Ricchetti v Insurance Australia Limited t/as NRMA
[2023] NSWPIC 527
•6 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ricchetti v Insurance Australia Limited t/as NRMA [2023] NSWPIC 527 |
| CLAIMANT: | Myrian Edith Ricchetti |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 6 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant injured in a rear end collision when stopped at a traffic light; insurer issued a written direction under sections 6.25 and 6.26 requiring the claimant to provide the requested particulars of her claim; claimant provided a written response to the request for particulars; insurer claimed response non-compliant and claim taken to be withdrawn by operation of sub-section 6.26(3); Golding v NRMA Insurance Limited, Hospital Products Ltd v United States Surgical Corporation, Isho v Insurance Australia Limited t/as NRMA Insurance, Paget v AAI Limited t/as Suncorp Insurance, Rahman v Al-Maharmeh, Smith v Grant, and Walker v Howard applied or followed; Held – claimant has met the requirements of section 6.25 and has provided “relevant particulars” sufficient to enable the insurer, as far as practicable, to make a proper assessment of her full entitlement to damages; claimant not taken to have withdrawn her claim; unnecessary to consider whether claimant has a full and satisfactory explanation for her alleged failure to provide the required particulars; unnecessary to consider whether damages claimant is likely to be awarded exceed 25% of the maximum amount for non-economic loss; both parties have used their best endeavours to settle the claim before referring the matter for assessment. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under ss 6.25 and 6.26 of the Motor Accident Injuries Act 2017 Determination 1. The claimant has provided adequate relevant particulars to the insurer prior to the expiry of three months after the s. 6.26 written direction was issued. 2. The parties to the claim have used their best endeavours to settle the claim before referring it for assessment. |
STATEMENT OF REASONS
INTRODUCTION AND BACKGROUND
On 5 October 2019 the claimant, Myrian Edith Ricchetti, was involved in a motor accident. The claimant's vehicle was stopped on Canterbury Road, Canterbury NSW waiting to turn right into Church Street when another vehicle ran into the back of her car causing her car to collide with the vehicle stopped in front of her.
Prior to the current insurer, Insurance Australia Limited t/as NRMA, becoming involved in this case there was another insurer, Allianz involved who paid statutory benefits to the claimant.[1]
[1] Claimant’s submissions A 38 5 October 2022.
The insurer who now has liability to pay the claim is NRMA. In a notice dated 4 October 2023 it has wholly admitted liability for the claim.[2]
[2] Insurer’s letter – document A 33.
An Application for Personal Injury Benefits was made on 12 October 2019 under the Motor Accident Injuries Act 2017 (NSW) (MAI Act).[3]
[3] Insurer’s bundle of documents R 1 at R 2 pp 4-9.
An application for common law damages assessment dated 6 September 2021 was lodged by the claimant’s solicitor. That application included some of the claimant’s wage and tax information.[4] The insurer acknowledges that it received the claim for damages on 6 September 2021.[5]
[4] Claimant’s bundle AD 1.
[5] Insurer’s letter – document A 33
In a schedule of damages dated 6 September 2021 the claimant’s solicitors made a claim for a total of $896,694.[6]
[6] Claimant’s bundle AD 1 – document D.
The matter is before the Personal Injury Commission (Commission) to determine an application by the claimant to reinstate her claim for damages.
The application is necessary because the second insurer, NRMA Insurance Limited, says the claim is taken to have been withdrawn.
The claimant submits that her claim is not deemed to have been withdrawn under the MAI Act. In the alternative, the claimant says that her claim should be reinstated.
On 22 December 2021 the insurer requested particulars under s 6.25 of the MAI Act.
On 19 May 2022 the insurer issued a written direction notice under s 6.26 to the claimant requiring the claimant to provide the requested particulars. The covering letter also dated 19 May 2022 warned the claimant that:
“We would respectfully [refer] you to s6.26(3) which provides that should you not comply with the written direction within 3 months after it is given you will be taken to have withdrawn your common law damages claim.”
The written direction to produce particulars referred to ss 6.25 and 6.26 of the MAI Act. The notice stated that if the claimant does not comply with the direction within three months then in accordance with s 6.26(3) the claimant will be taken to have withdrawn her claim. The form stated that the direction is given in the form provided by the State insurance regular tree authority pursuant to Part 4 of the Motor Accident Guidelines.
On 19 August 2022 the claimant provided a written response to the request for particulars. The insurer says this response to the request for particulars was non-compliant with the requirements of s 6.26 of the MAI Act and therefore taken to be withdrawn by operation of sub-s 6.26(3) of the MAI Act.
The application for damages assessment was lodged on 5 October 2022 which is the third anniversary after the date of the accident.
In this case the insurer’s solicitors submit that for the claim to be reinstated the Commission must be satisfied that:
“(a) Whether the claimant provided adequate particulars to the insurer prior to the expiry of three months after the s. 6.26 written direction was issued.
(b) If not, whether:
(i) The claimant has a full and satisfactory explanation for her failure to provide the required particulars; and
(ii) The total damages likely to be awarded to the claimant if her claim succeeds are not less than 25% of the maximum amount for non-economic loss at the date of accident.
(c) Whether the claimant used her best endeavours to settle the claim before referring it for assessment.”.[7]
[7] Insurer’s solicitor’s further submissions dated 23 August 2023.
I will first summarise the parties submissions then explain the reasons for my decision.
SUBMISSIONS
Both parties have made numerous written and oral submissions which are referred to below.
In written preliminary submissions which are undated, the insurer submits that the claimant did not use her best (or any) endeavours to settle the claim before referring it for assessment and accordingly should be dismissed under sub-s 7.32(3) of the MAI Act.
Also in its written submissions the insurer further submits that as the claimant did not comply with the s 6.26 written direction within three months after it was issued, she is taken to have withdrawn her claim and is required to provide a full and satisfactory explanation for the failure as well as establish that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss.
Teleconferences were held in this matter on 16 February and 13 July 2023. At both teleconference Mr Chidiac appeared for the claimant and Mr Kenda appeared for the insurer.
At the teleconference on 13 July 2023 the claimant’s solicitor advised that, in compliance with the Commission’s previous directions of 16 February 2023, he had uploaded into the Commission portal further submissions about the adequacy of particulars and also had provided a detailed response to the request for particulars which are identified in the portal as a AD1 and AD2.
At the teleconference on 13 July 2023 the insurer pressed the application that all issues in the matter be dealt with together. The insurer maintained its position that the matter be dismissed for a failure by the claimant to use her best endeavours and also for the claimant’s failure to provide sufficient answers to particulars under s 6.26 of the MAI Act.
At the teleconference on 13 July 2023 the following four issues were identified as being the issues that would be dealt with by the parties and then by the Commission. These issues are listed as follows:
(a) Are the particulars adequate?
(b) Has the claimant provided a full and satisfactory explanation for her previous failure to provide particulars?
(c) If the Commission finds that the two above questions should be answered in the affirmative should the claim be reinstated?
(d) Has the claimant used her best endeavours to settle the claim before referring for assessment to the Commission?
At the teleconference on 13 July 2023 the claimant’s solicitor submitted that his previous submissions, which are filed in the Commission portal as AD1 and AD2, had already addressed points one and two above about inadequate particulars. However he also submitted that he had not addressed points three and four above and required further time to address those two remaining points.
I indicated that after having heard both parties oral submissions, I allowed both parties time to make further written submissions on the four issues enumerated above. I would also allow the claimant to provide any further outstanding documents or any further outstanding response to particulars.
I indicated that once I had received the further information, particulars and submissions from both parties I would then consider my reasons and provide a written decision.
The parties then made additional written submissions. The claimant’s further submissions are dated 1 August 2023 and the insurer’s further submissions are dated 23 August 2023.
Claimant’s further submissions – 1 August 2023
The claimant’s further submissions dated 1 August 2023 state that on 6 September 2021 they provided a draft schedule of damages to the insurer.
On 19 May 2022 the insurer issued a notice under s 6.26 of the MAI Act. The claimant’s solicitors replied by email dated 19 August 2022.
The claimant’s solicitors submit that the documents and answers they had provided together with particulars previously provided were a sufficient response to the insurer’s s 6.26 notice.
The claimant submits that the application by the insurer to dismiss the claim is opportunistic and disingenuous. The claimant notes that the insurer has participated in settlement negotiations including providing written offers of settlement with itemised heads of damages. When making the offer of settlement the insurer had not suggested that they were unable to estimate the value of the claim.
The claimant also submits that it is of significance that the insurer has not specifically indicated what aspects of the particulars provided are insufficient.
In response to the issue about whether the particulars supplied are adequate the claimant submits that when regard is had to the totality of all the communications between the claimant and the insurer including medical reports, the insurer had sufficient material to make a proper assessment of the claimant’s entitlement to damages.
The claimant’s submissions emphasise that the insurer has not detailed what particulars it says are outstanding. The claimant says that her particulars detailed the injuries received by the claimant and continuing disability and her economic loss is detail in the report of Dr Dixon.
The claimant also points to the insurer’s reply which contains over 1,000 pages of detailed medical and occupational assessment which documents the claimant’s work history including a detailed earnings history.
The claimant’s submissions refer to and rely upon the decision of Androitis v IAA [2022] NSWPIC 380. The decision in Androitis makes it clear that the claimant should be “left guessing” as to what further outstanding particulars the insurer was seeking. In its submissions the claimant quotes the following paragraph from the decision in Androitis :
“Given that one of the objects of the MAI Act is to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes, I do not consider it is reasonable to expect a claimant to provide an insurer with information that it has already been provided or is otherwise in the insurer’s possession. This would result in a duplication of work and would not be cost effective. It would add little, if anything, to the insurer’s ability to make a proper assessment of the claimant’s full entitlement to damages.”
The claimant’s submissions point to an informal settlement conference held between the parties on 29 November 2022. The submissions note that on 5 December 2022 the insurer provided a written offer of settlement. The claimant notes there was no indication that the insurer thought it was unable to assess the claim.
The claimant submits that her answers to particulars, provided on 19 August 2022, when read in conjunction with the other information previously provided are a sufficient response for the purposes of s 6.26 of the MAI Act. The claimant has not withdrawn the claim.
Regarding the best endeavours issue, the claimant accepts that sub-s 7.32(3) requires that both parties to the claim use their best endeavours to settle the claim before it is referred for assessment. The claimant maintains that she has provided submissions, schedules of damages and voluminous documentation and attended a settlement conference. There is no issue and liability and there is no prejudice to the insurer. The insurer has failed to provide particulars of her alleged failure to use best endeavours. The insurer simply has made a bare allegation.
The claimant argues that the insurer also has an obligation to use its best endeavours. The insurer has failed to particularise what particulars it says are outstanding. The insurer itself has not used its best endeavours.
The phrase “best endeavours” is not defined in the MAI Act but in Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83, the court said that the standard “must be measured by what is reasonable in the circumstances, having regard to the nature, capacity, qualifications and responsibilities of the licensee viewed in the light of the particular contract”.
The claimant says that she has used her best endeavours. The insurer has taken any point to thwart her application. The insurer is acting contrary to the objects of the MAI Act. Dismissal of proceedings can be made under Rule 77 of the PIC Rules. None of the circumstances in that rule applies to this case. A dismissal is intended to apply to cases that are not arguable or where there is irredeemable prejudice to the defendant.
Given that the insurer has accepted liability and that the insurer has paid significant sums in weekly payments, it cannot be said that the case is unarguable. Further, the insurer has not alleged prejudice, let alone irredeemable prejudice.
In its submissions the claimant refers to Paget v AAI Limited t/as Suncorp Insurance [2022] NSWPIC 650, where it was held that where NEL remains in issue, it is not reasonable to require a claimant to engage in settlement offers. In this matter, non-economic loss remains in dispute – the insurer indicated on 9 December 2022 that it did not concede that the Claimant’s impairment exceeded 10%.
The claimant submits that the insurer has lost the right to complain of a perceived failure by the claimant to use her best endeavours by virtue of the insurers own delay.
The claimant notes that an Application for Assessment of Permanent Impairment was lodged by the claimant on 14 March 2023. Proceedings under this application are ongoing as there has not yet been set a date for the claimant to undergo medical examination(s).
The claimant submits that the particulars required by the MAI Act were supplied by the claimant. If it is alleged that the particulars now supplied are insufficient the insurer has not shown how. The claimant says that if there was a deficiency in particulars until 16 March 2023, the claimant must give a full and satisfactory explanation for the period up to that date. The failure to provide particulars can only be from the date of the letter being from 19 May 2022 until 16 March 2023. The explanation for delay must cover that period. It is not irrelevant that the claimant did give answers to particulars on 19 August 2022. Even if there were matters that were inadequately addressed, it cannot be said that the claimant did not advance the position.
The insurer did not specify the nature of the alleged deficiency in the particulars provided. By not doing so, it prejudiced the claimant and extended the period in which an explanation was required.
In regard to s 6.26(7)(b), the claimant has already made submissions to that effect. The claimant says that she had provided a significant amount of medical and other claim information. Her application before the Commission runs is hundreds of pages. In those circumstances, it was reasonable for the claimant, to take the view that more than adequate particulars were provided. This is underlined by the fact that the insurer continues to fail to specify the nature of the alleged deficiency.
Secondly, the claimant left the pursuit of her claim in the hands of her solicitor. If the solicitor was mistaken in his view of the extent of his obligations to provide particulars, that is, of itself, an appropriate explanation for delay. It is the claimant’s explanation for delay. It is her “actions, knowledge and belief” that must be provided. The solicitor’s “actions knowledge and belief” is not to the point (Rahman v Al-Maharmeh, [2021] NSWCA 31 [39]). If a matter is not within the knowledge and control of the Claimant, then an explanation of the solicitor’s conduct does not affect the adequacy of an explanation (at [42]).
As to whether an explanation is satisfactory, it suffices that some reasonable person would have experienced the same delay (at [43]). Many, if not most, claimants would be unaware of the nature of particulars to be provided to an insurer and would rightly leave the conduct of that matter to their solicitors, as the claimant has done here. They would have experienced the same delay. The standard of the explanation is not perfection, nor should it be excessive in length or detail (Walker v Howard (2009) 78 NSWLR 161).
The claimant says that the insurer’s application is disingenuous and opportunistic.
Insurer’s further submissions – 23 August 2023
The insurer’s further submissions are dated 23 August 2023.
The insurer submits that a number of procedural issues have arisen in the present proceedings which the insurer summarises as follows:
“(a) Whether the claimant provided adequate particulars to the insurer prior to the expiry of three months after the s. 6.26 written direction was issued.
(b) If not, whether:
(i) The claimant has a full and satisfactory explanation for her failure to provide the required particulars; and
(ii) The total damages likely to be awarded to the claimant if her claim succeeds are not less than 25% of the maximum amount for non-economic loss at the date of accident.
(c) Whether the claimant used her best endeavours to settle the claim before referring it for assessment.”
The insurer submits that the claimant lodged its application on 5 October 2022 and the insurer lodged its reply 22 days later on 27 October 2022.
The insurer denies that it has not told the claimant how it’s reply to its request for particulars is inadequate. The insurer says this was detailed in its letter dated 29 August 2022.
Although the claimant attended a settlement conference she did not make an offer of settlement.
The insurer states that its primary submission is that it’s s 6.26 written direction was issued on 19 May 2022 and the claimant provided (non-compliant) particulars after close of business on 19 August 2022 at 5.14pm in breach of sub-s (3). That is, as the claimant did not provide any particulars within three months of the direction which expired at close of business on 19 August 2022, the claimant did not comply with the written direction.
The insurer maintains its position about the claimant’s reply dated 19 August 2022. The insurer claims that the claimant’s reply to particulars is inadequate because: it refers to past and future expenses; alleged that she had not worked since the accident which was incorrect; and gave generic and vague particulars in respect of economic loss.
The insurer submits that the claimant did not provide compliant particulars within three months after the insurer issued its direction under s 6.26 of the MAI Act.
The insurer submits that the claimant’s submissions dated 1 August 2023 could not reasonably be categorised as constituting an explanation of the purposes of sub-s 6.26(7)(a) of the MAI Act and is certainly not in satisfactory.
The insurer submits that the Member would not reinstate the claimant’s claim.
Regarding the requirement that total damages must be not less than 25% of the maximum for non-economic loss the insurer submits as follows. The accident occurred on 5 October 2019. Accordingly the maximum amount of damages for non-economic loss at that time was $565,000. The insurer notes that 25% of this amount is $141,250.
The insurer submits that the claimant’s submissions dated 1 August 2023 could not reasonably be categorised as addressing sub-s 6.26(7)(a) of the MAI Act. The claimant resigned from her current job two days before the accident and was to commence new employment shortly after the accident. The insurer also notes that the claimant worked full-time from 14 October 2019 until she was terminated on 26 March 2020. The insurer also notes that the claimant underwent right knee surgery on 7 February 2020.
Regarding “best endeavours”, the insurer submits that sub-s 7.32(3) of the MAI Act makes it clear that best endeavours to settle the claim must be made before referring the matter for assessment.
The insurer submits the application for an assessment was lodged on 5 October 2019. As at that date claimant had not provided: particulars which complied with s 6.25, had not lodged an assessment for whole person impairment until 14 March 2023 and had not made an offer of settlement to the insurer or participated in a settlement conference. In the insurer’s submission, the claimant lodged her present application on 5 October 2019 not because she had complied with s 7.32 of the MAI Act but because the three year anniversary of the accident was about to expire.
The insurer submits that the Member would comfortably find that the claimant had made no endeavours to settle her claim before referring it to assessment and was therefore made contrary to s 7.32 of the MAI Act which would provide a basis for it to be dismissed.
In its written submissions the insurer then provided a very detailed summary over several pages of submissions of the claimant’s pre-accident and post-accident medical history and material.
Finally, the submissions note that the insurer reserves the right to provide additional information material and submissions to assist the member.
DETERMINATION
In this matter both parties have provided a number of very comprehensive written submissions to assist the Commission in the resolution of this matter. Both parties have also raised and addressed a number of issues.
In order to deal with the dispute between the parties as efficiently as possible I will address the issues raised by the parties in their written submissions. I will address the issues as identified and enumerated in the insurer’s written further submissions.
In their further written submissions, the insurer’s solicitors have conveniently stated the issues to be addressed as follows:
“(a) Whether the claimant provided adequate particulars to the insurer prior to the expiry of three months after the s. 6.26 written direction was issued.
(b) If not, whether:
(i) The claimant has a full and satisfactory explanation for her failure to provide the required relevant particulars and
(ii) The total damages likely to be awarded to the claimant if her claim succeeds are not less than 25% of the maximum amount for non-economic loss at the date of accident.
(c) Whether the claimant has used her best endeavours” to settle the claim before referring it for assessment.”
I will deal with these issues in turn below.
(a) Whether the claimant provided adequate particulars prior to the expiry of three months after the s 6.26 written direction was issued?
Under sub-s 6.25 of the MAI Act the claimant has a duty to provide relevant particulars of a claim for damages as expeditiously as possible after the claim for damages is made. The phrase “relevant particulars”, is defined in sub-s 6.25(2) as follows:
“For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
Section 6.26 of the MAI Act then sets out in detail the consequences of a failure to provide the requested relevant particulars.
Section 6.26 provides, in part, as follows:
“6.26 Consequences of failure to provide relevant particulars of claim for damages
(cf s 85B MACA)
(1) If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2) The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3) If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4) The claimant may make an application for reinstatement of the claim—
(a) to the Commission for a claim that is not exempt from assessment under Division 7.6, or
(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(5) (Repealed)
(6) If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7) If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
In this present case the motor accident occurred on 5 October 2019.
On 22 December 2021 the insurer requested particulars under s 6.25 of the MAI Act.
On 19 May 2022 the insurer issued a written direction under s 6.26 to the claimant requiring the claimant to provide the requested particulars.
On 19 August 2022 the claimant provided a written response to the request for particulars. The insurer says this response to the request for particulars was non-compliant with the requirements of s 6.26 of the MAI Act and therefore taken to be withdrawn by operation of sub-s 6.26(3) of the MAI Act.
In its written response dated 19 August 2022 the claimant provided an eight-page response to the particular sought.[8] The claimant’s response included the following: particulars of injuries received, particulars of continuing disabilities, an assertion that the claimant's degree of whole person impairment is greater than the 10% threshold, particulars of medical history, particulars of out-of-pocket expenses, particulars of out-of-pocket expenses, particulars of loss of superannuation entitlement and list of documents relied upon.
[8] Insurer’s bundle of documents R 1 at R 6 pp 31-39.
By letter dated 29 August 2022 insurer requested further or compliant particulars from the claimant’s solicitor.[9] The insurer’s letter stated that many aspects remained outstanding and that the response was insufficient for the purposes of sub-s 6.22(5) of the MAI Act. The letter requested tax returns, notice of assessments, details of past and future economic loss, further details of post-accident medical practitioners and subsequent injuries or health conditions suffered by the claimant since the accident. The insurer’s letter also stated that it could not make a proper assessment of any entitlements to damages and that whilst the documents and particulars remain outstanding any endeavours by the claimant to settle her claim would fall short of the standard required under sub-s 7.32(3) of the MAI Act.
[9] Insurer’s bundle of documents R 1 at R 7 pp 40-43.
After carefully considering the parties submissions, reviewing all the documents contained in the parties bundles of documents and also the request for particulars and the written response dated 19 August 2022, I find that the claimant has provided relevant particulars as is required under ss 6.25 and 6.26. An examination of all the documents and material provided by the parties shows that a great deal of material has been supplied by the claimant and her solicitors to the insurer and the insurer’s solicitors. The claimant’s solicitors have provided significant amounts of medical records and records relating to past employment and past economic loss including lost wages. What is not clear is exactly when all the material was supplied. Some was supplied when the application for personal injury benefits was made. Some information was supplied at the time the application for common law damages assessment. Further information was also supplied with the response to the request for particulars dated 19 August 2022.
In my view the totality of the information and response to particulars that the claimant has provided are sufficient to meet the requirements of ss 6.25 and 6.26. The details provided include details about: the motor accident concerned, the injuries sustained by the claimant, and all disabilities and impairments arising from those injuries and some detail of employment and economic losses sustained by the claimant. In my view these details and particulars are sufficient, as far as practicable, for the insurer to make a proper assessment of the claimant’s entitlement to damages.
Whilst the insurer’s solicitors in their letter of 29 August 2022 can point to a number of missing or inadequate particulars these “missing” particulars are not sufficient in my view to support the insurer’s argument that the claimant has not provided the “relevant particulars” required under s 6.25. The definition of “relevant particulars” qualifies the requirement to provide particulars of economic and other losses by using the words “as far as practicable” to make a proper assessment. The claimant concedes that it has not been able to quantify its particulars of non-economic loss. The reason given by the claimant solicitors are that the whole person impairment dispute about whether or not the claimant’s condition exceeds the 10% threshold has not yet been determined. In such a case where the whole person impairment dispute has not been determined it is not practical for the claimant to provide an estimate or a figure of its claim for non-economic loss. Accordingly, in the present case, by not being able to provide an exact figure or claim for damages for non-economic loss, the claimant is not in breach of the requirement of ss 6.25 and 6.26 of the MAI Act. The claimant has provided relevant particulars as far as it is practicable in circumstances where there is still an ongoing dispute about the claimant’s degree of whole person impairment. In this context I note the decision in Paget v AAI Limited t/as Suncorp Insurance [2022] NSWPIC 650, where it was held that where non-economic loss remains in issue, it is not reasonable to require a claimant to engage in settlement offers.
Because of my finding that the claimant has met the requirements of s 6.25 and has provided “relevant particulars”, I do not find that the claimant is taken to have withdrawn her claim. Accordingly, it is unnecessary to consider whether the claimant has a full and satisfactory explanation for her alleged failure to provide the required particulars.
Despite this conclusion I will make a few brief remarks on the remaining issues identified and addressed by the parties in the submissions.
(b) Has the claimant a full and satisfactory explanation for her failure to provide the required particulars – s 6.26(7)(a)?
I have found that the claimant has provided the relevant particulars as required under s 6.26 of the MAI Act. Accordingly, it is unnecessary to determine whether the claimant has provided a full and satisfactory explanation as required under s 6.26(7)(a).
In the event that my finding that the claimant has provided sufficient “relevant particulars” is disputed, I also find that under s 6.26 (7) the claimant has a full and satisfactory explanation for the failure to provide the required particulars. I also find that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss.
Although the claimant has not provided a signed statement in this case giving a chronology and explaining her actions and beliefs about the conduct of the litigation and the supply of particulars I find there is sufficient evidence of this. The evidentiary basis of my finding that the claimant has a full and satisfactory explanation for an alleged failure to provide the required particulars are for the reasons set out in her solicitor’s submissions including that many of the particulars were supplied and that some particulars could not be supplied because the whole person impairment dispute remained unresolved. I also note the support for the claimant’s explanation contained in the chronology of the actions taken by the claimant and her solicitors as detailed in the particulars attached to the email dated 19 August 2023[10] and the detailed submissions dated 5 October 2022.[11]
[10] Insurer;s bundle of documents R 1 at R6 pp 31-39.
[11] A 38 pp 1 – 8.
As is succinctly summarised in Isho v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 581 (12 August 2022)[12] (Isho) the authorities with respect to late claims provide that a claimant must provide a full account of their conduct, including their actions, knowledge and belief from the date of the accident until “the date of providing the explanation” for delay, not the solicitor. The explanation must be such that a reasonable person in the position of the claimant “would have been justified” in experiencing the same delay. The focus of the legislation is about justifying the delay rather than excusing it. The real question is whether a reasonable person in the claimant’s position would have failed to have complied with the requirement to provide s 6.25 particulars.
[12] At [34] to [36].
As is stated in Isho, the claimant
“… relied on her solicitors to ensure that the particulars elicited and provided were compliant as a reasonable person in her position was entitled to do. The fact that her solicitors for whatever reason, failed to appreciate that the particulars may have been inadequate at the time they were required to be provided for the purposes of ss 6.25 and 6.26 of the MAI Act, despite notification of such, cannot be imputed to the claimant. She was not equipped to second guess their advice or conduct on the matter. Their failure is not her failure. She was entitled to expect that the solicitor will act with reasonable competence and diligence. The fact that they did not does not colour the claimant’s conduct, which is the relevant focus of the explanation required by s 6.26(7) of the MAI Act.” [13]
[13] At [36].
As observed by Basten JA in Smith v Grant[2006] NSWCA 244, at [60] that in explaining delay for a late claim a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings.
I agree with the claimant’s solicitor’s submissions which I referred to above. The claimant entrusted the conduct of her claim with her solicitor. If the solicitor was mistaken in his view of the extent of his obligations to provide particulars, that is an explanation for delay. It is the claimant’s explanation for delay and her “actions, knowledge and belief” that must be provided. As to whether the claimant’s explanation is satisfactory, it suffices that some reasonable person would have experienced the same delay. Many, if not most, claimants would be unaware of the nature of particulars to be provided to an insurer and would rightly leave the conduct of that matter to their solicitors, as the claimant has done in this present case. Any reasonable person in the claimant’s situation would have likely experienced the same delay. The standard of the explanation is not perfection, nor should it be excessive in length or detail see: Walker v Howard (2009) 78 NSWLR 161.
Based on the evidence referred to above, I accept that the claimant gave timely instructions following the request for the provision of particulars.
I am therefore satisfied that in this case the claimant’s explanation for any potential delay in providing the relevant particulars is both full and satisfactory.
(b) (ii) Are the total damages likely to be awarded to the claimant not less than 25% of the maximum amount for non-economic loss at the date of accident?
I also find that based upon my review of all the medical and available past and future economic loss documentation that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss.
I am satisfied that the claimant’s claim for total damages of all kinds likely to be awarded to the claimant if her claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss. The claimant has claimed in a schedule of damages dated 6 September 2021 a total of $896,694 including $250,000 for non-economic loss.[14] The total amount claimed exceeds the statutory cap for non-economic loss as at the date of the motor accident which was at that time $565,000. The insurer notes that 25% of this amount is $141,250.[15]
[14] Claimant’s bundle AD 1 – document D.
[15] Insurer’s further submissions dated 23 August 2023 p 3.
As Brereton JA said in Rahman v Al-Maharmeh [2021] NSWCA 31; 95 MVR 394 (Rahman) at [47], “this is a predictive exercise, based on a preliminary enquiry involving a cursory assessment of the available material, in which the question is whether there is “a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent”, that the total damages will exceed the relevant threshold.
I note the insurer’s lengthy submissions and detailed presentation of medical evidence relating to the claimant’s long history of pre-existing injury. Because of the claimant’s pre-existing injuries the insurer submits these could affect her entitlement to damages for the current motor accident claim.
Based on my review of over 1,400 pages of evidence and submissions from the parties, noting the claimant’s long history of pre-existing injuries, if causation of her injuries were accepted even to cause some partial incapacity, she would likely be awarded an amount of damages exceeding 25% of the relevant threshold.
(c) Whether the claimant has used her “best endeavours” to settle the claim before referring it for assessment.
Finally in relation to the “best endeavours” issue, the insurer submits that sub-s 7.32(3) of the MAI Act makes it clear that best endeavours to settle the claim must be made before referring the matter for assessment.
The insurer submits the application for an assessment was lodged on 5 October 2019. As at that date claimant had not provided: particulars which complied with s 6.25, had not lodged an assessment for whole person impairment until 14 March 2023 and had not made an offer of settlement to the insurer or participated in a settlement conference. In the insurer’s submission, the claimant lodged her present application on 5 October 2019 not because she had complied with s 7.32 of the MAI Act but because the three year anniversary of the accident was about to expire.
The claimant accepts that sub-s 7.32(3) requires that both parties to the claim use their best endeavours to settle the claim before it is referred for assessment. The claimant says it has provided submissions, schedules of damages and voluminous documentation and attended a settlement conference. There is no issue and liability as it is admitted. The claimant says the insurer has failed to provide particulars of the alleged failure to use best endeavours.
In Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; 156 CLR 41 Gibbs J explained the meaning of best endeavours as follows:
“[A]n obligation to use 'best endeavours' does not require the person who undertakes the obligation to go beyond the bounds of reason; he is required to do all he reasonably can in the circumstances to achieve the contractual object, but no more”. (at [64]).
Mason J referred to the extent of the obligation of best efforts (or endeavours) as “governed by what is reasonable in the circumstances” (at [91]-[92]). Dawson J noted that the obligation does not impose a duty upon a party to disregard his or her own interests (at [143]-[144]).
To those statements may be added the proposition that a party subject to the obligation is bound to take “steps which a prudent, determined and reasonable [party], acting in his own interests and desiring to achieve [the results specified in the contract] would take” (Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at [151] quoting Buckley LJ in IBM United KingdomLtd v Rockware Glass Ltd [1980] FSR 335 at [343]).”
What is required of the claimant was to do all she reasonably could in the circumstances to attempt to achieve a settlement of her claim, or to take steps which a prudent, determined and reasonable person acting in her own interests and desiring to achieve a settlement would take.
The claimant correctly submits that “best endeavours” does not mean that it is necessary for offers to be exchanged because one party may not wish to make an offer and that criteria may never be met.
As the insurer correctly points out as at October 2019 the claimant had not provided many details of the claim under s 6.25 of the MAI Act. However due to the impending three year limitation period, I am satisfied that the claimant did use her best endeavours and did all she reasonably could in the circumstances to attempt to achieve a settlement of her claim.[16]
[16]See Golding v NRMA Insurance Limited [2021] NSWPIC 98.
I note that the claimant’s solicitors have provided significant amounts of documentation and detailed responses to the insurer’s requests for information. I also note that the parties have had an unsuccessful attempt to resolve the matter at an informal settlement conference but this was not until November 2022. I note that one of the unresolved issues in the case is the difficulty or inability to quantify future economic loss and non-economic loss given the ongoing whole person impairment dispute. Obviously both parties are finding it difficult to attempt to resolve the matter until there is a disposition of that whole person impairment dispute.
Despite the inability of the parties to accurately estimate non-economic loss and future earning capacity, based upon the medical and earnings evidence shared between the parties, I find that both parties have used their best endeavours to attempt to resolve the dispute.
CONCLUSION
In this case I find that the claimant has met the requirements of s 6.25 and has provided “relevant particulars”. Based on the evidence and information available to the claimant she has provided information and particulars sufficient to enable the insurer, as far as practicable, to make a proper assessment of her full entitlement to damages. I do not find that the claimant is taken to have withdrawn her claim. Accordingly, it is unnecessary to consider whether the claimant has a full and satisfactory explanation for her alleged failure to provide the required particulars. It is also unnecessary to consider whether damages she is likely to be awarded exceed 25% of the maximum amount for non-economic loss. Finally, based on the material before me, I find that both parties have used their best endeavours to settle the claim before referring the matter for assessment.
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