Kane v Australian Associated Motor Insurance Limited
[2013] NSWDC 294
•02 September 2013
District Court
New South Wales
Medium Neutral Citation: Kane v Australian Associated Motor Insurance Limited [2013] NSWDC 294 Hearing dates: 12, 22 and 30 August 2013 Decision date: 02 September 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Defendant's notice of motion (filed 17 April 2013) dismissed.
(2) Defendant pay the plaintiff's costs of the motion.
Catchwords: MOTOR ACCIDENT COMPENSATION - late claim - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant Legislation Cited: Evidence Act 1995, s 43
Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 85, s 85A, s 110Cases Cited: Buller v Black [2003] NSWCA 45
Currie v Dempsey (1967) 69 SR (NSW) 116; 86 WN (Pt 2) (NSW) 460
Diaz v Truong [2002] NSWCA 265
Ellis v Reko Pty Limited [2009] NSWDC 288
Figliuzzi v Yonan [2005] NSWCA 290
Hickey's Transport Pty Ltd v Gordon [2008] NSWCA 167
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104
Laidlaw v Touma [2002] NSWCA 190
Russo v Aiello [2003] HCA 53
Mancini v Thompson [2002] NSWCA 38
Walker v Howard [2009] NSWCA 408Category: Interlocutory applications Parties: Jeffrey Kane (plaintiff)
Australian Associated Motor Insurance Limited (defendant)Representation: Mr R E Quickenden (plaintiff)
Mr A Davis (defendant)
Whitelaw McDonald (plaintiff)
Moray & Agnew (defendant)
File Number(s): 2013/59323 Publication restriction: No
Judgment on notice of motion
1. INTRODUCTION
Jeffrey Kane commenced proceedings in February 2013 for damages arising out of a motor vehicle accident on 11 November 2010. The defendant insurer, Australian Associated Motor Insurance Limited ("AAMI"), has filed a defence relying on, among other things, that Mr Kane has no full and satisfactory explanation for his failure to lodge his claim in time and has no reasonable excuse for a contravention of s 85(4) of the Motor Accidents Compensation Act 1999 (the Act). AAMI applies to have the statement of claim dismissed for these reasons.
2. FULL AND SATISFACTORY EXPLANATION
Section 72(1) of the Act relevantly provides that a claim must be made within six months of the date of the motor accident. The claim was made in October 2011, about five months after the expiration of the six-month period.
Under s 73 of the Act a claim can be made outside the six-month period if the claimant provides a full and satisfactory explanation for the delay. If court proceedings are commenced in respect of a late claim, the insurer may apply to have the proceedings dismissed which the Court must do unless it is satisfied that the claimant has made a full and satisfactory explanation for the delay.
Accordingly, the issue for determination in this part of the application is whether Mr Kane has made a full and satisfactory explanation for the delay.
A. FULL ACCOUNT
To be a full and satisfactory explanation, the explanation must provide 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" according to s 66 of the Act.
A full account of the conduct requires an account of the actions, knowledge and belief of Mr Kane but not necessarily those of any other person, including those acting on his behalf (see Walker v Howard [2009] NSWCA 408 at [56], [106] and [133]). What is a full account is to be measured against the purpose of the provision which is to provide an explanation for the delay. Thus, all relevant information to explain the delay is required (see Walker at [57]). An affidavit of explanation may be exiguous and yet complete in saying what happened and why (Walker [104]).
Mr Kane gave an explanation in an affidavit read in the application. He was not cross-examined. The affidavit gave a detailed account of his employment and personal history as a police officer prior to the accident, the circumstances of the accident and his injuries and treatment in the period after the accident until the claim was lodged. Shortly after lodging the claim, Mr Kane provided an affidavit to AAMI seeking to explain the delay. An issue was belatedly taken about the six-week period between the time the claim was lodged and the date of the explanation. A further affidavit was read in the proceedings as part of the explanation for the delay and no issue was taken as to any differences between the two affidavits.
As to the period between making the claim and providing the explanation, I note that s 73 requires only an explanation for delay in "making the claim". However, s 66 requires "full account ... until the date of providing the explanation". This apparent difference does not appear to have received judicial consideration.
In Walker at [54], the President stated:
"The claimant, to provide the requisite explanation, must address acts and omissions relevant to the delay 'from the date of the accident until the date of providing the explanation.'"
I read the internally quoted words of the President as applying to the "acts and omissions" and not to the "delay". So read the meaning of the passage can also be written as "the claimant ... must address acts and omissions from the date of the accident until the date of providing the explanation, which are relevant to the delay [in making the claim]".
This construction is equivalent to the terms of s 66, which is concerned with the "conduct" (presumably the relevant conduct) until the date of providing the explanation. Section 66 does not specify that the period of delay concludes on the provision of the explanation rather than upon the lodging of a claim.
There is no suggestion in this case of a relevant circumstance occurring after the lodging of the claim and I do not find any to exist. Accordingly, the omission in the explanation to refer to any event between the date of the claim and the date of the explanation is of no significance.
As I said, Mr Kane in 29 paragraphs of his affidavit sets out in detail his conduct and beliefs in the 11-month period from the date of the accident until the date that the claim was made. The affidavit discloses that nearly five months after the accident Mr Kane was informed by his solicitor that he might be entitled to make a third party claim but that he needed to lodge such a claim within six months of the accident. None of these matters were challenged.
AAMI submits that Mr Kane does not set out "the context or content of that advice". I do not understand this submission. Mr Kane's affidavit sets out who advised him of the time period, the position of that person, the means by which he was told, his belief at the time and the content of what he was told. His affidavit states:
"On advice from the NSW Police Association on 6 April 2011 I telephoned Whitelaw McDonald, solicitor, and spoke to Tony Hetherington (solicitor). This was the first time I understood that I may be entitled to make a third party claim as distinct from a workers compensation claim. Mr Hetherington told me if I intended to make a third party claim I would need to lodge the claim by 11 May 2011. Until that conversation with Mr Hetherington I had no knowledge of the requirement to make a claim within 6 months from the date of the motor vehicle accident. This Information was never part of my policing experience or life experience before this date. I had never heard of the six month requirement or the Motor Accidents Authority of NSW at that time."
In my view, this paragraph provides the content and context of the advice. Of course, other things may have been said in the telephone conversation with Mr Hetherington, but there is nothing to suggest that any other part of the conversation was relevant to the explanation given by Mr Kane for the delay, nor did AAMI identify any other relevant matter conveyed or possibly conveyed to Mr Kane. If there were other relevant matters conveyed in that conversation, it was, of course, open to AAMI to cross-examine or seek to cross-examine Mr Kane about other matters in the conversation. As I said, this did not occur.
The second criticism by AAMI of the fullness of the explanation appears to be that Mr Kane's "determination to return to full employment was the driving force" for the delay and that this "is not sufficient to satisfy the requisite test". This one-phrase summary of Mr Kane's belief does not fairly describe the explanation he has provided. It makes no reference to Mr Kane's ignorance of the six-month time period for making the claim until, approximately, five months had elapsed, his belief that he would be able to continue full operational duties that he was then undertaking, his efforts to move on with his life, his failure to recognise his recurrent thoughts of the accident and lack of sleep as indicating a medical condition, his decision not to seek any medical treatment, his belief that it might be an indication of weakness in the police force if he complained of these symptoms, his belief that these symptoms would pass with time, his certain belief that he had no mental or psychiatric illness. Nor does this summary refer to the incidents in late April, late June and mid-September that increasingly manifested a significant back problem, or the treatment in September which manifested to him a possible mental condition. All these matters are set out in detail in his affidavit and give substance and colour to the reasons why the claim was lodged some five months late.
AAMI's third criticism of the application is that a file note from Ian McCombie, dated 30 September 2011, is said to be inconsistent with the explanation offered by Mr Kane. Mr McCombie's notes record "was too busy and too unwell to claim before". Even if I were to assume that the note was about the busyness and wellness of Mr Kane and not, for example, his solicitor, it nevertheless remains unclear whether this note records Mr McCombie's opinion or thought, or something Mr Kane said. In any event, where Mr Kane has not been cross-examined about the matter in the note, and thus Mr Kane has had no real opportunity to explain any possible conflict (cf Evidence Act 1995 s 43(2)), I do not think this note can fairly assist AAMI.
In relation to this same issue, AAMI makes reference to other notes of Mr McCombie dated 1 May 2012, 1 June 2012 and 10 August 2012. Although the submissions do not identify the significance of these notes, my review of the notes revealed that they indicate a concern about the progress of the claim, which in 2012 is of no significance to the adequacy of the explanation of the delay.
AAMI also makes reference to "ongoing complaints to medical practitioners throughout the period of time during which the claim was to be filed". These ongoing complaints are not identified by AAMI. Mr Kane's affidavit records how by at least 6 April 2011, well within the six-month period, he was performing full police operational duties and believed that would continue. That Mr Kane was having medical treatment for physical injuries before that time is not in contest and is of no significance in providing an explanation as to why by 11 May 2011 he had not lodged a claim.
AAMI also complains that Mr Kane has not satisfactorily explained why in the early part of 2011 he claimed under the Workers Compensation Act 1987 but not under the Motor Accidents Compensation Act 1999. But Mr Kane does give an explanation of why he claimed under the one and not the other. The substance of this complaint appears to be that it is odd for a workers compensation claim to be made but not a third party claim. This perceived oddity is not clarified by AAMI. I have some doubts as to whether it is necessary for Mr Kane to explain why he made a workers compensation claim in giving an explanation of why he failed to make a third party claim in the time period. But in any event, he has done so. He explained that his concern was to be compensated for "any future medical expenses for [his] physical complaints particularly back pain". I understood it to be conceded by AAMI that the workers compensation claim would provide compensation for future medical expenses associated with his back pain.
Finally, AAMI is critical of Mr Kane giving an explanation of his knowledge of third party claims prior to being informed by Mr Hetherington of the six-month time limit. This is said by AAMI to be "of no relevance whatsoever". If this were true, it would say nothing adverse about the adequacy of the residue of the explanation. But the submission is incorrect. The Act requires an explanation of his "knowledge and belief...from the date of the accident " (see s 66(2)). Thus, this material was relevant in explaining the first five months of delay after the date of accident, as Mr Kane is obliged to do.
In my view, none of the criticisms of Mr Kane's explanation not being "full" have substance. The explanation given is sufficient to satisfy the Court of the requirement that Mr Kane gave a full account of his relevant conduct, actions, knowledge and beliefs in accordance with s 66(2) of the Act.
B. SATISFACTORY EXPLANATION
Section 66(2) of the Act relevantly provides that an explanation for the delay is not satisfactory:
"unless a reasonable person in the position of the claimant ... would have been justified in experiencing the same delay".
I have considered a number of authorities including Russo v Aiello [2003] HCA 53, Mancini v Thompson [2002] NSWCA 38 and Laidlaw v Touma [2002] NSWCA 190 at [19].
In Buller v Black [2003] NSWCA 45, Giles JA at [95] notes:
"The requirement must be understood for its function in the wider scheme in the Act. Section 43 states as its object, that is, the reason for the six month time limit, promotion of the early making of claims to enable the insurer to commence investigation while evidence is available, to identify injuries and facilitate access to injury management and rehabilitation services, and to more accurately predict claim frequency and hence formulate premiums. Late claims will still be recognised provided a full and satisfactory explanation for the delay in making the claim is provided, but only if the claimant's explanation is (relevantly) satisfactory, and satisfactoriness is given a minimum content. A person with knowledge of the six month time limit, in particular, can not tarry."
In Figliuzzi v Yonan [2005] NSWCA 290, Santow JA at [29] referred to the recognition of Gleeson CJ in Russo v Aiello (2003) 215 CLR 645 at [7] that a reasonable person could experience a delay where that person suffered a delay in the onset of symptoms. Santow JA noted, "In such a case the claimant can be either unaware of her symptoms, or, I would add, unaware of their full extent". Although Santow JA was in dissent, this principle does not appear to have been disputed. Also, this principle is recognised in s 73(2) of the Act which provides:
"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 any such explanation."
The principle has application to the present case. Mr Kane's explanation identifies that he had returned to full duties by April 2011 and again, after an aggravating incident in late April, by late May or early June 2011. The back symptoms became more severe from late June 2011 and the psychological symptoms became manifest in August 2011.
Although the language of s 66(2) expresses the reasonable person test as a necessary component of proving a satisfactory explanation, it has been authoritatively held that this test is also sufficient to establish a satisfactory explanation (see Walker at [95]).
In Ellis v Reko Pty Limited [2009] NSWDC 288 at [20], Knox SC DCJ stated:
"The focus of the procedure in determining the concept of a satisfactory explanation is upon justifying it rather than excusing it - per Russo v Aiello [2003] HCA 53 per Gleeson CJ at [7]; (2003) 215 CLR 643; Smith v Grant [2006] NSW CA 244 at [55]. The matter is then determined by looking at whether the conduct is justified by reference to the way in which a reasonable person in the position of the applicant could have been expected to behave."
Diaz v Truong [2002] NSWCA 265 indicates that the Court must take into account the subjective circumstances of the claimant for the purpose of deciding whether a reasonable person standing in the position of the claimant would have been justified in experiencing the same delay. In Hickey's Transport Pty Ltd v Gordon [2008] NSWCA 167 at [59], the Court of Appeal appeared to recognise that the length of delay was a relevant matter. In the present case, the delay is about 11 months, or five months beyond the allowed period. This is not a lengthy period.
The reasonable person test in s 66 requires a court to consider a reasonable person in the position of the claimant (see Walker at [108]). The ambit of this phrase "in the position of the claimant" is open to argument (see Walker at [137] - [152] per Young JA). It seems that the reasonable person must be given Mr Kane's symptoms, experience of the accident and his knowledge of his rights and entitlements. Whether Mr Kane's beliefs are also part of the reasonable person in Mr Kane's position might be doubted particularly if those beliefs do not reasonably arise from his symptoms.
It seems to me that if Mr Kane acted reasonably then a reasonable person in his position would have been justified in experiencing the same delay. In my view, Mr Kane did act reasonably. He had a proper basis for concluding that he would not make a third party claim. In March 2011, his only residual concern was that he would be compensated for future medical expenses. It was not suggested, as I mentioned, that workers compensation would not provide that benefit. On 6 April 2011 he was performing full police operational duties. Although on 22 April 2011 he aggravated his condition, by the end of the six-month period he was improving and expected to soon be back on full duties. That expectation was correct as he was certified as fit to return to full duties three weeks later.
In these circumstances, I think it reasonable that Mr Kane would not lodge a claim. I do not think a reasonable person would lodge a claim in circumstances where a claim was not intended to be pursued because the symptoms of the claimant were not sufficient to warrant it.
Mr Kane was also having "thoughts of the incident" and experiencing "lack of sleep". If those matters suggest a mental condition, then a reasonable person, in my view, would claim. Mr Kane did not think that they meant he suffered from a mental condition, nor does AAMI submit that these matters were sufficient to warrant the lodging of a claim by a reasonable person. I am not persuaded that they do.
I referred earlier to the reliance by AAMI on Mr McCombie's notes and ongoing symptomatology that were said to be inconsistent with Mr Kane's explanation. AAMI asserts that, "[t]his is not consistent with the condition improving". If it were established that the symptoms in April and May 2011 were worse than those indicated in Mr Kane's affidavit, then it may be a factor weighing against satisfactoriness of the explanation, but as I have said, Mr Kane's affidavit was not challenged and in the circumstances, fairness does not allow me to reject his account on the basis of another person's notes of his complaints.
In any event, the records referred to for this period in April and May 2011 do appear to support the claim that the condition was improving. The notes recorded on 10 May 2011 "improving" and on 1 June 2011 "has improved greatly with physio and exercises". This evidence does not support the assertion of AAMI.
AAMI also relies upon the decision in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104. That decision was not concerned with lodging a claim but with the expiration of a limitation period to commence proceedings and involved a discretionary grant of leave. It does not involve the finding of a full and satisfactory explanation and so it is not applicable to the present circumstances.
Further, AAMI relies on the decision in Figliuzzi to assert that a reasonable person would act on advice. If the advice was professional advice, so much can be accepted, but there was no evidence of any advice in the present case that was not acted upon. To fail to lodge a claim after being advised that a claim is "available" as distinct from being advised that a claim should be lodged, is not failing to follow advice.
In my view, a reasonable person in the position of Mr Kane would have been justified in not lodging a claim in May 2011 and I accordingly find the explanation he gave, and has given to the Court, to be satisfactory. Accordingly, I reject the application for dismissal of the proceedings under s 73(7).
C. PARTICULARS
Section 85 provides:
"85 Duty of claimant to co-operate with other party
(cf s 48 MAA)
(1) A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person's insurer for the purpose of giving the person and the insurer sufficient information:
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement.
(2) In particular, the claimant must comply with any reasonable request by the other party or the other party's insurer:
(a) to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records, or
(b) to provide a photograph of and evidence as to the identity of the claimant.
(3) The reasonableness of a request may be assessed having regard to criteria including the following:
(a) the amount of time the claimant needs to comply with the request,
(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,
(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,
(d) how onerous it will be for the claimant to comply with the request,
(e) whether the information is privileged,
(f) whether the information sought is sufficiently specified,
(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.
(4) The duty under this section applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues."
Section 85(1) identifies three purposes for the information required. Only the third, though, has any significance in the present application. AAMI did not rely upon any inability to assess liability or any inability to determine whether the claim was fraudulent. In any event, the claim form itself appears to me to provide sufficient detail to enable the insurer to assess liability and the genuineness of the claim.
It appears that little, if any, attention was paid by the insurer to the information supplied with the claim. It included the following material:
"25 What are your injuries from the accident? (List all injuries and affected areas of the body, e.g. fracture to left leg and neck strain)
[handwriting] Neck pain. Lower Back pain sometime extreme pain to lower back caused by disc protrusion of lower back at L2, L3, L4 and minor at L5. Post traumatic stress disorder causing insomnia, anger, anxiety, nervousness, etc.
26 How do the injuries affect you now? (The effect of your injuries may change over time, e.g. have to use crutches and wear neck brace)
[handwriting] I have constant lower back pain which prevents me from doing most activities and those that I can do, I can only do for a short time. This includes such simple activities such as sitting down for more than 5 minutes ... it makes it very difficult and painful to complete normal household duties such as cleaning, lawn mowing and playing with my children. At times the pain is so severe I cannot move at all. I suffer from insomnia that causes me to wake all through the night and it is difficult to actually get to sleep. I am on medication to try and assist my sleep. I am extremely nervous when my family travels in cars especially when I am not driving. I am also very anxious in a car when I am not driving. Being seated in a veh for any extended period leaves me with a sore back. I find that I break down a cry when I think about my difficulties and this is all the time. I am overprotective of my family now and this leads to household tension and I get extremely angry at the most minor thing. None of these injuries, pain or emotional issues were present prior to this incident." [sic]
Notwithstanding this information, the first two requests by AAMI that it asserts were both reasonable and not adequately answered are:
"1. Nature and extent of all injuries sustained by the claimant in the accident.
2. What continuing or permanent disabilities are alleged?"
This request was made within six months of the claim form being submitted. Plainly this is "information which has already been supplied" under s 85(3)(c), which is part of the statutory criteria for assessing whether the request is reasonable.
In my view, it is not reasonable for an insurer to make a request for information already supplied by the claimant, at least in circumstances where the insurer does not identify the inadequacy of the provided information. That was not done here. Nor do I think that there was any inadequacy in that information supplied.
AAMI read unpaginated affidavits comprising about 300 pages of material, all but five pages of which comprised annexed documentary material. About 280 pages of that material was not the subject of any reference in submissions. Yet those pages comprised information supplied to AAMI, in the possession of AAMI or available to AAMI. AAMI's answer to this material was to submit that it was for the claimant to disprove the reasonableness of the request and to complain when the claimant sought to address the relevant factors listed in s 85(3) by means of a schedule served during the application.
Generally, a party who applies for an order must prove the entitlement to that relief: "He who asserts must prove" (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125; 86 WN (Pt 2) (NSW) 460 at 468). To prove a failure to comply with a duty in s 85(1) and (2) the insurer must prove, first, a request, secondly, that the request is reasonable having regard to the s 85(3) factors, and, thirdly, that the claimant has failed to comply with the request. Only then does the question of reasonable excuse for the failure under s 85(4) arise. My inclination is that reasonable excuse is a matter for the claimant to prove. At least, the claimant would need to raise an excuse that can be assessed as reasonable or otherwise. But the applicant insurer needs to prove the three matters listed above: a request, that is reasonable, with which there was no compliance.
In any event, I do not regard the onus of proof as being determinative in this matter.
AAMI sought particulars in a letter dated 5 April 2012 and received a response dated 5 February 2013. On 8 February 2013, AAMI wrote as follows:
"We refer to your correspondence of 5 February 2013 and thank you for your response.
We confirm however that a number of Section 85A Particulars remain outstanding which we outline as follows:
1. Nature and extent of all injuries sustained by the claimant in the accident.
2. What continuing or permanent disabilities are alleged?
3. Please particularise all impairments.
4. Please also let us know if the claimant contends that he exceeds the s 131 threshold? If so, on what basis.
5. Please specify the specialities of all further experts that the claimant intends to qualify or rely upon.
6. Full itemised particulars of all out of pocket expenses claimed. (Please provide names of providers together with amounts). Please advise the total sum claimed.
7. Particularise any claim made by the claimant in relation to future out of pocket expenses advising the type of out of pocket expenses claimed into the future, the duration over which such out of pocket expenses are claimed and the cost of such out of pocket expenses. Please advise the total sum claimed.
8. Please quantify any claim for loss of earnings to date.
9. Please particularise any other claims for damages arising from the subject accident.
10. Please provide copies of the claimant's tax returns for the three financial years preceding the accident to date as well as notices of assessment issued by the Australian Taxation Office for those years.
11. Please let us have a copy of the most recent Medicare History Statement.
12. Please have your client execute and return the enclosed authorities to Collarenebri, Walgett and Maclean Hospitals.
13. With respect to your response at Point 14, please also provide the name and address of all medical practitioners, therapists and hospitals the claimant attended upon in relation to the work incident in around 2004 when he experienced back pain.
We refer you to Section 85(4) of the Act and look forward to receiving the requested particulars in the near future."
This was the only outstanding request as at 18 February 2013 when proceedings were commenced and in my view, should be taken to record the matters that remained of concern to AAMI.
Although AAMI refrained from considering each of these numbered questions individually against the s 85(3) factors, the claimant has sought to do so by the schedule to which I earlier referred. I invited AAMI to answer the schedule either orally, or in writing within two and a half days. That opportunity was declined.
AAMI faces two initial difficulties. First, AAMI submitted that the claimant was not entitled to commence proceedings because s 85(4) provides that, "court proceedings cannot be commenced in respect of the claim while the failure continues". AAMI submitted that this failure has existed at all times since April 2012. Yet on 22 November 2012 AAMI served a s 110 notice. Section 110 provides:
"110 Insurer may require claimant to commence court proceedings
(cf s 52B)
(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:
(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and
(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.
(2) The claimant must comply with the notice within 3 months after its receipt.
(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.
(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.
(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice."
In my view, a notice under this section (at least if it is valid) unequivocally asserts an entitlement in the claimant to bring a claim. When asked about validity, AAMI by its counsel declined to regard the s 110 notice as invalid. But invalidity must follow from s 110(1)(a) if the claimant was not entitled to bring a claim because of the effect of s 85(4).
The proper conclusion is that the s 110 notice operated to waive any outstanding particulars entitling AAMI to rely upon s 85(4). AAMI has elected to remove any disqualification on commencement by compelling the claimant to commence. Having told the claimant it was entitled to commence and compelling it to do so, it cannot be heard to say that the claimant was not entitled to commence.
The claimant principally relied upon the s 110 notice as a "reasonable excuse" under s 85(4), if an excuse were needed. I accept that submission. But s 110 also operates to remove any inability in the claimant to commence proceedings by reason of the outstanding particulars.
In circumstances where the claimant is compelled to commence proceedings by 22 February 2012 in accordance with the s 110 notice, I do not regard a request for particulars on 8 February 2013 attempting to preclude commencement of proceedings under s 85(4) as reasonable. This intent of AAMI is made reasonably plain by letter dated 29 January 2013, which states:
"Further to the s 110 notice dated 2 November 2012 served upon your office on 23 November 2012, we would also be grateful if you would ensure the particulars requested on 5 April and 12 June 2012 are provided in advance of the commencement of proceedings, as required by s 85, if the matter is to be pursued."
If the s 110 notice did not waive any entitlement to outstanding particulars then the claimant would be left somewhere between Scylla and Charybdis: unable to commence because of s 85, but compelled to commence by s 110. This cannot be right. In my view, the service of the s 110 notice operated as an abandonment by AAMI of any entitlements it had under s 85. I note that once proceedings are commenced no duty under s 85 continues, by reason of s 85(4).
The second initial difficulty faced by AAMI is that the request on 8 February 2013 did not purport to rely on s 85 but s 85A. Section 85A provides:
"85A Duty of claimant to provide relevant particulars of claim
(1) A claimant 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.
(2) The Authority may approve a form to be completed by claimants in connection with the provision of particulars in compliance with this section.
(3) For the purposes of this section, relevant particulars about a claim are full details of:
(a) the injuries sustained by the claimant in the motor accident, and
(b) all disabilities and impairments arising from those injuries, and
(c) 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."
The purpose of this provision is to enable "proper assessment of the claimant's full entitlement to damages" and is different from the purposes for the information sought in s 85 as listed in ss 85(1)(a), (b) and (c). More importantly, a breach of s 85A does not expressly preclude commencement of the proceedings, unlike s 85(4).
AAMI does not rely on any breach of s 85A as justifying the orders sought.
I note that AAMI refers to s 85(4) at the conclusion of its letter dated 8 February 2013. To the extent that this reference indicates reliance on s 85(4) it manifests a misunderstanding of the impact of s 85A. Properly read the letter of 8 February 2013 does not seek to controvert the impact of the s 110 notice by precluding the commencement of proceedings because it is expressly confined to "Section 85A Particulars" rather than s 85. The reliance on s 85 in earlier letters does not overcome this difficulty given that the earlier letters all precede the claimant's response on 5 February 2013.
Accordingly, I regard the request dated 8 February 2013 as the only outstanding request prior to the proceedings being commenced. I also regard it, as it states expressly, as a request under s 85A and not s 85. AAMI does not, as I said, rely on any breach of s 85A, but asks me to ignore the express reference to 85A. I do not think there is any basis for me to do so.
Also, the terms of the letter dated 8 February 2013 indicate that it subsumes previous requests.
For these reasons, I reject the application under s 85.
However, in case I am wrong I propose to make some comments about the particular requests, quoted above, and ignore for this purpose both the reference to s 85A in the request and the election inherent in the s 110 notice.
I have already dealt with, effectively, the first three requests, which I find to be unreasonable because they are already answered by the claim form. By the schedule attached to his submissions, the claimant also referred to further material in the evidence which was in the possession or available to AAMI which would add to the unreasonableness of those requests.
Further, I reject any entitlement in AAMI to ask, as in question 5, for the specialities of all medico-legal experts. That is a matter of privilege, a relevant factor identified in s 85(1)(e). Nor can it be reasonable for AAMI prior to the proceedings being commenced to know of decisions to be made by the claimant shortly before or during the trial. The claimant in this case had identified all 11 of his treating doctors and their specialities in the claim form provided to AAMI.
AAMI also relied on requests numbered 4 and 7 to which similar requests had been answered, "To be advised". The claimant submits that it could not answer the questions about the s 131 threshold until further expert assessment had taken place. As the claimant's letter of 5 February 2013 had stated, AAMI did not dispute this proposition and I am inclined to accept it. I am also not persuaded that a request about whether the claimant "contends" something about his injuries is properly information falling within s 85, but if it does I am persuaded that the claimant has established a reasonable excuse.
The claimant was asked about future out-of-pocket expenses claimed. This seems to me to be onerous under s 85(3)(d) (see also (a) and (g)). Until such time as the claimant has completed all medical assessments, at least, and perhaps until he has actually incurred the expenses, he cannot provide details of expenses. How else can they properly be described as "out-of-pockets"? Further, the length of time needed to comply with this request becomes more significant when the s 110 notice was close to expiry. For these reasons, I do not regard this request as reasonable.
In relation to the loss of earnings and other damages to date, the claimant responded on 5 February 2013:
"During the 2009/2010 financial year, the claimant earned the sum of $68,333.00 net or $1314.00 per week. He off work totally unfit [sic] until mid January 2011, at which time he resumed working in a variety of restricted hours and duties as dictated by his medical condition. During his periods of total and partial incapacity, the claimant received various payments of workers compensation from Employers Mutual Limited claim reference number 770519083607. A list of those payments has been requested (3 December 2012) and will be supplied upon receipt.
The claimant also claims the sum paid by way of weekly payments by Employers Mutual Limited from 11 November 2010 until trial. In addition the claimant also claims any tax deducted by Employers Mutual Limited pursuant to the principal [sic] of Fox v Wood. The claimant also claims loss of his superannuation entitlements at 9% of the net past loss pursuant to the Superannuation Guarantee Legislation.
9. Future Economic Loss - $1290.00 per week for 21 years - (5% multiplier 685.6 less 15% for vicissitudes) = $751,76100.
The claimant's future economic loss is calculated on the basis of the award rate for a Senior Constable Level 6 Step 1 which equates to an annual loaded gross salary of $89,553.00 pa."
Without reference to this answer received on 6 February, AAMI repeated its request two days later. I do not regard this as a reasonable request bearing in mind the factors listed in paras (a), (c), (d) and (g) of s 85(3).
AAMI also asked for the past three years' tax returns. The claimant supplied group certificates for the three years on 6 February 2013. Again, on 8 February 2013 AAMI reiterated the request without reference to the material supplied. It seems to me that in the absence of some identified reason (which was not suggested by AAMI), the group certificates show the relevant income of the police officer for the relevant years. The request thus offends the factors in s 85(a), (b), (c) and (g) in requiring the further information.
The most recent Medicare statement was requested and said to be unavailable. AAMI did not challenge this matter and the request simply repeated. I do not think that I can conclude that the request was reasonable, cogent and that the information was otherwise unable to be obtained without some submission and evidence from AAMI to that effect.
AAMI also sought authorities from the claimant, but AAMI had already obtained a relevant signed authority as part of the claim form. No submissions were made that the authority thereby provided was insufficient. In the absence of such submission, the further request for an authority is unreasonable.
The final request, made for the first time one week before the claimant was obliged to commence proceedings, sought information about doctors, therapists and hospitals which were connected with "back pain" experienced by the claimant on one occasion eight years previously. Considering the matters in paragraphs (a), (b), (c), (d) and (g) in s 85(1), I regard this request as unreasonable.
Accordingly, for all these reasons, I reject AAMI's notice of motion.
The orders of the Court are:
(1) Defendant's notice of motion (filed 17 April 2013) dismissed.
(2) Defendant pay the plaintiff's costs of the motion.
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Decision last updated: 04 March 2014
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