Hurst v AAI Limited t/as GIO
[2022] NSWPIC 341
•30 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
CITATION: | Hurst v AAI Limited t/as GIO [2022] NSWPIC 341 | |
| CLAIMANT: | Wayne Hurst | |
| INSURER: | AAI Limited t/as GIO | |
| MEMBER: | Maurice Castagnet | |
| DATE OF DECISION: | 30 June 2022 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; whether the Claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act, 2017 (2017 Act); meaning of “full and satisfactory explanation” in the context of section 7.33 under Part 7 of the 2017 Act; whether leave should be granted by the Commission. Held – for the purposes of section 7.33 of the 2017 Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list. | |
INTRODUCTION
The claimant, Wayne Hurst, is a 62-year-old man who suffered injuries in a motor accident on 4 May 2018 when his vehicle was rear-ended by the insured vehicle on Old Illawarra Road, Menai.
On 1 May 2020, the claimant made a claim for common law damages with the insurer.
On 11 May 2020, the insurer admitted liability for the claim.
PROCEDURAL ISSUE
On 19 October 2021, the claimant applied to have his claim for common law damages referred to the Personal Injury Commission (the Commission) for assessment pursuant to s 7.32(1) of the Motor Accident Injuries Act2017 (the MAI Act).
The referral was about four and a half months outside the time permitted for referral under s 7.33 of the MAI Act.
Section 7.33 of the MAI Act provides that a party cannot refer a claim for assessment more than three years after the date of the motor accident 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.
ORDERS SOUGHT BY THE CLAIMANT
The claimant seeks leave from the Commission for his claim to be referred for assessment.
The claimant also seeks a direction that his claim be referred to the stood over list pursuant to cl 10(a) of Procedural Direction MAI1, pending the conclusion of a medical assessment of his permanent impairment by the Commission.
In support of his application seeking leave and by way of a full and satisfactory explanation, the claimant has provided the following material:
(a) The claimant’s statutory declaration sworn on 14 March 2022 (10 pages).
(b) The statutory declaration of the claimant’s legal representative Thomas Julius Goudkamp of Stacks Goudkamp, sworn on 7 March 2022 (155 pages, including attachments).
(c) The claimant’s submissions undated but lodged with the Commission on 16 March 2022.
THE INSURER’S POSITION
On 30 March 2022, the insurer submitted it was the Commission, not the insurer who raised the issue of the need for the claimant to provide a full and satisfactory explanation for the delay in referring his claim for assessment and to obtain leave for his claim to proceed in the Commission.
The insurer’s position is that it is for the Commission to determine whether it is satisfied with the claimant’s explanation for the delay and whether it should grant the claimant the leave sought.
STEPS TAKEN BY THE CLAIMANT TO PROGRESS HIS CLAIM FOR DAMAGES
On 27 February 2020, Stacks Goudkamp wrote to the insurer requesting that it concede that the claimant’s permanent impairment is greater than 10%.
On 17 March 2020 the insurer advised Stacks Goudkamp that it had insufficient information to concede the permanent impairment threshold.
On 1 April 2020, the insurer advised Stacks Goudkamp that it did not concede that the claimant’s permanent impairment being greater than 10%.
As previously noted, on 1 May 2020, the claimant made a claim for common law damages with the insurer and on 11 May 2020, the insurer admitted liability for the claim.
On 4 August 2020, the claimant attended an independent medical examination with orthopaedic surgeon, Dr Ian Barrett, on behalf of the insurer.
On 20 August 2020, the insurer served the claimant with the report of Dr Barrett dated 4 August 2020.
On 26 August 2020, Stacks Goudkamp made arrangements for the claimant to be medically examined by orthopaedic surgeon, Dr Eugene Gehr, on 10 November 2020.
On 28 August 2020, Stacks Goudkamp served the insurer with a bundle of 15 medical reports upon which the claimant sought to rely in his claim for damages.
On 9 December 2020, Stacks Goudkamp served the insurer with the report of Dr Gehr, dated 10 November 2020, seeking an internal review of the insurer’s permanent impairment decision on the basis of Dr Gehr’s report.
On 30 December 2020, the insurer advised the claimant that it affirmed its original decision that the claimant’s permanent impairment was not greater than 10%.
On 25 May 2021, Stacks Goudkamp was advised by Moray & Agnew Lawyers advising they were now acting on behalf of the insurer.
On 18 June 2021, Moray & Agnew Lawyers requested particulars of the claimant’s claim and advised that they have arranged a further independent legal examination with orthopaedic surgeon, Dr Raymond Wallace, on 28 July 2021.
On 20 July 2021, 1 September 2021 and 14 October 2021, Stacks Goudkamp received further requests for particulars from Moray & Agnew Lawyers.
On 19 October 2021, the claimant lodged an application with the Commission for a medical assessment of the permanent impairment dispute. The medical assessment is yet to take place.
On 24 January 2022, the claimant served his signed statement and on 31 January 2022, the claimant served his tax return and notice of assessment for the financial year ending 30 June 2020 and his tax return for financial year ending 30 June 2021.
DISCUSSION
Section 7.33 of the MAI Act provides that a party to a claim cannot refer a claim for assessment by the Commission more than three 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.
In the present case, the three-year anniversary of the motor accident occurred on 4 May 2021.The application to refer the claim for assessment was therefore lodged about four and half months late.
Section 7.33 is found in Part 7 of the MAI Act. Part 7 deals with “Dispute Resolution”. The phrase ‘full and satisfactory explanation’ is not defined in Part 7.
Part 6 of the MAI Act deals with “Motor Accident Claims” and relevantly sets out the duties of a claimant in making a claim (including making a late claim) and the duties of the insurer in handling a claim.
A meaning for the phrase ‘full and satisfactory explanation’ by a ‘claimant’ is found in s 6.2 in Part 6 of the MAI Act. Section 6.2 however, expressly stipulates that the meaning of the phrase is “for the purposes of this Part”, that is, Part 6 of the MAI Act.
I am therefore not persuaded that the meaning given to the phrase ‘full and satisfactory explanation’ under Part 6 should be applied when considering a party’s explanation for the delay for the purpose of s 7.33 of the MAI Act, under Part 7 of the MAI Act.
Different considerations apply to obligations for making a claim for damages on time and referring a claim for damages for assessment on time.
The duty to make a claim on time rests solely with a claimant. Thus, any delay in making the claim requires the claimant 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”[1] and “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.”[2]
[1] Section 6.2(1) of the MAI Act.
[2] Section 6.2(2) of the MAI Act.
Under Part 7, either a claimant or an insurer, as a party to a claim, may refer the claim for assessment. If the referral is more than three years from the date of the accident, the party who makes the application is required to provide a “full and satisfactory explanation” for the delay.
I find that the enquiry about whether there is a “full and satisfactory explanation” for the delay in referring a claim for assessment for the purposes of s 7.33 is contained within Part 7 itself. I consider that the enquiry is informed by the referring party’s actions in compliance with s 7.32(3) of the MAI Act. The period of enquiry should be from the date that a claimant is eligible to make his or her claim for damages to the date of referral of the claim for assessment.
Section 7.32(3) of the MAI Act provides that parties to a claim must use their best endeavours to settle the claim before referring it for assessment by the Commission.
According to s 6.14(1) of the MAI Act, a claim for damages cannot be made before the expiration of 20 months after the motor accident unless the claim is in respect of injury resulting in a degree of permanent impairment that is greater than 10%.
In the present case, the insurer did not at any stage concede the permanent impairment threshold. Therefore, by virtue of the provision of s 6.14(1), the claimant could not have commenced his claim for damages until 4 January 2020.
The period of enquiry is therefore from 4 January 2020 to 18 October 2021. Taking into account the information before me, I am of the view that during that period, the claimant used his best endeavours to progress his claim towards a settlement before referring it for assessment by the Commission.
I note that the claimant has served his available medical evidence and economic loss evidence upon which he seeks to rely. He has taken steps to lodge his application to resolve the medical assessment dispute with the Commission.
In my view, there is no practical utility in pursuing a settlement of the claim until the medical assessment dispute is concluded.
Subject to the outcome of the medical dispute and the service of any refresher medical evidence and updated economic loss documents, it is apparent that the claimant has completed all necessary steps to have his claim ready for settlement or assessment.
I consider that the claimant has acted reasonably in making, preparing and advancing his claim towards a resolution, within the short window of time allowed to him to do so by the MAI Act.
CONCLUSION
I am required to determine whether the claimant has provided a full and satisfactory explanation for delay and, if so, whether I should exercise my discretion to refer the claim for assessment.
I am satisfied that, for the purposes of s 7.32(3), the claimant has acted reasonably to progress his claim to a resolution prior to making his application to the Commission to refer his claim for assessment. I am satisfied that, for the purposes of s 7.33, the claimant has provided a full and satisfactory explanation for the delay in referring his claim for assessment.
Having regard to ss 1.3(4) and (5) of the MAI Act, s 4(2) and s 42 of the Personal Injury Commission Act2020, I am satisfied that I should grant the claimant leave to refer his claim for assessment.
ORDER
The claimant is granted leave to refer his claim for assessment by the Commission.
DIRECTION
Pursuant to rule 101(2)(a) of the Personal Injury Commission Rules 2021 and cl 10 (a) of Procedural Direction MA1, I direct that the proceedings be stood over generally.
The parties have liberty to restore the proceedings for assessment before 16 December 2022.
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