Mincarini v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 398
•20 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Mincarini v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 398 |
| CLAIMANT: | Francesco Mincarini |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late referral of damages claim to the Personal Injury Commission (Commission); section 7.33 of the Motor Accident Injuries Act 2017; whether the claimant had provided a full and satisfactory explanation for the delay; claimant relied on his lawyer’s advice; no prior claims experience; English his third language; claimant born and raised in Italy; claimant suffered significant injuries in the accident; claimant not advised about requirement to refer his claim to the Commission within three years of the accident; Held - the claimant had provided a full and satisfactory explanation for the delay in referring his claim for damages to the Commission; leave granted to refer the claim for assessment. |
INTRODUCTION
Francesco Mincarini (the claimant) suffered significant injuries, predominantly to his right knee, leg and foot, as a consequence of a motor vehicle accident on
16 March 2018. He made a claim for damages on Insurance Australia Limited t/as NRMA Insurance (the insurer). Liability for the damages claim has been admitted.
These proceedings, by which the claimant seeks to refer his claim for damages to the Personal Injury Commission (the Commission) for assessment, were commenced on 21 April 2021, more than three years after the accident. Before the matter can proceed to assessment, a determination has to be made under s 7.33 of the Motor Accident Injuries Act 2017 (MAI Act).
At a teleconference held on 24 May 2022 directions were made for the provision of submissions and evidence relied on by the parties in relation to s 7.33. I informed the parties that I intended to determine the s 7.33 issues on the papers. Any party objecting to this course was directed to raise the objection in the submissions lodged by the party.
Neither party has objected to me making a determination under s 7.33 on the papers. Having considered both s 52 of the Personal Injury Commission Act2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the matter can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues that arise under s 7.33 without holding a formal hearing.
On 26 June 2022 the claimant lodged his submissions and statement with the Commission. On 5 July 2022 the insurer confirmed that it would not take issue with the late lodgement of the claim for damages at the Commission. Given the insurer’s position in this regard, it has not lodged submissions or evidence.
EVIDENCE
The claimant relies on his statement dated 22 June 2022. The statement contains details of the claimant’s upbringing in Italy and his migration to Australia in October 2008. Details of his education, work history and the accident are provided. The statement records that following the accident the claimant spent seven to eight months in hospital to treat his injuries. He has undergone extensive surgeries to his right leg and knee, the first occurring on 17 March 2018 and the most recent on 7 April 2022.
The statement records that the claimant has not returned to work since the accident. He has seen a vocational rehabilitation provider. Details of the claimant’s current condition are provided. He suffers from extreme pain. He has gastrointestinal issues. His rehabilitation continues.
The claimant states that prior to the claim in relation to the accident the subject of these proceedings he had no experience making a claim for compensation for a motor accident. He states that he was not aware of the claim process or time limits. Although he can read and understand English, it is his third language after Italian and Spanish.
The claimant states that he instructed Walker Law Group (Walker) to act on his behalf on 18 December 2018. He states that he relied on his solicitor’s advice and expertise to protect his rights, particularly given that his understanding of Australian legal concepts generally is limited. He states that he cannot recall being advised by Walker that an application for assessment of damages needed to be lodged by the three year anniversary of his accident. He received an email from Walker on 24 March 2021 advising him that his case was “on track”. On 7 December 2021 the claimant instructed Wyatts Lawyers (Wyatts) to act for him. He was told by Wyatts on 25 May 2022 that his prior solicitors had not lodged his application for assessment of damages with the Commission within three years of the accident.
CLAIMANT’S SUBMISSIONS
The claimant’s submissions dated 23 June 2022 record that a review by Wyatts of the file held by Walker in relation to his claim indicated that there was no advice provided to the claimant as to the “limitation period” for an application for common law damages.
There is reference to correspondence between Walker and the insurer’s lawyers dated 21 April 2021. That correspondence refers to discussions between the two firms on
4 March 2021 and seeks confirmation that the insurer “will not take issue with the three-year limitation in this matter”. This correspondence supports an inference that Walker were aware of the time limits found in s 7.33 of the MAI Act.
It is submitted that the claimant was not aware of the need to refer his claim for damages to the Commission within three years of the accident. It is argued that the claimant’s reliance on his solicitors was reasonable in circumstances where he suffered serious physical and psychological injuries in the accident and English was not his first language. Reliance is placed on Walker v Howard [2009] NSWCA 408. It is submitted that the explanation provided by the claimant is satisfactory.
It is argued that a reasonable person in the claimant’s position, namely a person who has suffered significant physical and psychological injuries, has limited exposure or experience with the legal system, and was reliant on his solicitors, would have suffered the delay he experienced. It is submitted that there is a reasonable, full and satisfactory explanation for the delay in referring the claim to the Commission for assessment.
DETERMINATION
Section 7.33 of the MAI Act is in the following terms:
“7.33 Time limits for referring claims and making assessment
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.”
Some of the matters raised by the claimant’s solicitors in the submissions lodged on his behalf should have been contained in a statement or statutory declaration.[1] None the less, I am satisfied, based on the claimant’s statement, that the explanation for the delay is complete in the sense that it says what happened and why. The claimant suffered significant injuries in the accident. He has required significant treatment, surgery and rehabilitation. He relied on his solicitor’s advice and expertise to protect his rights. English is his third language. He was raised in Italy. He had not, prior to this claim, made a claim in relation to a motor accident. He was not advised that his claim needed to be referred to the Commission for assessment within three years of the accident. His solicitors failed to refer the claim for assessment as required by s 7.33.
[1] See claimant’s submissions at [7] – [13].
The claimant’s explanation does not need to be a prolix or burdensome recounting of every moment that has elapsed since the accident. I am satisfied that the explanation provided enables me to evaluate the reasons for the delay in referring his claim to the Commission for assessment. I find that the claimant’s explanation for the delay is full.
The claim was referred to the Commission late because the claimant’s previous lawyers failed to commence proceedings as required by s 7.33. Given his reliance on his solicitors, which I find was reasonable, the delay which occurred was, in my assessment, reasonably justifiable. I am satisfied that the claimant’s explanation for the delay is satisfactory.
I find that the claimant has provided a full and satisfactory explanation for the delay in referring his claim for damages to the Commission.
Leave is granted for the claim to be referred for assessment.
Member
Brett Williams
Motor Accidents Division
Personal Injury Commission
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