Newton v Insurance Australia Limited t/as NRMA Insurance

[2022] NSWPIC 238

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Newton v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 238
CLAIMANT:	Patricia Newton
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Maurice Castagnet
DATE OF DECISION:	24 May 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (the Commission) for assessment more than 3 years after the motor accident; whether the claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act, 2017 (the MAI Act); whether leave should be granted by the Commission; section 36(2) of the Interpretation Act 1987 (NSW) applied; Held – for the purposes of section 7.33 of the MAI Act, a grant of leave is not required.

INTERIM DECISION

INTRODUCTION

1. The claimant, Patricia Newton is a 73-year-old woman who suffered injuries in a motor accident on 18 July 2018 when the vehicle in which she was travelling as a passenger, was involved in a head-on collision with the insured vehicle on Bucketts Way, Stroud.

2. On 16 July 2020, the claimant made a claim for common law damages with the insurer. The insurer admitted liability on 2 September 2020.

PROCEDURAL ISSUE

1. On 19 July 2021, the claimant applied to have her claim for common law damages referred to the Personal Injury Commission (the Commission) for assessment pursuant to section 7.32(1) of the Motor Accident Injuries Act 2017 (the MAI Act).

2. The referral was one day outside the time permitted for referral under section 7.33 of the MAI Act.

ORDERS SOUGHT BY THE CLAIMANT

1. The claimant seeks leave from the Commission for her claim to be referred for assessment.

1. The claimant also seeks a direction that her claim be referred to the stood over list for a period of three months pursuant to clause 10(d) of Procedural Direction MAI 1, pending the receipt of expert evidence from a forensic accountant.

THE CLAIMANT’S EXPLANATION

1. In support of her application seeking leave and by way of a full and satisfactory explanation, the claimant relies on the statement of her legal representative, Alexandra Rae Longbottom of Carroll & O’Dea Lawyers, dated 31 January 2022.

2. In her statement, Ms Longbottom explained that due to a technical error in her law firm’s administrative system, the date of the accident was incorrectly entered as “19 July 2018”. The error did not come to her attention until she was preparing the application for lodgement with the Commission on 19 July 2021.

THE INSURER’S POSITION

1. The insurer does not take issue with the claimant’s explanation for the late referral of her application for the assessment of his claim by the Commission.

2. The insurer also agrees that the application should be referred to the stood list pending the receipt of the claimant’s expert evidence. The insurer expects that it will also need to serve expert evidence from a forensic accountant in reply.

DISCUSSION

1. Section 7.33 of the MAI Act provides that a party to a claim cannot refer a claim for assessment by the Commission 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.

2. In the present case, the three-year anniversary of the motor accident occurred on 18 July 2021. The application was referred for assessment on 19 July 2021.

3. During the course preparing of preparing this decision, it came to my attention that 18 July 2021 was a Sunday.

4. Section 36 of the Interpretation Act 1987(NSW) relevantly provides as follows:

   36   Reckoning of time

   (1)  If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event.

   (2)  If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls—

   (a)   on a Saturday or Sunday, or

   (b)   on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

   the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

   (3)  …

5. I formed the view that the provisions of section 36(2) of that Act is applicable in the circumstances of this case. I therefore requested the parties to make submissions on the issue.

6. On 20 May 2022, Mr Vid Dragomirovic of McCabes submitted that the insurer considers that section 36(2) of the Interpretation Act 1987(NSW) applied to the circumstances of this case. On 23 May 2022, Ms Longbottom confirmed her concurrence.

CONCLUSION

1. In accordance with the provisions of section 36(2) of the Interpretation Act 1987(NSW), I find that the claimant has referred her claim for common law damages to the Commission for assessment in conformity with section 7.33 the MAI Act. A grant of leave by the Commission to do so is therefore not required.

DIRECTION

1. Subject to the service of any refresher medical evidence and expert evidence from a forensic accountant, it is apparent that the claimant has completed all necessary steps to have her claim ready for settlement or assessment.

2. I direct that the matter be listed for a further teleconference on Friday 26 August 2022 at 2.30 pm to await receipt of the parties’ expert evidence from their respective forensic accountant and to determine whether the matter can proceed to an assessment conference.

Member Maurice Castagnet Motor Accidents Division Personal Injury Commission