Prasad v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 515
•29 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Prasad v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 515 |
| CLAIMANT: | Shelly Shobna Prasad |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 29 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; reinstatement of damages claim; insurer issued direction under section 6.26(1) requiring claimant to provide particulars within three months; claimant failed to comply within time; insurer asserted claim taken to have been withdrawn under section 6.26(3); claimant applied for reinstatement under section 6.26(4) relying on catastrophic injury and solicitor default; claimant provided full account of her conduct and reliance on solicitors to manage procedural obligations; medical evidence confirmed profound functional limitations; explanation both full and satisfactory within meaning of section 6.26(6); Held – claim deemed withdrawn; reinstatement granted. |
| DETERMINATIONS MADE: | CERTIFICATE Pursuant to the Motor Accident Injuries Act 2017 (MAI Act) and Schedule 3 to the MAI Act, the Personal Injury Commission determines: 1. The claimant has provided a full and satisfactory explanation within the meaning of s 6.26(6) of the MAI Act for the failure to provide particulars in accordance with the insurer’s direction dated 5 December 2024. 2. By operation of s 6.26(4)–(6) of the MAI Act, the claimant’s damages claim is reinstated. 3. Effective Date: This determination takes effect on 26 September 2025. 4. Legal costs: The claimant’s legal costs are fixed at 16 units, being $2,192.20 inclusive of GST, in accordance with the Motor Accident Injuries Regulation 2017. 5. A brief statement of my reasons for this determination is attached to this certificate. |
STATEMENT OF REASONS
Introduction
This is an application for the assessment of a miscellaneous claims dispute under Schedule 2, cl 3(h) of the Motor Accident Injuries Act 2017 (the MAI Act). The issue identified by that provision is whether, for the purposes of Part 6 of the Act, the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay. The non-compliance in question is the claimant’s failure to provide particulars of her damages claim within the three-month period specified in the insurer’s direction dated 5 December 2024, issued pursuant to s 6.26(1). The insurer contends that the statutory consequence prescribed by s 6.26(3) has followed, such that the claim is taken to have been withdrawn. The claimant disputes that result. In the alternative, she applies for reinstatement under s 6.26(4)–(6), relying on her explanation for the delay and on the authorities which recognise that reliance on solicitors may constitute a satisfactory explanation.
Background
The claimant, Ms Shelly Shobna Prasad, was injured in a motor vehicle accident on
23 April 2022 at Eagle Vale. The collision was of significant force, and she suffered multiple fractures and internal injuries of catastrophic severity. She required prolonged hospitalisation and rehabilitation and has been left with enduring and profound disability.
On 13 February 2024, the insurer issued a liability notice admitting liability for the purposes of common law damages. The present controversy arises from the claimant’s compliance with the procedural obligations imposed by Part 6 of the MAI Act. Section 6.25 requires a claimant for damages to provide the insurer with all relevant particulars of the claim as expeditiously as possible. Section 6.26 provides that if, after the expiry of two years and six months from the date of the accident, the claimant has not done so, the insurer may issue a direction requiring the provision of particulars, and that if the claimant fails to comply within three months, the claim is taken to have been withdrawn.
On 5 December 2024 the insurer issued such a direction. By 15 April 2025, the insurer had written to the claimant’s solicitors stating that no compliant particulars had been received and that, by force of s 6.26(3), the claim was deemed to have been withdrawn. The insurer’s position is that the statutory mechanism operated automatically. It says that repeated requests for particulars throughout 2024 went unanswered, that the direction was validly issued under the MAI Act and the Motor Accident Guidelines, and that non-compliance within the stipulated three-month period brought about the statutory consequence. It therefore seeks summary dismissal of the claim.
The claimant disputes that the withdrawal provision has been engaged. She points to the fact that particulars were served late, on 23 May 2025, and that substantial material is now in the insurer’s possession sufficient to assess the claim. She further says that any failure to meet the deadline was not her own but that of her solicitors, upon whom she was entitled to rely. In the alternative, she seeks reinstatement under s 6.26(4), and she has filed a statement which she says constitutes a full and satisfactory explanation for the failure.
The insurer answers that the late provision of particulars cannot retrospectively cure the statutory default. The claimant responds that the authorities make clear that solicitor default is not necessarily imputed to a claimant and that reliance upon solicitors, particularly by a catastrophically injured person with little experience of litigation, may itself constitute a satisfactory explanation.
The questions which arise are, first, whether the claim is to be regarded as having been withdrawn by operation of s 6.26(3), and second, if it has, whether the claimant has provided a full and satisfactory explanation so as to warrant reinstatement under s 6.26(6).
Relevant facts
The accident occurred on 23 April 2022. A Personal Injury Benefits claim was lodged on
30 April 2022. On 13 February 2024 the insurer issued a liability notice wholly admitting liability for the purposes of common law damages.
On 15 February 2024 the insurer’s solicitors, Sparke Helmore, wrote to the claimant’s solicitors, Bellissimo Lawyers, requesting particulars of the damages claim. The letter was detailed, seeking information about personal circumstances, the nature and extent of the injuries, treatment received, disabilities claimed, work history, economic loss particulars, prior accidents, and all supporting documentation. The insurer emphasised the obligation under s 6.25 of the Act to provide all relevant particulars expeditiously.
On 11 April 2024 the insurer’s solicitors wrote again, noting that no response had been received to the February request. The letter pressed for compliance and asked that the signed authorities earlier forwarded be returned.
On 30 May 2024 a further follow-up was sent, again noting that the February request remained unanswered. The insurer asked again for particulars and authorities, observing that without them it could not assess the damages claim.
On 7 November 2024 the insurer’s solicitors wrote once more, reiterating that the request for particulars was outstanding and specifically calling for production of the claimant’s financial records for five years prior to the accident. This was the fourth letter in the sequence.
On 5 December 2024, the insurer’s solicitors issued a formal direction pursuant to s 6.26 of the MAI Act. The notice recited that, in the insurer’s view, the claimant had failed to provide all relevant particulars required by s 6.25. It required the claimant to provide those particulars within three months. It warned that, if compliance did not occur within that period, the claim would be taken to have been withdrawn by operation of s 6.26(3). The direction was served in the form prescribed by the Motor Accident Guidelines.
On the same date, 5 December 2024, the insurer also sent a covering letter enclosing the direction. That letter confirmed that the insurer was invoking s 6.26 and set the compliance date three months hence.
On 15 April 2025, with no compliance having been received by 5 March 2025, the insurer’s solicitors wrote advising that the time had expired. The letter stated that, pursuant to s 6.26(3), the claim was now taken to have been withdrawn. The insurer said it was closing its file.
On 23 May 2025, the claimant’s solicitors served a set of particulars. The insurer noted receipt but reserved its position as to whether they were sufficient to amount to compliance with s 6.25. This late service is referred to in the Preliminary Conference Report of
27 May 2025.
On 27 May 2025, a preliminary conference was held before the Personal Injury Commission. The insurer maintained its position that the claim had been deemed withdrawn. The claimant disputed that proposition, and in the alternative foreshadowed an application for reinstatement under s 6.26(4). Directions were made requiring the claimant to file, by
22 July 2025, written submissions disputing the operation of s 6.26(3) or, alternatively, an application for reinstatement accompanied by a statement providing a full and satisfactory explanation for the failure. The insurer was directed to respond by 19 August 2025, and the claimant given liberty to reply by 9 September 2025.
On 22 July 2025 the claimant filed submissions together with a statement and medical material. She contended that she had acted reasonably in relying on her solicitors, that her catastrophic injuries left her little practical capacity to attend to procedural obligations personally, and that her statement disclosed a full and satisfactory explanation.
On 13 August 2025 the insurer filed submissions in reply. It annexed its correspondence trail from 2024 and 2025, emphasised that the s 6.26 direction had been validly issued, and submitted that no compliance occurred within the stipulated period. It argued that the claim was therefore deemed withdrawn and that solicitor default did not absolve the claimant.
On 9 September 2025 the claimant filed reply submissions. She relied on Smith v Grant [2006] NSWCA 244; 67 NSWLR 735 (Smith) and Isho v Insurance Australia [2022] NSWPIC 581 (Isho), submitting that solicitor fault should not be imputed to her, and that reliance on her solicitors was reasonable in the circumstances. She annexed further medical material, including a report of Dr Jayamanne dated 24 July 2025 diagnosing bilateral carpal tunnel syndrome, polyradiculopathy, complex regional pain syndrome, central sensitisation, and post-traumatic stress disorder, all contributing to her reliance on others for daily living and litigation conduct.
Submissions
Claimant’s submissions
The claimant’s position is that the claim has not been lost. She submits, first, that the insurer has now received particulars sufficient to assess the claim. Particulars were provided on
23 May 2025 and again in the material filed in the Commission. The claimant says that the substance of the obligation in s 6.25 has been discharged. She disputes that the deemed withdrawal provision in s 6.26(3) has any continuing operation once particulars have been served.
Alternatively, and if the claim is properly to be regarded as withdrawn, she applies for reinstatement under s 6.26(4). She submits that she has provided a full and satisfactory explanation within the meaning of s 6.26(6). She points to the fact that she has been catastrophically injured, has required daily care, and has had little practical capacity to attend to procedural obligations herself. She emphasises that she has at all times been legally represented, that the direction of 5 December 2024 was served on her solicitors, and that she was entitled to rely on them to comply. She submits that the law recognises solicitor failure as distinct from claimant failure, and that reliance upon solicitors may constitute a satisfactory explanation. She refers to Smith and to my decision in Isho, where I in similar circumstances observed that “their failure is not her failure” (at [36]). She also points to her medical evidence, in particular the recent reports of Dr Jayamanne and Ms Klaassen, as confirming her profound incapacity and dependence on others.
Insurer’s submissions
The insurer submits that the statutory mechanism has run its course. It points to the repeated letters of February, April, May and November 2024, each of which sought particulars and went unanswered. It points to the formal direction of 5 December 2024, served in the prescribed form, which gave the claimant three months to comply. It submits that no compliance occurred by 5 March 2025, and that on 15 April 2025 it was correct to advise that the claim was taken to have been withdrawn. The insurer’s case is that the statutory consequence is automatic. The subsequent provision of particulars on 23 May 2025 cannot retrospectively undo the operation of s 6.26(3).
The insurer further submits that no adequate explanation has been given for the failure to comply. It says that the claimant has been represented throughout, that the direction was clear, and that no action was taken within the statutory time. It contends that solicitor default cannot prevent the operation of the statute and that the claimant’s reliance on her solicitors does not amount to a full and satisfactory explanation. It argues that to accept such reliance as sufficient would deprive s 6.26(3) of its effect, for it would always be open to a claimant to say that their lawyers were at fault.
The statutory task
Section 6.26(6) provides that where an application for reinstatement is made within three years of the accident, the claim is to be reinstated if the Commission is satisfied that the claimant has provided a full and satisfactory explanation for the failure to provide the required particulars. The phrase “full and satisfactory explanation” is not novel. By force of s 6.2 it means, first, that the explanation must be full in the sense of providing a complete account of the claimant’s conduct, knowledge and belief over the relevant period, including the acts and omissions of her legal representatives insofar as they bear on the delay; and, secondly, that it must be satisfactory in the sense that a reasonable person in the claimant’s position would have been justified in experiencing the same failure.
The statutory test therefore requires both limbs to be met: completeness of the account and objective justification. Neither perfection nor prolixity is required (Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [104]). But the explanation must traverse the whole period of delay and be sufficient to permit the evaluative judgment to be made.
The claimant’s account of the delay is that she was at all times legally represented, that the insurer’s requests for particulars and the formal s 6.26 direction of 5 December 2024 were served upon her solicitors, and that she relied on them to attend to compliance. She says that her injuries have left her in a state of profound physical and psychological disability, that she requires assistance for most activities of daily living, and that she had neither the capacity nor the knowledge to attend to the provision of particulars herself. She says she believed her solicitors were dealing with the matter. Her statement discloses that she signed documents when asked to, answered questions when put to her, and left the management of the litigation to her lawyers. She says she had no knowledge of the statutory consequences of non-compliance, and no reason to suspect that her lawyers would fail to comply.
The insurer responds that the explanation is neither full nor satisfactory. It points to the absence of detail about what instructions were given to the solicitors in response to the direction, what advice was received, and why the particulars were not prepared and served within time. It contends that solicitor failure cannot be sufficient to explain away statutory default, because otherwise s 6.26(3) would have no practical operation.
The question therefore is whether the claimant’s explanation, taken at its highest, amounts to a complete and reasonable account. On the “full” limb, the explanation must be judged against the standard in Mancini v Thompson [2002] NSWCA 38 and Rahman v Al-Maharmeh [2021] NSWCA 31; 95 MVR 394 (Rahman): it must cover her conduct and, so far as within her knowledge, the conduct of her solicitors. It need not, however, explain why the solicitors failed to act: that knowledge lies with them, not with her. On the “satisfactory” limb, the test is objective but contextual: whether a reasonable person in her position, disabled as she was, legally represented as she was, and assured that her lawyers were attending to the matter, would have been justified in experiencing the same delay.
Consideration
An explanation is “full” if it provides a complete account of the claimant’s conduct, knowledge and belief from the accident until the explanation is given, including the actions of those acting on her behalf so far as they bear on the delay. It is “satisfactory” if, viewed objectively, a reasonable person in the position of the claimant would have been justified in experiencing the same failure.
On the question of fullness, the record shows that the insurer wrote repeatedly throughout 2024 requesting particulars. Those requests were received by the claimant’s solicitors but not answered. On 5 December 2024 the insurer issued a formal direction in accordance with s 6.26. No response was provided within the three-month period. The claimant’s account is that she was at all times represented by solicitors, that she believed they were attending to her claim, and that she had neither the knowledge nor the capacity to provide the particulars herself. She says she signed documents and answered questions when asked, but otherwise relied on her lawyers. She has provided a statement to that effect. She has also placed before the Commission extensive medical material demonstrating that she remains catastrophically injured and dependent upon others for the conduct of her affairs.
That account does not include any detail of the solicitors’ internal decision-making or reasons for inaction. But the authorities make plain that it need not. In Rahman, Brereton JA emphasised that the explanation must cover the conduct of solicitors so far as it bears on delay, but it is not necessary for the claimant to narrate what was within the solicitors’ exclusive knowledge. The claimant’s statement does that: it records that she left the matter to her lawyers and assumed, reasonably, that they would comply. In those circumstances, the Commission is able to evaluate the adequacy of the explanation. I am satisfied that the explanation is “full” in the statutory sense.
The more difficult question is whether the explanation is satisfactory. The insurer contends that it is not. It points to the repeated unanswered letters of 2024, the formal direction of December 2024, and the absence of any response within the prescribed period. It submits that solicitor default cannot immunise the claimant from the operation of the statute. That submission has force. Section 6.26(3) is designed to secure compliance with the obligation to provide particulars and to prevent claims from drifting indefinitely. If solicitor negligence or inadvertence were always sufficient, the provision would be emptied of effect.
Against that, the test is not whether more diligence could have been shown but whether a reasonable person in the claimant’s position would have acted differently. Here, the claimant was profoundly disabled. She had little capacity to attend to the claim personally. She had solicitors on the record throughout. She was entitled to expect they would attend to procedural requirements. She did not ignore the insurer’s correspondence; she relied upon her lawyers to deal with it. In those circumstances, reliance on her legal representatives was not unreasonable.
The authorities recognise that reliance on solicitors can constitute a satisfactory explanation. In Smith, Basten JA (at [60]) rejected the proposition that a solicitor’s default should always be attributed to the claimant. That observation is apposite here.
Weighing all the circumstances, I am satisfied that the claimant’s reliance on her solicitors, combined with the profound limitations imposed by her injuries, is sufficient to constitute a satisfactory explanation. A reasonable person in her position could have acted in the same way.
Accordingly, I find that the claimant has provided both a full and a satisfactory explanation within the meaning of s 6.26(6). The statutory condition for reinstatement is met.
Conclusion
The insurer’s direction of 5 December 2024 was validly issued and not complied with within the three-month period, so that the claim was liable to be treated as withdrawn under s 6.26(3). The question is whether the claimant has provided a full and satisfactory explanation for that failure. The claimant’s evidence shows she was at all times legally represented, relied on her solicitors to comply with the direction, and by reason of her catastrophic injuries was in no position to do so herself. That explanation is complete and objectively reasonable. I am satisfied it meets the standard in s 6.26(6). The claim is reinstated and may proceed.
Legal costs
This matter concerns a single miscellaneous claims dispute. Pursuant to the Motor Accident Injuries Regulation 2017, I fix the claimant’s legal costs at 16 units, being $2,192.20 inclusive of GST.
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