Jarvie v Allianz Australia Insurance Limited
[2022] NSWPIC 180
•30 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Jarvie v Allianz Australia Insurance Limited [2022] NSWPIC 180 |
| CLAIMANT: | Elaine Jarvie |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 30 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claimant seeks leave from the Personal Injury Commission to lodge her claim for damages after the three-year limitation period section 7.33 Motor Accident Injuries Act 2017 (MAI Act); satisfied a full and satisfactory explanation for the delay section 6.14(3) of the MAI Act within the meaning, section 6.2(1) and section 6.2(2) of the MAI Act; leave granted for the claim to be referred for assessment in accordance with the Motor Accident Guidelines. |
| DETERMINATIONS MADE: | 1. For the purposes of Part 6 the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay 2. Effective Date: This determination takes effect on 30 March 2022 3. Legal Costs: The Claimant is seeking the maximum regulated costs for the application relating to the late claim, a claim for damages. I am satisfied the Claimant is entitled to the maximum regulated costs for the above application. Only if the parties are unable to agree on the amount for costs, I invite the parties to provide me with evidence and submissions on the claim for costs and the Insurer’s reply. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to: The time limits for making a claim for damages.
The claimant, Ms Elaine Jarvie was involved in a motor vehicle accident on 14 June 2018 (the accident). She was crossing the roadway at the intersection of Latham Terrace and Monterey Street, Newington, when the insured’s driver collided with her, knocking her to the ground causing injuries.
Ms Jarvie sought legal advice from Stacks Goudkamp on 20 June 2018. A claim for damages was lodged with the insurer, Allianz Insurance Ltd. The following three years the claimant had regular contact with her legal representatives.
After participating in a settlement conference with the Insurer, Ms Jarvie lodged a claim for assessment of damages on 5 July 2021.
The Motor Accident Injuries Act 2017 (MAI Act) requires a claim to be lodged within three years within the date of the accident unless a full and satisfactory explanation for the delay is provided.
The claimant seeks leave from the Personal Injury Commission (Commission) to lodge her claim for damages after the three year limitation period.
Jurisdiction of the Commission
The application in this matter was lodged at the Commission.
The Commission commenced operation on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI 2017 Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
Legislation
The following legislation applies:-
(a) MAI Act, and
(b) Motor Accident Injuries Regulation 2017 (Regulations) and Guidelines .
The claimant seeks a determination with respect to a miscellaneous claim assessment matter. I have jurisdiction to determine this miscellaneous claim pursuant to Schedule 2(3)(h) and (l).
Late claim – claim for damages
The time for making a claim for damages must be made within three years after the date of the accident, section 6.14(2) of the MAI Act. Nevertheless, sections 6.14(3) and 6.14(4) of the MAI Act relevantly state;-
6.14(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.
6.14(4) – Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in such explanation.
Section 6.2 of the MAI Act gives meaning of a full and satisfactory explanation:-
6.2(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.
6.2(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.
The claimant’s explanation for delay
The claimant has filed a statutory declaration which is undated. She gives a full account of her conduct, actions, knowledge and belief from the date of the accident to the lodging of her claim for damages. She says at no time was she given advice about the requirement to lodge her claim for damages within three years of the date of the accident.
A further explanation for the delay can be found in the statutory declaration dated 7 March 2022 of Managing Director of Stacks Goudkamp, Thomas Julius Goudkamp. Mr Goudkamp explains he was relying on his knowledge and experience set out in the Motor Accidents Compensation Act which has no such three year limitation period. He admits the claimant was never informed by his firm of the requirements of section 7.33 of the MAI Act.
Insurer’s submissions
The insurer submits there is no further material to be provided by them that would add to the explanation that would assist me regarding the claimant’s explanation for the delay in lodging her claim for damages.
Is the explanation for the delay full and satisfactory
I am satisfied the claimant’s explanation for the delay is full and satisfactory. She has provided a full account of her beliefs, knowledge and conduct from the date of the accident until the time the claim for damages was lodged. At no time did the claimant have any advice her claim for damages must be lodged within three years from the date of the accident.
This explanation is supported by the further statutory declaration by Mr Goudkamp.
A reasonable person in the position of the claimant would have been justified in experiencing the same delays.
For the reasons set out above, I accept the claimant’s explanation for the delay in lodging her claim for damages is full and satisfactory.
Conclusion
The claimant is entitled to non-economic loss and as such, her injuries are not minor.
Having, accepted the claimant’s explanation for the delay in lodging her claim for damages is full and satisfactory, I grant leave for Ms Jarvie’s claim to be referred for assessment in accordance with the Motor Accidents Guidelines.
Costs
The claimant is seeking the maximum regulated costs for the application relating to the claim for damages. If the parties are unable to agree on the amount for costs, I invite the parties to provide me with evidence and submissions on the claim for costs and the Insurer’s reply.
Elyse White
Member (Motor Accidents Division)
Personal Injury Commission
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