Maytom-Rollason v Insurance Australia Limited trading as NRMA
[2018] NSWDC 317
•11 September 2018
District Court
New South Wales
Medium Neutral Citation: Maytom-Rollason v Insurance Australia Limited trading as NRMA [2018] NSWDC 317 Hearing dates: 11 September 2018 Date of orders: 11 September 2018 Decision date: 11 September 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Notice of motion lodged on 9 March 2018 dismissed.
(2) Defendant is to pay the plaintiff’s costs of the motion.
(3) The parties are to participate in a mediation on or before 14 December 2018.
(4) Matter listed for hearing in the sittings commencing Monday 18 March 2019.Catchwords: TORT – motor vehicle – whether a full and satisfactory explanation pursuant to s 73(7) Motor Accidents Compensation Act 1999 (NSW) provided – short explanation provided in covering letter to the claim form – whether failure to reply to and reject that explanation amounted to failure to reject the explanation within the statutory period Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 73 Category: Procedural and other rulings Parties: Plaintiff: Jamie Reid Maytom-Rollason
Defendant: Insurance Australia Limited trading as NRMARepresentation: Counsel:
Solicitors:
Plaintiff: Mr J Ryan
Defendant: Mr J Guihot
Plaintiff: Crown Solicitor’s Office
Defendant: Hall & Wilcox Lawyers
File Number(s): 2018/30488 Publication restriction: None
Judgment
The application before the court
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The defendant by notice of motion filed on 7 March 2018 brings an application in the following terms:
The proceedings be dismissed pursuant to s 73(7) Motor Accidents Compensation Act 1999 (NSW) on the ground that the plaintiff has failed to provide a full and satisfactory explanation for the delay in making the claim.
The plaintiff to pay the defendant’s costs of the proceedings.
Any other order the Court deems fit.
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This motion first came before the District Court in the Newcastle Registry on 12 March 2018 when I made orders as follows:
Plaintiff to serve medical evidence relied upon in the existing claim by 26 March 2018.
Defendant to serve its medical and other evidence, including medical and other experts, by 21 June 2018.
Defendant to serve its liability expert and other evidence by 21 June 2018.
Plaintiff to complete service of refresher medical evidence by 16 August 2018.
Plaintiff to serve its liability evidence in reply by 16 August 2018.
That this matter and the related proceedings, plaint no: 2014/280720 travel together and evidence in one be evidence in the other.
Parties have leave to refer to pleadings, reports and other evidence filed and served, and to documents produced under subpoena, in the related proceedings, plaint no: 2014/280720.
Matter stood over to Monday 3 September 2018 for further directions.
Liberty to either party to restore matter to the list on 5 days’ notice.
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The matter came on for hearing today. Mr Ryan made an application for the determination of a preliminary issue, namely whether the application should be dismissed on the point that the explanation contained in the Crown Solicitor’s letter of 20 February 2017 had in fact been rejected.
The statutory provisions
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The relevant provisions are ss 73(1) and 73(4)(b), which provides:
“73 Late making of claims
(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a “late claim”) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
…
(4) The insurer loses the right to reject a late claim on the ground of delay if the insurer:
(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or
(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.
…”
The issues and the evidence
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The issue turns upon a construction of the language of correspondence exchanged by the parties. Mr Ryan submits there are only two letters of relevance. Mr Guihot points to a third letter, and I consider that an additional email casts some explanation upon the purposes of that third letter. The text of those letters seems to be set out in full.
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On 20 February 2017 the Crown Solicitor’s Office sent a letter to the CTP claims manager, NRMA insurance, in the following terms:
“Dear Manager
Jamie Maytom-Rollason – CTP Claim
I act for Mr Maytom-Rollason who has instructed me to lodge a claim on his behalf for mental harm suffered as a result of the death of his sister, Miranda Maytom-Rollason. Ms Maytom-Rollason was a front seat passenger in a vehicle driven by Ms Pettit which was involved in a single vehicle accident on 2 May 2015 resulting in the deaths of both driver and passenger.
I enclose herewith the following:
1. Completed Motor Accident Personal Injury Claim Form;
2. RMS Certificate regarding owner and CTP insurer of vehicle ZHE238;
3. NSW Police Accident Report;
4. Report of Dr Patricia Jungfer, psychiatrist dated 4 October 2016 and report of the same date concerning assessment of degree of whole person impairment.
I provide the following explanation for the delay in lodging this current claim:
1. My client, Mr Maytom-Rollason was involved in a serious motor vehicle accident on 12 November 2011. He suffered a severe brain injury which has resulted in ongoing symptoms arising from that head injury in terms of a cognitive deficit;
2. As a result, Mr Maytom-Rollason has required a tutor for Court proceedings that have been commenced in relation to that accident;
3. Whilst continuing to suffer from the ongoing effects of his brain injury, Mr Maytom-Rollason was traumatised by his sister’s death, which resulted in the tutor, the Department of Family and Community Services, having difficulties in locating and speaking to my client. These difficulties in contact likewise caused difficulties in my obtaining instructions immediately following the accident;
4. The effects of the sister’s death upon my client had not fully chrystallised [sic] until he was seen by Dr Jungfer and upon receipt of the report;
5. Following consideration of that report, I received instructions from the tutor (the Department) and Mr Maytom-Rollason to lodge a claim.
As noted above, proceedings have been commenced on behalf of my client in the District Court at Newcastle in relation to the accident of 12 November 2011 and it is proposed that proceedings be commenced in relation to this claim and joined to the current District Court proceedings so that the matters can be heard together. I advise that Allianz Insurance is the CTP insurer for the 12 November 2011 accident and their legal representatives are Moray & Agnew Lawyers (Newcastle office, Reference FKA:DWS:364171; Attention Frances K Allen).
Kindly advise if this claim is accepted and whether consent can be sought from CARS for proceedings to be commenced in relation to this matter and joined to the current proceedings already commenced in the other matter.
Please do not hesitate to contact Bruce Cantrill on [telephone] if you have any queries in relation to this matter.
Yours faithfully,
Bruce Cantrill
Special Counsel
for Crown Solicitor”
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It is not in dispute that that letter was received on 22 February 2017, which means that the two month period under s 73 would expire on 22 April. The text of this letter is as follows:
“Dear Mr Cantrill
Your Reference: T03 201400403
Date of Accident: 2 May 2015
Client: Jamie Maytom-Rollason
I confirm we have received your client’s Personal Injury Claim Form and their claim has been registered and given the following CTP reference number: CTPTP15/02140/04
NRMA Insurance is the Compulsory Third Party Insurer of the vehicle nominated as being at fault in this accident.
The law in NSW requires us to follow certain procedures. One of these is to tell you whether we believe your claim complies with the law.
The Claim Form did not contain the completed Medical Certificate, please ask your client to have the Medical Certificate section of the Claim Form completed.
The NSW legislation governing motor vehicle accidents requires that a personal injury claim arising from a motor vehicle accident must be received within six months of the date of the accident. As your client’s claim was received on 22 February 2017, it was more than six months after the accident.
Please provide a full and satisfactory explanation for your client’s delay in making the claim. The explanation must be a signed statement that includes full details of their actions, knowledge and belief from the date of the accident until the date that they provided their explanation.
Please provide this information as soon as possible. Your client may be unable to access any entitlements under their Personal Injury Claim until a full and satisfactory explanation is accepted and liability is also admitted.
If you have any questions please call me on the number below.
Yours sincerely
Nicole Murphy
Personal Injury Consultant – Senior
Compulsory Third Party Claims”
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Essentially what is put before me is that this letter amounts to a rejection of the explanation, however a consideration of its contents shows that it is a letter where form issues appear largely to suggest that this is a standard letter of the kind set out when somebody lodges a claim form.
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It must not be forgotten that the letter of 20 February 2017 enclosed a claim form and this letter appears from its contents to refer to that claim form, but not to the covering letter, and to the five points under the sentence “I provide the following explanation for the delay in lodging this current claim,” at all. Those form elements include the statement:
“Please provide a full and satisfactory explanation for your client’s delay in making this claim. The explanation must be a signed statement that includes full details of their actions, knowledge, and belief from the date of the accident until the date that they provided their explanation.”
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There is also a request to provide this information “as full as possible”. This looks very much like a form letter ‑ and I note in particular the word “they” ‑ of the kind that is sent out when claim forms are received late. The nature of the decision‑making process in administrative issues has been the subject of consideration in a number of decisions, none of which I have before me today, but the whole point about administrative decisions is there must be a decision. The author of this letter did in fact receive an explanation and, if I may say so, it was an explanation of a relatively compelling nature.
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This was a minor who already had health issues, who had suffered a severe brain injury, and where there were difficulties of more than the usual nature. In fact, I note that some of those details were the subject of a further email of 3 May 2017. Both parties before me were united in their belief that this email has nothing to do with these proceedings, but it seems to me to suggest that what was being put forward was a proposal that the claim be withdrawn entirely, as it would seem on the material presently served that his claim for compensation lies in the 2011 claim, as opposed to the psychological distress he suffered from the injury the subject of this claim.
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The text of this email is as follows:
“Dear Bruce,
I act for NRMA in this claim and have just finished reviewing the file.
I understand that you will provide an explanation for late lodgement shortly but I thought we might be able to short circuit that.
Firstly, I understand completely while you have lodged this claim as a matter of caution given the larger proceedings commenced against Allianz.
However, it would seem on my reading of Dr Jungfer’s report that your client is unable to maintain a claim for damages with respect to his alleged psychiatric injury.
Dr Jungfer attributes his loss of earning capacity, care needs to the prior brain injury and assess his WPI at 4%. It would seem the only potential claim for damages would be a claim for psychiatric treatment which your client indicates that he does not want but would also be met by the ‘Closing the Gap’ Medicare arrangements without cost to him should he wish to avail himself to it.
In the circumstances, we invite your client to withdraw his claim as it would seem on the material presently served that his claim for compensation lies in the 2011 claim.
Can you let me know when you have an answer from the Department? Finally, can I have an explanation for late lodgement from the Claimant and the solicitor with carriage as to the late lodgement of the claim.
Please let me know if I am misreading Dr Jungfer’s report but I thought it was best to be direct before further expense is incurred by both parties in this claim. In could not see how Allianz could argue for any incapacity arising from the 2015 claim that would impact on their claim for damages.
Regards
Daniel Stoddart | Partner”
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I consider this letter is important because it is to this letter that the letter of 25 July 2017 replies, the text of which is as follows:
“Dear Mr Stoddart,
Maytom-Rollason J – DOB [date] – Motor Vehicle Accident Claim
I refer to your email dated 3 May 2017. In particular I refer to your invitation for my client to withdraw his claim for compensation in relation to the psychiatric injury occasioned by the death of his sister. Having now had the opportunity to consult with my client and with counsel, I am instructed to not withdraw the claim.
Please find enclosed, by way of service, the report of Dr Anna Mandalis dated 13 April 2017. The report was jointly commissioned with the defendant in the related proceedings. The report takes into account the report of Dr Patricia Jungfer, dated 4 October 2016, a copy of which has been previously provided to you and to which you refer in your email.
Dr Mandalis’ report reviews the respective impacts of the traumatic brain injury sustained by my client in the first accident, and the psychiatric injury sustained by my client as a result of his sister’s death in the second accident. Dr Mandalis notes, at paragraph 7.7, that it is not possible to disentangle the effects of each accident. I also draw your attention to paragraphs 7.11 and 7.13 of the report, in which Dr Mandalis assess the combined effects of both accidents.
As the effects cannot be disentangled, it is appropriate in my view for these matters to be heard together in order for the Court to make a proper assessment, either at hearing or on approval of any settlement. It is for these reasons that I am instructed not to withdraw the claim.
I also refer to your Section 81(1) Notice dated 8 May 2017, in which you deny liability on the basis that my client has failed to comply with all necessary procedural steps. First, I do not accept your client’s assertion that the Personal Injury Claim Form lodged in February 2017 is incomplete. The provision of Dr Junger’s report should supplant the need for a medical certificate given that it contains all of the necessary information, including a history of the plaintiff’s injuries, treatment received and ongoing effects of both accidents.
Secondly, the report refers to the devastating impact on my client of his sister’s death as the operative cause of any delay in lodging the claim. The reports of Dr Mandalis and Dr Jungfer detail the history of the effects of the second accident and, in my view, these reports ought to be accepted as sufficient to provide a full and satisfactory explanation for the delay. I estimate that the total costs and disbursements likely to be incurred in preparing the evidence you have requested, including counsel’s fees, will amount to or exceed $10,000.
It is preferred that those costs not to be expended in circumstances when an explanation already lies to hand for the delay and is explicable given the tragic circumstances of the case.
In light of these considerations, I invite you to withdraw your client’s denial of liability on procedural grounds.
In view of the complex circumstances and interrelated nature of the two claims your consent is also sought to obtaining an exemption from assessment by CARS under section 92 of the Motor Accident Compensation Act 1999.
I advise that the proceedings concerning my client’s traumatic brain injury arising from the previous accident are listed for directions in the District Court at Newcastle on 31 July 2017 before a judge.
Your reply to both matters prior to 31 July 2017 is therefore requested.
Yours faithfully,
Bruce Cantrill
Special Counsel
for Crown Solicitor”
Construing the correspondence in terms of s 73
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The statements made are not set out in the language of rejection, in terms of the claim form, but instead amount to a proposal of the kind would only be made if there was some form of ongoing claim. While I note there is some language to the contrary in the 25 July email, the fact remains that that letter was sent almost three months after the period in question had expired. The plaintiff was entitled to assume, from the correspondence, that the explanation had been accepted.
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Statutory provisions such as s 73 need to be considered and construed in accordance with the principles relevant to statutory interpretation. That includes taking into account the role of the insurer to respond clearly in terms of s 73 in terms of acceptance or rejection of the explanation, where such an explanation is given. In this regard I note Mr Ryan’s argument in terms of the reference to “an explanation” in s 73(1).
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The contents of Mr Cantrell’s letter may be short, in that he has basically set out five points, but it is still capable of being, and must be construed as, “an explanation” for the purposes of the section, if only because Mr Cantrell makes it absolutely clear that that is what it is. In addition, when looking at s 73(4)(b), there is the reference to “the explanation”, and again I am satisfied that this refers to the “explanation” provided by Mr Cantrell.
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That explanation must, as part of the administrative process of determination of explanations for failure to comply with statutory provisions, be considered, as opposed to sending out a generalised letter asking for an explanation when one has already been given.
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Accordingly, I am satisfied that the explanation was not rejected within the two months commencing on 22 February 2017, and that the notice of motion must be dismissed.
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The defendant is to pay the plaintiff’s costs of the motion.
Orders
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Notice of motion lodged on 9 March 2018 dismissed.
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Defendant is to pay the plaintiff’s costs of the motion.
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The parties are to participate in a mediation on or before 14 December 2018.
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Matter listed for hearing in the sittings commencing Monday 18 March 2019.
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Decision last updated: 29 October 2018
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