Leggett v AAI Limited t/as GIO
[2022] NSWPIC 163
•4 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Leggett v AAI Limited t/as GIO [2022] NSWPIC 163 |
| CLAIMANT: | Tyler Leggett |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 4 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim for damages referred for assessment 3 years and 8 months after the accident section 7.33 of the Motor Accident Injuries Act 2017; whether full and satisfactory explanation for the delay has been provided; claimant relied on lawyers; not advised of time limits; Smith v Grant applied; Held- comprehensive account of relevant acts and omissions provided; claimant relied on lawyers to progress his claim; it was reasonable for the claimant to rely on his lawyers; claimant has provided a full and satisfactory explanation for the delay; leave granted to refer the claim for assessment. |
| DETERMINATIONS MADE: | 1. For the purposes of s 7.33 of the Motor Accident Injuries Act 2017(MAI Act), Mr Leggett has provided a full and satisfactory explanation for the delay in referring his claim for damages to the Commission for assessment. 2. Leave is granted for the claim to be referred for assessment. |
BACKGROUND
1. These proceedings involve a claim for damages arising out of a motor accident that occurred on 25 February 2018. Mr Leggett was injured in the accident and made a claim for damages. The insurer, AAI Limited t/as GIO (GIO), accepted liability for the damages claim on 21 February 2020.
2. Mr Leggett referred the claim to the Personal Injury Commission (Commission) for assessment under Div 7.6 of the MAI Act on 21 October 2021, some three years and eight months after the accident. Section 7.33 of the MAI Act states that a party to a claim cannot refer the claim for assessment under Division 7.6 more than three 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. As the claim was referred for assessment late, Mr Leggett is required to satisfy s 7.33.
3. On 9 December 2021 I made directions for the provision of submissions and evidence by the parties in relation to s 7.33. I also informed the parties that, unless the Commission was notified of any objection by 25 February 2022, I proposed to determine the s 7.33 issues on the papers. No objection has been received. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the s 7.33 issues can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
4. Mr Leggett has provided submissions and evidence that go to s 7.33. On 25 February 2022 correspondence was received from GIO’s lawyers which stated that “At this stage, the insurer makes no submissions on the merits of the explanations provided…”. The correspondence goes on to ‘note’ a number of matters, including evidence from Mr Leggett’s lawyers that there is no record of him being advised of the three-year limitation period under the MAI Act, despite the fact that they are experienced practitioners in the compulsory third party (CTP) scheme. It is also noted that a related claim was referred for assessment within three years of the accident. GIO’s lawyers go on to ‘note’ that there was no clear reason why this claim could not have been lodged at the same time as the related claim, especially when both claims involve the same legal representatives.
EVIDENCE
5. Mr Leggett relies on his statutory declaration of 21 February 2022 together with a statutory declaration of Mr Goudkamp sworn on 8 February 2022.
6. Mr Goudkamp confirmed that he is Mr Leggett’s solicitor. Another member of his firm undertakes day to day work on the matter under his supervision. Mr Goudkamp’s statutory declaration provides what is, in my view, a comprehensive account of when he received instructions to act for Mr Leggett, the work undertaken to progress Mr Leggett’s claim for damages, including requests for concessions in relation to whole person impairment from GIO, and when that work was performed. Mr Goudkamp makes reference to the occasions on which instructions were sought and provided, and when updates were provided by his firm to Mr Leggett and by Mr Leggett to his firm. Mr Goudkamp’s evidence is that he could find no record of his firm providing advice to Mr Leggett that his claim had to be lodged with the Commission within three years of the accident. Mr Goudkamp also notes that prior to the establishment of the Commission there was no requirement for a claim to be referred for assessment within three years of the accident.
7. Mr Leggett made a statutory declaration on 21 February 2022. In the declaration he provides details of the accident, his injuries, treatment, and contact with his lawyers. Mr Leggett’s evidence is that at no time was he informed of any time limits associated with making a claim. Nor was he aware that his claim had to be lodged with the Commission within three years of the accident. He had not previously sought legal advice in relation to a compensation claim for injuries generally or with respect to injuries sustained in a motor accident. The statutory declaration contains a detailed account of his communications with Mr Goudkamp’s firm, commencing when he first instructed them in March 2018. Mr Leggett’s evidence is that he has relied on Mr Goudkamp and his team to manage his claim. He responded when instructions or documents were sought by his lawyers. He said he did not continually chase his lawyers about the status of his claim because he believed they were doing what needed to be done to progress it. He did not research the claims process as he had engaged lawyers to look after the claim for him.
SUBMISSIONS
8. Mr Leggett submits that the evidence establishes the steps he took to progress his claim; the steps taken on his behalf by his lawyers to progress his claim; and details of the events which have contributed to the delay in the progress of his claim. It is submitted that Mr Leggett’s evidence confirms that prior to engaging his lawyers he had not previously lodged a claim and was unaware of the general claims process and the time limits under the MAI Act. He remained unaware of the time limits until he was told that there was an issue in that regard on 17 December 2021. It is argued that the explanation provided is full.
9. It is submitted that Mr Leggett, being unfamiliar with the claims process, placed his faith in his lawyers to progress his claim in an appropriate manner. It is argued that such reliance was not unreasonable, particularly in circumstances where there was no wrongdoing on his behalf. He was not to know, by reason of the advice given, that there was any need to lodge his claim for assessment earlier than occurred. It is submitted that it matters not why Mr Leggett was not advised about the time limits for referring his claim for assessment. It is argued that it is sufficient that he was not advised and was unaware of any limitation period. That is because it is his knowledge which is relevant, not why his lawyers did not take a step. In these circumstances, it is submitted that a reasonable person in Mr Leggett’s position would have been justified in experiencing the same delay.
10. As recorded earlier in these reasons, GIO did not make any submissions in relation to the merits of the explanations provided in the evidence relied on by Mr Leggett. I have taken into consideration those matters raised in the correspondence from GIO’s lawyers dated 25 February 2022.
DETERMINATION
11. Section 7.33 is in the following terms:
“7.33 Time limits for referring claims and making assessment
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.”
12. The MAI Act does not contain a definition of ‘full and satisfactory explanation’ for the purposes of s 7.33. 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 I find that it is appropriate to proceed on the basis that the term ‘full and satisfactory explanation’, as 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. 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. In practical terms, there is no difference between the definition I have adopted and the definition of ‘full and satisfactory explanation’ found in s 6.2 of the MAI Act. This approach to the meaning of ‘full and satisfactory explanation’ for the purposes of s 7.33 is consistent with the approach I took in Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351 at [23]-[25].
13. As the definitions of ‘full and satisfactory explanation’ in the MAI Act and the Motor Accidents Compensation Act 1999 (MAC Act)[1] 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 Mr Leggett has provided a full and satisfactory explanation for the purposes of s 7.33 of the MAI Act.
[1] Section 6.2 MAI Act and s 66(2) of the MAC Act.
14. For an explanation to be full it needs to be complete in the sense that it says what happened and why. Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required.[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 context: 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]
[2] Walker v Howard [2009] NSWCA 408 (Walker) Allsop P at [104].
[3] Walker Allsop P at [106].
[4] Walker Allsop P at [57].
[5] Karambelas at [16].
15. 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. 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] Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[8]
Is the explanation full?
[6] Karambelas at [17].
[7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].
[8] Hunter v Roberts [2019] NSWCA 116 at [20].
16. I accept Mr Goudkamp’s evidence as to the steps taken by his firm while acting for Mr Leggett in relation to his damages claim, as recounted in his statutory declaration. The account provided by Mr Goudkamp is, in my assessment, comprehensive. Critically, he confirms that there is no record of Mr Leggett being provided with advice that he needed to refer his claim for assessment within three years of the accident.
17. I consider that Mr Leggett’s statutory declaration contains a complete account of what transpired from the date of the accident to the date the declaration was made. I accept his evidence that he was unaware that his claim had to be referred to the Commission for assessment within three years of the accident. I accept his evidence as to his interactions with his lawyers.
18. I consider that Mr Leggett’s explanation for the delay is complete in the sense that it says what happened and why. I find that the acts and omissions of all relevant persons have been addressed in the explanation. I am satisfied that the explanation enables me to make an evaluation of the reasons for the delay.
19. I find that Mr Leggett has provided a full explanation for the delay in referring his claim to the Commission late.
Is the explanation satisfactory?
20. I do not consider the fact that the related claim was referred for assessment within three years of the accident is relevant to an evaluation of whether Mr Leggett has provided a full and satisfactory explanation for the delay.
21. Given the matters referred to in Mr Goudkamp’s statutory declaration at [91]-[94] I infer that one reason the matter was not referred for assessment within three years of the accident may have been that Mr Leggett’s lawyers were not aware of the need to do so. In any event, it was reasonable for Mr Leggett to rely on the conduct and advice of his lawyers. Such reliance can provide a satisfactory explanation for delay: Smith v Grant [2006] NSWCA 244 at [60]. In this case, I find that it does.
22. In all the circumstances I am satisfied that the delay in referring the claim for damages to the Commission for assessment was reasonably justifiable. I find that Mr Leggett has provided a satisfactory explanation for the delay.
Leave is granted for the claim to be referred for assessment
23. I find that, for the purposes of s 7.33 of the MAI Act, Mr Leggett has provided a full and satisfactory explanation for the delay in referring his claim for damages to the Commission for assessment.
24. Leave is granted for the claim to be referred for assessment.
Referral to the stood over list
25. The parties submit that, given the outstanding medical dispute in relation to whole person impairment, the matter should be referred to the stood over list. Having considered Procedural Direction MA1, I refer the matter to the stood over list.
Brett Williams Member
Personal Injury Commission
0
5
0