Neill v QBE Insurance (Australia) Limited
[2022] NSWPIC 198
•3 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Neill v QBE Insurance (Australia) Limited [2022] NSWPIC 198 |
| CLAIMANT: | Wendie Rose Neill |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 3 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Application for a late claim for an assessment; more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; the Insurer determined that the Claimant had suffered a minor injury and did not have an entitlement to lodge a common law claim until Insurer accepted she sustained a non-minor injury or the dispute was determined by a medical assessor; medical assessment delayed due to Covid-19 pandemic preventing a medical assessment; Claimant’s non-minor injury determination was made approximately 18 months after the application was originally lodged; medical assessment not made until 6 weeks after the three-year time period within which an application for an Assessment for Damages can be made; whether a full and satisfactory explanation for the delay in making the application; Held- Claimant has a full and satisfactory explanation; delay due to the Covid-19 pandemic delaying medical assessments; late claim may be made more than three years after the date of the motor accident; Legal costs awarded $NIL. |
| DETERMINATIONS MADE: | 1. A late claim for assessment may be made more than three years after the date of the motor accident in this case as the Claimant has provided a full and satisfactory explanation for the delay to the Personal Injury Commission (the Commission) in making the claim for assessment. 2. The Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules. 3. Legal costs in this matter are assessed at $NIL. |
BACKGROUND AND INTRODUCTION
This determination relates to a dispute about an application for a late claim for an assessment under section 7.33 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 18 January 2019 the Claimant, Wendie Neill, was injured in a motor vehicle accident on the M4 near the Silverwater exit.
She was the back seat passenger of a car driven by her daughter. The car she was in was hit by a B double truck. She sustained injuries to her back, cuts to her head and psychological injuries.
On 12 April 2019 the Insurer determined that the Claimant had suffered a minor injury and the Claimant did not have an entitlement to lodge a common law claim until such a time the Insurer accepted she sustained a non-minor injury or the dispute was determined by a Medical Assessor.
During 2019 and in early 2020 the Claimant continued to seek treatment for her physical and psychiatric injuries sustained in the motor car accident.
On 11 September 2020 the Claimant’s solicitors lodged a Dispute Resolution Service Application regarding the minor injury dispute.
After the application was filed with the Commission, numerous lengthy delays occurred due to the Covid-19 pandemic. The Claimant’s first medical assessment to determine the minor injury dispute was made by Assessor Melissa Barret on 14 February 2022.
The medical certificate from Assessor Melissa Barrett dated 14 February 2022 determined that the Claimant’s injuries were non-minor and she was diagnosed with post-traumatic stress disorder.
The Claimant’s non-minor injury determination was made approximately 18 months after the application was originally lodged, due to the Covid-19 pandemic and multiple delays of appointments for the medical assessments of the Claimant.
As a result of the delay with the medical assessments detailed above, the Claimant’s right to lodge a common law claim was only confirmed on 1 March 2022. This is six weeks after the three-year time period within which an application for an Assessment for Damages can be made with the Commission.
On 2 March 2022 the Claimant’s solicitors made an application for a claim assessment for damages and liability The requested outcome of the application was :
“The Commission to defer allocation of this matter to at least 2 September 2022 to determine the Claimant’s entitlement to non-economic loss and allow the parties to resolve the matter informally.”
The matter first came before me on 29 April 2022 at a preliminary conference.
At that preliminary conference on 29 April 2022 the Claimant’s solicitor confirmed that the matter was not ready for assessment as a number of medical assessments still had to be completed.
Also at that preliminary conference the solicitor for the Insurer stated that the Insurer accepted that a full and satisfactory explanation for the delay has been given by the Claimant and that leave should be granted by the Commission.
The dispute comes before me to determine if a late claim can be made and whether the Claimant has provided a full and satisfactory explanation for the delay in making the claim for an assessment.
Submissions
I have considered the documents provided with the claim form, the reply and further information including the parties submissions.
I will briefly summarize the submissions concerning the full and satisfactory explanation and then summarise the Claimant’s explanation.
The Claimant’s solicitors made written submissions dated 2 March 2022 (A 1) . Those submissions set out in detail the timeline of when the Claimant first contacted the solicitors and what action they took in arrange medical appointments for the Claimant to be medically assessed.
The Claimant first instructed her solicitors on or about 27 September 2019. On 12 April 2019 the Insurer determined the Claimant had suffered a minor injury and from this time the Claimant has not had an entitlement to lodge a common law claim. Then, once the Claimant had obtained some medical evidence, she lodged a minor injury dispute with the Commission on 11 September 2020. Then on 1 March 2022, the Medical Assessor Melissa Barrett determined that the Claimant’s injuries as non-minor as she is suffering post-traumatic stress disorder.
The Claimant’s solicitors now submit that the Claimant’s right to lodge a common law claim was only confirmed on 1 March 2022 which was the date of Assessor Melissa Barrett’s certificate and determination that the Claimant’s injuries as non-minor. This was six weeks after the three-year time period within which a claim for an assessment for damages can be made.
The Claimant’s solicitors further submit that the parties have not had the opportunity to have the Claimant assessed for the purpose of whole person impairment and a potential entitlement to non-economic loss. They also submit that, despite the claim not currently being ready for assessment, the Claimant has been forced to lodge an application and explanation to preserve the Claimant’s rights and time limits to lodge a Claims Assessment in accordance with section 7.33 of the MAI Act.
Finally the Claimant’s solicitors submitted that the matter be placed on the Commission’s stood over list under clause 101 of the Personal Injury Rules 2021 and that the Commission defer allocation of this matter to at least 2 September 2022 to allow for a determination of the Claimant’s entitlement to non-economic loss and also to allow the parties to resolve the matter informally, as required by the MAI Act.
In written submissions dated 22 April 2022 (R 1) , the Insurer admits that there has been a breach of duty of care and there are no allegations of contributory negligence.
In its written submissions the Insurer notes that the Claimant requires leave from the Commission to lodge the application for claims assessment. The Insurer also submits that the Claimant’s explanation is reasonable in light of the 18-month delay in her injuries being determined by the Medical Assessment Service. The Insurer does not object to leave being granted in the circumstances.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Under Division 7.6 sub-section 7.33 of the MAI Act, a claim for assessment cannot be referred more than three years after the motor accident unless a full and satisfactory explanation for the delay is provided.
Sub-section 7.33 provides:
“7.33 Time limits for referring claims and making assessment
(cf s 91 MACA)
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.”
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 for the 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.
Consideration of relevant case law
As referred to above, sections 6.2 and 7.33 require that the Claimant cannot refer a claim for assessment more than three years after the motor accident unless they provide a full and satisfactory explanation for the delay in making the claim.
There is considerable case law about the meaning of the phrase “full and satisfactory”. The case of Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) discussed the meaning of sub-section 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 7.33 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 my view, I find that the Claimant’s explanation in this case is sufficient to be considered a full explanation as to why her application was late. The reasons given by her and her solicitor are sufficient to be considered a full account of the Claimant’s conduct, actions, knowledge and belief. The Claimant’s explanation is that the Insurer initially declined her claim and then, because of the COVID pandemic, it took some months to obtain a medical assessment. Once the medical assessment was received on 1 March 2022 from Assessor Barrett and the Claimant’s injuries assessed as non-minor, her solicitors immediately an made application for an Assessment for Damages. The Claimant’s explanation satisfies the requirements of sections 6.2 and 7.33 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.”
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 my view, the submissions from the Claimant’s solicitors gives 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 satisfied 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 explanation for the delay in making her application for damages was set out in the submissions made by her solicitor. The Claimant’s explanation is that the Insurer initially declined her claim and then, because of the COVID pandemic, it took some months to obtain a medical assessment. Once the medical assessment was received on 1 March 2022 from Assessor Barrett her solicitors immediately an made application for an Assessment for Damages. The Claimant’s delay was caused by COVID making it impossible for her to get a medical assessment. Any reasonable person in the Claimant’s position would have experienced the same delay caused by an inability to get a medical assessment.
Conclusion
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging her application for damages. I find that the claim for assessment may be made more than three years after the date of the motor accident. I will issue a certificate to that effect.
As some medical assessments are still to be made, I have already deferred any further assessment of this matter to allow the parties to obtain further medical assessments and also to allow them an opportunity to informally resolve the claim.
Legal costs
In this late claim matter neither party made any application or submission on the awarding of legal costs for this dispute.
I asses legal costs in this matter at $NIL.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
0
7
0