Milnes v Allianz Australia Insurance Limited
[2022] NSWPIC 125
•3 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Milnes v Allianz Australia Insurance Limited [2022] NSWPIC 125 |
| CLAIMANT: | Catrina Milnes |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 3 February 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim; section 7.33 of the Motor Accident Injuries Act 2017; whether claimant has provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment; Lee v Allianz Australia Insurance Limited & Toone v AAI Limited t/as GIO applied; claimant’s solicitor working in Covid lockdown without administrative support; claimant relied on her lawyers; Held- the claimant has provided a full and satisfactory explanation for the delay; leave granted to refer the claim for assessment. |
INTRODUCTION
Factual background
This is an interim decision regarding the Commission’s leave being given to the claimant to refer her application for assessment of damages to the Commission, as required by section 7.33 of the Motor Accidents Injuries Act (MAI Act).[1]
[1] See at paragraph 28 & 29
The background is set out in Ms Milnes's statement dated 10 December 2021.[2]
[2] AD2
Ms Milnes was involved in a motor accident on 3 August 2018.
On 12 September 2018 she signed an application for personal injury benefits and submitted that to the insurer.
On 7 December 2020 the claim for common law damages was lodged and liability was accepted.
The preparation proceeded as usual in personal injury claims, with the exchange of documents and the claimant being examined.
On the days leading up to and including the third anniversary of the claimant's motor accident the claimant’s solicitor was working from home, due to the Covid Sydney wide lock down and away from his usual workplace and support staff. This was disruptive and the 3 year date was overlooked.
A detailed history in the claimant’s and the claimant’s solicitor’s statements[3] show that the claimant was reliant on her legal representation to ensure that all relevant deadlines were met.
[3] AD3
The application for assessment of common law damages was lodged in the Commission three days after the third anniversary of the accident.
Ms Milnes seeks leave for the time to be extended for the commencement of proceedings at the Commission.
On 21 December 2021 the insurer submitted that it considers the claimant’s explanation to be full and satisfactory.
Issue in dispute
This claim has been allocated to me for determination of the insurer's liability for the quantum of Ms Milnes’s damages arising from the injuries sustained in the accident.
Before that can proceed I must make an interim decision determining whether leave can be granted for the application for damages to be referred for assessment. If I make that determination the application will be referred back to the Motor Accidents Division head to be placed in the stood over list pending the resolution of the medical disputes, being whole person impairment.
I held a teleconference on 19 November 2021 and requested the following:
a. On or before 3 December 2021 the claimant is to upload to the portal the personal explanation supporting the leave issues, any evidence in support and any submissions as to whether leave may be given including the question of costs.
b. On or before 10 December 2021 the insurer is to upload to the portal any submissions regarding the leave issue in reply.
I received the parties' submissions.
I have determined that Ms Milnes will be given leave to refer her claim for assessment under section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act) for the reasons set out below.
LEGISLATIVE FRAMEWORK
Objects of the relevant acts
Ms Milnes's claim is made under, and is subject to, the provisions of the MAI Act. The Commission will assess the claim in accordance with the Personal Injury Commission Act 2020 (the 2020 Act), the Commission's rules and any relevant provisions of the MAI Act.
The MAI Act objects are found at section 1.3(2), which addresses among other things "the early resolution of motor accident claims and the quick, cost-effective and just resolution of disputes".
Section 1.3(4) provides that when interpreting the provisions of the MAI Act, a construction that would promote the objects of the Act is to be preferred over one that would not. Section 1.3(5) provides that when exercising a discretion conferred by the MAI Act, that discretion must be exercised in a way that would also promote the objects of the MAI Act.
The objects of the 2020 Act are set out in section 3 and include ensuring that the Commission’s decisions are timely, fair, consistent and of a high quality and that the Commission is enabled to decide matters justly, quickly, cost effectively and with as little formality as possible.
Section 4 of the 2020 Act echoes sections 1.3(4) and (5) of the MAI Act and requires interpretations of provisions that promote the objects of the 2020 Act and the exercise of legislatively conferred discretions in a way which promotes the objects of the 2020 Act.
Section 42(1) of the 2020 Act and the rules of the Commission contain the Commission’s ‘guiding principle’ which is that the Commission must facilitate ”the just, quick and cost-effective resolution of the real issues in the proceedings”. Section 42(2) requires me, as a member of the Commission to give effect to the guiding principle when exercising any power given to me under the 2020 Act or the rules of when interpreting any provision of the 2020 Act or the rules.
Time limits
The MAI Act, like its predecessor, the Motor Accidents Compensation Act 1999 (the MAC Act) contains many time limits.
Part 6 of the MAI Act provides for the making of both claims for statutory benefits and claims for damages and associated matters. Section 6.14(1) provides that a claim for damages cannot generally be made until 20 months have passed since the motor accident and section 6.14(2) provides that a claim must be made ”within 3 years after the date of the motor accident”.
Dispute resolution of claims by the courts is provided for in Division 6.5 of Part 6 of the MAI Act. Section 6.32(1) provides a three-year limitation period for commencing court proceedings and proceedings can only be commenced outside that time frame ”with leave of the court” and that leave must not be granted unless the claimant provides a full and satisfactory explanation for the delay to the Court.
There is a definition of ‘full and satisfactory explanation’ in section 6.2 as follows:
“6.2(1) For the purposes of this Part [that is Part 6], 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.”
Dispute resolution of claims for damages and claims for statutory benefits outside the Court system is provided for in Part 7 of the MAI Act and in particular Division 7.6.
Section 7.33 provides a time limit for the referral of claims for damages to the Commission as follows:
“A party to a claim cannot refer a claim for assessment under this Division more than 3 years after the motor accident concerned unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules.”
There is no definition of ‘full and satisfactory explanation’ in Part 7.
Does Ms Milnes have a full and satisfactory explanation?
Ms Milnes's statement and solicitor’s submissions provided the explanation for the delay in referring the claim assessment as follows:
a. the accident occurred on 3 August 2018;
b. the three-year limitation period expired on 3 August 2021;
c. the application for assessment was lodged 3 days after the 3rd anniversary due to the deadline being overlooked in circumstances where the responsible solicitor was coping with working alone without administrative support.
d. the claimant, while keeping contact with her legal advisers in order to provide instructions totally relied on her solicitor to ensure that relevant deadlines were met.
The definition of a full and satisfactory in section 6.14 applies only to Part 6 of the MAI Act because it says so explicitly. The definition does not apply to section 7.33 because section 7.33 is in Part 7 of the MAI Act, and not Part 6 of the MAI Act.
I note Member Cassidy’s decision in Toone v AAI Limited t/as GIO[4], which has assisted me in writing this decision as well as Member Williams’ decision in Lee v Allianz Australia Insurance Limited[5], which determined that:
“... in order to interpret s 7.33 in a way that is harmonious, logical and consistent with the MAI when read as a whole, it is appropriate to proceed on the basis that the term ‘full and satisfactory explanation’ used in s 7.33 means 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 and the 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.”
[4] Toone v AAI Limited t/as GIO [2021] NSWPIC 536 (21 December 2021).
[5] [2021] NSWPIC 351 at [23].
Member Williams’ decision refers to the numerous decisions and authorities on section 66 of the MAC Act and section 6.2 of the MAI Act.
I agree with the approach of both members and adopt it.
I grant leave for Ms Milnes’s application for assessment of damages to be referred to the Commission because her explanation is full and satisfactory.
I make no order as to costs. Costs of this application will be considered when considering costs in the substantive matter.
The damages assessment is referred to the Motor Accident’s Division head to assess its suitability to be placed in the stood over list.
Member Terence O'Riain
Personal Injury Commission
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