the purposes of section 6.13(3) of the Act and as required by section 6.2 of the Act;
i. in Dijakovic v Peres [2015] NSWCA 74; 71 MVR 334 at [19], Gleeson JA observed that 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 has occurred was reasonably justifiable;
j. the insurer submits that a reasonable person in the position of Mr Herd would have had knowledge of the CTP Scheme and his entitlements and would have been aware that he could lodge a claim for personal injury benefits;
k. the insurer submits that a reasonable person in the position of Mr Herd would have taken steps to seek information and advice from his treating doctor and allied health providers, as well as advice about lodging a CTP claim, and then undertaken the required steps to lodge a claim, and
l. therefore, as Mr Herd has not provided a full and satisfactory explanation for the delay in making his claim, the insurer submits that his claim for statutory benefits may not be made.
By its letter dated 21 September 2021 to Mr Herd and his lawyers, NRMA sought the following additional information:
a. provide timeline of what you did immediately post your motor vehicle accident, i.e. seeking treatment;
b. dates of all hospital visits and length of stay;
c. dates of all GP/specialists appointments including names;
d. names and phone numbers of all witnesses;
e. what made you go to Shine Lawyers when you thought a claim could be made, and
f. any other appointments or events that occurred from 22 May 2020 to 29 June 2021 that are relevant.
The insurer then invited a request for Internal Review if Mr Herd considered his explanation to be full and satisfactory. Neither Mr Herd, nor his lawyers, responded to that letter. The invitation to request an Internal Review was accepted.
By its letter dated 27 October 2021, NRMA stated its reasons for confirming the original position to reject the explanation for the late claim. Those reasons were stated as follows:
a. it follows that the claimant was asked to provide a full and satisfactory explanation for the delay in lodging the claim for statutory benefits;
b. the fullness of the explanation requires ‘a full account the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation’, as required by section 6.2(1) of the Act. The explanation is not deemed “satisfactory” 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’ as required by section 6.2(2) of the Act;
c. for the explanation to be full, the claimant is to provide 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, as required by section 6.2(1) of the Act. The explanation is not “satisfactory” 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’ as required by section 6.2(2) of the Act;
d. the decision in Mancini v Thomson [2002] NSWCA 38 provided that the relevant period is from the date of the accident until the date of providing the explanation, as follows:
“…. The requirement that the explanation be full focused upon the period from the date of the accident until the date of providing it, and the necessity to set out fully “the conduct, including the actions, knowledge and belief of the claimant”. The purpose of this is so that the Court can evaluate all the reasons for the delay and decide whether they are full and satisfactory. The application, therefore, cannot ‘pick and choose’ the information to be given relevant to the delay and which the Court has to decide is ‘satisfactory’. Once a full explanation was given of those matters, the Court’s obligation was to decide whether it was satisfactory in the sense of satisfactorily explaining the delay.”
e. it follows that the legislative instruments and guidelines provide clear timeframes for making a claim for statutory benefits. Section 6.13(3) of the Act provides that a claim for statutory benefits can be made after the time required under sections 6.13(1) and 6.13(2) of the Act, albeit requiring a full and satisfactory explanation for the delay in making the claim;
f. the explanation provided does not satisfy the objective standard outlined in Karambelas v Zaknic (No 2) 2014 NSWCA 433, as it does not address the delay a reasonable person in the claimant’s position would face in lodging the claim for statutory benefits nor does it address or outline the parties involved to their full extent in the involvement in the delay;
g. on the evidence before NRMA, the claimant’s conduct, knowledge, belief and actions from the date of the accident to date has not been provided in a full account nor does it address the explanation for the delay in the late lodgement of the claim for statutory benefits;
h. the explanation is a recount of conduct that was not relevant to the delay in lodging your claim. The claimant has not outlined the steps taken or discussions had with treating professionals, family and/or friends. The claimant noticed an advertisement of Shine Lawyers;
i. the late lodgement explanation is not full or satisfactory and that it does not provide any details regarding what took place specifically, but rather a recount of circumstances not relevant to the timeline from the accident and claim lodgement;
j. specifically, the queries provided by NRMA in the letter dated 21 September 2021 (outlined above) have not been addressed;
k. NRMA has not received an explanation that provides a comprehensive and legislative insight as to the intent of the CTP Scheme. The claimant has not outlined any consideration of legal representation if they were not aware of their claim entitlement nor steps taken to speak with any representative of the State Insurance Regulatory Authority (SIRA);
l. as a full and satisfactory explanation for the delay in making the CTP claim has not been provided, the claim for statutory benefits regarding the motor vehicle accident has been decline, and
m. there will be no change in the management of the claim and the explanation for late lodgement remains unsatisfactory, incomplete and rejected.
ISSUES IN DISPUTE
The issues that I am to decide, having regard to the parties’ submissions, are as follows:
a. did Mr Herd relevantly have a full and satisfactory explanation for the delay in making the claim when his explanation first was given?
b. can the late claim be made?
APPLICABLE AUTHORITIES – LATE CLAIM
The period for which a "full and satisfactory" explanation is required
The period to be explained is from the date of the motor accident until the date of giving the explanation,
· McNamara v Fitzgibbons [2005] NSWCA 274, and
· Hickey Transport Pty Ltd v Gordon [2008] NSWCA 167.
I note that there are some dicta in decisions of the Court of Appeal which indicate that the relevant period of delay to be explained is that from the date of the motor accident to the date on which the claim is made (Karambelas and Dijakovic).
"Full" explanation
The "full account of the conduct" required by section 66(2) of the Act is an account of the acts or decisions of the Mr Herd and all relevant persons, including those acting or purporting to act on Mr Herd's behalf, if their conduct is relevant,
· Walker v Howard [2009] NSWCA 408;
· Diaz v Truong [2002] NSWCA 265;
· Laidlaw v Anor v Touma [2002] NSWCA 190;
· Mancini v Thompson [2002] NSWCH 38;
· Russo v Aiello [2003] HCA 53;
· Figliuzzi -v- Yonan [2005] NSWSA 290;
· Lyu v Jeon [2012] NSWCA 446;
· Nominal Defendant v Browne [2013] NSWCA 197, and
· Smith v Grant [2006] NSWCA 244.
"Full" means "complete" so all relevant information is to be provided. The focus of the statutory concept of a satisfactory explanation is upon justifying (my emphasis) the delay rather than excusing it.
"Satisfactory" explanation
The test of "satisfactoriness" is objective as to whether a reasonable person, in the position of Mr Herd, would have been justified in experiencing delay,
· Walker v Howard [2009] NSWCA 408, and
· Buller v Black [2003] NSWCA 45.
Both limbs must be satisfied
The term "full and satisfactory" is a composite expression. If an explanation is found to be incomplete, it is unnecessary to consider whether or not it is relevantly satisfactory. Even if an explanation relevantly is full, it may not justify a reasonable person, in the position of Mr Herd, experiencing the same delay. That is, even though full, it may not be satisfactory.
In addition to the above cases, I have had regard to what was said by the Court of Appeal in Karambelas v Zaknic (no. 2) [2014] NSWCA 433, Djokovic v Perez [2015] NSWCA 174 and Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 which were cited by both parties.
DISCUSSION
The only material before me consists of correspondence and submissions. There is no statement, nor a statutory declaration, by Mr Herd.
There is no indication of when Mr Herd first consulted with Shine Lawyers.
There is no indication of what occurred between 28 April 2021, when Mr Herd lodged his Application for Personal Injury Benefits and 28 June 2021, when Shine Lawyers posted the claim form to NRMA.
It is submitted that Shine Lawyers promptly lodged the Application for Personal Injury Benefits on 28 June 2021 without delay. However, there is no explanation from Shine Lawyers as to what occurred in the intervening two-month period.
As to whether the explanation for delay in making the claim relevantly is full, there is force in the insurer’s submissions.
It seems to me that no detailed explanation has been provided as to what occurred in the 11 months before Mr Herd first consulted Shine Lawyers.
It may be that the unusual circumstances of the motor accident, in which no one was at fault, caused Mr Herd to think that he had no right to make a claim.
Further, or alternatively, it may be that his injuries were not sufficiently troubling to cause him to consider his position.
As it is, the matters canvassed in paragraphs 42 and 43 above are mere speculation on my part, without any evidentiary basis.
There is no explanation from Shine Lawyers as to what steps they took, from the date upon which they first were engaged by Mr Herd (unstated), until the date upon which the explanation for delay was provided (25 August 2021).
DECISION
Having considered the material provided, I am not satisfied that the explanation for the delay in making the claim, relevantly is full.
That being the case, it is not necessary for me to consider whether the explanation provided is relevantly satisfactory, such that a reasonable person in the position of Mr Herd, would have been justified in failing to comply with the duty, or in experiencing the delay.
CONCLUSION
For the reasons that I have stated, a late claim cannot be made.
COSTS
The claimant is seeking the maximum regulated costs for the application for damages being $1,710 plus GST, I invited the parties to provide me with evidence and submissions on the claim for costs. In the absence of submissions from the insurer, I allow $1,881 inclusive of GST.
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