Koura v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Koura v Allianz Australia Insurance Limited [2025] NSWPIC 589
CLAIMANT:	Jack Koura
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	5 November 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits under Part 3 made late; dispute about whether claimant has full and satisfactory explanation under section 6.13; insurer conceded fullness but argued claimant’s explanation not satisfactory; claimant is a doctor and did not seek treatment or make a claim for seven months after the accident despite severe pain and radicular symptoms; explanation was claimant thought he would get better; claimant was managing symptoms with over the counter medication and feared he would lose his job; Karambelas v Zaknic, Lye v Jeon, Walker v Howard, Diaz v Truong, and Russo v Aiello considered; Held – claimant’s explanation satisfactory; late claim can be made; costs assessed; de-identification order not made.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s (Commission) assessment is: 1. A late claim for statutory benefits may be made by Jack Koura in accordance with section 6.13 of the Act. 2. The amount of the claimant’s costs in the matter is assessed at $2,234.10 inclusive of GST. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Jack Koura was involved in a motor accident on 18 October 2023. Dr Koura is a medical practitioner in the NSW public hospital system.
On or about 10 July 2024, Dr Koura made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Allianz the third-party insurer of the motor vehicle Dr Koura believes caused the accident.
On 1 October 2024 the insurer issued a liability notice to Dr Koura denying any liability to pay statutory benefits to him on the basis the claim was made late and his explanation for why it was late was not full and satisfactory.
On 17 December 2024, Dr Koura sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 29 December 2024 the insurer affirmed that decision in part, agreeing the explanation provided was full, but maintaining that it was not satisfactory.
Dr Koura has referred the issue of whether his late claim can be made to the Personal Injury Commission (Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act. The proceedings were allocated to me.
I held a preliminary conference with the parties on 23 September 2025. The matter was set down for a short audio-visual assessment conference on 24 October 2025 so that additional evidence could be taken from the claimant. Mr Hanna appeared for the insurer instructed by Sparke Helmore solicitors and Ms Klimoski, a solicitor in the employ of Gerard Malouf and Partners appeared on behalf of the claimant.

LEGISLATIVE FRAMEWORK

Dr Koura’s claim is for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Section 6.13(1) of the MAI Act provides that a claim for statutory benefits must be made within three months after the date of the accident. If a claim is made more than three months after the date of the accident, but before the third anniversary the claim, can be made but the claimant is required to provide a “full and satisfactory explanation” for the delay. If a claimant has no such explanation, the late claim cannot be made.[1]
[1] See s 6.13(3).
The parties agree that Schedule 2, cl 3 (h) provides the Commission with jurisdiction to determine, as a miscellaneous claims assessment matter:
“… whether for the purposes of Part 6 (Motor accident claims) the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay …”

THE CLAIMANT’S EXPLANATION

First statement 10 July 2024

The claimant says in this statement:
(a)    he is 53 years of age, married with three children [2] and [4];
(b)    he was involved in a rear end collision at 5.00pm and his vehicle was pushed into the vehicle in front [6], emergency services did not attend [7] and he tried to report the accident to police on 15 July 2024 [8];
(c)    he sustained injuries to his lumbar spine (disc herniation), cervical spine (soft tissue), shoulders (soft tissue), right leg and foot (nerve damage) [9] and he provides an extensive list of disabilities and restrictions on his life at [10];
(d)    the claimant says that he was in “a lot of pain” at the time of the accident, but he thought his injuries would resolve [11] so he took pain medication, but his injuries did not resolve [12];
(e)    he did not see his general practitioner (GP) until 12 June 2024 and had physiotherapy on 31 July 2024 [13] and he takes medication (Panadol and Nurofen) including prescription medications (Lyrica and Mobic) [14];
(f)    the claimant says he was in good health before the accident and has not had any previous compensation claims [16] and that for the five years before the accident he attended on Auburn Central Medical Centre [17];
(g) Dr Koura says he is a medical doctor and obtained his degree in Russia in 1996 [18]. He has worked at Campbelltown Hospital from 2020 – 2022 and at the time of the accident was working at Blacktown and Mt Druitt Hospital [19], and
(h)    he says that since the accident (after July 2024) he had to reduce his hours and no longer works overtime and claims $600 a week in lost earnings [21] – [23].
In terms of the actual explanation, Dr Koura says:
(a)    despite the accident “being significant” he did not think his injuries “were significant enough to make a claim” [24];
(b)
his wife encouraged him to make a claim after he sought treatment on

12 June 2024 as she was fearful his condition would get worse, and his family relied on him financially [25];
(c)    his close friends and family have never made claims [26];
(d)    he was unaware of the three-month time limit and if he had known that he would have lodged a claim [27], and
(e)    he contacted his lawyer on 1 July 2024, had a teleconference with them and signed a costs agreement on 8 July 2024 [28] – [29] and the claim form was lodged with the insurer on 10 July 2024 [30].

Second statement 18 June 2025

The claimant’s second statement says in relation to his injuries and disabilities:
(a)    his condition has worsened and his pain level (in particular the pain in his back) has increased significantly [1] and he is contemplating “lumbar herniation surgery” [2];
(b)    his lower back pain radiates down his right leg and he has constant tingling and sharp shooting pain [3];
(c)    he has been unable to sit, stand or walk (10 – 15 minutes) without pain [4] and he cannot bend or squat easily [5];
(d)    his wife drives him most places because he cannot get comfortable [6] and he is using a shower chair “because I couldn’t stand for long periods” [7];
(e)    he has shoulder pain in particular left shoulder pain [8] and pain in his neck [9], and
(f) he continues to have physiotherapy, is doing hydrotherapy and is taking pain killers including Endone [12] and he has tried massage therapy and acupuncture. He has been referred to a neurosurgeon Dr Kam [14].
In terms of the explanation for the delay, the claimant says;
(a)    he has never made a claim for compensation and had no idea there was a three-month limit. He did not appreciate the seriousness of his injuries and even if he did, he had no knowledge of the three-month period [16];
(b)    that “everyone handles pain differently” and he pushes through and does not complain [17];
(c)    he kept working despite the “large herniation” because he does not want to rely on Centrelink or lose his job, his wife does not work, and he has three children two of whom are in a private school, and he cannot afford to stop working. He feared telling his employer about pain because he feared losing his job [18];
(d)    he says at [19] that he was in shock for the first week after the accident and within two weeks he experienced pain radiating down his right leg. He said as symptoms worsened, he took Mobic, Lyrica and Endone and tried acupuncture and massage. He says in the weeks and months he continued to work “through the pain” and that “my wife repeatedly asked me to get checked by GP, but I kept telling her I could handle it”;
(e)    as his symptoms worsened in particular the tingling and shooting pain, he began to “worry that I could end up paralysed” and that his injury was more than a back strain or muscle pain and he needed proper investigation and he “agreed [with his wife] to see GP for investigation”. He had a CT scan which he says was “the first in my life” and that was when he discovered the extent of his injury and when he realised that he needed to lodge a claim [20];
(f)    in answer to the insurer’s argument that there is no contemporaneous medical evidence he says at [21]:
“I would like to say that the absence of early medical records does not mean the injury does not exist. It simply reflects that fact that I was trying to manage it on my own while continuing to work. I thought my condition would get better, and I did not want to stop working.”
(g)    before the accident he was healthy and active and not on regular medication [22], and
(h) he understands he should have sought medical advice sooner and lodged a claim earlier, but he had never been in the situation before and was not aware of the time limits [23].

SUBMISSIONS

Claimant’s submissions

The claimant acknowledges at [16] that the insurer has accepted he has provided a “full account of his actions, knowledge and belief.” He says a reasonable person in his position would have done what he had done, and his delay is justified [17] and that:
“It is submitted that a lay person in the position of the Claimant, who has no understanding of the current CTP scheme and no knowledge as to his rights and entitlements in relation to personal injury claims, would not have appreciated the need to lodge a claim within the three-month limitation period.”
The claimant says he did not appreciate the severity of his symptoms until after he saw the doctor and had the scan. He notes at [23] that the insurer submits he should have known the severity of his injuries given his medical background. He refers to his second explanation which provides more details about his beliefs concerning his injuries [25a-b]. He submits his role as the sole breadwinner in the family meant “led him to prioritise work and family obligations over his own health and legal entitlements.” [25d] While he worked in a hospital, he says he himself has never had injuries or health issues and does not usually seek medical attention [25e].
The claimant refers to the decision of the Court of Appeal in Walker v Howard[2] saying that a reasonable person would have been justified in experiencing the same delay.
[2] [2009] NSWCA 408.

Insurer’s submissions

The insurer submits that the claim was made eight months after the accident without explanation [4.1].
The insurer cites Choukor v Spiroski[3] (Choukor) as well as Karambelas v Zaknic[4] (Karambelas) and says, the concept of a “satisfactory explanation” 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 occurred is reasonably justifiable”. The characteristics and circumstances of the claimant must be taken into account when applying the objective standard: Lyu v Jeon[5] (Lye).
[3] [2016] NSWDC 358.
[4] [2014] NSWCA187.
[5] [2012] NSWCA 446 at [22]-[23].
The insurer confirms its acceptance of the fullness of the explanation [4.10].
The insurer says the test of satisfactoriness is an objective one [4.11] and that a reasonable person in the position of the claimant would not have been justified in experiencing the same delay [4.12] because:
(a)    the claimant is a doctor and failed to seek medical treatment for eight months despite symptoms in that period [4.13];
(b)    he thought his injuries would resolve, but a reasonable person in the position of the claimant, being a doctor, would have appreciated the severity of the condition or sought to investigate it sooner [4.14];
(c)    within two weeks the pain began to radiate however he waited seven months before investigating it [4.15];
(d)    his GP certified him fit for work with restrictions (5 kg and standing for more than 15 minutes) but there is no evidence Dr Koura took time off work until he submitted the claim form eight months after the accident [4.16];
(e)    the claimant is a medical doctor in the orthopaedic department with a role that is physically demanding and he ought to have investigated his rights sooner [4.17];
(f)    the claimant is suggesting in his second statement that a reasonable person in his position would have tolerated his pain and continued to carry on working [4.18]. The insurer says the test is objectivity, and that a reasonable person in the position of the claimant’s would have appreciated the severity of his symptoms and sought treatment and advice earlier [4.19]. The insurer submits the claimant had plenty of time to seek treatment and make a claim and that he had medical knowledge and training to understand and appreciate the severity of and progression of his symptoms [4.20-4.21];
(g)    the insurer says at [4.22] there is an issue of causation noting the claimant was already taking Mobic at the time he saw his GP (which was the first time he saw that doctor at that practice) and that the insured said the claimant did not appear to be injured when he got out of the car after the accident;
(h)    the insurer says it is significant that the claimant continued to work dispute his neuropathic symptoms emerging two weeks after the accident [4.23];
(i)    the insurer says that the claimant on the one hand says he did not think his injuries were serious enough to make a claim but he says if he had known he only had three months he would have made the claim [4.24], and
(j)    the insurer says that the case of Choukor demonstrates the approach to take which it that the “reasonable person” is a person in the claimant’s position with his characteristics and injuries [4.25].
At the conclusion of Dr Koura’s evidence, the insurer made further brief submissions:
(a)    the claimant says there is a medical reason for not seeking treatment – this is not a case of symptoms getting better but symptoms which “ramped up” over time. He was hoping symptoms would go away but they were not getting better;
(b)    the test is an objective standard for the subjective individual. The reasonable person is one in the position of an orthopaedic surgeon. It was not a reasonable response, to not pursue treatment once his symptoms did not abate in a reasonable period of time, and
(c)    it is not reasonable for him to remain ignorant and to not take steps to inform himself. He knows about claims and his right to claim for personal injury. The only thing he did not know was the three months limitation period. With symptoms increasing it was not reasonable to remain ignorant and to not make enquiries.

REVIEW OF THE EVIDENCE

Claim form

The claim form is dated 12 June 2024. Dr Koura says he has not made a CTP claim before, and he denied having any pre-existing injuries or illnesses.
The claimant described the accident saying he was stopped at a red traffic light, and the insured vehicle hit his car in the rear and that he was propelled into the vehicle in front although his “leg was pushed hard on the brakes.” He says, “it was a huge impact, and I was in shock for a few minutes.” He says his car was a total loss and that “I remained in the car for quite some time”.
He describes his injuries as follows:
“I have experienced severe lower back pain with bilateral shoulder pain and leg pain, since the accident. Since the accident I have ongoing pain in my lower back with numbness and tingling sensation in my right leg. Even with painkillers the pain is not relieving. I haven’t gone to the doctor because I thought the pain will go away and I didn’t want to take any days off from my work. I have decided to attend the doctor and investigate my ongoing pains.”
The claimant says he is a doctor at Blacktown and Mt Druitt Hospitals working full time but that he has not been away from work as a result of the accident. He did not authorise the insurer to obtain wage details and employment information from his employer.

The insured driver’s statement

The insured driver, Mr Khalil provided a statement dated 10 August 2024 to the insurer’s investigators. He says he was driving his boss’s automatic car at the time of the accident [25] and [26] and that he had driven it many times before [27]. He was travelling with a friend in the passenger seat [29].
The accident occurred at about 5.00pm on the Cumberland Highway which was a 70 kmph zone at the time but it was peak hour so he was going much more slowly than that [33]. He came over a rise in the road and saw the traffic in front of him banked up. He braked could not stop in time and ran into the back of the other car at about 50 – 60 kmph [34]. Both driver and passenger side airbags deployed. He was a bit shocked, and that the claimant was the first person out of the vehicle “he appeared to have no physical injuries” [35]. Mr Khalil realised the claimant’s car had hit the vehicle in front.
All three drivers drove round the corner and exchanged details. Police and ambulance were not called. He does not know if the other vehicles were towed but says his boss’s car was towed the next day [36].

Medical records

The claimant’s GP Dr Zhang referred the claimant for radiology on 12 June 2024. The radiology was performed on 15 June 2024 and reported on 17 June 2024. The history given was “MVA 7 months ago. Patient complained of shooting pain to the right lower limb with tingling sensation 1 week after injury.”
There was mild to moderate facet hypertrophy from L1-2 to L4-5. There was a small disc bulge at L4-5 not causing any canal or neuroforaminal stenosis but there was a moderate central broad-based disc herniation at L5-S1 causing right neuroforaminal stenosis and mild to moderate left neuroforaminal stenosis. He recommended a CT guided epidural injection.
The claimant attended the Auburn Central Medical Centre on 12 June 2024. The clinical note on that date from Dr Zhang says:
“History of MVA 7 months ago, been work, took Mobic for low back pain, on 18/10/23 was hit by other car from behind. Patient complained of shooting pain to the right lower limb with tingling sensation. Symptoms comes and goes, RMO in Blacktown Hospital.”
The claimant returned on 18 June 2024 and was given education, analgesia and physiotherapy. A certificate of fitness was given and Lyrica 75 mg prescribed.
On 5 July 2024 Dr Zhang records persistent lower back pain with right sided sciatica and right lower limb numbness and the claimant apparently reported being unable to lift more than 5 kg or stand more than 15 minutes. Maxigesic was added to the medications and swimming and physiotherapy added to the treatments. On 19 July 2024 a script for Mobic was provided and a referral to a physiotherapist was given.
On 2 August 2024 the claimant complained of electric shocks when receiving massage to the left leg and numbness and pain to the right leg. On 30 August 2024 the claimant was without improvement, and he was “unable to stand and walk more than 15 minutes.”
On 25 October 2024 the claimant was referred to Dr Kam and prescribed Endone 5 mg every six hours as required (PRN). On 22 November 2024 it was noted that the claimant had not started taking the Endone and was taking Lyrica and Mobic with “some effect”. The claimant reported being unable to stand for more than 10 minutes and was working less hours. On

20 December 2024 the claimant was taking Endone and Lyrica and Mobic and was awaiting the report from Dr Kam.

On 7 February 2025 Dr Zhang provided a further script for Endone and recorded:
(a)    reduced right sided knee reflex (normal left);
(b)    positive straight leg raise on the right (negative on the left);
(c)    1cm smaller thigh circumference on the right compared to the left;
(d)    weakness of right first toe flexion and extension (L5/S1 dermatome), and
(e)    sensation of pain and touch reduced at right side L5/S1 dermatome area.
On 28 February 2025 the claimant reported to Dr Zhang that he was working four days a week, had lost 5kg and was taking Endone, Lyrica and Mobic. His weight was measured at 85.3 kg. Of note is that when he commenced attending the practice his weight was measured at 85 kg which suggests he had not lost 5 kg. On 22 April 2025 the claimant’s pain remained, along with the numbness and tingling and he said he was unable to stand for more than 15 minutes.

Claimant’s evidence at the assessment conference

The claimant said he was originally from Syria but moved to Russia to study graduating in 1996. He lived in Russia for 14 years and he worked in hospitals in Russia after his initial training mainly performing surgery. He was aware that in the 2000s a scheme for compensation was introduced for persons injured in car accident.
Dr Koura came to Australia in 2004, and while he was reluctant to pursue medicine here, his wife encouraged him to do so. It took about 16 years for him to learn English and convert his qualifications. While he worked at Campbelltown Hospital initially, he was, at the time of the accident employed by the Department of Health at the Blacktown and Mt Druitt hospitals.
In his first statement at [17] Dr Koura had said in the five years before the accident he had gone to Auburn Central Medical Centre. He was advised that his solicitors had informed the Commission he did not have a “regular GP” before the accident and that he had no past medical issues and no past medical history. The claimant explained that he had only ever seen Dr Zhang after the accident, and he could not recall whether he had seen any doctor at Auburn Central Medical Centre before the accident or whether he had accompanied his son there. After several questions he confirmed that he had seen doctors in the five years before the accident (and at various times since arriving in Australia) but that he did not have a “regular GP” attending anywhere that was convenient to him including practices at Chester Hill, Granville and Auburn.
He confirmed he did not get sick or have illnesses and might only go to the doctor for flu, vaccinations and things like that.
He was asked about his medication use and taken to his first statement at [14] where it was said he taking Panadol, Lyrica, Nurofen and Mobic. Dr Koura said he was not taking all of these medications at once or all of the time adding that he was also now taking Endone up to four times a day. He then clarified this by saying he does not use it when he drives because it makes him drowsy and gives him dizziness. Although he takes Endone four times a day, he also said he does not take it when he is at work because he is dealing with patients and he just handles the pain.
The claimant was asked about his attendance with Dr Zhang on 12 June 2024. It was suggested to him that at that time Dr Zhang’s notes say he was taking Mobic. Dr Koura said this was a mistake and that at this time he was only taking Maxigesic. Dr Koura confirmed that before he saw Dr Zhang on 12 June 2024 he was only taking over the counter medications and that it was Dr Zhang who prescribed him Lyrica and Mobic which was helping him. He said no one else had prescribed him Mobic before the accident.
Dr Zhang explained that he worked in the hospitals on rotation. He had spent time in emergency medicine and is now doing rehabilitation medicine but at the time of the accident he was on an orthopaedic and general surgery rotation. This involved surgery to the appendix, gall bladder, hernias as well as assisting surgical procedures on knees and hips (replacements) broken bones and so on. He said he mainly assisted with surgery because he was not a consultant orthopaedic surgeon.
Dr Koura says he does not have his own rooms and does not do private work. He is a resident medical officer (RMO) with the Department of Health. He agreed he had treated people who have had car accidents, sometimes in emergency and during their initial treatment. He said as an RMO he does ward rounds always, but not outpatients. He looks after patients after their admission to hospital and before and after surgery.
Dr Koura confirmed his surgical hours were from 7.00am to 4.00pm and that overtime was from 4.00pm to 9.00pm. He said he used to do a lot of overtime because it was expected that RMOs would do overtime. Dr Koura said he was unsure when he stopped doing overtime at one stage saying it was after the CT scan in July 2024 and at another time he said it was two months after the accident. He then said he had not stopped doing overtime completely, but had reduced the hours. I asked him whether he had to explain to his employer why he was not doing overtime and he said he just said he told them to “let the young doctors do it”.

Dr Koura says he is currently doing overtime once a week.
He said he has not told his employer about the accident and had not told his employer he was taking medication including Endone.
Dr Koura said he was not really doing surgery now but doing ward work as an RMO and when they need him for assistance. He says when he does ward rounds, he has to walk a lot but he takes breaks. He says he works at the computer typing up notes and writing prescriptions at other times.
He said a gall bladder operation can take on average an hour to perform and that hip replacement surgery would take between one and a half and two hours. I asked him whether he was sitting or standing? He said he was mostly standing but that due to his pain he stands on one leg resting his other leg to relieve his pain. He says he takes Panamax and Ibuprofen when he is at work.
I asked him about Dr Zhang’s certificates of fitness and overtime. Dr Zhang had certified him fit for normal duties on 18 June and 5 July 2024. The claimant said that “normal duties” included overtime. He said he thought he told Dr Zhang he could not stand or walk and that he was having difficulties in June and July doing overtime.
Dr Koura said that as an RMO he was entitled to sick leave and knew that if he was sick or his back was bad, he could take a day off work and get paid for it. He said he had taken sick leave but could not remember how much and preferred to use his “rostered days off” instead of sick leave.
Dr Koura said that he was aware he could make a claim if he was injured in a car accident he said “I know people make claims. I am a doctor, and I know these things.” But he was adamant he did not know about “the limitation” that is he did not know he had only three months to make a claim. He said after he saw Dr Zhang and had the scan, he asked friends whether he could still make a claim, and they told him he had 12 months to make a claim.
He confirmed that from the time he was involved in this car accident, he knew he could make a claim but that he did not know about the three months’ time period to make it.
He stated he did not realise how bad his injury was until after the scan and that he assumed his initial pain would subside with treatment and pain medication. When I asked what he meant by treatment he said he had not had “treatment” from anyone other than over the counter medication before he saw Dr Zhang.
Dr Koura said he had the accident and felt pain immediately and diagnosed himself with back pain “general back pain that everyone has” and he thought it would subside. He said his “main issue” was that if he attends a GP “they will inform my employer, and I will lose my job”. And he said he needs his job because he is the only person employed in his family and he has a lot of expenses.
He was asked about paragraph [11] of his first statement. He confirmed he had pain on the day of the accident, that he was in shock but felt a crack or noise in his back, then had pain. I asked whether he had “a lot of pain” at the time but he said he could not recall the severity of the pain. He said he was in shock and pain together and that the pain was increasing.
In his second statement at [19] I asked him about being in “shock for the first week”. He says this is an error and that he was not in shock for a week only at the moment of the accident.
He was asked about a later sentence when he had recorded that “within two weeks the pain started radiating down his right leg”. He said, “that is true”. I asked what his self-diagnosis was at that time and he said he thought he had “sciatic nerve root compression” caused by a slipped disc, inflammation or herniated disc”. Despite thinking of these things, he did not think, two weeks after the accident, that he needed urgent medical attention.
He was asked whether, from the end of October 2023 until June 2024 he had a lot of pain and it was radiating down the leg. He then said the pain at this time was “on and off”. And it was not “all the time at the beginning”. He said the pain was “small at the beginning” and that, “slowly, slowly until I can’t walk and I sit in the shower because I can’t stand up”.

Dr Koura accepted that throughout this time, he could work and could sit, stand and walk at work.
In his second statement at [20] he said that “as my symptoms continued to worsen … I began to worry I could end up paralysed”. He explained that because of the radiating pain he was worried he would have to have surgery and he was worried about the consequences of surgery could lead to paralysis. Later he explained that it was his wife who expressed the fear of paralysis and the consequences of surgery. Although she was not medically trained, he said they had been married for more than 20 years and he had often talked about his medical cases with her.
I put to him that in summary his explanation for the delay was that he was in a lot of pain on back on the day of the accident, and within two weeks this pain started radiating down the back of his right leg, that the pain got worse and worse until it reached a point when he could not cope with the pain and then he went to the doctor. Dr Koura agreed with that. He was asked and agreed that he knew he had the right to make the claim since the day of the accident but did not know he had only three months to make it. He also said that the main reasons for the delay were that he thought he would get better and was he was fearful of losing his job.
In response to questions from Mr Hanna (for the insurer), Dr Koura said:
(a)    he worked at both Mount Druitt and Blacktown at the different hospitals on different days. He was asked whether he knew about staff doctors who are available to treat other doctors. He said he thought that if something happened to him and he needed medical treatment, he would have to go to an emergency department or a GP;
(b)    he was asked about [19] of his second statement which read as if he had taken medications (including Mobic and Lyrica), tried massage and acupuncture and then after these things failed, at his wife’s suggestion he went to the doctor. He said that was wrong and he did not mean to say that. He said he only ever took Panadol and Panamax before going to the doctor. No one prescribed it for him, and he did not prescribe it himself;
(c)    at first, he said he experienced localised pain in back and agreed that when operating he would be bending over the patient. He said, “I used to stand on one leg sometimes to rest” and would just handle the pain and take pain killers;
(d)    the claimant agreed that his back pain was his most concerning issue and that he no longer experiences significant neck or shoulder pain;
(e)    Dr Koura agreed he was aware of spinal conditions “yes 100 percent” and that after the accident he thought he had a slipped disc and compression of the nerve. Dr Koura said the pain got worse over time, steadily and slowly and that when he took medication it would reduce form 7 out of 10 to 3 out of 10. “Slowly slow, increasing more and more”;
(f)    he said he hoped his pain would get better and he expected it to get better. He agreed that once he noticed symptoms radiating, that was a progression to something more serious “I know that”. He agreed with Mr Hanna that his pain “never got better, always getting worse slowly”. He said when he had the scan, he was not expecting a herniation he thought it would be slipped disc or nerve root compression, and
(g)    Dr Koura said that two months after the accident, his pain was continuing but the over-the-counter medication was helping. At that stage he was still working full time and overtime hours.
He agreed there were brochures in the hospital entry foyer or waiting room, but he never touched or read the brochures. He has seen some advertising on the television but did not recall specifically seeing advertising for law firms at the hospital. He said he saw advertisements for GMP on buses and TV.
Dr Koura said he has never told any of the doctors he works with that he has a sore back or that he has been involved in an accident. He says he has friends who work at the hospital, but he does not feel he can confide in them. He says he takes medication before he goes into surgery and they would not know he was injured and in pain.
He agreed that he knew within two months there was something wrong with his back. He said he knows pain could last years. If he knew “something big wrong with me” he said he would have done something but “100 percent I thought it would go away”. He did not know anything “big” happened until after the scan was done showing a herniated disc.
Dr Koura confirmed that English is not his not first language. Assyrian and Arabic are his first languages and he can also speak Russian and Ukrainian. He said he did not type his statements himself. He said they were typed by his lawyers over the telephone and he signed them when they were sent to him.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

The insurer made no attack on the claimant’s credibility accepting he was not trying to mislead the insurer, but issues were raised as to what was said in the statements and what the claimant said at the assessment conference.
For example, the claimant said in his first statement at [17] that in the five years before the accident he “attended upon the following medical practitioners” and he nominated only one Auburn Central Medical Centre. At the assessment conference Dr Koura said he had been to other practices but had no “regular” GP. The insurer did not take issue with this and for example seek to defer the assessment to enable the insurer to make enquiries with the other practices identified (or obtain the claimant’s Medicare records).
The claimant also said in his first statement at [21] that he no longer works overtime. He gave evidence however that he had reduced his overtime hours not stopped them and was currently working overtime one day per week. The insurer has not sought access to the claimant’s overtime records from his employer.
The claimant’s evidence at the assessment conference was that he was not prescribed Mobic until after the saw Dr Zhang and that before this he was only taking over the counter medication. Dr Zhang’s notes suggests otherwise and the claimant was taking Mobic at the time of the first attendance. The insurer has not sought to defer the assessment in order to obtain a copy of the claimant’s PBS or Medicare records.
The claimant explained that the statements were typed by someone in the office of Gerard Malouf and Partner after a teleconference (not at a face-to-face meeting). While he said he had read them before signing and that he had read them before the assessment conference and that they were true and correct, Dr Koura identified two errors in [19] of the second statement. The first was his statement that he was in shock for a week and the second was the suggestion that he had been prescribed medication and had acupuncture and physiotherapy before he went to Dr Zhang.
The claimant said that English is not his first language (after Assyrian / Arabic and Russian / Ukrainian) and while his evidence at the assessment conference could be understood the words and grammar he used at that time did not appear consistent with the words and grammar in the statements. It is quite clear to me that the statements were not the claimant’s own words and have likely been “tidied up” by his solicitor.
Dr Koura said on several occasions that he could not recall certain matters that were important in respect of his claim. For example, he could not recall with any certainty precisely when he cut down his overtime hours and he could not remember with any precision whether he had been to Auburn Central Medical Centre as a patient in the five years before the accident. As it is now two years since the accident, the claimant’s inability to recall the finer details is understandable.
While I have some concerns about the reliability of the written statements Dr Koura has given, I do not have doubts as to the general nature of his explanation which he gave at the assessment conference.

What is a full and satisfactory explanation?

Section 6.2(1) of the Act provides that:
“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.”
The insurer has accepted Dr Koura’s explanation is full. Section 6.2(2) then provides:
“The 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 test of satisfactoriness is the same as in s 40(2) of the Motor Accidents Act 1988 and s 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act).
In Karambelas it was held that fullness is judged by considering the explanation given from the date of the accident to the time the explanation is provided, whereas satisfactoriness is judged by considering the delay. In this case the delay is from three months after the accident (that is 18 January 2024 when the claim should have been made) to 10 July 2024 (when it was made). The delay is 25 weeks or close to six months.
The insurer cited the case of Lye which in turn cites the relevant cases in relation to satisfactory explanations:
(a)    Walker v Howard[6] where it was said that the subjective characteristics and circumstances of the claimant must be taken into account when applying the objective standard of the reasonable person. In that case the person injured sustained a head injury which left him with significant cognitive difficulties, hardly a characteristic of the “reasonable person”;
(b)    Diaz v Truong,[7] where Giles JA said (at [42]) that while the standard of a reasonable person is straightforward, the phrase "justified in experiencing" a delay means:
“ … that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay", and
(c)    Russo v Aiello[8] where Chief Justice Gleeson said (at [5], [7]), what will constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purposes of the MAC Act encouraging early claims, early treatment and including collection of data and setting of premiums. It was also said in that case that the effect on the insurer is not to be regarded saying "...what the Act requires is justification for delay; not demonstration that the delay caused no harm [to the insurer].”
[6] [2009] NSWCA 408.
[7] [2002] NSWCA 265.
[8] [2003] HCA 53.

What is the explanation?

In summary, the explanation given by Dr Koura at the assessment conference which I accept as his explanation is as follows:
(a)    Dr Koura was involved in an accident, he was injured and thought he had a general back strain or muscle pain which he expected would improve over time;
(b)    while his neck and shoulder pains have improved (he says they do not bother him much now) it is his back pain which has slowly got worse over time;
(c)    the tingling and shooting pain in his right leg was first felt two weeks after the accident and has got worse slowly over time. This is corroborated by Dr Zhang’s notes which record on 12 June 2024 that the radiating pain “comes and goes”;
(d)
the claimant self-diagnosed his condition and self-medicated (over the counter medication only) until his symptoms got to a point where he could not manage them himself. I make this finding on the basis of the claimant’s evidence and the absence of any medical record or report to any health practitioner before

12 June 2024;
(e)    he is the family’s sole breadwinner and had to keep working which he managed to do by modifying his work (standing on one leg to relive pain in the other leg while assisting with surgery and reducing his hours) and taking over the counter medication only while working. This finding is made on the basis of the claimant’s own evidence and in the absence of any employment records, and
(f)
he started reducing his overtime hours after he first saw Dr Zhang and after his first scan. I make this finding on the basis Dr Zhang does not record any variation in the claimant’s “normal duties” in the certificates of fitness from 12 June or

5 July 2024 and there is no note of a variation of his duties in the records until

22 November 2024.
Dr Koura’s explanation involves three broad themes:
(a)    his belief that his injury would get better;
(b)    his fear that if it became known he was injured that he would lose his job which led to him managing his injury himself, and
(c)    his ignorance of the time limit.
Dr Koura was asked many questions about his belief about the nature of his injury and could not be shaken that he genuinely thought his injury would get better. He was not challenged about his belief that he would lose his job if his injury was known in his workplace which supports his actions in self-managing his condition.
Dr Koura is a medical practitioner aware of the right to make a claim. I accept his evidence that he has had no previous incidents, accidents or claims while in Australia. I also accept his evidence that he had no knowledge that the claim should have been made in three months. I accept therefore that he had no knowledge of what the limitation period actually was until he saw his solicitors and that he took no steps to find out about the limitation period before he saw his solicitors.

Is the explanation satisfactory?

Since 1988 the time for making a claim has been six months not three and the time to commence court proceedings has, for a long time, been three years. It is also noteworthy that all of the cases cited by the parties in their submissions concern claims made under the previous schemes where claims were for lump sum damages and not statutory entitlements.
The insurer says that the claimant’s decision not to seek treatment and not make a claim is not reasonable and that a reasonable person would not have waited so long. While I accept that the claimant’s delay is in part explained by his delay in getting treatment (the scan that revealed the herniated disc) the question I have to ask and answer is whether a reasonable person in the position of the claimant would have been justified in experiencing the same six month delay in lodging his claim form.
In my view the explanation provided by the claimant for the delay is satisfactory and that a reasonable person in the position of the claimant (a medical practitioner, for whom English is a second language, with a family that depends on him for financial support) would have been justified in experiencing the same, nearly six month delay, for the following reasons:
(a)    he was treating and managing his condition in the belief (informed by his clinical experience in treating others) that it would recover;
(b)    he was coping with the pain, pushing through with medication (which reduced his symptoms), and
(c)    he was continuing to work including performing overtime (he was not experiencing financial loss until some time after 12 June 2024).
It was only when the claimant had difficulties managing and coping with his pain and when he became concerned about his work being affected that he realised he needed to take action. He went to see a doctor, had a scan and realised he had a herniated disc which was a “big thing” for him and more serious than he had previously thought.
He remained ignorant of the three-month time limit until after he decided to make the claim (having been advised by friends it was 12 months) and lodged his claim promptly after seeking legal advice.

CONCLUSION

As the insurer has agreed the claimant has a full explanation and I have determined the claimant has a satisfactory explanation for the delay in making his statutory benefits claim, it follows that the late claim can be made in accordance with s 6.13(3).

What is the amount of costs to be paid?

Dr Koura’s solicitors made a claim for costs on the basis of the sum for a “regulated miscellaneous claims assessment matter” as set out in Schedule 1(3)(1) of the Motor Accident Regulation 2017 which is 16 monetary units. The insurer did not oppose an order for costs on that basis.
The regulated monetary sum per unit is, as of 1 October 2025, the sum of $126.95. The amount for the claimant’s reasonable costs is therefore assessed as $2,031[9] to which goods and services tax should be added.
[9] Schedule 3(3) provides for the rounding up or down after the monetary unit calculation is made.

Should this decision be de-identified?

The claimant made an application at the conclusion of the assessment conference under Rule 132(1) (of the Personal Injury Commission Rules 2021) to have the published form of these reasons de-identified. No reasons were given by his solicitor other than the claimant wished not to have his name published. The insurer did not object to the decision being de-identified by removing the claimant’s name.
The determination of such an application falls to me under Rule 132(3) and the relevant considerations are set out in Rule 132(4) which includes the objects of the Personal Injury Commission Act 2020 and the requirement that the Commission should be “open and transparent about its processes” and whether it is necessary in the public interest for the direction to be given.
The claimant is a doctor in the public health system. He has not told his employers or any of his colleagues that he was involved in an accident, that he has injuries that are causing him significant levels of pain which result in him standing on one leg during surgery and he is taking medication (outside working hours) including medication that causes dizziness and sleepiness. In my view it is in the public interest that this decision is published and that is should not be de-identified.

[2025] NSWPIC 589

5 November 2025