Natale v Allianz Australia Insurance Limited
[2021] NSWPIC 539
•23 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Natale v Allianz Australia Insurance Limited [2021] NSWPIC 539 |
| CLAIMANT: | Simon Di Natale |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 23 December 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Application for a late claim for an assessment; within three years after the motor accident, sections 6.2 and 6.14 of the Motor Accident Injuries Act 2017; claimant motorcycle in a collision with car; claimant states that he posted application in May 2018; insurer denies receiving application; second application made in November 2018; whether a full and satisfactory explanation for delay in making the application. Held- claimant did not have a full and satisfactory explanation; delay due to first application being lost; claimant states he made several telephone calls to Insurer; no records of any calls; claimant has failed to provide a full account of his actions, knowledge and beliefs from 12 July 2018 to 12 November 2018; late claim may not be made within three years after the date of the motor accident; legal costs awarded, $1,200 plus GST. |
| DETERMINATIONS MADE: | 1. A claim for statutory benefits may not be made under subsection 6.13 (3) (a) because the Claimant has not provided a full and satisfactory explanation for the delay in making the claim. 2. A claim for statutory benefits may not be made under subsection 6.13 (3) (b) because the Claimant has not shown a degree of permanent impairment that is greater than 10%. 3. The Insurer is to pay legal costs to the Claimant assessed at $1,200 plus GST. |
Background and Introduction
This determination relates to a dispute about whether the Claimant has given a full and satisfactory explanation for non-compliance for delay under Part 6 and sections 6.2 and 6.13 of the Motor Accident Injuries Act 2017.
Mr Simon Di Natale (the Claimant) was injured in a motor accident on 17 May 2018. He was riding his motorcycle when it collided with a car on Syd Enfield Drive, Bondi Junction.
In his application the Claimant states that a car swerved into his lane and struck him in the right shoulder and hip, (R 1). His reported injuries included: neck, right arm, right shoulder, back, right leg and nervous shock.
In a statement dated 7 March 2019 the Claimant states that he attended
Dr Henry Stenning in York Street Sydney on 18 May 2018, (A 4). Dr Stenning completed a certificate of capacity which the Claimant says he sent together with a completed Application for Personal Injury Benefits form to the Insurer in May 2018.
Medical records from City Medical Practice, (AD 7), show that the Claimant attended the practice and was seen by Dr Stenning on Wednesday 30 May 2018 reporting a “mba about 10 days ago”.
The Insurer states that it made a search for the application the Claimant says was sent by him but they cannot find it.
The Claimant lodged another Application for Personal Injury Benefits dated 5 November 2018, (A 2). The form was received by the Insurer on 12 November 2018, (R 5).
In a letter dated 26 February 2019, (R 5), the Insurer declined to accept the claim. It wrote that: “…Allianz first received copy of your Application for personal injury claim form on file 12 November 2018 that was submitted on your behalf by your legal representative P.K Simpson & Co”.
On 13 February 2019 the Insurer wrote to the Claimant referring to section 6.13 of the Motor Accident Injuries Act 2017 (MAI Act) and the time for making of claims for statutory benefits. The Insurer wrote 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’s letter requested a full and satisfactory explanation for the delay in making the claim, (R 3).
There is an undated letter or message without an address or author, (R 4), which says:
“To whom it may concern
I personally sent my certificate of capacity document through Australia post to Allianz insurance as soon as possible after my accident in May and then I waited to hear a reply. There was no contact back regarding my claim number. I then had to chase this up through numerous amounts of phone calls, as it took alliance insurance a long time to finally give me my claim number, as I had my doctor and physio chasing me up about it. I don’t know why it took so long but this was ridicules. It may
have gotten lost in the post. In the mean time I couldn’t proceed with my treatment as I didn’t have the money to pay for my treatment which this is not right in any way.
Thank you”On 7 July 2020 the Insurer wrote to the Claimant that having reviewed the circumstances of the accident, his claim for statutory benefits cannot be accepted at this time, (R 7). The letter contained the following explanation for its decision:
“Allianz requested you provide a further explanation regarding who you spoke with from Allianz in between May 2018 and November 2018 as you stated you had made numerous attempts to contact Allianz. Allianz requested you provide particulars regarding dates/times/who you spoke with from Allianz.
You have not provided the specific details of when and whom you spoke to in Allianz when following up your claim between May and November 2018.
Further still, we note that you have made no further attempt to follow up your claim since your response dated 7 March 2019.”
On 9 July 2020 the Claimant wrote to the Insurer requesting an internal review, (R 10).
The Insurer made a decision on internal review dated 23 July 2020 declining the claim for statutory benefits on the basis that the explanation was not full and satisfactory, (R 11). Included in the Insurer’s Internal Review decision is the following reasoning:
“11. The period for which the explanation is required is the whole of the period from the date of the accident to the date on which the explanation is given (Mancini v Thompson [2002] NSWCA (2 May2002)).
12. On this basis, you were required in your explanation to provide an account of your actions, knowledge and beliefs from 17 May 2018 to 12 November 2018.
13. I do not accept you have provided this in the statement you gave on 7 March 2019. I am of the view your statement does not provide a full recount of your actions, knowledge and beliefs following the subject accident until the 12 November 2018. Specifically, I note there is no recount between 18 May 2018 and 11 July 2018, or between 12 July 2018 and 12 November 2018.
14. Whilst I note that you advised within your statement that you submitted your claim form and medical certificate in May 2018, you have not specified the date in which you lodged your claim form or the address of where it was sent. I note Allianz did not receive a copy of this claim form or a copy of the medical certificate.”
The Claimant solicitors lodged their on-line application on 5 November 2020.
At the Preliminary conference on 15 November 2021 the solicitor for the Claimant submitted that the Claimant had looked again for any phone records or notes about his contact with the Insurer. He could not find any further evidence of his earlier reporting of his claim to the Insurer. The Clamant maintains he did lodge an earlier application but cannot locate any copies or phone records.
The dispute comes before me to determine whether the Claimant has provided a full and satisfactory explanation for the delay in making his claim.
Submissions
I have considered the documents provided with the claim form, the reply and further information including: the submissions, statements from the Claimant, medical reports detailed clinical records and correspondence.
I will briefly summarise the submissions concerning the full and satisfactory explanation and then summarise the Claimant’s explanation.
Claimant’s solicitor’s submissions
The Claimant’s solicitor’s submissions dated 28 September 2020 (A 1) submit that:
(a) the Claimant was unfamiliar with the CTP claims process;
(b) the Claimant completed Application for Personal Injury Benefits form which he sent to the Insurer in May 2018;
(c) the Claimant made multiple phone calls to the Insurer to follow up his claim;
(d) in November 2018 the Claimant instructed his lawyers and they lodged another Application for Personal Injury Benefits dated 5 November 2018, (A 2);
(e) the Insurer did not accept the Claimant’s explanation in his statement dated March 2019; and
(f) legal costs should be awarded in the full amount of $1,633 plus GST.
Claimant’s solicitor’s further submissions
The Claimant’s solicitor’s further submissions dated 26 October 2021 (AD 3) submit that:
(a) the application is made in accordance with Schedule 2, Clause 3, paragraph (h) of the MAI Act;
(b) the Claimant relies on the evidence filed to date in the application and on his statement dated 26 October 2021; and
(c) the Claimant seeks regulated costs only in relation to this application.
Insurer’s submissions dated 17 December 2020
The Insurer’s submissions dated 17 December 2020 (R 13), in reply in summary state:
(a) the Insurer maintains the decision to decline liability for the Claimant’s claim for statutory benefits as a full and satisfactory explanation for the delay in lodging the claim has not been provided in accordance with section 6.2 of the Act;
(b) the Insurer does not accept the Claimant has provided a full explanation within his statement dated March 2019;
(c) the Insurer did not receive the claim form and medical certificate the Claimant said he sent in May 2018;
(d) the Claimant has not provided any details regarding these phone calls, such as the number they contacted, where they obtained the number, the date the phone calls were made, who the Claimant spoke with or the content of these conversations;
(e) the Claimant has failed to provide any account of his actions, knowledge and beliefs from 12 July 2018 to 12 November 2018;
(f) the Insurer does not accept the explanation provided by the Claimant in his statement dated 7 March 2019 is sufficient enough to explain how and why the relevant delay occurred;
(g) the Claimant has not provided an account for some months as to what actions he took. Specifically, the Insurer notes between 18 May 2018 and 11 July 2018 (approx. two months), and between 12 July 2018 and 12 November 2018 (approx. four months);
(h) Claimant advised that he attempted to follow up on the lodgement of his claim with Allianz. The Claimant has not provided details pertaining to these phone calls. Beyond July 2018 the Claimant has not provided any account in relation to him following up with Allianz regarding his claim. The Insurer is of the view that a reasonable person in the Claimant’s circumstances would have pursued Allianz further and requested actions from Allianz to assist and engage in the next steps and management of their claim. There is no evidence in support of the Claimant doing this; and
(i) the Claimant has failed to provide an account of his actions, knowledge and beliefs for extensive periods of time between the accident and submitting his explanation. The Insurer is not satisfied that the actions of a reasonable person in the Claimant’s position would have been justified in experiencing the same delay.
Documents considered- Claimant’s explanation
The explanation for the late application is contained in several statements made by the Claimant summarised briefly as follows.
Claimant’s statement dated 7 March 2019
The Claimant, in a statement dated 7 Mach 2019 (A 4), stated that:
(a) he attended City Medical Practice and was seen by Dr Stenning on 18 May 2018;
(b)Dr Stenning completed a certificate of capacity which was sent together with a completed Application for Personal Injury Benefits form to the Insurer in May 2018;
(c)he was in contact with the Insurer over the phone but had no email contact;
(d)he assumes the Insurer lost his claim form, he did not get a claim number;
(e)he had an ultrasound and x-ray of his right shoulder on 11 July 2018;
(f)he was in continual pain from his right shoulder, leg and back;
(g)in November 2018 he consulted his lawyers and his GP who completed a medical certificate;
(h)in November 2018 his lawyers did not tell him about time limits and he hardly heard from them;
(i)after November 2018 he has received many emails and contacts from the Insurer about his claim;
(j)he relied upon his lawyers to do what was required with his claim;
(k)the first time his lawyers asked him to provide and explanation for his late claim was on 6 March 2019 when he provided this statement; and
(l)he is still in pain and requires urgent treatment.
Claimant’s statements dated 26 October 2021
The Claimant’s statement dated 26 October 2021 (AD 2), in summary record:
(a) at the time of the accident he had never made a CTP claim and had no awareness of the procedural requirements for making such a claim, including the time limits involved;
(b) details the physiotherapy treatment involved after the accident;
(c) had about 15 sessions in total between the date of the accident and 7 March 2019;
(d) in previous statement incorrectly stated that he attended City Medical Practice the day after the accident. Did not attend Dr Stenning’s at City Medical Practice until 30 May 2018;
(e) Dr Stenning advised rest, take it easy and to lodge a claim for injuries;
(f) posted application documents to Allianz, does not remember exactly what documents were posted, does not have a tracking number and does not remember the exact address documents were posted to;
(g) around the time he posted his application he had a conversation with a lady who (the Claimant believes) was from Allianz who said words to the effect of “If you go ahead with the claim that you might end up paying for costs and losing money”;
(h) this conversation dissuaded the Claimant for some time from going ahead with the claim;
(i) many of the events that transpired over the previous year were a blur and he did not have a great recollection of them;
(j) tried to obtain tele-phone call logs from his service provider but has been unable to;
(k) attended Dr Sam Iyer at Bondi Junction and then had an ultrasound and
x-ray of his right shoulder;(l) gives detailed account of instructions given to his solicitors from November 2018 to March 2019 when he gave a statement;
(m) he had trouble contacting his solicitor Mr Long from November 2018 to March 2019 when he gave a statement;
(n) on or about 20 February 2019, I provided an explanation to Allianz. That explanation is as follows;
“To whom it may concern
I personally sent my certificate of capacity document through Australia post to Allianz Insurance as soon as possible after my accident in May and then I waited to hear a reply. There was no contact back regarding my claim number. I then had to chase this up through numerous amounts of phone calls, as it took alliance insurance a long time to finally give me my claim number, as I had my doctor and physio chasing me up about it. I don’t know why it took so long but this was ridicules. It may have gotten lost in the post. In the mean time I couldn’t proceed with my treatment as I didn’t have the money to pay for my treatment which this is not right in any way.
Thank you”(o) he telephoned Allianz numerous times to follow up the claim number and to get some assistance with paying for his treatment; and
(p) he relied on PK Simpson to manage his claim and assumed they would have explained the delay to Allianz or at least assisted him to prepare his late explanation. The first time he spoke to his lawyer about this was when he called on 6 March 2019. He provided this information for his statement over the phone.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Under subsection 6.13 of the MAI Act a claim for statutory benefits may be made after the time required if the claimant provides a full and satisfactory explanation for the delay in making the claim
Subsection 6.13 provides for time limits when making a claim for statutory benefits:
“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.
(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%.”
The meaning of “full and satisfactory” is set out in section 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by claimant
(cf s 66 MACA)
(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.
(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.”.
Whether for the purposes of Part 6 (Motor accident claims) the Claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (h) of the MAI Act.
I will now turn to consider whether the Claimant has provided a full and satisfactory explanation for the delay in making his claim.
Application of sections 6.13 and 6.2
In this case the accident occurred on 17 May 2018 and the application for personal injury benefits is dated either sometime in May 2018 or 5 November 2018. If the date is taken as May 2018 the application is within time. If the date is taken as 5 November 2018 there is a delay of about five months and two weeks between the date of the accident and the date of the application for statutory benefits.
A claim for statutory benefits must be made within three months after the date of the accident, subsection 6.13 (1).
If a claim for statutory benefits is not made within 28 days after the date of the accident, weekly payments of statutory benefits are not payable for any period before the claim is made, subsection 6.13 (2) .
A claim for statutory benefits may be made after three months after the accident if the claimant provides a full and satisfactory explanation for the delay in making the claim and the claim is made within three years after the date of the motor accident, subsection 6.13 (3) (a).
I note that subsection 6.13 (2) operates to preclude the payment of weekly payments of statutory benefits to the Claimant for any period before the claim is made by a claimant.
As referred to above, sections 6.2 and 6.13 together provide that a claimant may make a claim for statutory benefits within three years after the motor accident if the claimant provides a full and satisfactory explanation for the delay in making the claim.
I will now briefly consider the meaning of the phrase “full and satisfactory” in the context of this case.
Consideration of relevant case law
There is considerable case law about the meaning of the phrase “full and satisfactory”. Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) case discussed the meaning of subsection 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 6.2 of the MAI Act.
The NSW Court of Appeal in Karambelas Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include 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’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed”.
Is the explanation full?
Sections 6.2 and 6.13 require that the Claimant provide a full and satisfactory explanation for the delay in making the application. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”.
In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In this case, the Insurer contends that the Claimant has not provided a full and satisfactory explanation for the delay in making his claim. (See: R 11 and R 13). In summary, the Insurer says it did not receive the claim form and medical certificate the Claimant said he sent in May 2018. The Claimant has not provided any details regarding the phone calls he says he made including no details of the dates or who he spoke to or what was said. The Claimant has failed to provide an account of his actions, knowledge and beliefs for extensive periods of time between the accident and submitting his explanation.
The Claimant’s explanation for the delay in making his application for statutory benefits is detailed in his statements. He says he completed an Application for Personal Injury Benefits form which he sent to the Insurer in May 2018. The Claimant states that he does not remember exactly what documents were posted, does not have a tracking number and does not remember the exact address documents were posted to. He says he had several conversations with Allianz staff but does not have a record of who he spoke to or what was said other than one person who warned him about costs. He has been unable to provide any tele-phone call records from his service provider. In a statement he suggests that his application may have gotten lost in the post.
In my view, I find that the Claimant’s explanation in this case is not sufficient to be considered a full explanation as to why his application was delayed. The reasons given by him are not sufficient to be considered a full account of the Claimant’s conduct, actions, knowledge and belief. Even if I accept the Claimant’s statement that he sent in an application in May 2018, the Insurer denies ever receiving the application. Both accounts can be correct. The May 2018 application could have been lost in the post.
Because there is no evidence that the Insurer did receive it, the application was not “made” which is the requirement of section 6.13 of the MAI Act. Unfortunately for the Claimant, there is not one piece of evidence he can rely upon to corroborate his account of sending the application in May 2018. He has no phone or postal records, no names or evidence of whom he spoke to or when about his claim. For me to make a positive finding that the application was sent and received I need more evidence other than the evidence presently before me. If the Claimant was told between May 2018 and November 2018 by the Insurer that they had not received his application he could have acted earlier to lodge a further application. I also agree with the Insurer’s submissions that the Claimant has failed to provide a full account of his actions, knowledge and beliefs from 12 July 2018 to 12 November 2018. I note that at the Preliminary Conference on 15 November 2021 the possibility of the Claimant giving oral evidence was raised but all parties agreed it would not be required and my decision could be made on the papers. The Claimant’s explanation does not satisfy the requirements of sections 6.2 and 6.13 of the MAI Act.
Is the explanation satisfactory?
I will now turn to a consideration of whether the Claimant’s explanation is “satisfactory”.
Section 6.2 requires that the Claimant provide a full and satisfactory explanation for the delay in providing the required particulars. The legislation states that an 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.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
50. In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
In its submissions the Insurer contends that the explanation provided by the Claimant is not satisfactory.
Without repeating in detail the Claimant’s explanation, there is not one piece of evidence he can rely upon to corroborate his account of sending the application in May 2018. He has no phone or postal records, no names or evidence of whom he spoke to or when about his claim. There are also significant gaps in the Claimant’s account of what actions he took during the period from 12 July 2018 to 12 November 2018.
In my view, the statements and the detailed replies to the Insurer from the Claimant is not an explanation which supports a finding that a reasonable person in the position of the Claimant would have been justified in experiencing the same delay. I am not satisfied that there is sufficient evidence before me to support a finding that the reasonable person in the Claimant’s position would have experienced the same delay. The relevant test is whether a hypothetical reasonable person in the Claimant’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306.) The Claimant’s evidence is that he made several phone calls over some months to follow up his application. In my view, a reasonable person in the Claimant’s position would have not experienced the same delay. They would have acted sooner and continued to make enquires about what had happened to their application. A reasonable person would have also lodged another application before November 2018.
Conclusion
I am not satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging his application for statutory benefits. I find that the claim for statutory benefits may not be made within three years after the date of the motor accident. I will issue a certificate to that effect.
Legal costs
In this matter the Claimant’s solicitors have made a claim that legal costs should be awarded in the full amount of $1,633 plus GST. The solicitors have not provided a copy of any invoice. There is no detailed description of the work done or why it was reasonable or necessary as is required under section 8.10 of the MAI Act.
The Insurer makes no submission as to whether legal costs should be awarded.
I have considered the submissions and statements before me provided by the Claimant’s solicitors. Based on the very limited submissions, the information before me and in the exercise of my discretion, I find the legal work provided by the Claimant’s solicitors was reasonable or necessary. I assess the amount of legal costs to paid to the Claimant as $1,200 plus GST.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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