Ibrahim v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 184
•27 April 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Ibrahim v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 184 |
| Claimant: | Shalow Ibrahim |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Terence O’Riain |
| DATE OF DECISION: | 27 April 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 6.14; application for assessment of damages made before claim for damages; dismissal of application to assess damages; dismissed under section 54 of the Personal Injury Commission Act 2020 and rule 77 of the Personal Injury Commission Rules; Held – application to assess damages is misconceived and dismissed. |
| determinations made: | CERTIFICATE OF DETERMINATION 1. The claimant’s application for the assessment of damages filed with the Personal Injury Commission on 19 December 2022 is dismissed. 2. The parties made no submissions as to costs. 3. The claimant is not entitled to costs in respect of the application. |
REASONS
On 23 January 2023 a teleconference was conducted between:
| Claimant’s representative | Kushal Kant of Schreuders Lawyers |
| Insurer’s representative | Zorana Crnobrnja of NRMA |
BACKGROUND
This determination relates to s 54 of the Personal Injury Commission Act 2020 and rule 77 of the Personal Injury Commission Rules 2021 (the Rules).
Ms Ibrahim (the claimant) was injured in a motor vehicle accident on 30 December 2019.
The insurer assumed liability for its insured driver’s liability for statutory benefits and damages under the Motor Accidents Injuries Act 2017 (MAI Act).
On 19 December 2022 the claimant lodged the application to the Personal Injury Commission (the Commission) for assessment of damages. This was 12 days before the third anniversary of the accident being 30 December 2022.
Ms Ibrahim had not served a claim for damages under common law to the insurer before the third anniversary. This was in breach of s 6.14(2) of the MAI Act.
The insurer submits that s 6.12(4) of the MAI Act states that the notice for statutory benefits and a claim for damages are to be given separately.
The insurer submits this late claim cannot be referred for assessment unless the insurer accepts the explanation for the late claim as full and satisfactory under s 6.14(3), lost the right to reject the claim or the Commission has made a determination pursuant to s 6.14(5)(b).
The insurer submits this late claim cannot be referred for assessment before the Commission applying s 6.14(5)(b) has determined it can do so. I must dismiss the application otherwise.
The insurer further submits that the above is highlighted in Division 10.2 of the Rules.
Furthermore, s 7.32(3) of the MAI Act states that the parties must use their best endeavours to settle the claim before referring it for assessment.
Ms Ibrahim’s solicitor submitted the claimant has a current minor injury dispute before the Commission.
From what Mr Kant said the claimant's representative believed the claim for damages could not be served until that dispute was resolved. However, it also appears the requirements of s 6.14 of the MAI Act were not considered. The relevant parts read:
6.14 Time for making of claims for damages
(cf ss 72 and 73 MACA)
(1) …
(2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the date within which the claim must be made.
(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.
(4) …
(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.
(6) The insurer loses the right to reject a late claim on the ground of delay if the insurer—
(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or
(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.
(7) …
(8) In this section, insurer includes the person against whom a claim for damages is made.
I explained to the claimant’s solicitor that in order to prosecute the claim for damages Ms Ibrahim will need to make the claim and offer her full and satisfactory explanation for the delay to the insurer. If the explanation is not accepted then Ms Ibrahim must lodge an application for a miscellaneous claims assessment of that late claim dispute under Schedule 2(3)(j) of the MAI Act. Such an application can be made at any time (see s 7.42(1)).
The claimant's solicitor sought two weeks to make submissions addressing my intention to dismiss this application.
I granted leave to make further submissions, which were provided 8 February 2023 marked AD1. I did not require the insurer’s submissions in reply.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply as well as the further submissions.
REASONS
I refer the parties to the powers to dismiss proceedings in the Commission as prescribed at s 54 of the Personal Injury Commission Act 2020 (the PIC Act) and rule 77 of the Rules.
That reads: rule 77 Dismissal of proceedings:
The following grounds are specified for section 54(c) of the PIC Act—
(a) for proceedings by an application made under the workers compensation legislation—the applicant has failed to prosecute the proceedings with due despatch,
(b) for proceedings by an application made under the motor accidents legislation—
(i) if the application relates to a medical assessment—the application is not likely to be ready for determination within the next 6 months, or
(ii) the applicant has failed, without reasonable excuse, to comply with a direction given by the Commission or the President, or
(iii) the applicant has failed to prosecute the proceedings with due despatch, or
(iv) there is no jurisdiction to determine the dispute to which the application relates, or
(v) the application is being used for an improper purpose or is otherwise an abuse of process, or
(vi) the application was made by a person who died after the application was made, unless the Commission has been provided with a copy of the grant of probate or letters of administration for the person’s estate and is satisfied that the estate is seeking to pursue the application.
Note—
Section 54 of the PIC Act provides that the Commission may at any stage dismiss proceedings before it—
(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Commission rules.
Section 54 of the PIC Act also applies to medical assessment proceedings, merit review proceedings and panel review proceedings. See rules 107, 114 and 127.
The Commission does not have the power to dismiss any application unless it falls within one of the listed items.
Unlike applications to strike out pleadings in court, for example under Uniform Civil Procedure u/es r 14.28, where the court is concerned solely with the form of the pleading and where, if the application is successful, leave may be granted to amend to plead in proper form, in applications for assessment of damages the Commission is limited to a consideration of whether there is a claim to be referred for assessment.
Section 6.14(5) of the MAI Act does not allow a claim lodged after the third anniversary of the accident to be referred for assessment unless the insurer has lost the right to challenge the claim (it has not) or the Commission has determined that the claimant has a full and satisfactory explanation for the delay (it has not) or the claim is being referred for exemption from assessment (it is not).
The Commission cannot, of its own motion, amend the application to assess damages to include a miscellaneous assessment to assess whether the claimant has made a full and satisfactory explanation for lodging the claim for damages after the third anniversary of the accident, or place it in the Stood Over list while the explanation for the late claim is assessed.
The application to assess damages cannot be vindicated after the fact if it was filed before the claimant lodged the claim.
There is no claim to be referred for assessment until that explanation is made out and the insurer accepts the explanation or a miscellaneous assessment is decided in the claimant’s favour.
I dismiss the current application for assessment of damages as the application is misconceived at this time because claims Ibrahim had not made a claim for damages when the application to assess damages was lodged.
I note the claimant’s submissions on this point and they did not assist me for the reason there was no claim to be assessed.
The application to dismiss the application because the claimant did not use her best endeavours to settle before lodging the application to assess damages is redundant.
CONCLUSION
The claimant’s application for the assessment of damages filed with the Commission on 19 December 2022 is dismissed.
The parties made no submissions as to costs.
The claimant is not entitled to costs in respect of the application.
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