Le v Allianz Australia Insurance Limited

Case •

[2022] NSWPIC 607

•

21 October 2022
CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Le v Allianz Australia Insurance Limited [2022] NSWPIC 607
Claimant: Thanh Nga Le
insurer: Allianz Australia Insurance Limited
Member: Susan McTegg
DATE OF DECISION: 21 October 2022
CATCHWORDS:

MOTOR ACCIDENTS - The claimant sustained injury in a motor vehicle accident on 13 February 2019; the application for common law damages was filed in the Personal Injury Commission on 11 July 2022; whether the claimant had provided a full and satisfactory explanation for the failure to refer the claim for assessment within 3 years of the date of accident; the insurer did not object to the claim being referred for assessment; Held – the claimant’s explanation was full; the explanation was satisfactory; the claimant has limited English skills; she received statutory payments from the insurer; she consulted a lawyer who failed to advise her of her entitlement to pursue a claim for common law damages or of the limitation period; the limitation period expired after that lawyer terminated the retainer and before she sought further advice; explanation satisfactory when considering the reasonableness of a person in the actual position of the claimant per Buller v Black; the proceedings can be referred for assessment.

determinations made:

Certificate

Issued under s 7.36(5) of the Motor Accident Injuries Act 2017 (MAI Act)

1.     The claimant has provided a full and satisfactory explanation for the delay in commencing proceedings.

2.     The claim can be referred for assessment pursuant to section s 7.33 of the MAI Act.

3.     The proceedings are referred to the Stood Over List in accordance with Procedural Direction MA1.

REASONS FOR DECISION

INTRODUCTION

  1. Ms Thanh Nga Le (the claimant) sustained injury in a motor vehicle accident on 13 February 2019 (the accident).

  2. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Le under the Motor Accident Injuries Act 2017 (MAI Act).

  3. A claim was lodged with the insurer and the claimant received payment of statutory benefits.

  4. The claimant’s lawyers provided the following information in submissions dated 21 July 2022. Those submissions contained the following information:

    ·the claimant instructed Alliance Compensation and Litigation Lawyers on 25 February 2022, slightly more than a week after the expiry of the three- year limitation period;

    ·on 25 February 2022, the claimant’s solicitors sent a letter via email enclosing the claimant’s authority to the insurer requesting her file;

    ·on 30 March 2022 the claimant’s solicitors sent an urgent email to the insurer requesting the claimant’s file;

    ·on 4 April 2022, an email was again sent to the insurer requesting the claimant’s file;

    ·on 4 April 2022, the claimant’s solicitors left a voicemail message with the insurer’s case manager Kerrie McCullum in relation to the request for the file;

    ·the claimant’s solicitor also left a voicemail message with Emma McLean from the insurer in relation to the request for the claimant’s file;

    ·on 4 April 2022, the claimant’s solicitor received an automated email from Kerrie McCullum that she was out of office from 30 March 2022 to 5 April 2022;

    ·on 4 April 2022, the claimant’s solicitors received an email from the insurer with a link and password for the claimant’s file but were unable to open or download the file;

·on 4 April 2022, the insurer issued a notice that the claimant’s injuries do not exceed 10% whole person impairment (WPI);

·the claimant attended an appointment with Dr Thomas Rosenthal on 16 May 2022 at the request of the insurer;

·on 30 June 2021 the insurer issued a liability notice admitting liability for the claim;

·on 5 July 2022 the claimant sought an internal review in respect of whole person impairment;

·on 11 July 2022, the claimant’s solicitors lodged an application for Damages Assessment at the Personal Injury Commission (the Commision), requesting the matter be placed in the inactive list;

·to date the claimant’s solicitors have not received a Liability Notice from the insurer as to whether the claimant’s injuries are minor or non-minor, and

·given there remains a dispute as to whether the claimant has sustained a 10% WPI in respect of both physical and psychological injury the claimant submits the claim should be referred to the stood over list.

  1. The matter was referred to me in respect of the s 7.33 issue, that is the failure of the claimant to refer the claim for assessment within three years of the accident.

THE INSURER’S POSITION

  1. The insurer notes the delay was due to the claimant changing solicitors around the three-year date and her new solicitors experiencing difficulty obtaining the relevant information.

  2. Having regard to the explanation provided the insurer does not object to the claimant being granted leave for the claim to be referred for assessment.

  3. Liability has been admitted.

  1. The insurer agrees, having regard to the outstanding dispute as to WPI, that the matter should be referred to the Stood Over List in accordance with Procedural Direction MA1.

TELECONFERENCE

  1. The dispute was the subject of a teleconference on 23 August 2022. The claimant was represented by Sean Chen of Alliance Compensation & Litigation Lawyers and the insurer was represented by Stephanie Davis of Holman Webb Lawyers.

  1. I was informed the claimant has filed a permanent impairment dispute in the Commission, in respect of both physical and psychological injury. The insurer has filed a reply to those disputes.

  2. Whilst the insurer does not object to the grant of leave, I noted I still need to be satisfied the claimant has provided a full and satisfactory explanation for the delay. At that time, I found the claimant had not provided an explanation from the date of accident until the date of providing the explanation. Therefore, the explanation was neither full nor satisfactory.

  3. However, I considered in the circumstances it was appropriate to provide the claimant with an opportunity to file a statement providing a full and satisfactory explanation for the delay. I directed the claimant to file a statement containing a full and satisfactory explanation for the delay in referring the claim for assessment on or before 18 October 2022.

  4. Noting the insurer has no objection to the claim proceeding both parties agreed it was appropriate for me to deal with the late claim dispute on the papers and in the event the claim can proceed to thereafter refer the claim to the Stood Over List.

THE RELEVANT LAW

  1. Section 7.33 of the MAI Act is in the following terms:

“A party to a claim cannot refer a claim for assessment under this Division more than 3 years after the motor accident concerned unless the party 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”.

  1. Section 6.2 of the MAI Act provides:

“(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.”

THE EVIDENCE

  1. Firstly, I refer to the submissions of the claimant prepared by her solicitors which

constitute evidence as to the conduct of the claim from the time they were instructed to act as set out at paragraph 4 above.

  1. Secondly, in accordance with my Direction the claimant provided a statement dated

    14 September 2022 with the assistance of an interpreter Ms Alice Thai. Ms Le provided the following explanation:

    ·following the accident on 13 February 2019 she was taken by ambulance to Liverpool Hospital;

    ·she suffered injuries to the left and right side of her chest and abdomen and scans showed fractures to the right 8th, 9th, and 10th ribs and to the left 7th rib. She also developed pain in her neck and lower back;

    ·she signed an application for personal injury benefits on 8 April 2019 which was emailed by her niece Jenny Pham to Allianz. Allianz asked her to provide a certificate of capacity and payslips;

    ·Ms Le saw her usual general practitioner, Dr Srinivasan every two months to renew the certificate of capacity;

    ·she attended physiotherapy with TLC Physiotherapy at Canley Heights;

·Ms Le received payment for her treatment and some loss of wages in the first six months after the accident;

·Ms Le did not contact a solicitor, and had never made a prior motor accident, workers compensation, or other claim and was not aware of any time limitations and nor was she aware of her entitlement to make a common law claim;

·after August 2019 she continued to receive weekly payments and was reimbursed the cost of medical treatment including physiotherapy;

·at the time of the accident, Ms Le was working as a cleaner for about 20 hours a week for Vans Commercial Cleaning. After the accident she was not able to work and did not return to paid employment until June 2021 when she started work as a nail technician;

·Ms Le has continued to experience pian in her right shoulder, neck and lower back;

·in about October 2020 Ms Le consulted John Bui of Bui Lawyers, Cabramatta after Allianz suggested she contact a lawyer about her claim;

·she was later contacted by Bui Lawyers to say they no longer do compensation claims advising her to get another lawyer;

·on or around 27 April 2021 Ms Le received a letter from Allianz seeking further particulars. Ms Le showed the letter to Bui Lawyers but was advised to seek alternative legal advice;

·Ms Le states at no time did Bui Lawyers advise her about any time limitations;

·Ms Le is the main income earner for her family including her three children; she currently works around 15 hours a week on Saturdays and Sundays but requires constant breaks from her work and has to rest for about an hour after working;

·Ms Le asked her friends about her claim to see if she had any prospects;

·on 25 February 2022 Ms Le spoke with Amy Truong, legal secretary from Alliance Compensation & Litigation Lawyers. She was advised they would request her file from the insurer, and

·prior to seeing Alliance Compensation & Litigation Lawyers Ms Le was not aware of any time limitations.

IS THE EXPLANATION FULL

  1. It is clear the onus of providing a full and satisfactory explanation for delay rests with the claimant as per Smith v Grant.1

  2. The limitation period expired in the period after the retainer was cancelled by Bui Lawyers and before the claimant retained Alliance Compensation & Litigation Lawyers to act on her behalf.

  3. In Walker v Howard2 Justice Allsop stated:

“The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed.”

  1. Where the provision does not call for prolix or burdensome recounting of every moment that has elapsed, I am satisfied that the claimant has provided a full explanation in that she has provided a full account of her conduct, including her actions, knowledge and belief from the date of accident until the date of providing the explanation.

1 (2006) 67 NSWLR 735.

2 [2009] NSWC 408 at [104].

IS THE EXPLANATION SATISFACTORY

  1. Notably, Mason P in Buller v Black 3 referring to the Motor Accidents Act 1988 stated:

“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.”

  1. I find the explanation is satisfactory when one considers the reasonableness of a person placed in the actual position of the claimant. I note the following:

    ·the claimant has limited English skills and found it necessary to engage the assistance of her niece in submitting the claim;

    ·the claimant received statutory payments from the insurer;

·when she ultimately consulted a lawyer, he was unhelpful and not only did he not provide any active encouragement to pursue the claim he did not advise her of her entitlement to pursue a claim for common law damages or the need to act expeditiously having regard to the limitation period;

·until the claimant instructed Allianz Compensation and Litigation Lawyers, she was not aware of her entitlement to pursue a claim for common law damages and she was not aware time limits applied, and

·Allianz Compensation and Litigation Lawyers acted expeditiously to obtain a copy of the claimant’s file from the insurer once they were instructed to act.

  1. I also note the insurer has not raised any objection to the claim proceeding and has not sought to argue the explanation is neither full nor satisfactory.

  2. In the circumstances I find the claimant has provided a full and satisfactory explanation for the delay and I grant leave for the claim to be referred for assessment.

3 [2003] NSWCA 45 at [61].

DIRECTIONS

  1. The claim can be referred for assessment pursuant to s 7.33 of the MAI Act.

  1. The proceedings are referred to the Stood Over List in accordance with Procedural Direction MA1.

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