Phueknual v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 683
•9 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Phueknual v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 683 |
| CLAIMANT: | Pongpaka (Pim) Phueknual |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 9 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant applied to refer a claim for damages for assessment on 7 August 2024; claimant claimed damages on the insurer on 4 September 2024; insurer submits that the proceedings ought be dismissed as there was no claim to be referred for assessment at the time of the purported referral; section 7.32 considered and applied; claimant stated claim was made before 7 August 2024 due to letter dated 23 January 2024 referring to approaching third anniversary of accident; Held – there was no claim for damages capable of being referred to the Commission on 4 August 2024 so proceedings cannot be maintained; letter or subsequent damages claim cannot overcome this fact; proceedings are misconceived and lacking in substance; proceedings dismissed under section 54(b) of the Personal Injury Commission Act 2020 and Personal Injury Commission rule 77(b)(iv). |
| DETERMINATIONS MADE: | DETERMINATION Motor Accidents Injuries Act 2017 Damages In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The claimant’s application for the assessment of damages filed with the Commission on 7 August 2024 is dismissed following s 54 (b) of the Personal Injury Commission Act 2020 and PIC rule 77(b)(iv); specifically, that the application lacks substance and there is no jurisdiction to determine the dispute to which the application relates. 2. The parties made no submissions as to costs. 3. The claimant is not entitled to costs in respect of the application. |
BACKGROUND
Pongpaka (Pim) Phueknual (the claimant) was injured as a pedestrian on 23 April 2021.
The insurer accepted liability for statutory benefits for 26 weeks but had denied liability for damages on the basis that the claimant's injuries did not satisfy the threshold in s 1.6 of the Motor Accidents Injuries Act 2017 (MAI Act).
Recently the Personal Injury Commission (the Commission) found that the claimant's psychological injuries were non-threshold, which also entitles her to claim damages.
The claimant is not entitled to non-economic loss damages but has quantified a cushion for future economic loss.
Following s 7.32(1) of the MAI Act a claim for damages may be referred to the Commission for assessment. The claimant applied to the Commission to assess her damages on 7 August 2024
The parties attended a teleconference on 4 September 2024.
The insurer seeks that I dismiss this application to assess damages following s 54 (b) of the Personal Injury Commission Act 2020 (PIC Act) and PIC rule 77(b)(iv) specifically because this application lacks substance and there is no jurisdiction to determine the dispute to which the application relates.
The insurer provided a chronology of the claimant's interaction through her solicitors with the insurer. However, the insurer alleges that the claimant had not served a claim for damages, before it commenced this proceedings.
The claimant's solicitor disputes the insurer’s conclusions and submits that the letter dated 23 January 2024 was sufficient to notify the insurer of a claim for common law damages.
I noted that the insurer already had all the information that the Motor Accident Guidelines (Guidelines) prescribe must be provided in a claim under clauses 4.122, 4.123 at Table 4.5 of Schedule 4.1 due to the claimant’s interactions with the insurer in administering her statutory benefits entitlements, except for notice that the claimant was claiming common law damages.
The parties were directed provide submissions regarding those points or for the claimant to discontinue this application to assess damages.
I am empowered to consider this application under Schedule 2(3)(m) of the MAI Act to decide whether a claim may be rejected for non-compliance with s 6.15 which states how a notice of a claim for damages must be made.
Submissions
The claimant's solicitor submitted in the teleconference that he wrote to the insurer on 23 January 2024 asking it to concede the claimant's injuries had exceeded 10% permanent impairment and he referred to the approaching third anniversary of the accident. He submits that the letter was sufficient to lodge the claim. The claimant relies on this passage in the letter to justify this position:
“Noting our client’s diagnosis of severe depression and moderate anxiety and stress, we ask that you concede that our client surpasses the 10% threshold.
We note that the 3-year statute of limitations of our client’s common law damages claim expires on 23 April 2024, and we would therefore be obliged to receive your response as a matter of urgency.”
On 4 September 2024 the claimant submitted that the claim was “lodged” for the purposes of s 6.15 of the MAI Act. Sub-section 4 authorises the Guidelines including specific circumstances for excusing non-compliance in a form.
The claimant referred to clauses 4.119 to 4.121 of the Guidelines, which refers to how an insurer must behave when it receives a “late claim”, and not to delay “progress of claims by relying on technical defences or minor procedural defects or irregularities.” It does not deal with excusing non-compliance.
Further, if the Commission is not satisfied that the claim was “lodged”, the claimant submits that pursuant to s 6.15(5)(b) of the MAI Act, the Commission has adequate reasons to exercise its discretion to allow the damages assessment to proceed on the basis that “the non-compliance is technical and of no significance”.
Notwithstanding any findings the Commission makes in respect of the claimant’s submissions, the insurer has, pursuant to s 6.15(6) of the MAI Act lost “the right to reject a claim for damages for non-compliance”.
The insurer provided submissions dated 10 September 2024.
The claimant has now lodged a claim for damages in the format compliant with the legislation and Guidelines on 4 September 2024. There were no claimant submissions as to whether this was an alternative or back up application to claim damages that would rectify the lack of a claim when the claimant commenced this proceeding.
The insurer submits that on 7 August 2024 there was no claim for damages capable of being referred to the Commission for assessment in accordance with s 7.32(1) of the MAI Act, as a claim for damages had not been made until 4 September 2024.
The insurer referred to El-Dehaibi v AAI Limited t/as GIO [2022] NSWPIC 569 (13 October 2022) (El-Dehaibi) and the inability to reconcile the aims of the PIC Act and the MAI Act with the failure to lodge a claim before applying to the Commission to assess damages.
REASONS
The Commission does not have the power to dismiss any application unless it falls within one of the listed items prescribed at s 54 of the PIC Act and rule 77 of the Rules, which is referred to above.
Unlike applications to strike out pleadings in court, for example under the Uniform Civil Procedure Rules r 14.28 – where the court is concerned solely with the form of the pleading and where leave may be granted to amend to plead in proper form–in applications to assess damages the Commission is limited to a consideration of whether there is a claim for damages to be referred for assessment, which s7.32(1) requires.
An application to assess damages cannot be amended after the fact if it was filed before the claimant lodged the claim.
There was no claim to be referred for assessment when the claimant lodged the application to assess damages on 7 August 2024 unless it is made out the claimant’s letter 23 January 2023 actually claimed common law damages.
The claimant’s letter 23 January 2024 only refers to the third anniversary of the accident approaching in three months in the context of seeking agreement on permanent impairment.
Clauses 4.122 of the Guidelines sets out how notice of a damages claim is made, clause 4.123 states the information which must be provided. Table 4.5 of Schedule 4.1 of the Guidelines lists information which must be provided.
Although, the format of the letter does not meet the minimum requirements prescribed in the Guidelines and the MAI Act, I consider that the non-compliance could have been technical and insignificant but for the lack of referring to the claimant seeking common law damages, because the insurer already possesses all the information required that must be provided in a claim for damages.
The claimant's argument is weaker on whether a claim for damages has been made at all because the letter dated 23 January 2024 does not refer to a claim for damages. It reads as an urgent request for agreement on permanent impairment and the claimant being entitled to claim non-economic loss damages.
A reference to an approaching limitation date does not make a claim. The letter would not alert the insurer it must interpret that reference is the claim for damages required following s 6.15 of the MAI Act, although a reasonable experienced claims manager or motor accident legal practitioner acting for an insurer could infer that the claim for damages is coming and start thinking about how it might advise the client on the liability question.
The failure to refer to a claim for damages is significant and would entitle the insurer to expect the notice claiming for damages under common law as a follow-up, but it does not impose an obligation to treat the 23 January 2024 letter as that claim.
I also refer to the insurer’s letter dated 6 February 2024 to the claimant and her lawyers, which acknowledges the letter dated 23 January 2024 in respect of the request to agree about the claimant’s entitlement to non-economic loss. It does not acknowledge a claim for common law damages.
If the claimant’s representative intended the earlier letter to be a claim for common law damages and evaluated the insurer’s reply, a reasonable legal practitioner would follow-up the request with a phone call, email or letter. That did not happen.
The claimant is asking me to put a value on the letter dated 23 January 2024 after-the-fact, which it did not hold.
This letter does not establish that the claimant lodged her claim for common law damages under s 6.15 of the MAI Act for those reasons on 23 January 2024.
I am conscious of the delay between the proceedings being commenced and me resolving this application.
Guided by El-Dehaibi I am mindful of the objects of both the PIC Act and the MAI Act.
Section 7.32(1) MAI Act is clear and unambiguous. The objects of either Act cannot cure the fundamental problem that there was no claim for damages capable of being referred to the Commission for assessment on 7 August 2024. Making a subsequent damages claim will not overcome this problem.
I dismiss the current application for assessment of damages as the application is misconceived at this time because the claimant’s letter date 23 January 2024 did not comply with s 6.15 MAI Act. There was no claim for damages when the application to assess damages was lodged.
CONCLUSION
The claimant’s application for the assessment of damages filed with the Commission on 7 August 2024 is dismissed following s 54 (b) of the PIC Act and PIC rule 77(b)(iv); specifically, that the application lacks substance and there is no jurisdiction to determine the dispute to which the application relates.
The parties made no submissions as to costs.
The claimant is not entitled to costs in respect of the application.
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