Lee v Allianz Australia Insurance Limited
[2021] NSWPIC 351
•1 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351 |
| CLAIMANT: | Sun Hwa Lee |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 1 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment; claim referred to the Personal Injury Commission (Commission) more than 3 years after the motor accident; whether the claimant has provided a full and satisfactory explanation for the delay; whether leave should be granted by the Commission; operation of section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of ‘full and satisfactory explanation’ where the term is defined for the purposes of Part 6 of the MAI Act but not Part 7; comparison with provisions in the Motor Accidents Compensation Act 1999 (1999 Act); applicability of authorities addressing 1999 Act provisions relating to ‘full and satisfactory explanation; application for referral to the stood over list; Held - for the purposes of section 7.33 of the MAI Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list. |
| DETERMINATIONS MADE: | 1. For the purposes of section 7.33 of the Motor Accident Injuries Act 2017 the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment. 2. The Commission grants leave for the claim to be referred for assessment. 3. The Commission directs that the proceedings be referred to the stood over list. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
Sun Hwa Lee (the claimant) was involved in a motor accident on 26 January 2018. Having previously submitted an application for statutory benefits, on 12 November 2019 the claimant submitted an application for damages to Allianz Australia Insurance Limited (the insurer). The insurer accepted liability for the claim for damages on 6 February 2020. The claimant submitted an application for the assessment of damages to the Personal Injury Commission (the Commission) on 24 March 2021, more than three years after the date of the accident. In the application the claimant seeks leave for the claim to be referred for assessment.
Pursuant to s 7.33 of the Motor Accidents Injury Act 2017 (MAI Act) the claimant must provide a full and satisfactory explanation for the delay in referring the claim for assessment to the Commission. She also requires leave from the Commission before her claim can be referred for assessment.
The parties agree that the application can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act and Procedural Direction PIC2 I find that the application can be determined on the papers. I am satisfied that sufficient information is available in connection with application to allow me to determine the application without holding any conference or formal hearing.
Relevant statutory provisions
The claimant seeks leave from the Commission for the claim to be referred for assessment in accordance with s 7.33, which is in the following terms:
“7.33 Time limits for referring claims and making assessment (cf s 91 MACA)
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.”
Section 6.2 is relevant to this determination for reasons addressed later in this decision. The section is in the following terms:
“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.”
Evidence
In support of her application the claimant relies upon her statutory declaration dated 21 July 2021 and a statement from her solicitor, Robyn Burgess, dated 23 March 2021.
Ms Burgess explains that an application for assessment of the claimant’s whole person impairment was lodged on 25 May 2020. Assessor Samuell determined that the claimant’s injuries caused by the accident attracted a whole person impairment of 4%. The claimant lodged an application for review in relation to Assessor Samuell’s assessment on the basis that it was incorrect in a material respect. On 26 February 2021 the claimant was informed that the President had referred the application to a review panel. Ms Burgess states that she was under the mistaken belief that while the application for a review of Assessor Samuell’s assessment of whole person impairment was on foot time stopped for the purpose of s 7.33 of the MAI Act.
In her statutory declaration of 21 July 2021 the claimant gives evidence that she was born in Korea and lived there until 2015. She was a high school teacher in Korea from 2013 – 2015. She moved to Australia in 2015. She has very limited capacity with the English language and always requires an interpreter. She was working as a self-employed barista and managing her own business immediately prior to the accident.
The claimant states that on 26 January 2018 she was driving slowly on Pittwater Road, Dee Why, when another vehicle coming from Lismore Avenue collided into the left side of her vehicle at high speed. The Ambulance Service, Fire Brigade and Police attended the accident scene. As a consequence of the accident she suffered injury to her neck, trapezius, back and shoulder. She says that she also suffered psychological injuries and that her psychological state has affected her mood, functioning and work capacity. She has received treatment from her GP, psychologist, physiotherapist and pain specialist. Because she became increasingly depressed she was referred to a psychiatrist. She returned to Korea on 28 November 2020 as her visa expired. The claimant states that since she retained her lawyers she has placed all her trust in their expertise and relied on them to protect her interests in relation to her damages claim arising from the accident. As far as she was aware her lawyers were carrying out all the steps necessary to progress her matter. She had no understanding of any time limits for lodging her common law claim.
Submissions
In support of her application for leave the claimant submits as follows:
(a) The evidence comprised in the two statements relied upon constitutes a full explanation for the delay, in that it provides a full account of the actions, knowledge and belief of the claimant from the date of the motor accident up to the date that she completed her statutory declaration.
(b) Her explanation is satisfactory, on the basis that it was reasonable for her, particularly as a person of Korean citizenship with limited English, to unquestioningly rely upon her solicitors to act on her behalf in accordance with the requirements under the MAI Act.
(c) The fundamental explanation for delay is indicated in paragraphs 9 and 10 of the statement of Ms Burgess as follows –
“The delay in processing [of] this matter was due to the COVID-19 Pandemic. But for the Pandemic, the DRS medical assessments would already have taken place. Upon their completion, we would have settled the common law claim with the insurer. In the event [that] we were unable to settle this claim, we would have lodged an Application for Claims Assessment with supporting documentation with the DRS awaiting a hearing date.
We were of the understanding that whilst a matter was before the DRS for a medical assessment, time stopped for the purpose of s.7.33 (Motor Accident Injuries Act NSW 2017). We now know this to be incorrect.”
(d) The claimant’s claim for damages was required to be lodged within three years after the date of the accident by reason of s 6.14 of the MAI Act. That occurred: the application for damages was lodged on 12 November 2019.
(e) She has satisfied the obligation of providing a full and satisfactory explanation for the delay.
(f) Provisions relating to explanations for delay have been fairly consistently interpreted in New South Wales over the last 33 years, across each of the Motor Accidents Act 1988; MAC Act; and the MAI Act respectively.
(g) Consistent with Walker v Howard [2009] NSWCA 408 (Walker), for present purposes the claimant submits that her particular characteristics, namely a Korean woman with limited English and little experience in Australia and with no previous history of lodging a claim, is a factor which should be taken into account in considering whether the subject explanation for delay is satisfactory.
(h) Also consistent with Walker, the action or inaction on the part of the claimant’s legal representatives is another matter that can reasonably be taken into account in assessing whether the explanation is full and satisfactory.
(i) There is a reasonable, full and satisfactory explanation for the delay in referring the matter for assessment to the Commission.
(j) Should leave be granted the proceedings should be placed in the stood over list.
In submissions dated 21 April 2021 the insurer records that it does not seek to challenge the claimant’s explanation for late lodgement of her claim noting that, due to the outstanding medical dispute, the matter is not capable of progressing in any event. The insurer’s position in this regard is confirmed in its submissions of 26 August 2021, wherein the insurer records that it does not oppose the granting of leave. The insurer supports the claimant’s submission that, if leave is granted, the matter should be referred to the ‘not ready list’.
Determination
In accordance with s 7.33, the claimant cannot refer her claim for assessment under Division 7.6 of the MAI Act more than three years after the motor accident unless 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. Before I address whether the claimant has provided a full and satisfactory explanation for the delay and whether leave should be granted, it is appropriate to consider what the term ‘full and satisfactory explanation’ means for the purposes of s 7.33.
What does ‘full and satisfactory explanation’ mean?
Section 7.33 is found in Part 7 of the MAI Act. The term ‘full and satisfactory explanation’ is not defined in Part 7 of the Act. The term is, however, defined in s 6.2, in the terms set out earlier in these reasons. Section 6.2 is found in Part 6 of the Act
I raised with the parties whether the definition of ‘full and satisfactory explanation’ in s 6.2 applied to the term as used in s 7.33, noting that s 6.2(1) commences with the words “For the purposes of this Part …”, the Part referred to being Part 6 of the MAI Act. Only the claimant made submissions with respect to this issue.
The claimant submits that the subject application arises from s 7.33, which is not within Part 6 of the MAI Act, but rather, Part 7. Accordingly, she submits that the content of ‘full and satisfactory explanation’ set out in s 6.2 can have no application to the subject application. In her submission, this interpretation appears to be further supported by the fact that under the headnote to s 7.33, it is suggested that a comparison can be made with s 91 of the Motor Accidents Compensation Act 1999 (MAC Act). Section 91 of the MAC Act provided time limits for referring claims for assessment, but unlike s 7.33, s 91 did not provide an outer time limit of three years or any other period. Rather, it provided certain pre-conditions which had to be satisfied before a matter could be referred for assessment.
The claimant submits that s 7.33 appears to echo s 6.14, with the result that not only must an application for damages be made within three years of the accident, but the application must also be referred for assessment within three years of the accident.
Section 6.2(1) commences with the clear and unambiguous words “For the purposes of this Part…”. There is no definition of ‘full and satisfactory explanation’ in the MAI Act for the purposes of Part 7.
The issue that arises as to the meaning of ‘full and satisfactory explanation’ for the purposes of s 7.33 of the MAI Act is to be contrasted with the position in the MAC Act. In the MAC Act, s 66(2), which defines ‘full and satisfactory explanation’, is found in Chapter 4 of the Act. In the same way that s 7.33 commences with the words “For the purposes of this Part…”, s 66(2) commences with the words ‘In this Chapter…’.[1] Chapter 4 relates to motor accident claims and contains the provisions in the MAC Act that impose time limits on the making of a claim and commencing court proceedings in respect of a claim. Unlike the position in the MAI Act, the provisions in the MAC Act that contain the term ‘full and satisfactory explanation’ are contained in one Chapter of the Act, Chapter 4.
[1] Section 66(2) of the MAC Act is in the following terms:The MAC Act does not contain a provision equivalent to s 7.33. As submitted by the claimant, s 91 of the MAC Act provides time limits for referring claims for assessment, but unlike s 7.33, s 91 does not provide an outer time limit of three years or any other period. Rather, it provides certain pre-conditions which had to be satisfied before a matter could be referred for assessment.
In the MAI Act, Part 6, in which s 6.2 is found, deals with motor accident claims and court proceedings, including time limits on commencing court proceedings in respect of a damages claim. The term ‘full and satisfactory explanation’, in the context of delay, is found in s 6.13(3), which relates to the time for making claims for statutory benefits, s 6.14(5), which relates to a late claim for damages, and 6.32(3), which relates to time limitations on the commencement of court proceedings.
In this context, the critical difference between the MAI Act and the MAC Act is s 7.33, which imposes a time limit for referring a claim to the Commission for assessment and is found in a different Part of the Act to the other provisions that relate to time limits and delay.
The provisions in both Part 6 and Part 7 of the MAI Act in which the term ‘full and satisfactory explanation’ is used address time limits and delay. Given that the term is used in both Part 6 and Part 7 of the Act, and there is a definition of the term in, and for the purposes of, Part 6, it is not clear why there isn’t a definition of the term in, or for the purposes of, Part 7. A definition could have been included in Part 7. The definition in s 6.2 could have been extended to Part 7 rather than limited to Part 6. A single definition, for the purposes of the whole Act, could have been included in s 1.4.
I have determined that, in order to interpret s 7.33 in a way that is harmonious, logical and consistent with the MAI Act when read as a whole, it is appropriate to proceed on the basis that the term ‘full and satisfactory explanation’ used in s 7.33 means 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 and 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.
As can be seen, the meaning I have applied to ‘full and satisfactory explanation’ is consistent with the definition of the term as found in s 6.2.
Further, given that the definitions of ‘full and satisfactory explanation’ in the MAI Act and the MAC Act are in material respects the same, the authorities that address the meaning of ‘full and satisfactory explanation’ for the purposes of the MAC Act are relevant to determining whether the claimant has provided a full and satisfactory explanation for the purposes of s 7.33.
The claimant has provided a full and satisfactory explanation for the delay
The meaning of ‘full’ is to be understood in the context of the purpose of the provision and the explanation: to enable the Commission to evaluate the reasons for the delay. Thus all relevant information to that end is required.[2] What is required is a full account of the conduct of the claimant and of persons acting on behalf of the claimant, in so far as that conduct was relevant to the delay.[3] The provision does not call for perfection, or for prolix or burdensome recounting of every moment that has elapsed.[4]
[2] See Walker v Howard [2009] NSWCA 408 per Allsop P at [57].
[3] Walker at [72].
[4] Walker at [104].
I am satisfied, on the evidence before me, that the delay was the result of an error on the part of the claimant’s solicitor, who has stated that she was under the mistaken belief that while the application for a review of Assessor Samuell’s assessment of whole person impairment was on foot time stopped for the purpose of s 7.33 of the MAI Act. This occurred in the context of the claimant having returned to Korea in November 2020, having placed her trust in the expertise of her lawyers and having relied on them to protect her interests in relation to her damages claim.
In these circumstances, I am not sure what more could be said with respect to the conduct relevant to the delay. I am satisfied that the claimant has given 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. I find that the claimant’s explanation for the delay is ‘full’.
The claimant is a Korean national with very limited capacity with the English language. She requires an interpreter. She returned to Korea on 28 November 2020 because her visa expired. Her evidence is that since retaining her lawyers she has placed all her trust in their expertise and relied on them to protect her interests in relation to her damages claim. As far as she was aware her lawyers were carrying out all the steps necessary to progress her matter. She had no understanding of any time limits for lodging her common law claim. In these circumstances, I am satisfied that a person in the position of the claimant would have been justified in experiencing the same delay; a period of two months. I find that the claimant’s explanation is ‘satisfactory’.
I find that the claimant has provided a full and satisfactory explanation for the delay in referring her claim to the Commission for assessment. Leave should be granted for the claim to be referred for assessment.
Directions
The parties submit that the proceedings should be placed in the stood over list because a review of the assessment of Assessor Samuell remains undetermined.
Until the review is determined the question of whether the claimant is entitled to damages for non-economic loss will remain in flux. Accordingly, the proceedings are not ready for assessment.
Having considered Procedural Direction MA1 and the matters referred to above, I direct that the proceedings be referred to the stood over list.
Brett Williams
Member (Motor Accidents Division)
Personal Injury Commission
“66 Definitions (cf s 40 MAA)
(1)…
(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to 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 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.”
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