Iskander v Allianz Australia Insurance Limited
[2022] NSWPIC 504
•13 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Iskander v Allianz Australia Insurance Limited [2022] NSWPIC 504 |
| Claimant: | Adel Iskander |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Ray Plibersek |
| DATE OF DECISION: | 13 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Application for a late claim for damages assessment; more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; delay was eight days; whether a full and satisfactory explanation for delay in making the application; Held – claimant has a full and satisfactory explanation; delay due to clerical error; date of injury and the three-year limitation not diarised into solicitors case management system; claimant relied on his solicitors; claimant not aware of the time limitations for making a claim until informed by his solicitor; legal costs awarded $NIL. |
| determinations made: | 1. A late claim for assessment may be made more than three years after the date of the motor accident in this case as the claimant has provided a full and satisfactory explanation for the delay to the Personal Injury Commission (the Commission) in making the claim for assessment. 2. The Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules. 3. Legal costs in this matter are assessed at $NIL. |
BACKGROUND AND INTRODUCTION
This determination relates to a dispute about an application for a late claim for an assessment under section 7.33 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 27 June 2019 Mr Adel Iskander, (the claimant) was involved in a motor accident.
On 5 July 2022 an Application for Damages was lodged by the claimant’s solicitors with the insurer and the Commission.
In written submissions dated 5 July 2022 the claimant’s solicitors submitted that the matter should be placed in the Stood Over List to preserve time, (AD 1).
On 14 July 2022 the insurer requested that the claimant provide a full and satisfactory explanation for the delay in lodging his Application for Damages.
On 25 July 2022 the insurer requested that the claimant provide particulars of his claim for damages.
In submissions dated 8 August 2022, (R 1), the insurer said it was considering the explanation provided by the claimant’s solicitors. The submission states that the insurer does not take issue with that explanation nor does it oppose the Commission granting leave for the claim to be referred for assessment.
The insurer submits that the claim is not ready for assessment, and should be referred to the Stood Over List because there is a medical whole person impairment (WPI) dispute which has not yet finalised: Paragraph 10(a) of PIC Procedural Direction MA1 and Rule 101 of the PIC Rules 2021.
At the teleconference on 15 August 2022 the solicitor for the claimant advised that he has a statement from the claimant explaining why his claim was late. He said he would serve a copy of that statement in the Portal.
The claimant has now provided a signed Statutory Declaration dated 17 August 2022 (AD 4), giving an explanation for his late claim.
In submissions dated 8 August 2022, (R 1), the solicitor for the insurer wrote that the : “…claimant’s solicitor has provided an explanation for the delay … [and the insurer]…does not take issue with that explanation nor does it oppose the PIC granting leave for the claim to be referred for assessment.
At a Teleconference held on 15 August,2022 I directed the claimant’s solicitor to file and serve in the Portal any statements from the claimant explaining why his claim was late by 5pm Monday 29 August 2022. I also directed the insurer’s solicitor to file and serve in the Portal any response by 5pm Monday 12 September 2022. By the date of this decision, I had not received any further response or submissions from the insurer’s solicitors.
The dispute comes before me to determine if leave will be granted for a late claim to be made.
SUBMISSIONS
I have considered the documents provided with the claim form, the reply and further information including the parties submissions and the claimant’s and his solicitors statements.
I will briefly summarise the submissions concerning the full and satisfactory explanation and then summarise the claimant’s explanation.
In his statement dated 17 August 2022 (AD 4), the claimant gave the following explanation for his late claim. He said that he first spoke to another firm of solicitors in 2019. He then instructed his current lawyers in early 2021 but did not have a conference with them until
21 February 2022. On 5 July 2022 he received a call from his solicitor with the assistance of an interpreter.The claimant stated that his solicitor :
“…. explained to me the circumstance surrounding the three-year limitation and late lodgement of an Application for Damages under Common Law.
I understood that this meant my claim for damages was late by one week.
I was not aware of the time limitations for making a claim for damages under the
Motor Accident Injuries Act 2017 until informed by my solicitor, Mr Tran.After being explained the importance of signing the Application for Damages under
Common Law, I immediately signed the form to allow my lawyers to lodge a claim
on my behalf.I wholly relied upon my lawyers to manage my claim and was of the belief that
everything was under control.”On 5 July 2022 a statement was provided by the claimant’s solicitor, (AD 1 A3). The statement gave an explanation for the delay in the making the Application for Damages. The solicitor stated that due to a clerical error, the date of injury and the three-year limitation, was not diarised into their case management system. The solicitor said this has caused an oversight and is the reason why they were not able to lodge an application with the Commission. On 4 July 2022 the solicitor conducted a practice review and became aware that the limitation date had passed during this review. This was about eight days past the limitation date. The solicitor stated: “The claimant has placed his full confidence in the firm and his potential claim for damages should not be disadvantaged due to our clerical oversight”.
In submissions dated 8 August 2022, (R 1), the solicitor for the insurer wrote that: “Allianz is prepared to accept the late claim, given the explanation provided by the claimant’s legal representative on 5 July 2022”.
RELEVANT LEGISLATION
The legislation relevant to this late claim can be briefly summarised as follows.
Under Division 7.6 sub-section 7.33 of the MAI Act, a claim for assessment cannot be referred more than three years after the motor accident unless a full and satisfactory explanation for the delay is provided.
Sub-section 7.33 provides:
“7.33 Time limits for referring claims and making assessment
(cf s 91 MACA)
A party to a claim cannot refer a claim for assessment under this Division more than 3 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.”
The meaning of “full and satisfactory” is set out in section 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by Claimant
(cf s 66 MACA)
(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 , from the date of the accident until the date of providing the explanation.
(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.”
Whether for the purposes of Part 6 (Motor accident claims) the claimant has given a full and satisfactory explanation for non-compliance for the delay is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-cl 3 (h) of the MAI Act.
Consideration of relevant case law
As referred to above, sections 6.2 and 7.33 require that the claimant cannot refer a claim for assessment more than three years after the motor accident unless they provide a full and satisfactory explanation for the delay in making the claim.
There is considerable case law about the meaning of the phrase “full and satisfactory”. The case of Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) discussed the meaning of sub-section 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 6.2 of the MAI Act.
The NSW Court of Appeal in Karambelas Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include 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’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, 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 delay is the period during which the Claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party Insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed”.
Is the explanation full?
Sections 6.2 and 7.33 require that the claimant provide a full and satisfactory explanation for the delay in making the application. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”.
In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2) MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In my view, I find that the claimant’s and his solicitors explanation in this case is sufficient to be considered a full explanation as to why his application was late. The reasons given by him and his solicitors in both their statements are sufficient to be considered a full account of the claimant ’s conduct, actions, knowledge and belief. The claimant’s explanation is that he relied on his solicitors and was not aware of the time limitations for making a claim for damages under the MAI Act until informed by his solicitor.
In my view, the claimant’s explanation satisfies the requirements of sections 6.2 and 7.33 of the MAI Act.
Is the explanation satisfactory?
I will now turn to a consideration of whether the claimant’s explanation is “satisfactory”.
Section 6.2 requires that the claimant provide a full and satisfactory explanation for the delay in providing the required particulars. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant . The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) 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. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
In my view, the Statutory Declaration dated 18 August 2022 from the claimant gives an explanation which supports a finding that a reasonable person in the position of the claimant would have been justified in experiencing the same delay. I am satisfied there is sufficient evidence before me to support a finding that the reasonable person in the claimant’s position would have experienced the same delay. The relevant test is whether a hypothetical reasonable person in the claimant’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306.)
The claimant’s explanation for the delay in making his application was set out in his statement, (AD 4). The claimant’s explanation is that the delay was caused by his reliance on his solicitors and was not aware of the time limitations for making a claim for damages under the MAI Act until informed by his solicitor. Any reasonable person in the claimant’s position would have experienced the same delay caused by the factors he has described in his statement.
CONCLUSION
I am satisfied that the claimant has a full and satisfactory explanation for the delay in lodging his application for damages. I find that the claim for assessment may be made more than three years after the date of the motor accident. I will issue a certificate to that effect.
LEGAL COSTS
In this late claim matter neither party made any application or submission on the awarding of legal costs for this dispute.
I asses legal costs in this matter at $NIL.
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