Insurance Australia Limited t/as NRMA Insurance v Novakovic
[2022] NSWPIC 35
•25 January 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Insurance Australia Limited t/as NRMA Insurance v Novakovic [2022] NSWPIC 35 |
| Claimant: | Anastasia Novakovic |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Elizabeth Medland |
| DATE OF DECISION: | 25 January 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim dispute under section 73 of the Motor Accident Compensation Act 1999; claim originally lodged on different insurer and was denied on the basis that the insured vehicle was not involved in the accident; further claim form subsequently lodged on the Nominal Defendant, however, out of time; consideration of whether the claimant’s explanation for the delay was full and satisfactory; Held - the explanation was not full as it was not a full account of the claimant’s knowledge and belief. |
determinations made: | 1. A late claim may not be made in accordance with section 73 of the Act. 2. Effective Date: This determination takes effect on 18 December 2018. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0 inclusive of GST. 4. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under section 94 (5) of the Motor Accident Compensation Act 1999
Background
This determination relates to a late claim dispute under Section 73 of the Motor Accident Compensation Act 1999 (the MAC Act):
I held a teleconference with the parties on 28 September 2021 wherein directions were made for the service of further evidence. Both parties agreed that it was appropriate that the matter be assessed “on the papers”.
The claimant alleges having suffered injury, loss and damage as a result of a motor vehicle accident occurring on 26 November 2016. The claimant alleges that she was getting into a taxi with two friends. When she was getting into the back of the taxi the driver began to drive away before she was safely inside.
The Personal Injury Claim Form was lodged with the relevant insurer in excess of the statutory six month time limit. The Insurer has rejected the claimant’s explanation for delay and maintains that the claimant is not entitled to make a claim given the late lodgement.
The following chronology of events appear to be uncontroversial:
a. motor vehicle accident – 26 November 2016;
b. a Personal Injury Claim Form initially lodged with Allianz Insurance within six months;
c. on 3 May 2017 Allianz issued a section 81 liability notice denying liability on the basis that their insured vehicle was not involved in the accident;
d. on 18 December 2018 the claimant lodged a Personal Injury Claim Form with the Nominal Defendant (allocated to NRMA Insurance for management);
e. on 8 January 2019 the insurer advised the claimant that the claim was lodged outside of time and requested an explanation for the delay;
f. on 15 May 2019 the claimant lodged a statutory declaration dated 6 May 2019 providing an explanation for the delay;
g. on 20 May 2019 the insurer advised that the explanation was rejected as it was neither full or satisfactory;
h. on 29 May 2020 the insurer again wrote to the claimant’s solicitors confirming that the explanation remained rejected and sought confirmation as to whether the claim was being pursued;
i. on 1 July 2020 a further copy of the claimant’s Statutory Declaration was provided to the insurer, and
j. on 22 April 2021, the claimant provided to the insurer a further Statutory Declaration dated 26 November 2020 and a Statutory Declaration of her solicitor, David Truong, dated 22 October 2020.
Documents Considered
I have considered the documents provided in the Application and the Reply and any further information provided by the parties.
The legislation
Under section 72 of the MAC Act a claim must be made within six months of the motor vehicle accident.
Section 73(1) of the MAC Act provides that:
“A claim may be made more than 6 months after the relevant date for the claim under 72 (in this section called 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.”
Section 66(2) of the MAC Act provides a definition of “full and satisfactory explanation” as follows:
“In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to 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. 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.”
The explanation
Before me are a number of statutory declarations which I summarise below.
Claimant’s statutory declaration dated 6 May 2019
The claimant states that the subject claim is the first time she has made any type of personal injury claim.
The claimant states that she attended her GP after the accident and took a short period off work. Her brother organised for her to see a physiotherapist to treat her injured ankle arising from the accident. It was the physiotherapist that advised her she could make a claim for medical treatment.
The claimant thereafter attended upon Mr David Truong of Alliance Compensation and Litigation Lawyers. She then states at paragraph 10 that:
“from thereon, I continued with my treatment and entrusted Mr Truong in pursuing the claim. I continued treatment until June 2017 as Allianz Insurance did not approve any more treatments.”
The claimant notes that on 3 May 2017 Allianz denied liability for the accident as their insured vehicle was not involved in the accident.
From such point in time the claimant explains that:
“I did not know what happened between 3 May 2017 and May 2018. Mr Truong explained that all the correspondence sent by the insurer was sent to another person so he was not aware of the progress.”
The claimant does note that in May 2018 Mr Truong made some progress in the matter by requesting the investigation report and calling a witness.
For the period between 5 September 2018 and 20 December 2018 the claimant notes that her solicitor, Mr Truong, had difficulty contacting her. She states that she does not know why she was not receiving his calls. She explains that she does not usually pick up numbers that she does not recognise and that is probably why she did not answer his calls. She states that she first became aware that her solicitor was trying to contact her when her physiotherapist called her and advised that the solicitor was trying to contact her.
She then states that on 17 December 2018 she met with Mr Truong and at such meeting he advised that because they were unable to identify the vehicle, they would need to lodge a further claim form with the Nominal Defendant. She signed the claim form on 18 December 2018.
The claimant notes that the statutory declaration was prepared over a number of months and completed on 30 April 2019.
It is then stated at paragraph 20 that:
“besides see [sic] Mr Truong, there were no other significant events I could recall. I entrusted Mr Truong in progressing my claim. I was only attending treatment on a needs basis including doctor consultations and physiotherapy treatment. However, because the treatment currently is not covered by any insurer, I had to hold it off.”
Noting that the claimant was not aware of a right to lodge a claim until she saw her physiotherapist, she then states at paragraph 23:
“however, given the events, I would have lodged with [sic] person injury claim form within 6 months. It was unfortunate that there was a liability issue which compelled me to lodge another claim but against the Nominal Defendant. Had
I known of the circumstances, I would have lodged the claim to the Nominal Defendant a lot sooner.”
Further statutory declaration of the claimant dated 26 November 2020
This declaration states that between 28 November 2016 and 3 May 2017 the claimant was continuing with treatment and physiotherapy sessions. She was focused on recovering and waiting on updates from her solicitor.
The claimant elaborates on the period between 3 May 2017 and May 2018 stating that Mr Truong explained that a solicitor, Mr James Zheng, had left the matter inactive and did not provide any updates or take any action on the claim. This was not apparent until Mr Truong reviewed the file in May 2018.
Apart from matters already canvassed in the earlier statutory declaration the claimant details a number of medical appointments from 9 September 2019, and the issuance of a MAS Certificate in March 2020.
She states that between 1 June 2020 and 26 October 2020 Mr Truong was preparing a further statutory declaration for her review. She states that she overlooked an email of 3 September 2020 from Mr Truong and on 20 October 2020 an appointment was made with her by Mr Truong’s assistant to finalise the statutory declaration.
The claimant further states that besides seeing Mr Truong, there were no other significant events that she could recall. She states that she entrusted Mr Truong in progressing her claim.
Statutory declaration of David Truong dated 26 October 2020
Mr Truong states that he had carriage of the matter up until May 2017 when it was transferred to Mr James Zheng. He had been employed due to Mr Truong being the only solicitor in the firm handling personal injury matters and so Mr Zheng was recruited to reduce the workload.
The firm had no centralised systems where every solicitor was aware of deadlines, notices or directions. The correspondence on a matter was distributed from the reception straight to the solicitor with carriage of a matter.
Mr Zheng is said to have left the firm in late 2018. Mr Truong states that it was difficult to extrapolate what work had been done on the matter as there was no file notes or correspondence between him and the insurer. Mr Truong states that the procedures caused for inactive files to be overlooked.
Further statutory declaration of Mr Truong dated 15 October 2021
This declaration elaborates on the issues raised earlier. Specifically, it states Mr Zheng left the firm on 10 August 2021 and the transition of matters to Mr Truong happened gradually thereafter.
Mr Truong notes that he had limited conduct of the matter, however, in May 2018 he had a quick review and expressed concerns to Mr Zheng that he needed to attend to contacting the claimant regarding the denial by Allianz and lodging a claim against the Nominal Defendant.
The matter officially came under the care of Mr Truong on 10 August 2020, however, given the volume of matters transferred Mr Truong did not review the matter properly until 5 September 2018. It is stated that there were no investigations between 1 May 2018 and 10 August 2018 and Mr Zheng unfortunately neglected the claimant’s matter.
It is stated that from December 2016, when the claim form was lodged with Allianz there was limited contact with the claimant. The claimant was only contacted for critical appointments such as for a medico-legal examination.
Mr Truong details his efforts from 10 August 2018 to contact the claimant. He notes that eventually he was able to contact the claimant through her physiotherapist. This course was successful and Mr Truong was able to see the claimant on 17 December 2018 with the claim form being sent to the insurer on 18 December 2018.
Mr Truong states in the declaration that:
“…because there was clearly neglect on Mr Zheng’s part to continuously provide ongoing updates, it is reasonable to conclude that the Claimant did not know what happened between 3 May 2017 and May 2018 because she was not contacted.”
Submissions
The insurers submissions
The application before me for determination was lodged by the insurer. The insurer notes the claim was lodged with the Nominal Defendant just over 18 months after Allianz issued the section 81 Notice denying their vehicle was involved in the accident.
The submissions attached to the Application largely represent a confirmation of the chronology of events.
I have read the various attachments to the Application and note that the letter of 20 May 2019 purports to reject the explanation as being full and satisfactory on the basis that “There many [sic] gaps in time which have not been accounted for. For example, between May 2017 and May 2018 as well as other gaps in time”.
The claimant’s solicitors sent an email on 29 May 2020 asking the insurer to provide all the reasons why the explanation is not full and satisfactory. It appears that the insurer sent a letter dated 4 June 2020 via email in response. I do not have a letter of 4 June 2020 before me, however, I do have a letter of Moray & Agnew addressed to the claimant’s solicitors dated 4 May 2021. That letter sets out a number of reasons why the insurer alleges that the explanation is neither full or satisfactory. I do not propose to repeat the contents of this letter, however, it does take issue with detail in
Mr Truong’s first statutory declaration. For example, the letter suggests the declaration lacks detail as to what attempts were made to contact the claimant up until December 2018.Some of the matters raised in the abovementioned letter of Moray & Agnew are clearly addressed in the subsequent statutory declaration of Mr Truong dated 15 October 2021.
However, there are issues that were raised by the insurer’s solicitors which are not clearly addressed in the statutory declaration. For example, at point 5 in the letter it is alleged that the statutory declarations of both Mr Truong and the claimant lack detail as to when the claimant was first made aware of Allianz’s decision to deny the claim or the potential to bring a claim against the Nominal Defendant. In addition, there is no clear detail as to what contact the claimant had with her solicitors after completing the claim form in December 2016 and the meeting on 17 December 2018.
Further written submissions have been provided by the insurer dated 14 October 2021. Those submissions maintain that the explanation provided is not full. In this regard it is noted that it is unclear from the claimant’s statutory declaration when she was informed that Allianz had denied her claim. Further, it is noted that the claimant acknowledges that treatment ceased in June 2017 due to Allianz no longer approving same. It is submitted that it is unclear whether the claimant was informed of the basis for the declinature. It is also stated that it is unclear when the claimant provided instructions to her solicitors to investigate the unidentified vehicle.
In respect of the time period between 3 May 2017 and May 2018, it is submitted that explanation that she did not know what happened, does not account for the claimant’s actions, knowledge or beliefs.
It is further submitted that it is not entirely clear as to whether she had any contact with a solicitor of the firm after completing her claim form in December 2016 and meeting on 17 December 2018.
The submissions further state that it is unclear what attempts were made to contact the claimant between September 2018 and December 2018 and there is a lack of detail about work carried out between May 2018 and September 2018.
On the issue of whether the explanation is satisfactory it is submitted there is some ambiguity regarding when she was informed about Allianz’s denial of liability and what instructions, if any, she provided to investigate the claim to locate the unidentified vehicle.
It is noted that a period of almost two years appears to have elapsed from when the claimant first attended her solicitors in December 2016 and her next apparent meeting in December 2018. A period of almost two years.
It is submitted by the insurer that it is “conceivable” that a reasonable person in the position of the claimant would have followed up her solicitors as to the status of her claim:
a. after lodging her claim in December 2016;
b. after Allianz refused to pay for treatment in June 2017; and
c. prior to her meeting with her solicitor on 17 December 2018.
It is submitted that a reasonable person in the position of the claimant would have been proactive in pursuing a claim once it was lodged, which did not occur in this claim.
The claimant’s submissions
The claimant’s reply includes submissions that address the insurer’s allegation that the explanation is not full as it does not account for gaps in time.
In this regard, the submissions note that for the period between 26 November 2016 and 3 May 2017 the claimant has provided a full explanation by stating that she continued with her treatment with her GP and physiotherapy sessions and waiting for updates from her solicitors.
For the gap between May 2017 and May 2018 the submissions refer to the claimant’s statutory declaration where she states that she did not know what happened during that period and it was not until Mr Truong explained that a solicitor with conduct at the time had left the matter inactive. The submissions then highlight Mr Truong’s statutory declaration which explains the inactivity with the claim due to the inaction of the previous solicitor, Mr Zheng.
In respect of the issue as to whether the explanation is satisfactory the submissions state that Mr Zheng was clearly negligent in progressing the claim.
The claimant’s solicitors refer to the matter of Transport Accident Commission of Victoria v Jovanic [2019] NSWSC 1137. It is submitted that Justice Basten held that the explanation for the entire period is required, however, only insofar as it relates to the question of whether a reasonable person in the position of the claimant would have been justified in the late lodgement of the claim.
The submissions state that the claimant was not aware of the denial of liability from Allianz, and there was a need to lodge a personal injury claim form against the Nominal Defendant until she was advised by Mr Truong and that the negligence of the claimant’s solicitor and the denial of liability was not successfully conveyed to the claimant. It is submitted that a reasonable person in the position of the claimant would have experienced the same delay, and that there was nothing more that could have been done when she was not contacted and informed of it.
It is submitted that the claimant had no control over the failure of her solicitors to act, because she did not know of the liability notice of Allianz which needed immediate action to lodge a claim on the Nominal Defendant.
Reasons
Is the explanation full?
In determining whether the explanation is full, as set out in section 66, I need to be satisfied that I have a full account of the conduct, including actions, knowledge and belief of the claimant from the date of the accident until the provision of the explanation. I agree with the claimant’s submission that this account is relevant to the extent it is required to consider the question of whether a reasonable person in the position of the claimant would have experienced the delay.
The insurer submits the explanation is not full noting that there is some uncertainty as to when the claimant was informed that Allianz had denied the claim and the reasons why such denial was made.
As set out above, the insurer in a letter dated 4 May 2021 advised the claimant’s solicitor of their position that the statutory declarations did not make it clear when the claimant was advised of the denial of liability of Allianz, or the potential to bring a claim against the Nominal Defendant.
I note that the claimant’s submissions set out as an alleged fact that the claimant was not aware of the denial of liability of Allianz. In this regard at paragraph 28 of the submissions it is stated:
“In the present case the Claimant had no control over the failure of her solicitors to act, because she did not know that they had received the liability notice from Allianz Insurance which needed immediate action to lodge a Personal Injury Claim Form to the Nominal Defendant.”
Whilst the above is set out as a fact in the submissions, careful consideration of the statutory declarations reveals that the evidence does not sufficiently verify such allegation of fact.
I agree with the submission of the insurer that there is ambiguity around what knowledge the claimant had of the denial of liability by Allianz and the timing of such knowledge.
Whilst the submissions of the claimant allege she was not aware of the denial of liability, her statutory declaration of 6 May 2019 would suggest that she was likely aware that Allianz had denied the claim at around the time that it occurred on 3 May 2017. In this regard, at paragraph 10 of that statutory declaration the claimant states that she was continuing with treatment until June 2017 when “Allianz Insurance did not approve any more treatment”.
Moreover, whilst it is not expressly stated, it can be reasonably inferred from the statutory declaration of the claimant dated 6 May 2019 that she was likely aware of the denial of liability dated 3 May 2017 as the liability notice of such date is mentioned. Further, in the next paragraph, 13, the claimant states “unfortunately, I did not know what happened between 3 May 2017 and May 2018…”.
Due to the above, it would be a reasonable inference to draw that the claimant had contact with her solicitor at the time regarding the denial of liability. In any event, the crucial point is that it is not clear from the evidence before me when the claimant was first told of the denial of liability of Allianz and to what extent she was advised about what steps should be taken as a result. The evidence is ambiguous and vague on this point, when it needed to be expressly stated. I note that this issue was clearly set out by the insurer’s solicitor in their letter dated 4 May 2019, and yet the issue was not addressed adequately, or at all, in the material relied upon by the claimant.
For this reason, I am not satisfied on the material before me that the explanation is “full” as I do not have a full account of the “conduct, including the actions, knowledge and belief of the claimant…” as required by section 66 of the MAC Act. The denial of liability by Allianz in May 2017, and the extent of the claimant’s knowledge of same, is a crucial consideration in assessing whether a reasonable person in the position of the claimant would have experienced the delay the subject of this dispute.
In making this finding, I have considered paragraph 23 of her statutory declaration dated 6 May 2019, wherein, it is stated:
“however, given the events, I would have lodged with [sic] the personal injury claim form within 6 months. It was unfortunate that there was a liability issue which compelled me to lodge another claim but against the Nominal Defendant. Had I known of the circumstances, I would have lodged the claim to the Nominal Defendant a lot sooner.”
I have considered the possibility that the above paragraph suggests that the claimant was not aware of the need to lodge a claim upon the Nominal Defendant until around the time that it occurred. However, for me to make that finding I would need to read further evidence into the statutory declaration that is simply not there. The claimant needed to expressly state when she became aware of the denial of liability by Allianz, and the extent that she was informed of the reasons for that denial. She also needed to expressly state when she was informed of the possibility of lodging a claim upon the Nominal Defendant. Whilst it may be that she was not informed until December 2018, on the evidence before me I cannot be sufficiently satisfied that is the case.
Because I have made a finding that the explanation is not “full” I consider that it is not a requirement to make findings as to whether the explanation is “satisfactory”. However, I do take the opportunity to observe that if the claimant was not made aware of the reasons for the denial of liability by Allianz, and was not informed of the right to lodge a claim against the Nominal Defendant until the meeting in December 2018, it may well be the case that the explanation would be “satisfactory”. In this regard, I consider it likely that a reasonable person in the position of the claimant, would not have taken steps to ensure a claim form was lodged with the Nominal Defendant if she was not made aware of the right to do so. In this regard, the claimant had already signed and caused for the lodgement of a Personal Injury Claim Form and it may well be a reasonable belief to hold in her position, that a further claim form would not be required. This is so, even though the claimant appears to have neglected her own claim by not contacting her client for a period of at least a year to ask for updates.
However, for the reasons set out above, the evidence before me does not sufficiently establish the claimant’s knowledge and beliefs regarding the denial of liability by Allianz in May 2017. Accordingly, I find that the explanation is not full.
Costs and Disbursements
70. I have found against the claimant in this dispute. Accordingly, I am not minded to award costs in her favour.
Conclusion
1.My determination of the Miscellaneous Claim is as follows:
71. A late claim may not be made in accordance with section 73 of the MAC Act.
Effective Date: This determination takes effect on 18 December 2018.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
· the MAC Act
· Motor Accidents Compensation Regulation 2015
· Claims Assessment Guidelines 2017
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