Isho v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Isho v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 581
Claimant:	Stiphani Isho
insurer:	Insurance Australia Limited t/as NRMA
Member:	Bridie Nolan
DATE OF DECISION:	12 August 2022
CATCHWORDS:	MOTOR ACCIDENTS - General assessment; application for personal injury benefits; request for particulars pursuant to section 6.25 of the Motor Accidents Injuries Act 2017 (2017 Act); insurer issued “direction to produce particulars” pursuant to section 6.26(1)(2) of the 2017 Act; claimant’s response to direction rejected on grounds that they were not adequate particulars; requirements of direction under section 6.26 of the 2017 Act discussed; deemed withdrawal; application for reinstatement of proceedings; whether full and satisfactory explanation for failure to provide required particulars; whether total damages of all kinds likely to be awarded to the claimant if claim succeeds are not less than 25% of maximum amount that may be awarded for non-economic loss as at the date of the motor accident; Held – reinstatement allowed.

Background to the dispute

On 21 January 2019, the claimant made an Application for Personal Injury Benefits in respect of a motor vehicle accident, which occurred on 4 November 2018 on the Cumberland Highway and Canley Vale Road, Canley Heights in New South Wales.
The claimant says she was driving along the Cumberland Highway approaching the traffic lights at Canley Vale Road which were changing from green to orange. The car in front of her stopped suddenly. The claimant managed to stop her vehicle. However, the vehicle behind her was unable to stop and collided with her vehicle, sandwiching her between the two vehicles. She sustained injuries to her right shoulder, neck, right knee and both ankles.
On 16 September 2020, the insurer formally requested particulars from the claimant’s solicitor in accordance with s 6.25 of the Motor Accidents Injuries Act 2017 (the MAI Act), which provides:
“A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
For the purposes of this section, relevant particulars about a claim are full details of—
(a)the motor accident concerned, and
(b)the injuries sustained by the claimant in the motor accident, and
(c)all disabilities and impairments arising from those injuries, and
(d)any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
Section 6.26 of the MAI Act provides:
“(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2)     The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3)     If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4)     The claimant may make an application for reinstatement of the claim—
(a)to the Personal Injury Commission (the Commission) for a claim that is not exempt from assessment under Division 7.6, or
(b)to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(5)     (Repealed)
(6)     If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7)    If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a)the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b)the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
On 6 May 2021, the insurer issued a “Direction to Produce Particulars” further to
ss 6.26(1) and (2) of the MAI Act (Direction). It was in accordance with the form prescribed under the Motor Accident Guidelines, which was as follows:
“Section 6.26
DIRECTION TO PRODUCE PARTICULARS
[Name of Insurer] is of the view that [you/name of claimant] have/has failed to provide to [Name of Insurer] all relevant particulars about [your/ their] motor accident claim as required by section 6.25 of the Motor Accident Injuries Act 2017 (the Act).
Section 6.25 of the Act says that [you/name of claimant] must provide [Name of Insurer] with all relevant particulars about [your/their] claim as expeditiously as possible after the claim is made.
For this purpose, relevant particulars about a claim are defined in the Act as full details of:
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
(b) sufficient to enable [Name of Insurer], as far as practicable, to make a proper assessment of [your/name of claimant’s] full entitlement to damages.
In accordance with section 6.26 of the Act, [Name of Insurer] requires you to provide to it all relevant particulars about the claim within 3 months after the date this direction is given.
If [you/name of claimant] do/does not comply with this direction within 3 months after it is given, then in accordance with section 6.26(3) [you/name of claimant] will be taken to have withdrawn [your/their] claim.
This direction is given in the form provided by the State Insurance Regulatory Authority pursuant to Part 4 of the Motor Accident Guidelines.
Signed: ______________________ Dated: ______________________

NOTES
If you require information about this notice and procedural assistance with what to do next, please contact your Legal adviser, or if you are not legally represented, CTP Assist on 1300 656 919 or by email at [email protected].
If you do not agree that the insurer is entitled to give you this written direction and you are of the view that you have provided relevant particulars about the claim, please contact your legal representative or the insurer, or CTP Assist.”

On 14 May 2021, the claimant provided a response to the Direction, which included detailed particulars of her injuries, disabilities, hospital and treatment providers, her previous health, and past economic loss. No complaint is made regarding these particulars. The insurer’s complaint is predicated on the alleged inadequacy of particulars given with respect to future economic loss, which were in the following form:
“The Claimant was in receipt of Single Parenting Payment from Centrelink at the time of the accident. She had intentions to pursue undertaking studies and getting a part time job as an Event Planner, when her children were a bit older. A claim will be made for future Economic Loss and a Schedule of Damages will be provided prior to settlement discussions.”
On 20 May 2021, the insurer rejected the claimant’s response to the Direction for Particulars (Response), within the two-week period allowed by s 6.26(5), specifically noting that “they do not adequately particularise the claim which will be made for future economic loss” and stating that it looked forward to receiving full particulars as required by s 6.25 of the MAI Act.
There was no ensuing correspondence on this issue from either party until the foreshadowed particulars were provided by the claimant’s solicitor by letter dated
19 January 2022.

SUBMISSIONS

Claimant’s submissions

In her preliminary submissions, the claimant submits that the insurer’s
16 September 2020 request did not provide any specific set of questions that the insurer wanted the claimant to address. She said that she responded to the notice by providing the “generic replies to particulars to the insurer” with the information then available to her.
The claimant says that her mother had fallen terminally ill in 2021 and she was required to render her aid and attend to her medical appointments. The claimant’s mother was admitted to hospital on 28 September 2021 with serious complications arising from a terminal neurological brain disease. This was said to pose a challenge in providing instructions in relation to provide the provision of particulars of further economic loss. The claimant’s mother died on 10 January 2022.
The claimant relied on the decision of Basten J in Wahhab v Insurance Australia Ltd [2021] NSWSC 521; 96 MVR 94 (Wahhab), which concerned operation of s 85B of the Motor Accident Compensation Act 1999 (the MAC Act). In that case the claimant failed to respond at all to the direction for particulars, so the deemed withdrawal took effect. She contrasts her response to this case and says that a response was provided. She says that in the interests of justice, the claimant has attended to the provision of all relevant information available to her at the time of responding to the Direction. She submits that the onus remained with the insurer to have made a request for specific particulars in relation to further future economic loss if not satisfied with the claimant’s response.
In her supplementary submissions, the claimant reiterated her primary position; that the Direction issued by the insurer under s 6.26 of the MAI Act dated 6 May 2021 was complied with when the claimant’s solicitors provided particulars in the letter dated
14 May 2021, and, therefore her claim is not deemed to have been withdrawn under
s 6.26 of the MAI Act as all relevant particulars were provided within the required timeframe.
The claimant says that the insurer has not identified what “relevant particulars” had not been provided in order to comply with the notice to the claimant under s 6.26. I note at this juncture the requirement to particularise a claim is not the task of the insurer. Nor is it the statutory task of the insurer to do more than require the relevant particulars as it did for the purposes of s 6.26 of the MAI Act. Therefore, I reject the claimant’s submission that this alleged failure on behalf of the insurer is fatal to its reliance on the deemed withdrawal. In any event, the claimant has demonstrated the facility with which these particulars could be provided by her solicitor’s letter dated
19 January 2022. It cannot be that she (through her solicitors) was under any misapprehension as to what was required by her Response.
She goes on to submit that if it is found that she has failed to provide relevant particulars within the three-month period, she has now made an application for reinstatement and provided a full and satisfactory explanation for the delay in providing further particulars of the claim, specifically in relation to the claim for future economic loss.
The claimant submits that she has provided a full explanation that covers from the date of the accident to date. The explanation covers not only the conduct and actions of the claimant but also of her legal representatives. The account includes the actions of the claimant as well as her knowledge and beliefs. The explanation covers her background including education, employment history, as well as her actions and beliefs from the date of the accident to date.
The claimant submits that the explanation is sufficiently full to enable an assessment to be made of whether it is satisfactory.
To this end, the claimant submits that the material before me sufficiently sets out the characteristics of the claimant in order to allow me to transfer across those characteristics to a hypothetical reasonable person. The material available sets out the claimant’s cultural background, age, beliefs, education level and limited interaction with the law as at the time of the subject accident and the years thereafter.
The claimant’s mother was terminally ill during 2021, and this required her attention, as well as it being an upsetting matter for the claimant. The claimant was also dealing with the difficulties caused by her physical and psychological injuries and caring for her two children who were frequently at home for remote schooling due to the COVID-19 pandemic.
The claimant says that she was not only struggling with her own injuries, but that she was dealing with a terminally ill mother and caring for two young children who were frequently home for remote learning due to COVID-19 lockdowns and restrictions. During this time, the claimant says she was relying upon her legal representatives in relation to the steps that she needed to take in relation to the claim. She says her legal representatives were of the view that all relevant particulars had been sufficiently provided, despite the insurer’s assertions to the contrary. The claimant says that she had instructed solicitors and relied upon their expertise and knowledge in advising her of the steps that she needed to take for her claim for compensation. It is reasonable that a person in the claimant’s position would have relied upon their solicitor to take the necessary steps to protect her interests and adhere to the necessary time limitations for motor accident compensation claims under the MAI Act. The claimant was not apprised of the time limitations regarding providing relevant particulars, but instead relied upon her legal representatives’ specialised knowledge. Her legal representatives were of the view that all relevant particulars had been provided and that the notice issued under s 6.26 of the MAI Act on 6 May 2021 had been complied with. It is not for the Commission to determine the belief or knowledge of the claimant’s solicitors but rather, whether it is satisfied that a person, in the claimant’s position, would have experienced the delay in providing the relevant particulars, or to have been justified in experiencing a delay in providing those particulars.

Insurer’s submissions

The insurer submits that the Response was inadequate in that it did not provide all relevant particulars about the claim “sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages”. Specifically, it did not set out particulars of the claim for future economic loss. The insurer submits that the Response did not enable the insurer to make a proper assessment of the claimant’s full entitlement to damages. It relies on s 6.26(3) of the MAI Act, which provides that if the claimant does not comply with a s 6.26 Direction within three (3) months after it is given, the claimant is taken to have withdrawn the claim. I accept this submission.
The insurer submits that the claimant’s Application for the assessment of damages should be dismissed, as there is no basis upon which I could be satisfied of the matters set out in s 6.26(7) of the MAI Act for the following reasons:
(a) the statements of the claimant and her solicitor do not explain why the particulars provided in January 2022 could not have been provided in the period between when the s 6.26 notice was issued on 6 May 2021, and three (3) months later on 6 August 2021. The fact that they were provided by the claimant to the solicitor after that date, when it seems the claimant’s mother had deteriorated, suggests there was no reason they could not have been provided within time, had the solicitor sought that material from the claimant. It casts doubt on the solicitor’s belief that the particulars provided were adequate, despite their rejection by the insurer, and despite the fact were later gathered and provided without further detail from the insurer as to what was required;
(b) I would not be satisfied that the claimant’s damages of all types exceed the 25% threshold. The claimant has no current entitlement to non-economic loss damages. The claim for past economic loss is minimal. In relation to future economic loss, the insurer relies on:
(i)the report of joint expert Dr Reiter dated 25 May 2021 establishes that the claimant’s complaints attributed to the accident are not accident related but are rheumatological issues which would impact on her capacity for work in any case. Dr Reiter opined that the claimant has no ongoing disabilities as a consequence of the subject accident and that 100% of her disability is due to a combination of her seronegative arthritis, as well as the findings documented on MRI of her ankles, indicative of pre-existing issues. Dr Reiter considered the eight sessions of physiotherapy were appropriate, however, the use of Voltaren and Panadeine Forte were most likely for her seronegative arthritis symptoms and, “clinically she did not, when I reviewed her, have evidence of right shoulder rotator cuff disease, with her reporting no improvement with the ultrasound-guided cortisone injection, indicating that she did not actually have a right shoulder condition, so most likely the cortisone injection was not necessary.” She noted that the claimant does not require any treatment as she has no accident-related injuries.
Dr Reiter added that her prognosis is excellent, she is completely recovered from any possible injuries that she may have sustained as a result of the subject accident. Dr Reiter concluded that there is no whole person impairment as a consequence of the subject accident;

(ii)a submission that Dr Tong does not grapple with those issues satisfactorily and is unconvincing for that reason in her assessment of 22% whole person impairment;
(iii)Assessor Truskett found a back issue unrelated and rated the other physical injuries at 0% whole person impairment;
(iv)Dr Smith did not accept an accident-related loss of earning capacity;
(v)Assessor Allan's rating of 7% whole person impairment related to psychological injury was based on a history that “I note that her marriage had broken up in the year prior to the accident and she has had no relationship since”. This is however in total contrast to the history taken from updated clinical records of Mind Your Health Psychologists (R35 and R36) which show that the claimant had a partner from at least September 2020 to April 2021, and was having relationship issues with her partner which had been causing her frustration, including her partner being in jail in April 2021. It contends her mother's illness was also no doubt a factor in her psychological struggles in 2021 when assessed by Assessor Allan, and
(vi)the insurer submits that the claimant's capacity for employment is not restricted and/or limited as a result of any psychological injuries caused by the subject accident (per
Dr Vickery R51), who would be accepted in preference to the Commission’s psychological Assessor Allan due to the above concerns.

REASONS

The first relevant inquiry in the context of this case is what does compliance with a Direction issued under s 6.26 require. This question was not considered in Wahhab.
This case offers yet another illustration of the importance of “examining of the context of the provision that is being construed”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. Section 6.25 of the MAI Act says that the claimant must provide the insurer with all relevant particulars about his or her claim as expeditiously as possible after the claim is made. For this purpose, relevant particulars about a claim are defined in the MAI Act as full details of:
(a)    the motor accident concerned;
(b)    the injuries sustained by the claimant in the motor accident;
(c)    all disabilities and impairments arising from those injuries, and
(d)    any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.

Each of the “particulars” was presumably considered by the legislature to serve a separate and discrete objective in the proper assessment of the claimant’s full entitlement to damages. The limited scope of the administrative discretion entrusts me with the power to determine whether there had been compliance with the requirement to provide particulars to enable a proper assessment of the claimant’s full entitlement to damages. The practicability which arises on this assessment pertains the insurer’s ability to make the assessment, not to the provision of particulars. This assessment is not comparative. This is not a case where the importance of one particular with the comparative importance of other particulars in an assessment is discernible. They are all relevant to an assessment of damages and need to be the subject of compliance. To lack compliance with one is to undermine the statutory purpose of their provision: the proper assessment of damages. This assessment does not call for a value judgement about the relative importance of the objectives that each particular is imposed to achieve.
Although such an approach to interpretation may appear to produce an unfair result, in my view it does not. The withdrawal is deemed. The statutory scheme permits the claim’s rectification by reinstatement under s 6.26 (4), (6) and (7) of the MAI Act.
Reinstatement is applied for. The three-year period spoken of in these provisions expired on 4 November 2021, hence s 6.26 (7) of the MAI Act applies, as this application for reinstatement was not formally made until submissions dated
22 June 2022. As such I need to be satisfied that:
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 4.13 as at the date of the motor accident.
Commencing with (b), I am satisfied it is met.
As Brereton JA said in Rahman v Al-Maharmeh [2021] NSWCA 31; 95 MVR 394 (Rahman) at [47], “this is a predictive exercise, based on a preliminary enquiry involving a cursory assessment of the available material, in which the question is whether there is “a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent”, that the total damages will exceed the relevant threshold.
The claimant has claimed $685,896 for future economic loss ($800 each week x 0.85% (vicissitudes) x 884.8 (5% multiplier) = $601,664 plus superannuation at 0.14% = $84,232.96). This in and of itself exceeds the statutory cap for non-economic loss as at the date of the motor accident which was then $521,000. She has neatly articulated the basis for her claim with supporting material in her 19 January 2022 letter to which I have earlier referred, which, if causation of her injuries were accepted even to cause some partial incapacity to say 25%, would likely be awarded to the claimant. None of this or that which follows is to be taken as even a preliminary assessment of the claim. I am merely abiding by the statutory test to determine the present application. My mind is not predisposed to any outcome on the substantive claim.
Dr Reiter opined that the claimant’s various complaints were not accident related. However, Dr Gehr, Dr Teoh and Assessor Truskett opined those various injuries of which the claimant complained were caused by the accident. Assessor Truskett opined that the claimant sustained soft tissue injury to her left ankle, right shoulder and cervical spine. He opined that an injury to her lumbar spine was not supported due to lack of contemporaneous documentation. Dr Keller admitted of the possibility of injury but was not of the opinion that it was ongoing. Dr Smith was of the opinion that the claimant appeared to have sustained an aggravation to her cervical degenerative disease and soft tissue injury to both ankles, but could not detect any ongoing disability as a result of the accident. Dr Vickery was not of the opinion that the somatic disorder he diagnosed was accident related, whereas Assessor Allan opined that the claimant suffered a major depressive disorder caused by the accident. On balance, a cursory examination of the evidence is sufficient to support the real and not a remote chance or possibility, regardless of whether it is less or more than 50%, that the total damages, even if only based on a finding of partial incapacity, will exceed the relevant threshold.
As to (a), the claimant relies on the substantial body of case law about the meaning of the phrase “full and satisfactory” explanation for delay in the context of late claims. The statutory context under consideration here is different. Although both determinations have the effect of terminating or permitting the claim, the object of the explanation in this statutory instance calls for a different analysis. That is, the object of an explanation for delay explains why something was not done until it was done. Explaining failure is explaining why something was not done at all. The developed exegesis of the requirements under the late claim provisions, while helpful, are not entirely apt.
In this case the claimant did provide particulars; however, as I have found, they were non-compliant. The explanation for their non-compliance is as stated at [45] of the claimant’s 23 June 2022 statement, namely, she relied on her lawyers for their expertise and advice.
In her statement, the claimant’s solicitor explained her involvement as follows:
(a) on 6 May 2021 Hall & Wilcox Lawyers issued their s 6.26 Direction to produce particulars. There were no specific questions asked or specific information requested that was tailored to this specific claim;
(b) I sent an email to Ms Isho on 10 May 2021 informing her of the s 6.26 Direction to produce particulars. I indicated that we would contact her shortly to take urgent instructions regarding providing the insurer the replies to particulars;
(c)    on or about 10 May 2021, we contacted the claimant by telephone to obtain instructions for the replies to particulars, following sending the claimant an email;
(d)    on 14 May 2021, I drafted a letter containing information about the client’s claim as an answer to the insurer’s request for particulars of the claim. That letter was sent to Hall & Wilcox on that date;
(e)    during various conversations with the client during the time of the claim, I became aware of the claimant’s personal circumstances with her mother being in and out of hospital and chronically ill. Despite making efforts to contact the claimant as required for her claim, I didn’t want to place her under any more significant pressure, than what she was already under;
(f) I was of the view that the information contained within my letter of 14 May 2021 provided sufficient particulars of the client’s claim as to satisfy the s 6.26 Direction to produce particulars. The insurer had not made any specific request or provided specific questions that they wanted answered. I was of the view that the particulars provided were sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages;
(g)    on 20 May 2021 I received a letter from Hall & Wilcox rejecting those particulars and claimed that they were inadequate, stating that they did not address future economic loss sufficiently. No request was made by the insurer as to the further information it required in order to proper assess the claim for future economic loss;
(h)    I still held the view that the particulars provided were sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages;
(i)    on or about 28 May 2021, the claimant underwent a medical assessment with Assessor Philip G Truskett for her physical injuries at the request of the Commission;
(j)    during this time, I continued to prepare the client’s claim for damages including arranging medico-legal assessments. On
19 July 2021 an appointment was arranged with Dr Denise Tong in October 2021;
(k)    on 30 August 2021 the claimant informed us by email that she was struggling due to her mother’s health declining once again, she was home schooling her two children, taking anti-depressants and had little time to herself;
(l)    on 1 October 2021 the claimant advised that her mother had been admitted in hospital again two weeks prior due to her deteriorating health. The claimant was required to attend her mother’s doctors’ appointments alongside her. Again, the claimant emphasised how challenging it had been for her to find any time for herself and therefore it posed a challenge to contact the claimant. The claimant was also struggling in dealing with her accident-related injuries;
(m)     the claimant was examined by Dr Denise Tong on 25 October 2021;
(n)    I served the report of Dr Tong dated 25 October 2021 on the insurer under cover of my letter dated 28 October 2021 and sought a concession that the claimant’s whole person impairment exceeded the threshold for non-economic loss;
(o)    on 28 October 2021 we invited NRMA to participate in an ISC;
(p)    I lodged an application for claims assessment with the Commission on 28 October 2021 on behalf of the client. The application was lodged as the three-year limitation date was due to lapse on 4 November 2021. I made a request in the submissions for the claim to be placed in the “Stood Over List” pursuant to PIC Rule 101 (2)(a) and Procedural Direction MA1 10(a) as the claimant had an upcoming psychological assessment with Assessor Martin Allen and was not ready to proceed to hearing;
(q)    the insurer acknowledged the request for the NEL concession in the letter of 4 November 2021 and set out that the insurer would determine the issue within 90 days;
(r)    the claimant was examined by Assessor Allan Martin on
15 November 2020 at the request of the Commission to assess her level of impairment arising out of her psychological injuries;
(s)    by way of email on 26 November 2021 Ms Tanya Smart informed me that the insurer was not in a position to participate in an ISC unless further details were provided in relation to the claimant’s future economic loss claim;
(t)    on 8 December 2021 the claimant provided instructions in relation to future economic loss particulars to our office via email as they were requested from her via telephone initially on 10 May 2021;
(u)    on 14 December 2021 I contacted the claimant via telephone again to obtain further instructions regarding her future economic loss particulars and to obtain further clarification regarding her future intentions for work at the time of the accident;
(v)    on 22 December 2021, the claimant was in significant distress and contacted our office via telephone to advise that her mother was discharged from the hospital and had been given one month to live as she was terminally ill;
(w)   I am aware that the claimant’s mother died on 10 January 2022;
(x)    on 19 January 2022 I served a schedule of damages and supporting material apropos the claimant’s economic loss claim. I invited the insurer to participate in an ISC, and
(y)    the insurer did not make any further requests for particulars in relation to the claim for economic loss.
The authorities with respect to late claims well establish it is that a claimant must provide a full account of their conduct, including their actions, knowledge and belief from the date of the accident until “the date of providing the explanation” for delay, not the solicitor. The explanation must be such that a reasonable person in the position of the claimant “would have been justified” in experiencing the same delay. The focus of the legislation is about justifying the delay rather than excusing it. The real question is whether a reasonable person in the claimant’s position would have failed to have complied with the requirement to provide s 6.25 particulars.
The claimant relied upon the observations of Basten JA in Smith v Grant [2006] NSWCA 244, at [60] that in explaining delay for a late claim a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings.
I accept that the claimant gave timely instructions following the request for the provision of particulars. She relied on her solicitors to ensure that the particulars elicited and provided were compliant as a reasonable person in her position was entitled to do. The fact that her solicitors for whatever reason, failed to appreciate that the particulars were inadequate at the time they were required to be provided for the purposes of ss 6.25 and 6.26 of the MAI Act, despite notification of such, cannot be imputed to the claimant. She was not equipped to second guess their advice or conduct on the matter. Their failure is not her failure. She was entitled to expect that the solicitor will act with reasonable competence and diligence. The fact that they did not does not colour the claimant’s conduct, which is the relevant focus of the explanation required by s 6.26(7) of the MAI Act.
I am therefore satisfied that the explanation is both full and satisfactory.

COSTS

The claimant makes a claim for the recovery of professional fees and disbursements incurred in connection with the resolution of this dispute before the Commission. Section 8.10 (4) of the MAI Act permits the Commission to provide for legal fees outside of the regulations if it is satisfied that exceptional circumstances exist. The claimant submits she has incurred costs and disbursements in challenging the insurer’s decision to deem the claim withdrawn and seeks legal costs for the dispute for the application relating to the reinstatement application. The claimant submits that this issue has required her solicitor to take separate instruction, draft statements, brief counsel, and provide submissions addressed to the reinstatement dispute which required a separate determination by the Member.
The claimant reserved a right to make further submissions as to costs pending the outcome of the Commission.
I will hear the parties on costs.

[2022] NSWPIC 581

12 August 2022