Moussa v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moussa v QBE Insurance (Australia) Limited [2024] NSWPIC 203
CLAIMANT:	Ahmad Moussa
INSURER:	QBE
MEMBER:	David Ford
DATE OF DECISION:	23 April 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute; claim for damages submitted to insurer at the same time the claim was referred to the Personal Injury Commission under section 7.36 for assessment; claimant failed to comply with section 6.25 direction issued by the insurer; claim was taken to be withdrawn under section 6.26(3); claimant seeks to have the claim reinstated; application for a miscellaneous claims assessment under schedule 2(3)(h); whether the claimant had complied with section 6.20(7); whether the claimant has a full and satisfactory explanation for the failure to provide required particulars in response to the section 6.26 direction; Held – the claimant has provided a full and satisfactory explanation and also complied with the provisions of section 6.20(7)(b) the claimant’s claim is to be reinstated.
DETERMINATIONS MADE:	CERTIFICATE 1. Issued under s 7.36(5) of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

On 23 November 2020 Ahmad Moussa (the claimant) was working at Sydney Flemington Markets at approximately 3:00am and was crossing a pedestrian crossing situated inside the markets, when a forklift struck him, causing him to be thrown to the ground.
As a consequence of the accident, he sustained multiple injuries including a fractured right knee, injury to right shoulder, arm and elbow, right hip radiating pain into the left leg and back and psychological injuries. The insurer admitted liability for the claim on 31 May 2023 and alleged 30% contributory negligence on behalf of the claimant.
The claimant submitted an application for assessment of damages to the Personal Injury Commission (Commission) on 23 November 2023 and requested the matter be placed in the stood over list, as a related medical dispute had yet to be finalised. The dispute was as to whether he is entitled to damages for non-economic loss.
The insurer submitted the Commission has no jurisdiction to determine this matter, as there is no common law claim, stating the claimant has failed to make an application for reinstatement of the claim with the Commission in accordance with s 6.26(4) of the Act.
Section 6.20 (1) provides:
“if after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as requested by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.”
The motor accident occurred on 23 November 2020 and the insurer served a s 6.26 direction on 24 July 2023. The s 6.26 direction expired on 24 October 2023, and no further response had been received from the solicitors for the claimant. The claim therefore appears to have been taken to be withdrawn under s 6.26 (3) and therefore there is no damages claim on foot at the present time.
The Division Head notified the parties, the claimant may seek to have the claim reinstated by lodging an application for a Miscellaneous Claims Assessment under Schedule 2(3)(h).
The Division Head further ordered on or before 7 February 2024 the claimant is required to:
(a) lodge the relevant miscellaneous claims assessment application to have the claim reinstated, and
(b) provide a response to the proposed course of dismissal of the damages assessment application.
At the preliminary conference on 18 March 2024, the parties agreed the application can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2, the application can be determined on the papers. I am satisfied sufficient information is available regarding the application to allow me to determine the application without holding an in-person hearing.

RELEVANT STATUTORY PROVISIONS

Section 6.20, Consequences of failure to provide relevant particulars of claim for damages:
" (1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable cause to provide the insurer with all relevant particulars about the claim (as required by s 6.25) the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2)     The insurer’s direction must be given in accordance with the Motor Accident Guidelines
(3)     If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4)     The claimant may make an application for reinstatement of the claim.
(a)    To the Commission for a claim that is not exempt from assessment under Division 7.6 or
(b)    To a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6
(5)     (Repealed)
(6)     If the application for reinstatement is made less than 3 years after the date of the motor accident the claim is to be reinstated the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars
(7)     if the application for reinstatement is made three years or more after the date of the motor accident the claim is to be reinstated if the court or the Commission is satisfied that
(a) The claimant has a full and satisfactory explanation for the failure to provide the required particulars and
(b) The total damages of all kinds likely to be awarded to the claimant if the claims succeed are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 4.11 as at the date of the motor accident
(8)     This section does not apply to a claim that as at 2 years and 6 months since the motor accident concerned is the subject of a determination by medical assessor declining to make an assessment under Division 7.5 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.”

DOCUMENTS CONSIDERED

The solicitor for the claimant relies upon the following documentation in support of this application:
(a) submissions dated 20 December 2023, 16 February 2024 and 25 March 2024, and
(b) statement of claimant updated 19 March 2024.
The solicitor for the insurer relies upon submissions dated 11 March 2024.

Claimant’s submissions

I refer to the statement of the claimant dated 19 March 2024. I will now refer to what I considered to be relevant paragraphs of the statement:
“16. I first instructed Sanford legal (my solicitors) to act for me in respect of a personal injury claim arising from the accident on 17 December 2021
17      (k) I understand that on 24 July 2023 the insurer issued a direction under the relevant legislation requiring me to provide relevant particulars of my claim within three months. This is known as a section 6.26 direction.
(l) On 10 October 2023, I met with my solicitors in order to provide my instructions in respect of the section 6.26 Direction. That same day, my solicitors emailed to me a copy of a draft letter to Moran Agnew lawyers, responding to the section 6.26 Direction and providing all relevant particulars. I understand a response was due by 24 October 2023. I did not provide my instructions right away and my solicitors chased me for my instructors on the 20 October 2023. It was not until 23 October 2023 when I instructed my solicitor to provide Moray and Agnew Lawyers with my response providing all relevant particulars. I. understand this letter was emailed to Moray and Agnew Lawyers on 23 October 2023, and prior to the section 6.26 direction expiring on 24 October 2023.
(p)On 20 December 2023 my solicitors wrote to Moray and Agnew Lawyers disputing the position that I have not complied with the section 6.26 Directions. I was advised by my solicitors that I had provided all the relevant documents in my possession so the insurer could particularise my claim for economic loss. This included all my individual and company tax returns from 2017 to 2022.
18.    English is my second language and I have limited knowledge of what is required when bringing a personal injury claim I rely on my solicitors for their expertise and advice in respect of my personal claim resulting from my accident on 23 November 2020. I have little knowledge of the law other than what I am advised by my solicitors.
19.    I was advised that I had to provide my instructions in respect to the section 6.26 Direction so that the insurer could be provided with all relevant particulars about my claim. This is to enable the insurer to make a proper assessment of my entitled to damages. To my knowledge, this was done on 23 October 2023
20.    I relied on my solicitors who advised me that the section 6.2 Direction had been responded to on 23 October 2023 and the response was compliant. My solicitors were of the view that I provided all tax records in my position and that was sufficient for the insurer to assess my claim and any further details would be provided prior to any informal settlement conference or damages assessment as we were waiting on my updated tax records.
21.    My solicitors had previously advised me that it was premature to quantify my claim for past or future economic loss as I had not lodged my most recent tax returns and given, I had returned to work in some capacity, quantifying my claim would not be straightforward and would require a calculation of probable earnings less actual earnings and the recent tax returns would be the most accurate source in assessing this
22.    It was not until early February 2024 that I was advised by my solicitors that the insured did not believe I had complied with section 6.26 Direction as it required full particulars of my claim for past and future economic loss. I was also advised that the Commission required I lodge a Miscellaneous Application to have my matter reinstated.
24.    I was advised by my solicitors that even though I provide all relevant documents in my possession related to my economic loss claim, I should also set out what I would be claiming even if my recent tax records had not been lodged to satisfy the insurer so there were no longer be pressing the issue that I had not complied with the section 6.26 direction. I was advised I could they always amend my claim for economic loss damages if the updated tax records shed any new information. This was attended to on 15 February 2024, and I understand the insurer has now taken the view that in the circumstances, the claim for economic loss has been quantified. The insurer takes no position with respect to my application for reinstatement.
26.    Up until the issue is raised to the Commission in its correspondence dated 24 January 2024, my solicitors were of the view that I had complied with the section 6.26 Direction. I understand that my solicitor’s advice was that they still maintained I had complied with the section 6.26 Direction but in the event I had not, I should provide further details of my claim based on what it is in my possession.”
I refer to the submissions lodged by the solicitors for the claimant on 25 March 2024, and I will now refer to what I considered to be relevant paragraphs in the submissions.
The claimant’s solicitor had requested the claimant provide his updated tax records so that the claimant’s solicitor could be in a position to properly quantify the claim for economic loss. The claimant advised he had not yet lodged his 2023 tax return and would do so once he had obtained a new accountant. Given the insurer’s position which had only become known on 18 December 2023 (see paragraph 6 above) and the direction of the Division Head made on 24 January 2024, the claimant’s solicitors wrote to Moray and Agnew Lawyers on

15 February 2024 and quantified the claimant’s claim for economic loss on the information at hand as at 15 February 2024.
The claimant was assessed by Dr James Bodel, orthopaedic surgeon, on 23 August 2023. For reasons outside of the claimant’s control the report was delayed and only received by the claimant’s solicitors on 5 February 2024 Dr Bodel has assessed the claimant as suffering from 19% whole person impairment.
The particulars provided on 23 October 2023 contained a comprehensive list of all the tax returns which formed as enclosures and were provided to the insurer and advised that the claimant and his wife's personal and trust company tax returns for the period ending

30 June 2023 were outstanding and have been requested from the claimant.
At no stage did Moray and Agnew Lawyers identify what relevant particulars it required in respect of claims for past or future economic loss to enable the insurer to make a proper assessment of the claimant’s full entitlement to damages. Due to this omission, the insurer is not entitled to have deemed the claim to have been withdrawn. Furthermore, it is inappropriate for the insurer to state, in general terms, that a claimant’s response to particulars was not sufficient and leave it to the claimant to ascertain what is missing. There can be no criticism made of the claimant in this respect.
The insurer could have relied on the pay slips and the tax returns which were already in its possession prior to 24 October 2024, to determine the claimant’s net income at the time of the subject accident. This is a simple calculation of looking at the income derived in the financial year of 30 June 2020 ($49,661) and dividing it by 52 weeks to arrive at $955 per week or rely on the weekly pay slips. In addition to this, the insurer was aware the claimant had not returned to work since the subject accident until about February 2023, which would have been ascertained from the numerous certificates of capacity, medical records which were contained in the Workers Compensation file, the treating records obtained by the insurer, and insurer’s own independent medical report of Dr Inglis Howe Synott, psychiatrist dated 12 May 2023, who examined him on 9 May 2023 and noted the claimant had returned to work “two months ago”. The report of Dr Synott has not been provided but can be produced. Reading these documents together would have been sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages so far as past and future economic loss is concerned.
The claimant relies on the conduct and advice of his solicitors that the claimant had provided all the relevant particulars and it complied with the direction and that the insurer had all the material before it to make an assessment of damages so far as economic loss is concerned noting the ongoing dispute of damages for non-economic loss.
In addition to this the claimant submits that his solicitors formed a view that would have been prejudicial to the claimant to provide the insurer’s solicitors with a calculation quantifying the claim for economic loss when the tax records for the 2023 financial year had not been lodged or at the very least drafted. To that end, the claimant’s solicitors advised further particulars in respect of economic loss would be particularised prior to any informal settlement conference and/or hearing.
The claimant took the advice of his solicitors that he had complied with the direction and the insurer’s position was incorrect. It was not until 24 January 2024 when the Division Head directed the claimant to lodge a miscellaneous application to have his matter reinstated, that his solicitors advised him it was best to quantify the claim for past and future economic loss even though he had not lodged his tax for 2023 so as to satisfy the insurer and reduce any further delay if the insurer was correct that he had not complied with the direction. Considering these developments, and as soon as practicable, the claimant, through his solicitors provided further response on 15 February 2024 qualifying his claim for past and future economic loss.
The delay was solely due to the claimant’s solicitors view that the claimant had complied with the direction. The delay in responding to Moray and Agnew Lawyer’s correspondence on

6 November 2023 was for a period of just over three months. This itself is not an explanation to justify the failure or delay but some significance should be placed on the fact that the insured is not prejudiced in any way. In addition to this, the insurer has since confirmed in their submissions provided by Moray and Agnew Lawyers dated 11 March 2024 its view that it no longer takes a position with respect to the claimant’s miscellaneous application to have his matter reinstated, given the claim for economic loss has been quantified.

Insurer’s submissions

The solicitors for the insurer have submitted in circumstances where the claimant's claim has now been quantified, the insurer takes no position with respect to the claimant’s application for reinstatement.

DETERMINATION

The claimant has provided a full and satisfactory explanation for the delay.

It is apparent from the claimant he was aware the s 6.26 direction had been issued by the insurer; however, he was of the belief all relevant particulars had been provided prior to the

s 6.26 direction expiring on 24 October 2023. Again, on 20 December 2023 he was advised by his solicitors all relevant documents had been provided to the insurer for the insurer to particularise his claim for economic loss. The claimant states he has limited knowledge of what is required in bringing a personal injury claim, and he relied upon the expertise of his solicitors and advice in progressing the claim.
He was also provided with advice by his solicitors, it was premature to quantify the claim for past and future economic loss because he had not lodged his most recent tax returns and also, as he had returned to work in some capacity, qualifying the claim was not straightforward and would require a calculation of probabilities regarding actual earnings and the most recent tax returns would be an accurate source in assessing this loss. It is clear he relied solely upon the advice of his solicitors that he had complied with the s 6.26 direction within the specified time limit.
I refer to the decision of Smith v Grant 2006 NSWCA 244, which involved an appeal from the District Court where a claimant was granted an extension of time in circumstances where the solicitor had lodged an application more than three years from the date of the accident. In such circumstances, the claimant was required to seek leave of the court to proceed in pursuant to s 109 of the Motor Accidents Compensation Act 1999. At [60] the Court of Appeal held as follows:
“Accordingly, the weight of authority under the 1988 Act in this court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for the delay in commencing proceedings”.
It is apparent from the submissions of the solicitor for the claimant she was preoccupied with the issue regarding whether the claimant could make a claim for non-economic loss. There is no explanation as to why the report of Dr James Bodel was not received until

5 February 2024. Dr Bodel had examined the claimant on 23 August 2023. It is stated there were "reasons outside of the claimant's control” that the report was delayed.
I do not accept the submission by the solicitor for the claimant, she was justified in providing the insurer with documentation and information in a piecemeal fashion and I do not accept the submission there was an onus on the insurer to determine the claimant’s claim for past economic loss based upon selected and various documents, including pay slips and certificates of capacity, which may provide the insurer with some guidance in calculating the claim for past economic loss. It is incumbent upon the solicitor for the claimant to provide such particulars in an accurate form, and it is not the responsibility for the insurer to provide the claimant with calculations regarding the claim for past economic loss.

I do not accept the submission the insurer has not been prejudiced in any way, because of the failure to provide the particulars of the claim. The issue of prejudice is not relevant as to whether there has been compliance with a s 6.26 direction.
I find the solicitor for the claimant could have provided sufficient and adequate particulars prior to the expiration of the s 6.26 direction and the delay in providing such particulars was due solely to her omission in providing such particulars and there was no fault or delay on the part of the claimant in assisting his solicitors with relevant economic loss documentation.
I am satisfied the claimant has given a full account of his conduct, including actions, knowledge and belief regarding compliance with the s 6.26 direction.
I find the claimant’s explanation for the admission is full. I am satisfied that a person in the position of the claimant would have been justified in believing his solicitor had complied with the s 6.26 direction. I find the claimant’s explanation is satisfactory.

CONCLUSION

I find the claimant has a full and satisfactory explanation for the failure to provide the required particulars in response to the s 6.26 direction.
As at the date of the claimant’s accident, the maximum amount which may be awarded for non-economic loss under s 134 of the Act was $590,000. Twenty-five per cent of the maximum amount totals $147,500. I further find the total damages of all kinds likely to be awarded to the claimant if the claim succeeds, is not less than the 25% of the maximum amount based upon the calculations contained in paragraph 60 of the submissions dated

24 March 2024 and, also having regard to the assessment of whole person impairment provided by Dr James Bodel in his report dated 5 February 2024.
Therefore, I determine the claimant’s claim is to be reinstated forthwith and I direct the parties to approach the dispute officer and request the matter be listed before me for a teleconference on 3 June 2024 at 9:00am at which time I will determine the way the assessment will proceed and set a timetable to prepare the matter for assessment.

[2024] NSWPIC 203

23 April 2024