Kim v IAG t/as NRMA Limited
[2021] NSWPIC 369
•9 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kim v IAG t/as NRMA Limited [2021] NSWPIC 369 |
| CLAIMANT: | Gi Bum Kim |
| INSURER: | IAG t/as NRMA Limited |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 9 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages for motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitation period; damages; reasonable person in claimant’s circumstances; reliant on solicitor’s legal advice; Held – late claim can be made as claimant had a full and satisfactory explanation for delay ; claim put on “stood over list” as not ready due to delay from medical assessment; Procedural Direction MA1. |
| DETERMINATIONS MADE: | 1. A late claim 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 in making the claim. 2. The Commission grants leave for the claim for damages to be referred for assessment. 3. I direct that pursuant to rule 13 of Procedural Direction MA1 these proceedings be referred to the stood over list for a period of up to six months. |
Background and Introduction
This determination relates to a miscellaneous claims assessment for a late claim for damages under sections 6.2, 6.14 and 7.33 of the Motor Accident Injuries Act 2017 (MAI Act)
The Claimants, Yoon Young Kim and Gi Bum Kim, were injured in a motor vehicle accident on 11 December 2017. Their car was being driven by Gi Bum Kim on Silverwater Road when they stopped to avoid another accident and were hit from behind by another car.
Both Claimants, Yoon Young Kim and Gi Bum Kim, have made claims for an assessment of damages and to have their late claims accepted. In these reasons a reference to the Claimant is a reference to Gi Bum Kim unless otherwise indicated.
On 16 December 2017, the Claimant’s solicitors lodged an Application for Personal Injury Benefits Form, (A 1).
On 15 January 2018, the Insurer wrote to the Claimant and advised that it accepted liability for the payment of statutory benefits for a period of 26 weeks from the date of the motor accident, (AD 2).
On 24 October 2019 Dr Thomas Oldtree Clark issued an Impairment Certificate with a psychiatric diagnosis of “Major Depressive Disorder” of 15 % Whole Person Impairment, (AD 4).
On 20 January 2020, the Claimant’s solicitors lodged an Application for Damages under the Common Law claim form with the Insurer, (AD 1).
On 21 April 2020 the Insurer issued a section 6.20 notice admitting liability for the common law claim, (AD 3).
On 23 March 2021, the Claimant’s solicitor lodged an on-line application for a miscellaneous claims assessment for a late claim. In the application the following note appeared:
“The matter is currently before PIC for a medical assessment. Please find attached a full and satisfactory explanation for not lodging this application within 3 years of the date of accident”.
On 21 April 2021 the Insurer issued its Reply.
Also by letter dated 21 April 2021 (AD 3), the Insurer replied to the Claimant’s claim for damages. The Insurer wrote in part:
“We received your claim for damages on 20/1/2020. Section 6.20(1) of the Motor Accident Injuries Act 2017 requires us to make a decision on liability within three months of receiving your claim for damages.”
This appears to be exactly three months which is the notice period required under subsection 6.20 (1) of the MAI Act.
The dispute comes before me to determine where a late claim can be made and whether the Claimant has provided a full and satisfactory explanation for the delay in making the claim.
Submissions
I have considered the documents provided with the Claim form, the reply and further information including: the Insurer’s internal review, statements from the Claimants, their solicitor and medical certificates.
At the Telephone Conference on 10 August 2021, Ms Burgess the solicitor for the Claimants, advised that her clients are still waiting for a medical assessment. She said that they had appointments which were cancelled due to COVID. Further medical assessments for the Claimants were scheduled for September.
Ms Burgess confirmed that both Claimants are receiving payments of statutory benefits. Ms Burgess stated that she was making an application under section 7.33 of the MAI Act with a full and satisfactory explanation for the delay in making a claim.
At the Telephone Conference, Mr Samyia solicitor for the Insurer, indicated that the Insurer does not oppose the making of the application for the late claim. He drew my attention to the Insurer’s statement in the Reply document, dated 21 April 2021, which stated:
“The insurer does not oppose the making of the application and will provide substantive submissions in response once the claimant has provided his submissions and schedule of damages”
At the Telephone Conference, I indicated that having heard from both parties, and having reviewed the documentation in the Portal, I was prepared to grant leave for the claim to be referred for assessment. I said I would give a brief written decision and reasons.
Documents considered- Claimant’s explanation
The explanation for the late application is contained in the statement of the Claimant’s solicitor Robyn Burgess dated 23 March 2021 (A 1). I note the on-line application form in the PIC Portal dated 24 March 2021 refers to a full and satisfactory explanation statement attached to the form but there is no such statement attached. The reference below is to the statement made by Robyn Burgess dated 23 March 2021 (A 1) which is attached to the Claimant’s wife’s application which I have taken to apply to both applications.
Claimant’s solicitor’s statement Robyn Burgess dated 23 March 2021
The Claimant’s solicitor’s statement Robyn Burgess dated 23 March 2021 (A 1), states that:
(a) Because of the COVID pandemic the medical assessments that would have taken place were delayed. Consequently, the claim for damages could not be settled and an application for damages had to be made.
(b) While the Claimant was waiting for the medical assessments his solicitor believed (incorrectly) that time would stop for the purposes of section 7.33 of the MAI Act.
(c) The Insurer would not be prejudiced if the Commission grants leave for the matter to be placed in the stood over list as the Insurer was notified of the Claimant’s intention to pursue a common law claim on 20 January 2020 when the Claimant’s solicitors lodged an application for damages claim form.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
A claim for damages must be made within three years after the date of the motor accident, subsection 6.14 (2) of the MAI Act.
A claim for damages may be made after the time required by subsection 6.14 (2) (a late claim), if the claimant provides a full and satisfactory explanation for the delay in making the claim, sub-section 6.14 (3) of the MAI Act.
If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless……(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, subsection 6.14 (5)(b) of the MAI Act.
Subsection 6.14 (5) relevantly provides:
6.14 Time for making of claims for damages
(cf ss 72 and 73 MACA)
………………………
(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless—
(a) the insurer has lost the right to reject the claim on the ground of delay, or
(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or
(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.
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.”
Because sections 6.14 and 6.2 both appear in Part 6 of the MAI Act and subsection 6.2(1) refers to “this Part”, the definition of “full and satisfactory” set out in section 6.2 applies to a claim for damages made under section 6.14.
A party to a claim cannot refer a claim for assessment under Division 7.6 more than three years after the motor accident unless he/she 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, section 7.33 of the MAI Act.
A claim for damages may be referred for assessment under Division 7.6 and an assessment of the amount of damages may be made, subsections 7.32 (1) and 7.36 (1)(b) of the MAI Act.
Whether a late claim may be made in accordance with section 6.14 is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (l) of the MAI Act.
Accordingly, a “late claim” for damages can be made in accordance with the provisions of subsections: 6.14 (2), 6.14 (3) ,6.15 (5), 7.32 (1) and 7.33. A “full and satisfactory” explanation, as defined in section 6.2, must also be given. When considering whether a “late claim” for damages assessment can be made those sections should be read together to make sense of the process to be followed. Before a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim.
Consideration of relevant case law
As referred to above sections 6.2 ,6.14 and 7.33 require that the Claimant cannot make a claim for damages 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”. Karambelas’ case 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 v Zaknic (No. 2) [2014] NSWCA 433 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, 6.14 and 7.33 require that the Claimant provide a full and satisfactory explanation for the delay in making the claim for damages. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant.
The meaning of “full” in a previous version of the 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 its Reply the Insurer submits that it does not oppose the making of the application and will provide substantive submissions in response once the claimant has provided his submissions and schedule of damages.
The Claimant’s explanation for the delay in making his claim for damages was set out in the statement made on his behalf by his solicitor. Although his solicitor’s explanation is brief, the reasons given are sufficient to be considered a “full” account of his conduct, actions, knowledge and belief. His solicitors account can be summarised as follows. The Claimant’s medical assessments were delayed because of COVID limiting medical examinations. His solicitor incorrectly believed that the limitation period for the purposes of section 7.33 of the MAI Act would be suspended. The Insurer would not be prejudiced by the delay in making the claim for damages as it knew of the Claimant’s intention to pursue a common law claim on 20 January 2020 when the Claimant’s solicitors lodged an application for damages claim form.
In my view, the Claimant in this case has through his solicitor provided a sufficient and full explanation as to why his claim was late. His explanation satisfies the requirements of sections 6.2, 6.14 and 7.33 of the MAI Act.
Is the explanation satisfactory?
Sections 6.2, 6.14 and 7.33 require that the Claimant provide a full and satisfactory explanation for the delay in making the claim for damages. The definition in 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 its Reply the Insurer submits that it does not oppose the making of the application and will provide substantive submissions in response once the claimant has provided his submissions and schedule of damages.
The Claimant’s explanation for the delay in making his claim for damages was set out in the statement made on his behalf by his solicitor. Although his solicitor’s explanation is brief it is a satisfactory explanation as to why his claim was late. His solicitors account can be summarised as follows. The Claimant’s medical assessments were delayed because of COVID limiting medical examinations. His solicitor incorrectly believed that the limitation period for the purposes of section 7.33 of the MAI Act would be suspended. The Insurer would not be prejudiced by the delay in making the claim for damages as it knew of the Claimant’s intention to pursue a common law claim on 20 January 2020 when the Claimant’s solicitors lodged an application for damages claim form.
In my view, the Claimant in this case has through his solicitor provided a sufficient and full explanation as to why his claim was late. The statement from his solicitor and the reasons given are a “satisfactory” explanation. A reasonable person in the position of the Claimant would have been justified in experiencing the same delay. In this case Mr Kim and his solicitor had made a claim for statutory benefits and then in January 2020 they lodged an application for damages. It seems both were unaware of the limitation period until shortly after the three-year limitation period had expired and the application to make a late claim was made. Mr Kim’s explanation in this case satisfies the requirements of sections 6.2, 6.14 and 7.33 of the MAI Act.
Conclusion on the Late Claim
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging his application for damages. I find that Mr Kim’s late claim may be made. I will issue a certificate to that effect.
Stood Over List - Directions
The Claimant’s solicitor’s statement (paragraph A 1) requests that her clients application for damages be placed in the stood over list pending receipt of the medical assessments.
In March 2021 the Commission issued, “Procedural Direction MA1 – Stood over proceedings”. This Procedural Direction allows for a claimant in proceedings that are not ready for assessment to apply to the Commission to have the matter referred to the stood over list.
I have had regard to the Claimant’s solicitor’s statement which submits that her clients application for damages be placed in the stood over list due to the delay in obtaining the medical assessments. Due to the delay in finalising the medical assessments, I find that the proceedings are not ready for assessment. I issue a direction pursuant to rule 13 Procedural Direction MA1 referring the proceedings to the stood over list for a period of up to 6 months.
I note that under rule 15 the parties may have to apply to the Commission to have the proceedings restored for hearing unless an extension of time has been granted by the Commission. I have included a copy of rule 15 below:
“15. Proceedings will be discontinued at the expiry of six months from the day the proceedings were stood over and dismissed in accordance with Rule 101(3) of the PIC Rules, unless a party applies to have the proceedings restored for hearing, or unless an extension of time has been granted by the Commission. An extension of time may be granted at the discretion of the Commission in circumstances where the reasons for referral to the stood over list have not resolved despite the efforts of the parties.”
Legal costs
In this late claim matter neither party made any application or submission on the awarding of legal costs.
I make no assessment of legal costs in this matter.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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