Latif v AAI Limited t/as GIO
[2021] NSWPIC 523
•14 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Latif v AAI Limited t/as GIO [2021] NSWPIC 523 |
| CLAIMANT: | Saiqa Latif |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 14 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment matter; late claim for statutory benefits; accident 26 July 2018; claim made on 16 June 2021; sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017; prior CTP claim; Held – claimant has provided neither full nor satisfactory explanation for the delay. |
| DETERMINATIONS MADE: | The findings of the assessment of this dispute are as follows: 1. For the purposes of section 6.13(3) of the Motor Accident Injuries Act 2017 the claimant has not provided a full and satisfactory explanation for the delay in making the claim. 2. For the purposes of section 6.13 of the Motor Accident Injuries Act 2017 the insurer is entitled to refuse payment of statutory benefits to the claimant. 3. Legal Costs: The claimant is entitled to recover from the insurer her reasonable and necessary costs in the amount of $1,710 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This decision concerns whether Saiqa Latif (the claimant), who was injured in a motor vehicle accident on 26 July 2018, can make a late claim for statutory benefits. The claim was made on 16 April 2021, some two years and nine months after the accident. By letter dated 21 April 2021 the insurer sought a statement from the claimant that provided a full and satisfactory explanation for the delay in making the claim. Reasons for the delay in making the claim were provided by Ms Latif’s lawyers by letter dated 4 June 2021. On 16 June 2021 the insurer rejected the explanation for the delay on the basis that it was neither full nor satisfactory. An internal review of that decision was sought by Ms Latif. The internal reviewer issued a certificate on 23 July 2021 affirming the insurer’s decision to deny the claim on the basis that a full and satisfactory explanation for the delay in making the claim had not been provided. Ms Latif commenced these proceedings on 20 August 2021. The dispute is a miscellaneous claims assessment matter: Schedule 2 clause 3(k) of the Motor Accident Injuries Act 2017 (MAI Act).
On the papers
At the teleconference held on 11 October 2021 the parties agreed that the dispute could be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the proceedings can be determined on the papers. I am satisfied that sufficient information is available in connection with the proceedings to allow me to determine the dispute without holding a formal hearing.
Statutory provisions
The statutory provisions relevant to the dispute, s 6.13 and s 6.2, are in the following terms:
“6.13 Time for making of claims for statutory benefits
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either—
(a) the claim is made within 3 years after the date of the motor accident, or
(b) the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.
(4) …
6.2 Meaning of “full and satisfactory explanation” by claimant
(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.”
Relevant authorities
While there are no authorities addressing s 6.2 and s 6.13 of the MAI Act there are authorities that address what constitutes a ‘full and satisfactory explanation’ for the purposes of s 66(2) of the Motor Accidents Compensation Act 1999 (MAC Act). There is no material difference between s 6.2 of the MAI Act and s 66(2) of the MAC Act.
The authorities establish that an explanation is ‘full and satisfactory’ 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[1]. To be full, the explanation needs to be complete in the relevant sense as saying what happened and why. The provision does not call for perfection or for prolix or burdensome recounting of every moment that has elapsed. The section requires the explanation for the delay from the date of the accident.[2] The acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is ‘full’[3]. The meaning of ‘full’ is to be understood in the context of the purpose of the provision and the explanation: to enable the evaluation of the reasons for the delay. Thus all relevant information to that end is required.[4] The delay is the period during which the claimant was late in making the claim.[5]
[1] Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16].
[2] Walkerv Howard [2009] NSWCA 408 Allsop P at [104].
[3] Walker Allsop P at [106].
[4] Walker Allsop P at [57].
[5] Karambelas at [16].
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 was reasonably justifiable.[6] There is a substantial spectrum of reasonableness. Accordingly it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay. The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay.[7] In this context, considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[8] To provide the requisite explanation, the claimant must address acts and omissions relevant to the delay from the date of the accident until the date of providing the explanation.[9] The physical makeup of the claimant must be transferred to the hypothetical reasonable person. That includes the age, sex and capacity of the claimant. The cultural background of the claimant, at least within limits, is also transferred across.[10]
[6] Karambelas at [17].
[7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].
[8] Hunter v Roberts [2019] NSWCA 116 at [19 -20].
[9] Walker Allsop P at [54].
[10] Walker Young JA at [138].
Evidence
At the teleconference the parties were directed to lodge bundles containing all material upon which they intended to rely in relation to the late claim dispute. Any documents that a party sought to rely upon from Insurance Australia Limited t/as NRMA Insurance (NRMA), produced in response to a direction for production, were to be individually itemised in each parties’ bundle.
In addition to her statement, the claimant relies on a letter from her lawyers to the insurer dated 4 June 2021. The letter contains an explanation for the delay in making the claim and traverses much of the ground covered in the claimant’s statement. One matter referred to in the letter that is not addressed in her statement is that she lodged a property damage claim after the accident. The letter states that the claimant was not aware there was a difference between a CTP claim and a property damage claim.
Claimant’s statement
The claimant relies on her statement dated 23 November 2021. The statement records that the claimant separated from her husband in approximately March 2020. The claimant states that during her marriage her husband prevented her from managing her financial affairs. She states that she was left with no choice but to relinquish control over all of her finances, which included pursuing compensation in relation to a motor vehicle accident that occurred in 2016. She says that the 2016 claim was managed by her solicitors and her husband and that she was prevented by her husband from having substantial involvement in the management of the claim. For this reason she was unaware that time limits may apply to lodging a CTP claim. After separating from her husband the claimant states that she has struggled to exercise financial responsibility on her own.
The claimant states that when the accident the subject of these proceedings occurred she was still married to her ex-husband, who prevented her from lodging a claim as he did not see the benefit in it. She states that in approximately January 2021, due to a deterioration in her physical and psychological injuries, a friend suggested that she contact a solicitor to seek legal advice in relation to the accident and her injuries. She first spoke to a representative of Shine Lawyers on 19 January 2021. Until that time she had not sought legal advice in relation to the accident. Further, she was, until then, unaware that there was a three month time limit on lodging a claim. She states that:
“21. Shortly after the subject motor vehicle accident, I consulted with my GP to discuss the physical injuries I had sustained in the subject accident.
22. At no time during my dealings with the GP was I advised that I may be eligible to lodge a motor accident claim. Instead, my GP at the time of the accident recommended that I should not lodge a claim.
23. Given she had been my treating GP for a number of years, I trusted the advice that she gave and did not make any enquiries concerning lodging a CTP claim.
…”
The claimant states that she had approximately 12 sessions of physiotherapy and at no time did the physiotherapist advise her that she may be eligible to lodge a claim. She states that due to the manifestation and subsequent deterioration of her psychological injuries over time, she continued to consult with her GP on numerous occasions. At no time during her dealings with the GP was she advised that she may be able to lodge a claim. She explains that, although Shine Lawyers sent her a claim form by email in January 2021, she is “very technologically inept” and did not recall receiving the claim form, which was subsequently re-sent to her on 19 March 2021. The claimant states that the delay in submitting the claim was contributed to because she had been unable to get a certificate of capacity completed as her regular GP refused to complete the document. She was not aware that she could lodge the claim without this document being included.
Other evidence
Documents have been produced by NRMA in response to a direction for production. The documents relate to the claim made by the claimant following a motor vehicle accident that occurred on 29 June 2016. The claimant does not rely on any of the material produced by NRMA. The insurer relies on the following documents produced by NRMA:
a. Personal Injury Claim Form (PICF) dated 26 July 2016;
b. Medical Certificate dated 22 July 2016, and
c. letter from Teakle Ormsby & Associates dated 26 July 2016.
The PICF records that the claimant was driving a Honda Civic owned by her then husband, Peter Latif, when the accident occurred. It is recorded that Police attended the scene, and that the claimant was taken by ambulance to St Vincent’s Hospital from the accident scene. The PICF appears to be signed by the claimant.
The medical certificate attached to the claim form was completed by Dr Sumathy Mahen. The certificate records that the claimant had been a patient of the doctor’s practice for five years and that she complained of multiple injuries as a result of the accident.
The letter from Teakle Ormsby & Associates is addressed to NRMA and encloses the PICF, medical certificate completed by Dr Mahen, a report of Dr McGregor and a referral letter from Dr Mahen.
Among other material, the documents produced by NRMA also include:
a. authorities to release records and information addressed to Medicare, Centrelink, St Vincent’s Hospital and Dr Mahen, all signed by the claimant;
b. correspondence from NRMA dated 1 December 2016 denying liability for the claim;
c. a factual investigation report from M & A Investigations dated 29 December 2016 that includes the claimant’s response, under cover of correspondence from Teakle Ormsby & Associates dated 22 September 2016, to a series of questions about the accident, her injuries and treatment;
d. St Vincent’s Hospital Emergency Department Registration Form dated 29 June 2016. It is recorded in this document that the language spoken by the claimant at home is English, and
e. clinical notes from Frontline Medical Centre.
Westmead Hospital records relating to the claimant’s admission on the day of the subject accident are included in the material relied on by the insurer. Neither parties’ submissions make reference to these records.
Claimant’s submissions
The claimant submits that while a previous CTP claim was made by her in 2016, the claim was managed solely by her husband and her solicitors. Because her husband would prevent her from exercising any control or management in her own financial affairs she struggles to complete day-to-day tasks on her own, such as paying bills. It is submitted that her current struggles managing her own financial affairs are exacerbated by the fact that English is her second language. Since separating from her husband in March 2020, the claimant has been managing her own financial affairs. It is submitted that she has very little knowledge about CTP claims, property damage claims and CTP insurance generally. Due to the deterioration of her injuries, a friend of the claimant suggested that she contact solicitors in order to seek legal advice for the accident and her subsequent injuries. Until speaking with a representative of Shine Lawyers for the first time on 19 January 2021 she was unaware that there is a three month time limit to lodge a CTP claim in New South Wales. It is argued that the initial delay in making the claim can be attributed to the fact that the claimant experienced considerable difficulty in getting a Certificate of Capacity completed by a treating GP after having been first supplied with the claim form by Shine Lawyers. Due to her late decision to bring a claim, the claimant’s regular GP refused to complete a Certificate of Capacity and insisted that she would be unable to help. After being advised by Shine Lawyers that an Application for Personal Injury Benefits could be lodged without a Certificate of Capacity, the claimant attended their offices in Parramatta on 16 April 2021 to complete the required form. It is submitted that Shine Lawyers promptly lodged the Application for Personal Injury Benefits without delay on 16 April 2021.
Insurer’s submissions
In the insurer’s submission, whilst the claimant admits to making a prior CTP claim with NRMA and argues that she did not have substantial involvement in her claim and was thus unaware of any time limit, it is clear she instructed Teakle Ormsby and Associates to act on her behalf in a claim made with respect to that accident. It is argued that, as a result of instructing lawyers, the claimant would have been advised of the claims process, including time limits. Further, the PICF lodged in relation to the 2016 accident was signed by the claimant, not her husband or her lawyers. Accompanying the PICF was a medical certificate completed by her GP. The PICF and medical certificate were lodged on NRMA just one month after the accident. It is submitted that the claimant would have been aware that she could make a claim for personal injuries sustained in a motor vehicle accident and was aware, or ought reasonably to have been aware, of the fact that there were time limits in place to bring such a claim. The insurer submits that, even if the claimant’s allegation that her husband prevented her from making a claim in respect of the subject accident is accepted, it does not explain why she waited another 13 months to lodge her claim after separating from her husband in March 2020.
It is noted that within the claimant’s explanation there are repeated references to other individuals, such as her GP and physiotherapist, not informing her she could make a CTP claim. Given she was already aware that she could make a claim, and had already done so for a prior accident, the insurer submits it is irrelevant whether other parties informed her of the ability to do so.
The insurer submits that the explanation provided is not ‘full’ and argues that the claimant’s prior CTP file from Teakle Ormsby and Associates would be required before any explanation could be considered full.
The insurer does not consider the claimant’s 2½ year delay in lodging her claim form is satisfactory because: -
a. she admits to making a prior CTP claim;
b. whilst she asserts that she had little involvement in her prior claim, the claimant:
i.instructed lawyers to bring a claim on her behalf;
ii.would have been advised both verbally and in writing about her CTP claim and any associated time limits;
iii.signed the PICF;
iv.attended and arranged for her GP to complete a medical certificate;
v.returned the executed PICF along with the medical certificate to her lawyers within less than a month of her accident, and
vi.signed and returned various authorities issued by NRMA.
c. even if it is accepted that the claimant was prevented from making a claim by her ex-husband, she separated from him in March 2020. A reasonable person, in the shoes of the claimant, would not have waited another 13 months to lodge a claim form. A reasonable person would have, as soon as possible after separating from her husband, spoken to a lawyer, made enquiries about making a claim or lodged a claim form herself, and
d. a reasonable person in the shoes of the claimant, knowing that a claim for injuries sustained in a motor accident could be made, would not have waited to be told to make a claim.
The insurer argues that a reasonable person would not have waited two years and six months to make a CTP claim knowing that they could make a claim at the outset. A reasonable person would not have waited another three months to provide an explanation for delay in lodging her claim form. The insurer submits a late claim should not be allowed to be made.
Determination
Is the claimant’s explanation for the delay full?
The claimant’s explanation for the delay in making her claim 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.
The claimant’s explanation for much of the delay is that her former husband prevented her from making a claim. I accept her evidence in this regard. I am satisfied that this explains the reason for the delay in making the claim from the date of the accident until March 2020, when she separated from her husband. I find that, with respect to this period, the claimant’s explanation is full.
The claimant submits that after separating from her husband she struggled to manage her own financial affairs, and that this was exacerbated because English is her second language. As to this last matter, I note that the claimant’s statement makes no reference to her experiencing difficulties because English is her second language. Nor does her statement contain a certificate from an interpreter confirming that the contents of the statement were interpreted to the claimant in her native language; something that I would expect if the claimant had difficulties communicating in English. Further, the St Vincent’s Hospital Emergency Department Registration Form dated 29 June 2016 records that the language spoken by the claimant at home is English. I am not satisfied that the evidence establishes that the claimant experiences difficulties speaking or understanding English and that this played a role in the delay in making the claim.
While I accept her evidence that she did not have substantial involvement in her 2016 CTP claim, the evidence satisfies me that she had some involvement in the claim process. She signed the claim form and authorities allowing the release of her records. She must have provided instructions to her then lawyers in relation to the particulars they provided under cover of their letter to M & A Investigations dated 22 September 2016. The inference I draw from this evidence is that the claimant was aware that if she suffered injuries in a motor accident she could make a claim in relation to those injuries. I am not satisfied that any difficulties she experienced in relation to managing financial matters explains the delay in making her claim from March 2020, when she separated from her husband.
While s 6.2 does not call for perfection or for prolix or burdensome recounting of every moment that has elapsed, and allowing some time for her to adjust to the change in her life as a result of the separation from her husband, the claimant’s explanation for the delay in making the claim must include a full account of the conduct, including the actions, knowledge and belief of the claimant from the date of the accident to the date of providing the explanation. This includes the period March 2020 to January 2021, when she consulted her lawyers. The explanation must explain what happened and why during this time. I am not persuaded that it does. Accordingly, I am not satisfied that the claimant’s explanation for the delay for the period March 2020 until January 2021 is full.
Although she obtained legal advice in January 2021, and was sent a claim form to complete by email at that time, it was not until April 2021 that the claim was made. The delay during this period is said to have arisen due to:
a. the claimant not recalling that she received the claim form when it was sent to her by her lawyers in January 2021;
b. the claim form being re-sent on 19 March 2021, and
c. her inability to get the Certificate of Capacity completed.
I find that the claimant has explained the reason for the delay in making the claim from the time she first consulted her lawyers, in January 2021, until the claim was made on 16 April 2021. I find that the explanation she has provided for the delay over this period is full in the sense that it explains what happened and why.
As I have found that the explanation for the delay in making the claim for the period March 2020 until January 2021 is not full, the claimant cannot be said to have provided a full explanation for the delay.
Is the claimant’s explanation satisfactory?
The claimant submits that one reason for her delay in making the claim was because neither her GP or physiotherapist advised her that she may be eligible to do so. I have a number of concerns about this evidence. Firstly, the claimant’s evidence is that her GP at the time of the accident recommended that she should not lodge a claim in relation to her injuries[11]. The inference I draw from this is that making a claim was discussed with her GP, who recommended against doing so. Secondly, the claimant’s evidence is that her husband prevented her from lodging the claim as he didn’t see the benefit in it[12]. The inference I draw from this is that the claimant discussed making a claim with her husband shortly after the accident. Thirdly, it is clear from the evidence that the claimant made a claim on NRMA following the 2016 accident. I have already found that she had some involvement in making that claim. On the basis of this evidence I am comfortably satisfied that shortly after the accident occurred, and before a period of 28 days had elapsed after the accident, the claimant knew that she could make a CTP claim.
[11] Claimant’s statement dated 23 November 2021 at [22]
[12] Claimant’s statement at [15]
The claimant’s evidence is that she did not make a claim because her former husband prevented her from doing so. This evidence satisfies me that a reasonable person in the position of the claimant would have been justified in experiencing a delay in making a claim up to and including March 2020, when she separated from her husband.
While I accept the claimant’s evidence that she had limited involvement in her 2016 claim, she did have some involvement in the claim. She knew lawyers had been instructed. She must have been involved in providing those instructions. Further, she must have provided instructions to her lawyers in relation to the particulars provided to NRMA’s investigators[13]. She signed a claim form and authorities that allowed the release of records from Medicare, Centrelink, St Vincent’s Hospital and Dr Mahen.
[13] See letter from Teakle Ormsby & Associates to M&A Investigations dated 22 September 2016
I find that immediately after the subject accident occurred the claimant was aware that she could obtain legal representation and seek legal advice about a claim in relation to injuries suffered in the accident.
I am not satisfied on the evidence before me that English being a second language played a role in the delay in making the claim. As recorded earlier in these reasons, no interpreter was involved in the preparation of the claimant’s statement. The St Vincent’s Hospital Registration Form records that she spoke English at home.
One matter referred to in the letter from the claimant’s lawyers to the insurer dated 4 June 2021 that is not addressed in the claimant’s statement is that she lodged a property damage claim after the accident. It is stated in that letter that she was not aware there was a difference between a CTP claim and a property damage claim. There is no evidence in relation to this matter - only submissions. In the absence of evidence I do not accept the submission.
While I accept the claimant’s evidence that she was prevented by her ex-husband from making a claim in relation to the accident, I am not satisfied that a reasonable person in her position, who was experiencing a deterioration in symptoms and had made a prior claim, would have done nothing about making a claim between March 2020, when she separated from her husband, and January 2021, when she first sought advice from her lawyers. I am satisfied that during this period she was aware that she could make a claim in relation to the injuries she received in the accident and that she could obtain legal advice in relation to her rights in this regard.
Further, despite having been told by her lawyers on 19 January 2021 that there was a three month time limit for lodging a claim[14] the claimant does not appear to have followed up the claim form until sometime in March 2021, when her lawyers re-sent a claim form to her. I am not satisfied that a reasonable person in her position, having been so advised, would have done nothing to follow up her lawyers during this period or left it until April 2021 to make a claim.
[14] Claimant’s statement at [19]
I am not satisfied that the delay in making the claim was reasonably justifiable. I find that a reasonable person in the position of the claimant would not have been justified in experiencing the same delay. I find that the claimant has not provided a satisfactory explanation for the delay in making the claim.
Costs
The insurer submits that if I find that the claimant’s explanation is not full and/or satisfactory no amount should be assessed for any legal costs incurred by the claimant. In any other circumstance, the insurer submits that any assessment of costs would be for an amount less than the maximum regulated fee, having regard to the limited work involved.
The claimant has not made any submissions in relation to costs.
The claimant’s entitlement to recover costs from the insurer arises under s 8.10 of the MAI Act. She is entitled to recover from the insurer the reasonable and necessary legal costs incurred in connection with the claim. As required by s 8.10(3) the regulations permit the payment of costs in a dispute of this nature: Regulations Schedule 1 Part 1 clause (3)(k).
Success is not a pre-requisite to the claimant accruing an entitlement to the payment of her legal costs: AAI Ltd v Moon [2020] NSWSC 714 at [82]. Accordingly, while the claimant has not been successful in these proceedings, she is entitled to recover her reasonable and necessary costs.
Having considered the material relied on by the parties in the dispute, the associated work that would have been undertaken by her lawyers, together with the need for her lawyers to provide advice and obtain instructions in relation to the proceedings, I find that the claimant’s reasonable and necessary costs in connection with the dispute are $1,710 plus GST.
Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission
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