Maksoud v AAI Ltd t/as GIO
[2021] NSWPIC 167
•31 May 2021
| 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 commenced operation on 1 March 2021. The former Dispute Resolution Service was abolished by Clause 3 of Division 2 of Part 2 of Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
The PIC Act and Personal Injury Commission Regulation 2020 (PIC Regulation 2020) establishing the Commission provide that a new decision-maker may determine pre-existing disputes in accordance with the previously applying legislation.
Schedule 1 of the PIC Regulation 2020 inserts new sections into the PIC Act.
Pending non-court proceedings that are unheard or part heard may be determined by a new decision maker. See clauses 14B (1) – (3) of Schedule 1 of the PIC Regulation 2020.
A person completing the proceedings may exercise all the functions that the original decision-maker had immediately before the commencement of the PIC Act. See clause 14B(4)(a) of Schedule 1 of the PIC Regulation 2020.
The provisions of any Act, statutory rule or other law that would have applied to determine the proceedings, had the PIC Act not been enacted, continue to apply. See clause 14B(4)(c) of Schedule 1 of the PIC Regulation 2020.
An order has been made that the Motor Accidents Division’s Single Dispute Management System be used for the creating, filing and service of documents in the proceedings in the Personal Injury Commission. The order is made under Schedule 1, clause 3 of the Electronic Transactions Act 2000, and Electronic Transactions (ECM Courts) Amendment (Personal Injury Commission) Order 2021.
Submissions
I have considered the documents provided with the Claim form, the reply and further information including: the Insurer’s internal review, statements from the Claimant, his wife, his solicitor and medical certificates of capacity.
Documents considered - Mr Maksoud’s explanation
The explanation for Mr Maksoud’s late application is contained in a number of statements and documents including:
· Claimant’s Statutory Declaration dated 5 January 2021.
· Claimant’s submissions and statement dated 20 April 2021.
· Statement of Zaynab Abdallah dated 20 April 2021.
Statutory Declaration dated 5 January 2021
In his Statutory Declaration dated 5 January 2021 Mr Maksoud states that:
(a) Initially after the accident he did not lodge a claim as he thought his injuries were temporary and would heal.
(b) He was not aware of the three month time limit to lodge a claim in NSW.
(c) His wife gave birth to their son on 23 May 2020.
(d) After his wife gave birth, he was advised by the government and his wife’s doctor to not leave his home unless it was absolutely necessary due to the COVID-19 pandemic.
(e) He considered his newborn son to be vulnerable, so he did not leave home unless necessary.
(f) On 28 July 2020 he contacted Shine Lawyers after noticing his injuries were not getting better.
(g) At this point he was advised of the three month time limit to lodge a claim in NSW.
(h) However, after reviewing the documents he was concerned about leaving home to get the Certificate of Fitness completed as he was concerned for the safety of his wife and newborn son.
(i) Once the impact of COVID-19 calmed down in NSW he attended the office of his GP on 10 November 2020.
(j) When attempting to complete the Claim Form he noticed his wife deleted the accident photos from his phone and he was concerned he could not lodge a claim without the photos, he also had trouble recalling the specific number plate of the vehicle at fault.
(k) Once the Claim form was completed, he provided it to Shine Lawyers for lodgement without delay.
Claimant’s submissions and statement dated 20 April 2021
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.
Statement of Zaynab Abdallah dated 20 April 2021
In a statement dated 20 April 2021 from Claimant’s wife, apparently made by the Claimant’s Solicitor, it states that:
(a) On the day of the accident Ms Abdallah was pregnant with her second child.
(b) She suffered gestational diabetes and was advised that having gestational diabetes could be life threatening to both herself and unborn son.
(c) She needed to check her blood sugar levels every two hours.
(d) Her doctor was also concerned about the size of her baby.
(e) Before the COVID-19 pandemic, Ms Abdallah would attend check ups at Bankstown Hospital every second week.
(f) On 1 March 2020, her husband was advised by one of the nurses that we were to not go to the hospital unless there was an extreme emergency.
(g) After being advised to not go to the hospital, Ms Abdallah had a weekly phone consultation with one of the nurses to check her blood sugar levels. She was again advised that she should not go to the hospital unless it was an extreme emergency.
(h) Due to the size of her baby and the gestational diabetes, Ms Abdallah’s labour was induced around two and a half weeks early. Her son was born at 5.2 kilograms.
(i) After the child was born, Ms Abdallah did not have any check-ups for herself or her child at hospital as the doctors advised not to come in unless it was an extreme emergency.
Relevant legislation
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.”
Consideration of relevant case law
As referred to above sections 6.2 and 6.13 require that the Claimant provide a full and satisfactory explanation for the delay in making the claim.
There is considerable case law about the meaning of the phrase “full and satisfactory”. Karambelas’ case discussed the meaning of sub-section 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 6.2 of the Act.
The NSW Court of Appeal in Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is "full and satisfactory" within s 66(2) 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". In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer.”
In Walker v Howard [2009] NSWCA 408 at paragraph 104, Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed.”
Is the explanation full?
Sections 6.2 and 6.13 require that the Claimant provide a full and satisfactory explanation for the delay in making the claim. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant.
The meaning of “full” in a previous version of the Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at paragraph 4: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant.”
In its Statement of Reasons on Internal Review and Submissions of the Insurer, (R1), the Insurer makes comprehensive and well-argued submissions as to why it says the explanation provided by the Claimant is not full.
The Insurer submits that the explanation offered is not full because there is: insufficient detail regarding medical treatment, no detail about the property insurance claim, insufficient detail about the Claimant’s interaction with his lawyers, no detail about any other prior insurance claims and insufficient detail about the Claimant’s knowledge and understanding of the CTP scheme. (Refer to paragraph 10, R1).
In its submissions the Insurer has identified a number of gaps or insufficient details provided by the Claimant’s explanation. However, in my view, the Claimant in this case, has provided a sufficient and full explanation as to why his claim was late. His explanation satisfies the requirements of sections 6.2 and 6.13 of the Act.
The Claimant’s explanation for the delay in making his claim was comprehensively set out in the statements he has made and those made on his behalf by his solicitor and wife. These statements and the reasons are a “full” account of his conduct, actions, knowledge and belief. His account can be summarised as follows.
After the accident occurred on 4 March 2020 the Claimant thought his neck pain and other symptoms would get better. He states that he did not know of the three-month time limit to lodge a CTP Claim. On 25 May 2020 his wife give birth to a baby and they were both advised by the hospital not to leave home unless absolutely necessary due to COVOD-19. About 1-2 weeks after the Claimant’s son being born, the Claimant attended his local GP Dr Alameddin. He states that he was still affected by the injuries he had sustained in the accident and his symptoms had not resolved. The Claimant states that he was worried about leaving his home because of possible exposure of his wife and newborn child to COVOD-19. His GP referred him to get an MRI scan to determine the full extent of his injuries. On 28 July 2020 the Claimant contacted lawyers because he states that his injuries were not getting better. At the meeting on 28 July he was advised of the three-month time limit and he was provided with the relevant claim forms to complete without delay. When completing the forms, he was still concerned about leaving the house due to the Corona virus. Once the impact of COVID-19 “calmed down in NSW” he attended the office of his GP on 10 November 2020 to obtain a medical certificate. On 15 November 2020 the Claimant lodged an Application for Personal Injury Benefits Claim Form with the Insurer, (R8).
Is the explanation satisfactory?
Sections 6.2 and 6.13 require that the Claimant provide a full and satisfactory explanation for the delay in making the claim. The legislation states that an 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.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at paragraph 61:
“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.”
In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) 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 has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
In its Statement of Reasons on Internal Review and Submissions of the Insurer, (R1), the Insurer makes comprehensive and well-argued submissions as to why it says the explanation provided by the Claimant are not satisfactory.
The Insurer submits that the explanation offered is not “satisfactory” because: the Claimant gives conflicting explanations between his first and second statement; his concerns about leaving his house is at odds with his consultations with Dr Alameddin on three occasions; his wife deleting the accident photos are at odds with his lawyers having copies; there is no medical evidence to support the Claimants’ claim to be having constant headaches. (Refer to paragraph 12, R1).
In its submissions the Insurer has identified a number of conflicting or inconsistent details provided by the Claimant’s explanation. However, in my view, the Claimant in this case has provided a satisfactory explanation as to why his claim was late which satisfies the requirements of sections 6.2 and 6.13 of the Act.
The Claimant’s explanation for the delay in making his claim was comprehensively set out in the statements he has made and those made on his behalf by his solicitor and wife. These statements and the reasons are a “satisfactory” explanation and a reasonable person in the position of the Claimant would have been justified in experiencing the same delay. The Claimant was injured at the beginning of the COVID epidemic. Shortly after his son was born. He says that he had hoped that his injuries would settle down, so he initially delayed seeking medical treatment or legal advice. He also states that he and his wife were told by hospital staff to stay at home and not go out or go to hospital unless it was necessary. It wasn’t until some weeks after the accident that he states his injuries had not resolved and the COVID situation had calmed down that he felt able to see his doctor and a lawyer about his accident. In the context of his son being born during the early part of the COVID outbreak, any other reasonable person in the position of the Claimant would have been justified in experiencing the same delay.
Conclusion
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging his claim form. I find that Mr Maksoud’s late claim may be made. I will issue a certificate to that effect.
Legal costs
In this late claim matter neither party made any application or submission on the awarding of legal costs.
In view of my findings and conclusions, I will assess legal costs in favour of the Claimant Mr Maksoud.
Under Schedule 2 sub- clause 3 (h) of the Act, a full and satisfactory explanation for non-compliance with a duty or for delay, is declared to be miscellaneous claims assessment matter or the purposes of Part 7 of the Act.
Under Schedule 1 sub- clause 3 (1) of the Motor Accident Injuries Regulation 2017 (the Regulation), the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units. Whether the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay under Part 6, is included in the definition of regulated miscellaneous claims assessment by Schedule 1 sub- clauses 3 (1) and (2).
Accordingly, in this dispute I can award legal costs up to 16 monetary units. Schedule 3 provides a definition of a monetary units and for an adjustment of maximum costs and fees for inflation.
Applying my discretion and experience, I consider it appropriate to allow legal costs of $1,200.00 (plus GST).
Accordingly, I allow 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.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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