McMillan v Youi Pty Limited
[2024] NSWPIC 422
•6 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McMillan v Youi Pty Limited [2024] NSWPIC 422 |
| CLAIMANT: | Jayla McMillan |
| INSURER: | Youi Pty Limited |
| MEMBER: | Alexander Bolton |
| DATE OF DECISION: | 6 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); claimant was involved in a motor vehicle accident on 2 November 2023; claimant sought payment of statutory benefits following the accident but did not lodge this claim until 5 March 2024; by making this late claim, claimant had not complied with section 6.13 of the MAI Act; claimant provided a full and satisfactory explanation for the delay which the insurer accepted; the insurer declined to make payments from the date of the accident to the date the claim was made on 5 March 2024; the claimant sought a review of this decision; Held – the insurer does not have to make any statutory benefit payment from the time of the accident on 2 November 2023 to 5 March 2024; the provisions of regulation 8A of the Motor Accident Injuries Regulations provides no discretion for payment of statutory benefits from the date of the accident to the date claim is made when such claim is made out of time. |
| DETERMINATIONS MADE: | CERTIFICATE 1. It is my finding that the insurer does not have to make any statutory benefit payment from the time of the accident on 2 November 2023 to 5 March 2024. |
STATEMENT OF REASONS
BACKGROUND
Ms McMillan (the claimant) was the driver of a car involved in a motor vehicle accident on 2 November 2024. Youi Pty Limited was the compulsory third party insurer. I will refer, within these reasons, to Ms McMillan as the claimant and to Youi Pty Limited, as the insurer.
The driver of the insured car left the scene without providing her details to the claimant. It is unclear whether the insured driver did this deliberately or if she could not locate the claimant, who had driven nearby to a less busy area, to park and then ostensibly to exchange relevant information.
The claimant was not able to obtain registration details of the other car and subsequently set on extensive investigations of her own, to locate the insured driver.
These additional investigations included many enquiries of the police and the security team at Westfield Mount Druitt, ascertaining the identity of witnesses to the accident and reviewing CCTV of the accident.
Ultimately the claimant was able to obtain details of the registration number of the insured car and the identity of the insured driver. Initially that driver denied liability and informed the claimant that anything she had to say should go through the husband of the insured driver.
Following contact, the insured driver refused to give the claimant details of her insurer and the claimant had to involve the police to assist the process. Ultimately, the details of the insured car were verified and the insured driver provided details to the claimant of her comprehensive policy insurer. That insurer, coincidentally, was the same insurer as the compulsory third party (CTP) insurer involved in this claim, Youi.
The police report notes that investigations commenced on 3 November 2023 and were finalised on 21 January 2024. It was not until 6 February 2024 that the police were able to exchange driver details with the claimant.
Subsequently, the claimant then made a property damage claim to the property damage arm of the insurer. This was lodged on 17 February 2024 and then the claimant made a telephone call to the insurer on 19 February 2024. This point of contact was more than three months after the accident had occurred. Coincidentally then, one arm of Youi, was dealing with the claimant’s property damage claim and another arm was about to deal with the claimants CTP statutory benefits claim.
At the time of this telephone call, the claimant disclosed that she had right shoulder pain and had undergone scans for this which led to the discovery of a brain tumour, which I assume is unrelated to the accident.
The claimant made a claim for payment of statutory benefits on 5 March 2024.
For the claimant to comply with s 6.13 of the Motor Accident Injuries Act 2017 (the Act), her claim had to have been made on or before 2 February 2024.
The claimant is self represented and not cognisant of all of her rights with respect to making a claim for statutory benefits and damages arising from the accident.
The legislation
To make a claim for statutory benefits, the claimant must comply with the provisions of s 6.13 of the Act. This provides;
“6.13 TIME FOR MAKING OF CLAIMS FOR STATUTORY BENEFITS
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) 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, unless permitted by the regulations.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either--
(a) the claim is made within 3 years after the date of the motor accident, or
(b) the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.”
Regarding a claim for statutory benefits, note must be taken of Regulation 8A of the Motor Accident Injuries Regulation 2017 (the Regulations). This stipulates;
“8A TIME FOR MAKING CLAIMS (SECTION 6.13(2))
(1) For the Act, section 6.13(2), payment of weekly payments of statutory benefits for a period before a claim is made is permitted if--
(a) the claim is made within 3 months after the date of the motor accident to which the claim relates, and
(b) the claimant provides a full and satisfactory explanation for the delay in making the claim.
(2) The matters that must be taken into account in determining whether the claimant has a full and satisfactory explanation for the delay in making the claim include, but are not limited to, whether, before the expiry of the period of 28 days for making the claim--
(a) the claimant was aware of the right to make the claim, or
(b) the claimant was a person under a legal incapacity, or
(c) the claimant was prevented from making the claim before the expiry of that period because of illness or injury.
(3) An explanation for the delay in making a claim is taken to be a full and satisfactory explanation for the purposes of subclause (1)(b) if the insurer has not rejected the explanation within 14 days after receiving the explanation.
(4) This clause does not apply to a motor accident occurring before 1 April 2023.”
The facts
The claimant, having made a claim on 5 March 2024, was in breach of s 6.13(1) of the Act. The claim should have been made on or before 2 February 2024.
Section 6.13 (2) of the Act provides that if a claim for statutory benefits is not made within 28 days of the accident, then weekly payments for statutory benefits are not payable in respect of any period before the claim is made unless permitted by the Regulations. Thereafter, as noted above, reference must be made to Regulation 8A.
Section 6.13(3) provides that a claim for statutory benefits may be made after the three month period from the date of the accident provided a full and satisfactory explanation for the delay in making the claim is provided and either the claim is made within three years after the date of the accident or the claim is one involving an assessment of the degree of permanent impairment of the injured person greater than 10%.
In this claim, the claimant has made a claim out of the three month period, on 5 March 2024. The claimant has however, provided an explanation for the delay and the insurer has accepted this as an explanation which is full and satisfactory.
The claimant has informed me that she is in considerable financial difficulty and she is looking to have statutory payments made from the date of the accident and not the date when she first made her claim.
However, in this respect, the claimant obtains no assistance from Regulation 8A of the Regulations
The insurer has accepted that a full and satisfactory explanation has been provided but submits that it cannot not make payments before the date of the claim, on 5 March 2024 because the claimant’s claim was made after the three months time limit.
The insurer is correct in its stance. However, as discussed at the first teleconference on 9 May 2024, the claimant has been proceeding under some considerable difficulty through possible obstructive and unhelpful action apparently taken by the insured driver.
Firstly, the insured driver did not stop after the accident to provide driver details but that may have happened out of confusion as it appears the insured driver was not aware of where the claimant had proceeded immediately after the accident.
Secondly, the claimant has had to make her own investigations and inquiries about witnesses and other evidence. She was in the course of her enquiries, able to locate CCTV of the incident.
Thirdly, the claimant endeavoured to obtain the assistance of the police. This was provided but there have been difficulties with the information that could be released.
Finally, the claimant has proceeded under great difficulty because of personal injuries suffered by her as a result of the accident and which she says has required her to take opioids and also to undergo surgery. It may be though that this surgery is related to the brain tumour. In addition to this, the claimant has continued as a single mother with four dependant daughters all living at home.
The claimant has, as far as I can ascertain, always been under some difficulties because she was never made aware of the time limitation requirements of the Act for making a claim for statutory benefits. At no stage prior to 19 February 2024 when the claimant contacted the insured, could the insurer have informed her of her rights and obligations.
The claimant was not aware that she could make a claim against the nominal defendant. I asked her if she had heard of the entity of the nominal defendant at the teleconference on 9 May 2024 and she had not.
The claimant, when she was finally able to get details of the insured driver’s comprehensive policy insurer, immediately made a claim for the property damage to her car. She needed transportation for herself, and her family and the car need to be repaired in circumstances where she was not responsible the accident. That property damage insurer was also the CTP insurer involved in this claim, Youi. When that claim was made though, it was out of the three month time limit. Even if the comprehensive damage representative of the insurer had said to the claimant that she should immediately make a claim for statutory benefits, she was out of time to obtain any benefit of payment from the date of the accident.
The claimant informed me at the teleconference that she said to the person she was speaking to with respect to her comprehensive damage claim that she suffered injuries in the accident. That person, representing Youi, provided no assistance nor made any representations to the claimant about whether the claimant had made any claim to protect her interests for damages for personal injuries suffered by her and for payments for which she might be entitled to assist her for any loss of income. That is not default of the insurer though as the claimant by this stage was already out of time to make a claim within three months of the accident.
If the claimant had been informed of her obligations under the Act and the Regulations then presumably she would have made a claim for payment of statutory benefits within time. The insurer has though, not been responsible for any misinformation or withholding of information about how to make a claim. As the claimant was already out of time, the default could not be cured.
CONCLUSION
The claimant has made a claim for payment of statutory benefits out of time. Whilst the insurer has accepted her explanation as being full and satisfactory, the insurer correctly relies on Regulation 8A which prevents payments for statutory benefits from the time of the accident to the time claim is made when the claim is made more than three months after the accident.
Section 6.13 provides a discretion to make payments from the date of the accident but for that to happen, Regulation 8A provides no discretion and requires that the claim must have been made within three months of the accident. Through no fault of the claimant but arising out of her ignorance of the provisions of the Act and Regulations, this did not occur.
I am satisfied that the claimant was not aware of her rights and obligations and time requirements for making a claim for statutory benefits. That however, does not assist her as she is not entitled to those payments from the time of the accident due to her unknowing default of the provisions for compliance to obtain statutory benefits.
DETERMINATION
It is my finding that the insurer does not have to make any statutory benefit payment from the time of the accident on 2 November 2023 to 5 March 2024.
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