Pecotich v Allianz Australia Insurance Limited
[2022] NSWPIC 112
•18 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Pecotich v Allianz Australia Insurance Limited [2022] NSWPIC 112 |
| CLAIMANT: | Raymond Pecotich |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 18 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim; section 7.33 of the Motor Accident Injuries Act2017; whether claimant has provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment; Walker v Howard; Karambelas v Zanic; Lee v Allianz Australia Insurance Limited applied; claimant did not know, and was not advised about the need to refer the claim for assessment; claimant relied on his lawyers; Held- the claimant has provided a full and satisfactory explanation for the delay; leave granted to refer the claim for assessment. |
INTERIM DECISION
INTRODUCTION
Raymond Pecotich was injured in a motor vehicle accident on 18 May 2018. On 25 February 2020 he made a claim for damages on Allianz Australia Insurance Limited (Allianz), the insurer of the at fault driver. Liability for his damages claim was accepted by Allianz on 25 May 2020, subject to a reduction for contributory negligence. On 2 August 2021 Allianz conceded that Mr Pecotich’s whole person impairment exceeded the 10% threshold.
The claim was referred to the Personal Injury Commission (Commission) for assessment under Division 7.6 of the Motor Accident Injuries Act2017 (MAI Act) on 12 November 2021. Section 7.33 states that a party to a claim cannot refer the claim for assessment under Division 7.6 more than three 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. As the claim was referred for assessment late, Mr Pecotich is required to satisfy section 7.33.
In its submissions of 6 December 2021, Allianz noted that the claim had been referred for assessment late. Allianz provided no objection to the application being accepted by the Commission.
On 9 December 2022 I made directions for the provision of submissions and evidence in relation to s 7.33. I confirmed that unless either party objected by 18 February 2022 I proposed to determine the s 7.33 issue on the papers. Mr Pecotich subsequently lodged submissions and evidence.
In its submissions dated 3 March 2022 Allianz reiterated that it had no objection to Mr Pecotich’s application being accepted by the Commission.
On the papers
Mr Pecotich does not object to the s 7.33 decision being made on the papers.[1] In its 3 March 2022 submissions Allianz does not make any objection to the decision being made on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the s 7.33 issues can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
[1] Submissions dated 4 February 2022 at [67].
EVIDENCE
In addition to his statement of 31 January 2022, Mr Pecotich relies on a chronology of relevant events together with a range of correspondence between himself, his lawyers and Allianz.
Mr Pecotich’s statement records that, prior to this claim, he has never made a claim for damages. He provides details of the injuries he sustained in the accident. He has undergone six operations as a result of his injuries and has required continuous and regular treatment and rehabilitation since the accident. He instructed his first lawyers in June 2018. Mr Pecotich states that he was not aware of the need to lodge an application for assessment of damages with the Commission or that there was a time limit for that to be done. At no time was he informed by his first lawyer that an application for assessment of damages had to be lodged within three years of the date of the accident. He understood that his claim would be resolved after his whole person impairment had been ascertained. He relied on his first lawyer to act for him and provide him with advice. The last contact he had with his first lawyer was on 7 September 2021. Mr Pecotich tried to contact his lawyer by telephone on multiple occasions after that time with no success. On 19 October 2021 the lawyer’s secretary sent him an email advising him that the lawyer was seriously ill and in hospital. He was subsequently informed that the lawyer had died. He was not informed that his first lawyer had ceased acting for him and that his file had been sent to another firm. He was first informed about the three year time limit for referring his claim to the Commission for assessment by a lawyer of that firm.
The claim was referred to the Commission for assessment by Mr Pecotich’s second set of lawyers. He is now represented by another firm. That firm has provided the submissions and evidence relied on in relation to s 7.33.
SUBMISSIONS
Mr Pecotich submits that he has provided a full and satisfactory explanation for the delay in referring his claim to the Commission for assessment because:
a. he did what he was requested to do by his lawyer and Allianz;
b. he had no knowledge of the time within which a claim needed to be referred for assessment in accordance with s 7.33;
c. he believed his claim could be settled after his impairment had been assessed;
d. the claim was referred for assessment late because his first lawyer did not do what needed to be done to refer the claim for assessment within three years after the accident, and
e. there was no attention or awareness on the part of his first lawyer of the need to refer the claim for assessment within three years after the date of the accident. This resulted in no applicable advice being provided to him and no attempt to refer the claim for assessment within three years after the date of the accident.
DETERMINATION
Section 7.33 states that a party to a claim cannot refer the claim for assessment under Division 7.6 of the MAI Act more than three 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.
Mr Pecotich submits, and I find, that ‘full and satisfactory explanation’, as used in s 7.33, means a full account of his conduct, including his actions, knowledge and belief, from the date of the accident until the date of providing the explanation. The 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. In practical terms, there is no difference between the definition I have adopted and the definition of ‘full and satisfactory explanation’ found in s 6.2 of the MAI Act. This approach is consistent with that taken in Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351 at [23]-[25], a decision relied upon by Mr Pecotich.
As the definitions of ‘full and satisfactory explanation’ in the MAI Act and the Motor Accidents Compensation Act1999 (MAC Act)[2] are in material respects the same, the authorities that address the meaning of ‘full and satisfactory explanation’ for the purposes of the MAC Act, are relevant to determining whether Mr Pecotich has provided a full and satisfactory explanation for the purposes of s 7.33 of the MAI Act.
[2] Section 6.2 MAI Act and s 66(2) of the MAC Act.
For an explanation to be full it needs to be complete in the sense that it says what happened and why. Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required.[3] The acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is full[4]. The meaning of ‘full’ is to be understood in context: to enable the evaluation of the reasons for the delay. Thus all relevant information to that end is required.[5] The delay is the period during which the claimant was late in making the claim.[6]
[3] Walkerv Howard [2009] NSWCA 408 (Walker) Allsop P at [104].
[4] Walker Allsop P at [106].
[5] Walker Allsop P at [57].
[6] Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16].
The concept of a satisfactory explanation 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 occurred was reasonably justifiable.[7] There is a substantial spectrum of reasonableness. It is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay. The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay.[8] Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[9]
[7] Karambelas at [17].
[8] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].
[9] Hunter v Roberts [2019] NSWCA 116 at [20].
I am satisfied that Mr Pecotich has provided a full explanation for the delay. He has provided a statement, a chronology of relevant events, and relevant evidence in relation to the delay. This material has enabled me to evaluate the reasons for the six month delay.
Mr Pecotich has not previously made a claim for compensation. He relied on his lawyers to act on his behalf and advise him in relation to his claim. He was not aware, nor was he advised until told by his second set of lawyers, that he was required to refer his claim for assessment within three years of the accident. Reliance on legal representatives can constitute a satisfactory explanation for delay: Smith v Grant [2006] NSWCA 244 at [60]. In this case, I am satisfied that it does. I am satisfied that Mr Pecotich was advised that his claim for damages should have been referred for assessment within three years of the accident at some time in late October 2021 and early November 2021, after he had received the email from his first lawyers’ secretary on 19 October 2021. The claim was referred for assessment on 12 November 2021. In these circumstances I am satisfied the delay which occurred was reasonably justifiable. I find that Mr Pecotich’s explanation is full.
Leave granted to refer the claim for assessment
For the purposes of s 7.33 of the MAI Act I find that Mr Pecotich has provided a full and satisfactory explanation for the delay in referring his claim for assessment by the Commission. Leave is granted for the claim to be referred for assessment.
Referral to the stood over list
Mr Pecotich submits that the matter should be referred to the stood over list because further evidence is required in relation to contributory negligence and economic loss. While Allianz agrees that the matter is not ready to proceed to assessment[10], it has made no submissions with respect to the stood over list. Having considered Procedural Direction MA1, I refer the matter to the stood over list.
[10] Allianz submissions dated 6 December 2021 at [4] and 3 March 2022 at [5].
Brett Williams
Member
Personal Injury Commission
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