Maksoud v AAI Ltd t/as GIO - [2021] NSWPIC 167

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Maksoud v AAI Ltd t/as GIO [2021] NSWPIC 167
APPLICANT:	Maksoud
RESPONDENT:	AAI Ltd t/as GIO
MEMBER:	Ray Plibersek
DATE OF DECISION:	31 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; late claim; whether the claimant has provided a full and satisfactory explanation; car was “T boned”; wife gave birth; advised by the government and his wife’s doctor not to leave home; COVID-19 pandemic; police advised him not to go to the hospital; claimant did not leave home except for emergencies; Held- the claimant has provided a sufficient and full explanation as to why his claim was late; he did not know of the three-month time limit; late claim may be made.
DETERMINATIONS MADE:	1. A late claim may be made more than three months after the date of the motor accident in this case as the Claimant has provided a full and satisfactory explanation for the delay in making the claim. 2. The Insurer is to pay the Claimant’s legal costs in the amount of $1,200 (plus GST) in respect of the application for a miscellaneous claims assessment for a late claim dispute dated 20 April 2021.

Background and Introduction

This determination relates to a miscellaneous claims assessment for a late claim for statutory benefits under sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017 (the Act)

The Claimant, Mr Ali Maksoud was involved in a car accident on Cann Street Bass Hill on 4 March 2020.
The accident reportedly involved three cars. One car pulled out from a side street and collided with two other cars including the Claimant’s car. His car was “T boned” at the back-left hand side, (R7).
On 15 November 2020 the Claimant lodged an Application for Personal Injury Benefits Claim Form with the Insurer, (R8). He states in his Claim form that he injured his: neck, arms, legs, shoulders, and experienced cervical radiculopathy.
On 10 February 2021 the Insurer sent the Claimant a Liability Notice, rejecting his explanation for late lodgement and denying liability for the claim for the first 26 weeks after the accident, (R10).
On 11 March 2021 the Claimant’s solicitors lodged an Application for Internal Review of the decision made by the Insurer.
On 22 March 2021 the Insurer advised the Claimant that the Internal Review had affirmed the Insurer’s original decision and that his explanation was not considered to be full and satisfactory.
Sub-section 6.13 (3) of the Act provides that a late claim may be made more than three months after the date of the motor accident if the claimant provides a “full and satisfactory” explanation for the delay in making the claim.
The Claimant submits that his late claim be accepted.
The Insurer denies that Mr Maksoud has a full and satisfactory explanation for his late claim and submit that his late claim should not be accepted.
This dispute has been referred to me for determination.

Transition of Existing Disputes to the Personal Injury Commission

The Personal Injury Commission…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 167
Decision Date: 31 May 2021

CaseChat Overview and Summary

The case of Maksoud v AAI Ltd t/as GIO involved the claimant, Mr Maksoud, who sought to make a late claim for statutory benefits arising from a motor accident. The dispute centred on whether the claimant had provided a full and satisfactory explanation for the delay in making the claim. The case was heard by the District Court of New South Wales.

The legal issues the court was required to decide included whether Mr Maksoud had provided a full and satisfactory explanation for the delay in lodging his claim, as required by the statutory provisions. The court had to consider whether the circumstances surrounding the COVID-19 pandemic and the advice given to Mr Maksoud by authorities and medical professionals constituted a reasonable justification for the delay.

The court found that Mr Maksoud had provided a sufficient and full explanation for the delay in making his claim. The court noted that Mr Maksoud was advised by police, a hospital nurse, and his wife’s doctor not to leave home except in an emergency due to the COVID-19 pandemic. The court considered these factors, along with Mr Maksoud’s attendance at fortnightly hospital appointments and the birth of his son, as reasonable justifications for the delay. The court concluded that a reasonable person in Mr Maksoud’s position would have been justified in experiencing the same delay.

The court ordered that Mr Maksoud’s claim for statutory benefits, which was made more than three months after the motor accident, be accepted as a late claim. The court found that the claimant had provided a full and satisfactory explanation for the delay, and that the late claim was justified under the statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In his Statutory Declaration dated 5 January 2021 Mr Maksoud states that: In the Claimant’s further statement dated 20 April 2021, apparently made by the Claimant’s Solicitor, states that:(a) Prior to the accident, the Claimant’s wife had a fortnightly appointment at the Bankstown Hospital as she was at risk of suffering diabetes during her pregnancy. The Claimant attended each appointment with her. (b) On the day of the accident, the Claimant says he attempted to report the incident to Bankstown Police Station. The Claimant says the police would not allow him to make a statement and advised him to not go to the hospital unless it was a life-threatening emergency due to the COVID-19 pandemic. (c) After leaving the police station, the claimant received a call from a nurse at the hospital advising that the Claimant and his wife should not go to the hospital unless it was an extreme emergency, due to COVID-19 concerns.(d) The claimant’s son was born on 25 May 2020.(e) During the time between the last hospital visit and the birth of his son, the Claimant did not leave his home except for emergencies.(f) About 1-2 weeks after the Claimant’s son being born, the Claimant attended his local GP Dr Alameddin due to the injuries he had sustained in the accident as his symptoms had not resolved. The Claimant says he was unable to undertake his usual pre-injury daily duties or functioning. The Claimant’s GP referred him to get an MRI scan to determine the full extent of his injuries. (g) The MRI scan was completed in late June. There was a delay in getting the scan completed due to his constant headaches. In a statement dated 20 April 2021 from Claimant’s wife, apparently made by the Claimant’s Solicitor, it states that: The legislation relevant to this late claim can be briefly referred to as follows. A claim for statutory benefits must be made within three months after the date of the motor accident, sub-section 6.13 (1) of the Act. 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, sub-section 6.13 (2) of the Act.A late claim may be made more than three months after the date of the motor accident if the claimant provides a “full and satisfactory” explanation for the delay in making the claim if the claim is made within three years after the date of the motor accident, sub-section 6.13 (3) of the Act. Section 6.2 of the Act defines the meaning of “full and satisfactory” as: “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.”