Popovic v QBE Insurance (Australia) Limited
[2022] NSWPIC 402
•4 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Popovic v QBE Insurance (Australia) Limited [2022] NSWPIC 402 |
| CLAIMANT: | Mara Popovic |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 4 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Late claim; full and satisfactory explanation; section 6.13 of the Motor Accident Injuries Act 2017; the claimant sustained injury in a rear end collision on 17 April 2021; the Application for personal injury benefits was received by the insurer on 2 February 2021; whether the claimant had provided a full and satisfactory explanation for the failure to make the claim within 3 months of the accident; Held – the claimant’s explanation was not full; the claimant had not provided a full account of her conduct including her actions; knowledge and belief from date of accident until date provided explanation on 11 February 2022; where explanation not full cannot be satisfactory. |
| DETERMINATIONS MADE: | Issued under section 7.36(5) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of Part 6 the claimant has not given a full and satisfactory explanation for non-compliance with a duty or for delay. 2. For the purposes of s 6.13 a late claim may not be made. 3. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
INTRODUCTION
Ms Mara Popovic (the claimant) sustained injury in a motor vehicle accident on 17 April 2021 (the accident).
The Application for personal injury benefits was received by the insurer on 2 February 2022.
I am asked to determine whether the claimant has provided a full and satisfactory explanation for the failure to lodge the claim for statutory benefits within three months of the date of accident as required by s 6.13(1) of the Motor Accident Injuries Act 2017 (MAI Act).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Popovic under the MAI Act.
Section 6.13(3) states, inter alia, that a claim for statutory benefits may be made after three months if the claimant provides a full and satisfactory explanation for the delay in making the claim.
The claimant provided her explanation in a statement dated 11 February 2022. That explanation was rejected by the insurer on the basis it was neither full nor satisfactory on 21 February 022.
The claimant provided further information for the delay in lodging the claim in a letter to the Internal Review team dated 3 March 2022. On 30 March 2022 the insurer affirmed their earlier decision declining the claim on the basis the claimant had not provided a full and satisfactory explanation for the delay in lodging the claim.
On 31 March 2022 the claimant filed an application in the Personal Injury Commission (Commission). This constitutes a miscellaneous claims assessment matter under Schedule 2(3)(h) of the MAI Act.
The insurer provided submissions dated 3 May 2022 asserting the explanation provided by the claimant did not constitute a full and satisfactory explanation for the delay.
The dispute was the subject of a teleconference on 19 May 2022. The claimant was represented by Thomas Coxall of PK Simpson & Co, Lawyers and the insurer was represented by Andrew Gorman of McCabes, Lawyers.
I agreed with the insurer that the claimant had not provided a full account of her conduct, including her actions, knowledge and belief from the date of the accident until the date of providing the explanation, that is, 11 February 2022.
I noted the claimant had made an earlier claim arising out of a 2008 accident under the Motor Accident Compensation Act 1999 (the MAC Act). Time frames also applied under the MAC Act and the claimant has not explained her knowledge of time frames generally applying to motor accident claims.
In my report dated 19 May 2022 I stated:
“In her statement dated 11 February 2022 the claimant has failed to provide details of her attendances on medical practitioners, details of her employment, details of her absence from work following the accident, how she became aware QBE was the relevant insurer and why she delayed seeking legal advice where it seems she was only certified fit for work 8 hours a week as of 13 May 2021 and where it seems there was some difficulty in her interactions with QBE. It is also not clear when the claimant consulted a lawyer at PK Simpson & Co, when she was given the claim form, what advice she was given and why the claim form was not received by the insurer until 2 February 2022”.
Accordingly, and noting no objection by the insurer I provided the claimant with an opportunity to provide a further explanation.
In the event a dispute remained the parties agreed it was appropriate thereafter for a decision to be made on the papers.
Notwithstanding the provision of a further statement the insurer continues to maintain that the explanation for delay is neither full nor satisfactory.
THE RELEVANT LAW
Section 6.13(3) states, inter alia, that a claim for statutory benefits may be made after three months if the claimant provides a full and satisfactory explanation for the delay in making the claim.
Section 6.2 of the MAI Act provides:
“(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.”
THE EVIDENCE
The claimant was 50 years of age at the date of accident and is now aged 51 years.
The claimant relies upon a referral from Dr Tomasevic to Aspire Physiotherapy dated 27 April 2021 where the presenting problem is described as “Post 17/4/21 mva patient suffering from headaches, pain in neck, entire back, anterior and left mid lateral chest, left and right upper limbs, left and right lower limbs, left upper tibial region, left and right heels, insomnia, anxiety flashbacks to events of 17/4/21”.
The claimant also relies upon a referral in the same terms to Dr Medhat Guarris dated 15 December 2021 and to Dr Rose Cantali also dated 15 December 2021.
A Certificate of capacity/certificate of fitness dated 13 May 2021 signed by Dr Tomasevic certified a capacity for work of four hours a day two days a week subject to a number of restrictions.
The Application for personal injury benefits was dated 15 December 2021. The accident was a five car ‘pile-up” where the car driven by the claimant was the second in line. Not only did the third car in line collide with the rear of the claimant’s car her car was pushed into the rear of the car in front. The claimant listed her injuries as head, neck, entire back, left side of the chest, both arms, both legs, left upper tibial region and both heels. Ms Popovic declared
she had made an earlier compulsory third party (CTP) claim relating to an accident on 18 December 2008.
Statement of Mara Popovic dated 11 February 2022
The claimant provided a brief statement dated 11 February 2022. In that statement she noted she had made a prior claim arising out of an accident in approximately 2008. She stated:
“I do not have any significant knowledge or understanding of the CTP claims process, time limits or the procedures involved and I rely on my lawyers to manage everything”.
At the time of the accident Ms Popovic was employed as a secretary with Tesla Electrical & Airconditioning Pty Ltd. Following the accident, she experienced some symptoms and consulted her general practitioner (GP) for treatment. She stated her treating doctor completed a Certificate of Capacity which she understood had been lodged with the insurer.
Ms Popovic also stated she spoke with representatives of the insurer numerous times throughout 2021 and was of the belief she had a current claim with the insurer. However, in November 2021 she contacted PK Simpson Lawyers because she had not been able to make any progress with the insurer.
Ms Popovic states she spoke to a solicitor with PK Simpson on 26 November 2021 who assisted her in filling in some forms. She got a police report.
Ms Popovic stated she continued to suffer from discomfort in her neck, shoulders and back from the accident in addition to psychological symptoms.
Letter from Ms Popovic to the Internal Review Specialist dated 3 March 2022
Ms Popovic wrote directly to Kelly Jamieson at the insurer on 3 March 2022 where she outlined the history set out in her two statements.
Additional information contained in that letter relates to the timing of events. Ms Popovic stated she consulted her doctor about a week after the accident and thereafter on a number of times. Whilst he provided a medical certificate, he did not assist the claimant or provide advice as to the process to be following in making a claim.
Ms Popovic said after two months of consulting her doctor he asked her if she had sent her reports to QBE. She then sent “everything” to the insurer. The claimant thought this occurred in about early August.
Statement of Mara Popovic dated 8 June 2022
The claimant provided a further statement dated 8 June 2022. She stated she had been employed by Tesla Electrical and Air Conditioning in an administrative role for approximately 20 years. She states prior to the accident she worked on average 40 hours per week and following the accident she was absent from work due to her injuries for approximately two months. Ms Popovic states she received COVID related benefit payments between 8 August 2021 and 2 November 2021.
Ms Popovic states she first saw Dr Tomasevic within one week of the accident.
Relevantly the claimant states each time she saw Dr Tomasevic he would give her a copy of the Certificate of capacity he had completed, and she posted the certificates to the address on the bottom of the certificate believing she had made a claim for compensation. That address was the address of the State Insurance Regulatory Authority (SIRA).
Ms Popovic states about two months after commencing treatment with Dr Tomasevic he asked if she had been sending her reports to QBE Insurance. She said this led her to believe her claim was with that insurer and thereafter she sent the Certificates of capacity to the insurer.
Ms Popovic states she also phoned the insurer to find out the status of her claim. She cannot recall the name of the person she spoke to but was advised the insurer had received her Certificates of capacity, but this was not the proper process for lodging her claim. She was informed the insurer had tried to phone her to advise she had not lodged a claim, but the phone number related to an old phone which was no longer in use. Ms Popovic states she was told she could access the claim form online and was given a link to the forms. She states she followed the link, completed the forms online and believed her claim had been lodged.
Ms Popovic states when she followed up with the insurer, she was advised they had not received her claim. Ms Popovic states she asked the insurer to post the forms to her for completion but states the forms were never received.
Ms Popovic states she contacted PK Simpson & Co in November 2021 and spoke to a solicitor on 26 November 2021 who “advised me of my potential rights in relation to a claim for compensation, in addition to the time limits involved with lodging a claim”.
PK Simpson & Co sent Ms Popovic an Application for personal injury benefits by letter dated 3 December 2021. She states she saw Dr Tomasevic to have the medical certificate completed. She completed the application form dated 16 December 2021 and returned both documents to her solicitors later in December.
Ms Popovic states she understood the office of PK Simpson & Co was closed for the Christmas shutdown between 24 December 2021 and 17 January 2022 and as a result her Application for personal injury benefits was not submitted to the insurer until 27 January 2022.
In relation to her knowledge and beliefs Ms Popovic states she has no legal experience, and her earlier CTP claim was around 2008. She states she does not recall being aware of any time limit for lodging that claim as it was so long ago.
Letter from PK Simpson & Co
In a letter dated 29 March 2022 PK Simpson & Co on behalf of the claimant stated the claimant had sought treatment between May 2021 and December 2021 from Dr Tomasevic, GP and had been referred to Dr Antoine Sanki who she had consulted on one occasion only.
It is asserted the claimant was forwarding her certificates of fitness to SIRA. Their address appears on the bottom of the certificate of capacity form, and it is asserted the claimant believed this constituted lodging a CTP claim.
PK Simpson & Co state further delays occurred due to the Christmas shutdown which meant people were not available to assist the claimant to lodge her claim.
The claimant was not able to recall either the dates or the names of the customer service representatives she spoke to about submitting a claim form to the insurer.
Attached to the letter from PK Simpson & Co is an email from SIRA to the claimant dated 8 December 2021 thanking Ms Popovic for contacting SIRA and providing advice on how to submit a CTP claim.
SUBMISSIONS
The claimant’s submissions
The claimant provided submissions dated 31 March 2022 and 15 June 2022.
Those submissions largely replicate the claimant’s evidence. However, the claimant submits she was unfamiliar with the process involved in pursuing a claim for compensation under the MAI Act, noting the earlier claim for compensation was under the MAC Act, was governed by different time limits and related to an accident in 2008.
The claimant asserts she mistakenly believed she had lodged a claim firstly by sending her Certificates of capacity to SIRA and secondly by sending them to the insurer. She also asserts she made contact with the insurer a number of times in 2021 although she was not provided with enough information to confirm her claim had been lodged.
The claimant submits that when she first contacted PK Simpson & Co on 26 November 2021 it was on her understanding that she had made a claim with the insurer. It was on this basis that PK Simpson & Co wrote to the insurer, following the end of year shutdown, on 18 January 2022 requesting a copy of the claimant’s file. The response received from the insurer was that the claim was denied on the basis it was not lodged within the requisite three months of the date of accident.
The claimant notes she was not aware of the requirement to lodge a claim within three months of the date of accident.
The insurer’s submissions
The insurer provided submissions dated 3 May 2022 and 29 June 2022.
The insurer relies upon the decision of the Court of Appeal in Walker v Howard[1] where the President said at [106]:
"I disagree with the primary judge's conclusions that strictly only the conduct of (the Plaintiff) needed to be explained. The authorities speak with one voice that the acts and omissions of all relevant persons should be canvassed in the explanation to allow the Court to make an evaluation."
[1] (2009) 78 NSWLR 161 (Walker v Howard).
Further, in Nominal Defendant v Browne[2] Basten JA, with whom the other members of the Court agreed, said, at [21]:
"… But an explanation may not be 'full' if it does not provide some detail as to the instructions given to, and the advice received from, solicitors …"
[2] [2013] NSWCA 197.
It is clear the onus of providing a full and satisfactory explanation for delay rests with the claimant as per Smith v Grant.[3]
[3] (2006) 67 NSWLR 735.
The insurer submits the explanation is not full because:
(a) the claimant does not articulate her beliefs about what the time limits were, simply that she thought she had lodged her application, although she fails to explain why she held that belief;
(b) the claimant says she sent “everything” to the insurer in early August 2021 but does not say how that occurred, by email, fax or post;
(c) although the claimant later states she lodged an on-line application she does not say whether she had attempted to save that application to her computer;
(d) whilst the claimant says she contacted the insurer “numerous times throughout 2021” she cannot recall when or to whom she spoke. The insurer submits the explanation neglects to indicate how she identified someone at the insurer to communicate with, what response she received on those occasions and how the contact took place, that is, by phone or email;
(e) the claimant cites difficulties lodging an on-line claim form “due to the Christmas shutdown” yet neglects to indicate what form those difficulties took;
(f) there is no explanation for the delay from the claimant’s solicitor as required by Walker v Howard where it was a further eight weeks before the application was lodged after the consultation on 26 November 2021, and
(g) there is no explanation as to why the application was not lodged until 2 February 2022, several weeks after the “Christmas shutdown”.
As to whether the explanation is satisfactory the insurer submits it is not because:
(a) there is some doubt about whether the claimant believed her claim had been lodged prior to seeking legal advice. If the claimant avers that she was unaware of the relevant time limits the insurer says this is not the belief of a reasonable person in her position, given that she is educated, worked as a secretary and had experience with an earlier claim;
(b) a reasonable person in the claimant’s position would have sought to assert her legal rights well before November 2021 where she had consulted her doctor on several occasions post-accident but where her symptoms had not resolved;
(c) assuming the claimant received legal advice in late November 2021 about the importance of lodging her already late claim without delay, more than 10 weeks passed before this occurred, and
(d) to the extent that any part of the delay was attributable to inaction on the part of the claimant’s solicitors the insurer relies upon Diaz v Truong[4] to assert that the claimant was not sufficiently diligent to ensure that things were done as quickly as possible.
IS THE EXPLANATION FULL
[4] [2002] NSWCA 265.
It is disappointing to see the inadequacy of the claimant’s explanation when I provided her with an opportunity to provide a further explanation and even outlined further matters I considered should be addressed. I am not satisfied the claimant has provided a full account of her conduct including her actions, knowledge and belief from the date of the accident until the date she provided the explanation on 11 February 2022.
Gleeson, CJ in Russo v Aiello[5] referring to the concept of a “full and satisfactory explanation” as it pertained to the Motor Accidents Act 1988 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.”
[5] [2003] HCA 53.
Other than the claimant’s assertions that she attended her GP for treatment the only evidence I have as to medical treatment is the referral from Dr Tomasevic to Aspire Physiotherapy, the Certificate of capacity/certificate of fitness dated 13 May 2021 and referrals to Dr Guirgis and to Dr Cantali dated 15 December 2021.
It is unclear when Ms Popovic started sending her medical certificates to SIRA. The Certificate of capacity/certificate of fitness dated 13 May 2021 relates to the claimant’s capacity from 11 May 2021 to 8 June 2021. If two months after the accident Dr Tomasevic asked if she was sending her certificates to the insurer does that mean the only certificate sent to SIRA was the certificate dated 13 May 2021 or was there also a certificate issued on 27 April 2021 which was apparently the date the claimant first saw Dr Tomasevic after the accident. It is also difficult to understand how Dr Tomasevic knew the relevant CTP insurer was QBE Insurance (Australia) Limited, noting the identity of the insurer requires a knowledge of the registration number of the at fault vehicle as at the date of the accident. Is it possible the claimant had made an enquiry herself to ascertain the identity of the CTP insurer? If so, when and in what context?
In her statement dated 11 February 2022 Ms Popovic states she made contact with the insurer numerous times throughout 2021 and was of the belief she had a claim with the insurer. However, in her statement dated 8 June 2022 Ms Popovic only refers to speaking to the insurer on one occasion to find out the status of her claim and when she was advised this was not the correct process to lodge a claim, although it seems she followed up with the insurer after purporting to lodge her claim online. Whilst I appreciate the claimant may not be able to provide specific dates or names, she should be able to confirm whether she contacted the insurer numerous times or only twice and if so, whether the contact was by telephone or email and the gist of the conversations.
The claimant has not explained why she contacted SIRA in December 2021 as evidenced by the email from SIRA to the claimant dated 8 December 2021 where she had already sought advice from PK Simpson & Co and presumably had instructed that firm to act for her.
Ms Popovic has not outlined the advice she was given by the solicitor from PK Simpson & Co other than to say she was advised of her potential rights including time limits involved with lodging a claim. Specifically, what advice was Ms Popovic given and who did she consult on 26 November 2021. Neither the claimant nor her solicitor have provided an explanation as to why the Application for personal injury benefits dated 15 December 2021 was not received by the insurer until 2 February 2022. The Christmas shutdown was limited to the period from 24 December 2021 until 17 January 2022.
Neither the claimant nor her solicitor have explained why the claimant was asked to complete an Application for personal injury benefits if it was believed the claimant had already made a claim with the insurer at the time she first consulted PK Simpson & Co, as evidenced by the letter sent by the solicitor to the insurer on 18 January 2022 requesting a copy of the claimant’s file.
The claimant has not explained why she delayed seeking legal advice where she was only certified fit for work eight hours a week as of 13 May 2021 and nor has she provided details of her absences from work following the accident.
In simply asserting she was not aware of the requirement to lodge an application within three months of the date of accident the claimant has not established what her understanding of time limitations were, particularly given her earlier claim and nor has she provided any evidence as to her level of education and understanding of the CTP scheme generally.
IS THE EXPLANATION SATISFACTORY
Where the explanation is not full it cannot be satisfactory. In the absence of a full explanation, it is difficult to determine whether a reasonable person in the position of the claimant would have failed to comply with her duty under the MAI Act or would have been justified in experiencing the same delay.
CONCLUSION
I am not satisfied the claimant has provided a full and satisfactory explanation for the delay in making the claim for statutory benefits in accordance with s 6.13 of the MAI Act. A late claim cannot be made.
COSTS
Where I am not satisfied the claimant has provided a full and satisfactory explanation for the delay in making the claim for statutory benefits, I decline to assess costs in favour of the claimant in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017.
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