Najjar v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Najjar v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 328
CLAIMANT:	Terry Najjar
INSURER:	IAG Limited trading as NRMA Insurance
MEMBER:	Alexander Bolton
DATE OF DECISION:	20 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application by the claimant for payment of statutory benefits from the time of lodgement of the claim form when claim is lodged more than three months after the accident; claimant involved in an accident on 7 October 2023 with an unidentified vehicle; claimant made an application for personal injury benefits, including statutory benefits, on 27 November 2023, being a period of just over seven weeks from the accident; claimant did not provide particulars of enquiry and search until 1 March 2024 together with an explanation for his delay which was immediately accepted by the insurer as being a full and satisfactory explanation; claimant sought payment of statutory benefits from 27 November 2023; sections 2.30, 6.12 and 6.13 considered in addition to regulation 8A of the Motor Accident Injuries Regulations 2017 as well as part 4 of the Motor Accident Guidelines dealing with claims against the Nominal Defendant and the time for making a statutory benefits claim; Held – a claim for payment of statutory benefits against the Nominal Defendant requires a claim form to be served together with details of inquiry and search and until both requirements have been met, no claim has been made and accordingly the claimant did not make a valid claim until 1 March 2024.
DETERMINATIONS MADE:	CERTIFICATE Determination 1. The claimant was involved in a motor vehicle accident on 7 October 2023. 2. The claimant provided notice of his claim on 24 November 2023. The claimant did not provide details of inquiry and search until 1 March 2024. 3. A claim for payment of statutory benefits against the nominal defendant requires a claim form to be served together with details of inquiry and search, at the same time. Until both requirements have been met, no claim has been made. 4. The claimant did not make a valid claim until 1 March 2024. 5. The claimant is not entitled to the payment of statutory benefits before 1 March 2024.

STATEMENT OF REASONS

INTRODUCTION

The claimant was involved in a motor vehicle accident on 7 October 2023. The accident occurred on Thornley St, Marrickville NSW.
The claimant’s legal representative sent an Application for Personal Injury Benefits (Application) dated 24 November 2023 to the State Insurance Regulatory Authority (SIRA) on 27 November 2023. This is 51 days following the accident or just over seven weeks. SIRA received the application because the motor vehicle involved in the accident was unidentified.
The claim was allocated to IAG Limited trading as NRMA Insurance (the insurer) for management under the nominal defendant scheme on 30 November 2023.
The insurer notified the claimant on 7 December 2023 that as the accident involved an unidentified vehicle, he was required to make attempts to identify the motor vehicle considered at fault by way of due inquiry and search and that this was required before the claimant could proceed with his claim for statutory benefits.
The insurer has noted that the claimant’s legal representative lodged the application on 27 November 2023 and provided the due inquiry and search information on
1 March 2024. The insurer submits that the full and satisfactory explanation was deemed to have been accepted on 1 March 2024. This is a period of 21 weeks following the accident.
The claimant submits that he ought to be back paid the statutory benefits he says he is entitled to receive, from the date that the application was lodged, being
24 November 2023 and not from 1 March 2024 when the insurer says the claim became compliant.

The legislation

To make a claim for statutory benefits, the claimant must comply with the provisions of s 6.13 of the Motor Accident Injuries Act 2017 (Act). This provides;
“(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 the making of a claim for statutory benefits or damages, s 6.12 of the Act provides;

“6.12 NOTICE OF CLAIMS FOR STATUTORY BENEFITS OR DAMAGES

(1) A claim for statutory benefits is made by giving notice of the claim to the relevant insurer under Part 3.
(2) A claim for damages is made by giving notice of the claim--
(a) to the insurer of the motor vehicle concerned, or
(b) to the person against whom the claim is made if there is no insurer of the motor vehicle concerned.
(3) The requirement under this section (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if--
(a) that person is dead, or
(b) that person cannot be given notice.
(4) Notice of a claim for statutory benefits and a claim for damages are to be given separately.
(5) Notice of a claim is taken to be given to the insurer or other person to whom it is required to be given if the notice is given in accordance with section 6.15.

The time for making a claim for statutory benefits is regulated by section 6.13 of the Act. This says;

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%.
(4) In addition, a claim for statutory benefits under Division 3.4 in respect of an injury for which compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the Workers Compensation Act 1987has been payable may be made within 3 months after the compensation ceases to be payable.”

Regarding the Regulations, regulation 8A provides;

“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."

For claims against the nominal defendant, it is necessary to comply with the provisions of s 2.30 of the Act which provides;

“2.30 CLAIM AGAINST NOMINAL DEFENDANT WHERE VEHICLE NOT IDENTIFIED

(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.
(3) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.
(4) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.
(5) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.”

The Motor Accident Guidelines (the Guidelines) relevantly provide for claims against the nominal defendant, and state;
“Time for making a statutory benefits claim
4.15 As per Division 6.3, section 6.12 and section 6.13 of the Act, to make a claim for statutory benefits, a claimant must give notice of the claim to the relevant insurer within the following timeframes:
(a) three months after the date of the motor accident to which the claim relates, or
(b) to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident, within 28 days after the date of the accident.
4.16 Where the at-fault vehicle is unidentified or uninsured, a statutory benefits claim must be made on the Nominal Defendant within 28 days after the date of accident to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident.
And,
4.136 The insurer acting for the Nominal Defendant in a claim regarding an unidentified motor vehicle will explain to the claimant in writing that they are required to make due inquiry and search to ascertain the identity of the vehicle alleged to have been at fault in the accident.
4.137 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search, and:
(a) if the insurer determines that the requirement has not been met, it must provide details of the deficiency and how the claimant could go about satisfying the requirement.
4.138 In statutory benefits claims made on the Nominal Defendant, the insurer must make the liability decision within the timeframes specified under section 6.19(1)-(2) of the Act. If the insurer has not yet determined due inquiry and search at the time the liability decision is due, the insurer must inform the claimant in the notices of liability that it will make:
(a) a decision on whether due inquiry and search has been established
(b) a further liability decision once it is satisfied that due inquiry and search has been established.
4.139 The insurer will promptly advise the claimant in writing whether the claimant has, in the insurer’s view, satisfied the requirement for due inquiry and search.
4.140 An insurer’s decision must be based on all available information and should be consistent with the facts. Where the insurer alleges that the requirement has not been met, the insurer must include sufficiently detailed written reasons for its decision and details of the deficiency and manner by which the requirement could be satisfied by the claimant.
4.141 The insurer must perform as a model litigant in Nominal Defendant claims, which includes acting with complete propriety, fairly, and in accordance with the highest professional standards.”

Claimant’s submissions

The claimant argues that there is no legislative provision that states that payments will only be made from the date of compliance. The claimant maintains the position that the Guidelines and the Act stipulate that the claimant ought to receive weekly benefits from the date that the Application for Personal Injury Benefits was lodged, being
24 November 2023.
The claimant submits that in accordance with the above outlined legislative requirements, he gave notice to the relevant insurer within three months of the date of the subject motor vehicle accident, by way of lodging an Application on
24 November 2023.
The claimant submits that, as the at fault driver was unidentified, he is entitled to receive weekly payments of statutory benefits from the day the claimant lodged his Application, being 24 November 2023.
The claimant submits that the insurer breached its duty to act with good faith, as required by the Act, by way of failing to make prompt payment of statutory benefits to the claimant, despite his compliance with the legislation.
The claimant submits that there is no provision that states that statutory payments will only be made from the date of compliance and therefore the insurer’s decision has no legislative basis.
The claimant submits that he ought to be back paid the statutory benefits he is entitled to receive, from the date that the Application was lodged, being 24 November 2023 and not from the date of “compliance”.

Insurer’s submissions

The insurer notes that the claimant’s legal representative lodged the Application on 27 November 2023 and provided the due inquiry and search information on
1 March 2024. The insurer submits that the full and satisfactory explanation was deemed to have been accepted on 1 March 2024.
The insurer submits that in accordance with s 2.30(2) of the Act, a claim cannot be made against the nominal defendant unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.
The insurer submits that cl 4.136 of the Guidelines provides that the insurer must advise the claimant in writing that due inquiry and search is required to be provided to ascertain the identity of the vehicle alleged to have been at fault in the accident.
The insurer submits that the obligation under cl 4.136 of the Guidelines was satisfied by way of a letter dated 7 December 2023.
The insurer submits that cl 4.137 of the Guidelines provides that the insurer must advise in writing that the requirements of due inquiry and search has been satisfied, and if not, must provide details of the deficiencies and how the claimant can satisfy the requirement.
The insurer submits that on 29 February 2024, further particulars regarding the due inquiry and search was made and on 1 March 2024, further particulars were provided, and due inquiry and search was met.
Section 6.13(1) of the Act and cl 4.15 of the Guidelines state that a claim for statutory benefits must be made within three months after the date of the motor accident to which the claim relates.
The insurer submits that the claim was made on the date that it became complaint being 1 March 2024. Therefore, the insurer says that s 6.13(1) of the Act has not been met.
The insurer submits that s 6.13(2) of the Act and cl 4.15 of the Guidelines state if a claim is not made within 28 days after the accident, weekly benefits are not payable in respect of any period before the claim is made unless permitted by the regulations.
Section 8A of the Regulations states that payment of weekly payments of statutory benefits under s 6.13(2) of the Act can be permitted if the claim is made within three months after the date of the subject accident and the claimant provides a full and satisfactory explanation for the delay in making the claim for statutory benefits.
The insurer submits that the claim for statutory benefits was not made within three months, therefore weekly payments of statutory benefits are not payable in respect of any period before the claim is made.
The insurer submits that a claim for statutory benefits may be made after the time required under s 6.13(1) of the Act if the claimant provides a full and satisfactory explanation for the delay in making the claim and either the claim is made within three years after the date of the subject accident or the claim is in respect of a death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.
The insurer submits that the Liability Notice – Benefits Up To 52 Weeks was issued on 13 March 2024. The insurer said that it accepted the claimant’s claim for statutory benefits for 52 weeks from the date of the subject accident. Accordingly, the full and satisfactory explanation was deemed to have been accepted and as the claim was made within three years after the date of the subject accident, the insurer informed the claimant could make a claim for statutory benefits.
The insurer submits the claim for statutory benefits was compliant on 1 March 2024 and therefore, weekly payments of statutory benefits are payable from this date.
The insurer submits that there are no provisions within the Act which allows for any discretion to be exercised with respect to this issue.
The insurer submits that the claimant is not entitled to receive weekly benefits in respect to any period before the claim was made in accordance with the Act and Guidelines.

REASONS

The legislation is clear and makes no provision for the exercise of any discretion.
The claimant is making a claim , presently, for the payment of statutory benefits.
The claimant was involved in his accident on 7 October 2023. In his statutory declaration made on 21 February 2024 he refers to the accident, incorrectly, as having occurred on 15 October 2023. However, he does, elsewhere, in his declaration, refer to this as having occurred on 7 October 2023.
Thereafter, the claimant did not give notice of the claim until 24 November 2023, having attended his solicitors on that day. The claim form was not complete however as it provided no information going to the claimant’s searches and enquiries to locate the unidentified car with which he collided and which failed to stop. That information was not provided until 1 March 2024. Only at that time could be regarded that the claimant had made and lodged a complete claim form.
The insurer accepted the claimant’s claim form and communicated that it was satisfied with the search and inquiry undertaken. The insurer accepted that the claimant had provided a full and satisfactory explanation for the delay in making the claim.
Section 6.13 of the Act requires that a claim for statutory benefits must be made within three months after the date of the accident. This did not occur. The claimant did not consult his solicitor until 24 November 2023 and at that time an Application was made. However, as the car involved in the collision was unidentified, the claim had to be made against the nominal defendant and for that purpose, the claimant had to establish that inquiry and search has been made to establish the identity of the vehicle involved in his collision and accident.

So while a claim was made, late, was it complete? A full and satisfactory explanation for his delay was not provided until 1 March 2024. The insurer accepted this.
The claimant, having made a fully compliant claim effectively on 1 March 2024, as it was not complete until then, was in breach of s 6.13(1) of the Act. The date of
1 March 2024, arguably now becomes the relevant date with respect to the payment of statutory benefits.
The Act says at s 6.13 (2) that if a claim is not made within 28 days after the date of the accident, then weekly payments or statutory benefits are not payable in respect of any period before the claim is made, unless permitted by the regulations. Regulation 8A does not assist the claimant. This says that weekly payments of statutory benefits. before a claim is made is permitted if the claim is made within three months and if a full and satisfactory explanation for the delay in making the claim is made. Whilst the claimant has made a claim within three months of the accident, he had not, at the time of serving his claim form, provided details of inquiry and search made by him. That was not provided until 1 March 2024 together with an explanation which the insurer deemed full and satisfactory. It was only at this point, on 1 March 2024 that the claimant had satisfied the requirements of both parts in regulation 8A(1)(a) and (b). Consequently, he had made his claim more than three months after the date of the accident.
The claim that the claimant made on 24 November 2023 was not complete as the claim was made against the nominal defendant and he provided no details of due inquiry and search.
In Gudelj v Motor Accidents Authority of New South Wales [2011] NSWCA 158, the issue of service of a non-compliant claim form was discussed. Hodgson JA said in relation to the Motor Accidents Compensation Act 1999;
“A claim can be subject to rejection by an insurer because of non-compliance with the police accident report requirement (s 70), non-compliance with the time limit for making a claim (s 72) or for non-compliance with requirements as to form (s 74); but in each case, the insurer's right to reject the claim can be lost (ss 70(4), 73(4), 76(2)). If the insurer's right to reject the claim is lost, then plainly the claim is to proceed as if there had been no such non-compliance.
In my opinion, this means that a notice of a claim may in those circumstances be effective, even if it has any or all of the defects referred to in the previous paragraph. It must still, of course, be identifiable as a ‘notice’, given to the person specified in s 72(2), of ‘a claim’, that is, of a claim as defined in s 3 of the Act: this would require at least adequate identification of the claimant and of the accident in respect of which the claim is made, but not necessarily compliance with ss 70, 72 or 74.”
In this case though, what is under consideration is notice for payment of statutory benefits and not notice to make a claim for damages.
Under the Act, there is a distinction between notice of a claim for statutory benefits and notice of a claim for damages. Section 6.12 of the Act requires that a claim for statutory benefits is made by giving notice of the claim to the relevant insurer under Part 3 of the Act.
The making of a claim is dealt with under the Guidelines. These provide;
“Time for making a statutory benefits claim
4.15 As per Division 6.3, section 6.12 and section 6.13 of the Act, to make a claim for statutory benefits, a claimant must give notice of the claim to the relevant insurer within the following timeframes:
(a) three months after the date of the motor accident to which the claim relates, or
(b) to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident, within 28 days after the date of the accident.
4.16 Where the at-fault vehicle is unidentified or uninsured, a statutory benefits claim must be made on the Nominal Defendant within 28 days after the date of accident to be entitled to receive weekly payments of statutory benefits from the day after the date of the motor accident.
4.17 If a claim is made on the CTP insurer of the vehicle alleged to be at fault in the accident and the CTP insurer is not a licenced insurer under the Act, the insurer must notify the Authority of the claim as soon as possible. Notice of a statutory benefits claim
4.18 As per Division 6.3, section 6.15(1)-(3) of the Act, a claimant can give notice of a claim either:
(a) online using the online claims submission system operated by the NSW government
(b) in writing using the claim form available on the Authority’s website and sent to the insurer by email, personal delivery, facsimile or post, or
(c) online using an online claims submission system operated by the insurer.
4.19 The notice must be given in the following manner and must contain the following information:
(a) For notice of a claim for statutory benefits for a personal injury claim, using: the CTP Green Slip claim form – Application for personal injury benefits containing the information relevant to the claim as set out in Table 4.1 of Schedule 4.1, or
the CTP Green Slip claim form – Online Application for Personal Injury Benefits containing the information relevant to the claim as set out in Table 4.2 of Schedule 4.1”
The claimant, in his bundle of documents has provided a copy of the claim form submitted to the insurer on 24 November 2023. No details of the claimant’s inquiry and search information was provided.
Regulation 8A provides that an action for the recovery of damages in respect of the death or injury to a person cannot be made against the nominal defendant unless due enquiry and search has been made to establish the identity of the motor vehicle concerned. This regulation though is only with respect to a claim for damages. A claim for statutory benefits is not a claim for damages.
However, regarding claims against the nominal defendant, it is necessary to comply with the provisions of s 2.30 of the Act and for that, a claim cannot be made unless and until due inquiry and search has been made to establish the identity of the motor vehicle concerned. Section 2.30 of the Act also refers to an action for the recovery of damages.
The Guidelines, in cl 4.136, stipulate that an insurer will explain to the claimant that he or she is required to make due inquiry and search to ascertain the identity of the vehicle alleged to have been at fault in the accident
While statutory benefits are not damages, unless the claimant can make a claim against the nominal defendant, he or she would have no claim to make against an unidentified driver. It stands to reason therefore that to make a claim, whilst not strictly a claim for damages, the claimant must comply with the terms of the Act regarding claims against the nominal defendant.
Unlike Gudelj and the particular facts of that case, the Act imposes a condition precedent for compliance by the claimant with service of a claim form and details of inquiry and search when considering claims made against the nominal defendant. That compliance did not occur until 1 March 2024.
Section 2.30 of the Act says that in an action for the recovery of damages, a claim against the owner or driver of a car, if the identity of that person cannot be established, the claim can be brought against the nominal defendant.
Section 2.30(2) says that a claim made against the nominal defendant cannot be made unless due enquiry and search has been made to establish identity of the driver.
Part 4 of the Guidelines, dealing with claims and specifically cl 4.136 of the Guidelines, clearly envisages that inquiry and search will be undertaken with respect to claims against the nominal defendant. Clause 4.138 deals with statutory benefits claims and due inquiry and search without distinguishing between any compliance requirements concerning a claim for damages or a claim for statutory benefits.
At the time of the claimant’s claim made on 24 November 2023 the claimant had not made and had not attached details of inquiry and search about the identity of the unidentified vehicle. This was not provided until 1 March 2024. Section 2.30 of the Act precludes a claim being made until details of inquiry and search have been made. That occurred on 1 March 2024.
The insurer is correct in its submissions when it says there is no discretion in s 6.13 of the Act.
I find that whilst the claimant has ultimately made a valid claim to the nominal defendant, he has made it out of time and is therefore not able to obtain statutory benefits before the claim was made. That is, not from the date of the accident being
7 October 2023 and through to 29 February 2024 .

DETERMINATION

The claimant was involved in a motor vehicle accident on 7 October 2023.
The claimant provided notice of his claim on 24 November 2023. The claimant did not provide details of inquiry and search until 1 March 2024.
A claim for payment of statutory benefits against the nominal defendant requires a claim form to be served together with details of inquiry and search. Until both requirements have been met, no claim has been made.
The claimant did not make a valid claim until 1 March 2024.
The claimant is not entitled to the payment of statutory benefits before 1 March 2024.

[2024] NSWPIC 328

20 June 2024