Micallef v Allianz Australia Insurance Limited
[2021] NSWPIC 341
•6 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Micallef v Allianz Australia Insurance Limited [2021] NSWPIC 341 |
| CLAIMANT: | Adrean Micallef |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 6 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits and a claim for damages in respect of motor accident where claimant lodged claims outside statutory time limit (three years post-accident); whether claimant made a full and satisfactory explanation for the delay in making the claims; whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay; whether the claimant is prohibited to recover damages if injuries resulting from the accident were minor injuries: whether the claim for statutory benefits can be made if the claimant’s WPI is greater than 10%; Held -the claimant’s explanation for the delay is full and satisfactory; determination for the claim for statutory benefits deferred until the Personal Injury Commission assessment as to whether the claimant’s injuries are minor injuries; determination for the claim for damages deferred until the Personal Injury Commission assessment as to whether the claimant’s WPI is greater than 10%; claimant invited to make further application if injuries are not minor injuries and WPI is assessed at greater than 10%; order for legal costs not made as no determination made for statutory benefits or claim for damages. |
| DETERMINATIONS MADE: | The findings of the assessment of this dispute are as follows: 1. For the purposes of Part 6 the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay 2. Effective Date: This determination takes effect on 6 September 2021. 3. Legal Costs: The claimant is seeking the maximum regulated costs for the application relating to these late claims. 4. As I am unable to make a final determination as to whether Mr Micallef’s claim for statutory benefits and his claim for damages can be made, I am unable to make any order, or orders as to costs. 5. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to: The time limits for making a claim for Statutory Benefits and a Claim for Damages
The Claimant, Mr Adrean Micallef, was involved in a motor vehicle accident on 20 April 2018 (the accident) along Picton Road. He was a passenger in a vehicle driven by his brother. A vehicle driven by a woman following Mr Micallef and his brother, collided with the rear of their vehicle causing it to roll over and impact with a barrier.
The Police and ambulance attended the scene of the accident. The ambulance officers examined Mr Micallef at the scene.
Mr Micallef sought legal advice on 27 April 2021 and as a result, lodged an application for Personal Injury Benefits declared on 27 April 2021 with the Insurer, Alliance Australia Insurance Ltd. The claim made by the Claimant for statutory benefits and a claim for damages as a result of the accident has been denied by the Insurer. The grounds for these denials are the claims are made more than three years post accident and the Claimant’s explanation for the delay is not full and not satisfactory.
In accordance with Subdivision 3, 7.41(1) the miscellaneous claims assessment disputes have been the subject of internal reviews by the Insurer. These reviews were undertaken by Internal Reviewer, Ms Christina Boyadjian. A Certificate of Determination was published on 10 June 2021 which sets out in detail the relevant legislation, facts and material which the Internal Reviewer considered. The Internal Reviewer was not satisfied that Mr Micallef’s statement provided a full and satisfactory explanation for the delay.
The Claimant seeks a determination by the Personal Injury Commission (PIC) as to whether he has given a full and satisfactory explanation for non-compliance with the time limit requirements in respect of the claim for statutory benefits and separately, in respect of the claim for damages.
Jurisdiction of the Personal Injury Commission
The application in this matter was lodged at the Dispute Resolution Service.
The PIC commenced operation on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that Motor Accident Injuries Act 2017 (MAI Act) and the Motor Accident Guidelines (the Guidelines) continue to apply.
Legislation
The following legislation applies:-
(a) MAI Act
(b) Motor Accident Injuries Regulation 2017 and Guidelines (the Regulations, the Guidelines).
The Claimant seeks a determination with respect to two miscellaneous claim assessment matters. I have jurisdiction to determine these miscellaneous claims pursuant to Schedule 2(3)(h) and (l).
Late Claims – Statutory Benefits
The time for making a claim for statutory benefits is set out in the MAI Act at 6.13(1) relevantly; -
A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates.
However, 6.13(3) gives the Claimant an opportunity to provide a full and satisfactory explanation for the delay if the claim is made within three years after the accident or if the degree of permanent impairment of the Claimant’s accident related injuries is greater than 10%.
Late Claim – Claim for Damages
The time for making of claims for damages must be made within three years after the date of the accident, 6.14(2) of the MAI Act. Nevertheless, 6.14(3) and 6.14(4) of the MAI Act relevantly state;-
6.14(3) – A claim for damages may be made after the time required by subsection 2 (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.
6.14(4) – Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in such explanation.
15. Section 6.2 of the Act gives meaning of a full and satisfactory explanation:-
6.2(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.
6.2(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.
The Claimant’s explanation for delay
Mr Micallef signed a 64 paragraph statement on 6 May 2021. He is currently 34 years old. At the time of the accident, he was 31 years old. He owns and operates his own trucking business.
At the time of the accident his wife was expecting their first child. She was suffering from morning sickness and she had a high risk of preeclampsia. He was worried about his wife’s health. He was anxious to accept extra jobs in case he needed time off work to accompany his wife to prenatal appointments. The couple were attending weekly birthing classes.
He says the day after the accident he attended his general practitioner at Harrington Park Medical Centre because he was stiff, sore and bruised. The general practitioner advised him he was mostly likely suffering from whiplash injuries. Any swelling and bruising disappeared over time. However, he says he developed symptoms of fatigue, nausea and headaches. He was perplexed why he had these symptoms and put it down to being overworked and tired.
It was not until late 2019 before Mr Micallef sought medical treatment. He recalls doctors suggesting he was dehydrated and enquired about his mental health as he says he had always been talkative but had become reserved and wanting to sleep.
He recalls suffering a panic attack with shortness of breath and nausea. By March/April 2020 he noticed strange sensations which ran from his shoulders to the back of his ear. He consulted his general practitioner, but no diagnosis was made.
On 24 May 2020 he recalls suffering severe pain in his left shoulder radiating to the back of his ear. After suffering a panic attack, he attended Nepean Hospital where x-rays were performed. These did not report any abnormalities. He says his shoulder symptoms deteriorated and as result, he consulted an alternative general practitioner and was prescribed strong pain medications. On 27 April 2020 he had an ultrasound of his left shoulder which showed no abnormalities. A subsequent CT scan found no trauma injury.
On 24 May 2020, Dr John Hillman recommended a steroid injection which was performed that day. On 1 June 2020 an MRI scan revealed a herniated disc on his neck and a slap tear in his left Labrum which caused a large cyst in the scapular notch which was compressing the nerve. Surgery was recommended, however the cost of this procedure and the necessity to have time off work concerned Mr Micallef. He asked his general practitioner if this could be performed in the public health system.
He eventually was referred to Dr Haren Nandapalan on 8 July 2020 and was put on the public waiting list. The surgery took place on 21 December 2020 and for one month his arm was in a sling and he was unable to undertake any physical work including driving.
By this time, Mr Micallef’s wife was expecting their second child. He relied on his parents to help with activities of daily living. Unfortunately, the couple’s second son was stillborn which was devasting for both parents.
After seeing his surgeon, he was referred to physiotherapy and given strengthening exercises to do at home. He says he was focused on his family rather than himself until an anniversary photo of the accident appeared on his iPhone. This incident brought back memories and trauma. He does not reveal how or why he made any appointment with Gerard Malouf on 27 April 2021. This was the first time he became aware of time limits for making claims for personal injury entitlements. He was unaware of the extent of his injuries arising from the accident until he underwent an MRI scan in mid 2020.
Three year time limits
Firstly, 6.13(1) prohibits claims for statutory benefits unless made within three years of the date of accident. Mr Micallef’s claim is made outside the three years by seven days.
However, according to 6.13(3)(b) if Mr Micallef’s explanation for the delay is full and satisfactory and his degree of impairment for accident related injuries is greater than 10%, a claim for statutory benefits may be made after the three years.
Mr Micallef has lodged a dispute in relation to whether his injuries are minor injuries which is being dealt with by the PIC.
Therefore, until this dispute is determined, and his permanent impairment is assessed greater than 10%, Mr Micallef cannot make a claim for statutory benefits. At this time, I am not in a position to determine this late claim until the PIC completes the dispute relating to minor injury and the assessment of whole person impairment. I therefore defer my determination until this process is completed.
Secondly, 6.14 prohibits a claim for damages where the claim was not made within three years after the date of the accident unless the claimant has provided a full and satisfactory explanation for the delay.
Significantly, section 4.4 of the MAI Act prohibits the recovery of damages if the only injuries resulting from the accident were minor injuries.
If the PIC determines the Claimant has sustained other than minor injuries in the accident and if I determine his explanation for delay is full and satisfactory, he may make a claim for damages whether or not he has obtained an assessment of impairment greater than 10%.
Insurer’s submissions
On review of the Insurer’s submissions relating to the delay in making a claim for damages, it is submitted, Mr Micallef’s explanation for delay is neither full nor satisfactory. The submissions mainly focus on the issue of minor injury only. Further, the Insurer submits there is no evidence which would support a whole person impairment greater than 10%. As previously stated, this issue is not a matter for me to determine and will only be relevant if his injuries are assessed and his whole person impairment is greater than 10%.
They remark that it is inconceivable that a memory some three years after the accident would trigger action to which would lead to the legal advice. They further argue because Mr Micallef had a background of a previous history of low back pain that a reasonable person such as Mr Micallef would not have waited until after three years post accident.
The Insurer highlights the plethora of media advertisements by law firms advertising legal services for claims. They further submit it is simply not conceivable that the Claimant would not have seen these and sought legal advice at an earlier time.
Is the explanation for the delay full
Is Mr Micallef’s explanation for the delay in making his claim for damages full? Has he provided evidence of a delay in the onset of his accident related injuries? Has Mr Micallef given a full account of his conduct, including his actions, knowledge and belief from the date of accident until 6 May 2021?
Mr Micallef says the day of the accident he sought treatment from his general practitioner because he was stiff, bruised and sore. He was told he was most likely suffering a whiplash injury. He says it was a particularly stressful time of his life. He was working long hours and was focused on supporting his young family. Being self-employed if he didn’t work meant no money would be generated He was constantly tired. It was not until 2019 and into 2020 that he developed severe discomfort in his left shoulder and neck region. This is evidence of a delay in the onset of accident related injuries which is supported by his treating Orthopaedic Surgeon, Dr Nandapalan and the medico legal opinion of Orthopaedic Surgeon, Dr John Bentivoglio. After describing the high speed accident, Dr Nandapalan says “This was quite a traumatic episode. It would have put quite significant load and energy through to that left shoulder. It is quite reasonable to think that this was the cause of the SLAP tear of his labral tear to develop and hence the paralabral cyst” (the quote from Dr Nandapalan’s report dated 25 June 2021).
Likewise, Dr Bentivoglio, although somewhat surprised because of a prolonged period after the accident where he did not have any symptoms, opined, that on the balance of probabilities, all abnormalities shown on Mr Micallef’s investigations seen on the MRI scan taken of his cervical spine occurred as a result of the accident.
Mr Micallef admits he has never made a claim for personal injury before. He had no knowledge of the time limits for making a claim. There is no evidence to support the Insurer’s suggestion Mr Micallef had exposure to media advertisements relating to personal injury claims and or injuries.
Throughout the period from the date of the accident until he provided his explanation for delay the claimant was preoccupied with work, his young baby and then the loss of his second infant. He was busy working to make ends meet. He openly admits the real frank symptoms were asymptomatic for a prolonged period before seeking treatment. He says he was prompted to seek legal advice when the anniversary accident photo popped up on his phone. He immediately acted at this point and his solicitors acted swiftly to lodge a claim and prepare the explanation.
Based on Mr Micallef’s explanation and the delay of the onset of symptoms, I accept Mr Micallef’s explanation for the delay is full and that he has given a full account of his actions, knowledge and beliefs.
Is the explanation for the delay satisfactory
Would a reasonable person in the position of the Claimant have failed to comply with his duty or been justified in experiencing the same delay?
Mr Micallef works as a self-employed truck driver. He would need to hold a heavy-duty truck driver’s licence. However, these licences are readily available. The non-practical questions are accessible online and the practical aspect of the test is straight forward. Neither test involves complex questions or requires a high level of education.
The Claimant was preoccupied with the birth of his first child and his wife’s health. At a later time, he was again concerned about his pregnant wife and subsequently, the stillborn birth, and funeral of his second baby.
I am satisfied a reasonable person in his position would have been justified in experiencing the same delay. Mr Micallef’s explanation about the circumstances in which he found himself and his lack of knowledge or experience with personal injury claims and time limits have been fully addressed. I am satisfied his explanation for the delay is satisfactory.
Conclusion
Although I am satisfied the Claimant’s explanation for the delay in making a claim for statutory benefits is full and satisfactory, whether he can make a claim for statutory benefits will hinge upon the medical assessment to be undertaken by the PIC. I therefore defer my determination until this process is completed.
Likewise, I am satisfied Mr Micallef has provided a full and satisfactory explanation for the delay in making a claim for damages. However, if his injures are minor in nature, no damages may be awarded. Until this assessment is completed by PIC, Mr Micallef’s claim for damages cannot be determined. I therefore defer my determination until this process is completed.
If the Claimant is found to have sustained a non-minor injury, I invite the Claimant to make a further application to me for a certificate pursuant to section 7.33 of the MAI Act in respect of the claim for damages.
If the Claimant is found to have sustained permanent impairment that is greater than 10%, I invite the Claimant to make a further application to me for a certificate as to whether the Insurer is entitled to refuse payment of statutory benefits.
Further, pursuant to section 7.46(6) I am satisfied that sufficient information was supplied in connection with the claim for damages and as such, I exercised my power under the MAI Act without holding a formal hearing.
Costs
The Claimant is seeking the maximum regulated costs for the application relating to these late claims.
As I am unable to make a final determination as to whether Mr Micallef’s claim for statutory benefits and his claim for damages can be made, I am unable to make any order, or orders as to costs.
Elyse White
Member (Motor Accidents Division)
Personal Injury Commission
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