Rushton v QBE Insurance (Australia) Limited
[2022] NSWPIC 399
•20 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Rushton v QBE Insurance (Australia) Limited [2022] NSWPIC 399 |
| CLAIMANT: | Eloise Rushton |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 20 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; where the referral was late by three months; whether the claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of “full and satisfactory explanation” in the context of section 7.33 of the MAI Act under Part 7 of the MAI Act; whether the claimant has used her best endeavours in accordance with section 7.32(3) of the MAI Act to settle the claim before referring it for assessment; no practical utility in pursuing settlement of the claim until medical disputes are resolved; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the MAI Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment; the proceedings are referred to the stood over list. |
INTRODUCTION
The claimant, Eloise Rushton, is a 29-year-old woman who suffered significant injuries in a motor accident on 24 July 2018 when she was driving on the Pacific Highway, near Lake Munmorah. The accident occurred when the claimant swerved her vehicle sharply to avoid a collision with another vehicle that was travelling on the wrong side of the road. The claimant’s evasive action resulted in her vehicle flipping and rolling over multiple times to eventually come to a stop when it collided with a tree.
The claimant claims that she has sustained injuries to her right shoulder and her left hip and an exacerbation to a right hip injury, requiring a total hip replacement. The claimant claims that she has since developed a psychological injury.
On 25 May 2021, the claimant made a claim for common law damages with the insurer.
On 30 June 2021, the insurer admitted liability for the claim.
PROCEDURAL ISSUE
On 19 October 2021, the claimant applied to have her claim for common law damages referred to the Personal Injury Commission (the Commission) for assessment pursuant to section 7.32(1) of the Motor Accident Injuries Act2017 (the MAI Act).
The referral was about three months outside the time permitted for referral under section 7.33 of the MAI Act.
Section 7.33 of the MAI Act provides that a party cannot refer a claim for assessment more than three years after the date of the motor accident unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules.
ORDERS SOUGHT BY THE CLAIMANT
The claimant seeks leave from the Commission for her claim to be referred for assessment.
The claimant also seeks a direction that her claim be referred to the stood over list pursuant to s 10(a) of Procedural Direction MAI1, pending the conclusion of a medical assessment of her degree of permanent impairment by the Commission.
In support of her application seeking leave and by way of a full and satisfactory explanation, the claimant has provided the following material:
(a) the claimant’s statutory declaration signed on 15 February 2022 but not witnessed (15 pages);
(b) the statutory declaration of the claimant’s legal representative Thomas J. Goudkamp sworn on 7 February 2022 (85 pages including annexures), and
(c) the claimant’s submissions undated but lodged with the Commission on 16 February 2022.
For the purposes of making this procedural decision I have accepted the claimant’s statutory declaration as a signed statement.
THE INSURER’S POSITION
The insurer submits that the claimant had not had proper regard to the pre-claims assessment process of the MAI Act and the Motor Accident Guidelines. The application is premature and should be dismissed.
The insurer submits that the claimant has not complied with her duty to act in good faith.
STEPS TAKEN BY THE CLAIMANT TO PROGRESS HER CLAIM FOR DAMAGES
On 19 November 2019, Stacks Goudkamp informed the insurer that they had received instructions to act for the claimant in a claim for damages.
On 17 December 2019 and again on 8 January 2020, Stacks Goudkamp wrote to the insurer requesting whether it conceded that the claimant’s degree of permanent impairment is greater than 10%.
On 17 February 2020, the insurer notified Stacks Goudkamp that it maintained its original minor injury decision.
On 24 February 2020, Stacks Goudkamp wrote to the insurer to request a review of the insurer’s minor injury decision on account of the claimant’s diagnosis of post-traumatic stress disorder.
On 5 June 2020, the insurer notified Stacks Goudkamp that it maintained its original minor injury decision.
There was then some confusion as to whether an internal review in fact took place.
On 14 July 2020, the insurer notified Stacks Goudkamp that an internal review will be conducted by 30 July 2020.
On 30 July 2020, the insurer notified Stacks Goudkamp that it maintained its decision that the claimant had sustained a minor injury.
On 19 November 2020, the insurer wrote to the claimant noting that she had sustained a minor injury and in view of no further disputes being received, her claim would be closed.
Stacks Goudkamp advised the insurer that they were awaiting further medical evidence.
On 15 December 2020, Stacks Goudkamp served the report of pain medicine specialist, Professor Brooker dated 19 September 2019 and advised the insurer that there was still an ongoing dispute regarding the claimant’s psychological condition.
On 27 January 2021, Stacks Goudkamp lodged an application regarding a minor injury dispute with the Commission’s predecessor, the State Insurance Regulatory Authority.
On 7 April 2021, the insurer notified Stacks Goudkamp that it now conceded that the claimant had sustained a non-minor injury.
Stacks Goudkamp then sought advice from the insurer as to whether the insurer also conceded the threshold for permanent impairment. On 25 May 2021, Stacks Goudkamp again wrote to the insurer about the issue in the absence of a reply. On the same date, Stacks Goudkamp lodged the claimant’s application for common law damages with the insurer.
On 31 May 2021, Sparke Helmore notified Stacks Goudkamp that they had received instructions to act on behalf of the insurer. On the same day, Stacks Goudkamp requested Sparke Helmore for the insurer’s response to the permanent impairment threshold issue. Stacks Goudkamp was advised by Sparke Helmore that they were in the process of reviewing the claim.
On 3 June 2021, the insurer notified Stacks Goudkamp that treatment requests from the claimant have been denied. On the same date, Stacks Goudkamp requested an internal review. On 15 June 2021, the insurer issued a determination confirming its denial for the treatments requested.
On 29 June 2021, Stacks Goudkamp lodged an application for the medical assessment of a treatment dispute with the Commission.
On 30 June 2021, the insurer notified Stacks Goudkamp that the claimant was not entitled to statutory benefits beyond 156 weeks as her whole person impairment was not greater than 10%. On the same date, Stacks Goudkamp requested an internal review of this decision.
On 20 July 2021, the insurer issued an internal review decision that the claimant’s whole person impairment could not be assessed at this time.
On 19 October 2021, Stacks Goudkamp lodged for an application for the medical assessment of the claimant’s degree of permanent impairment with the Commission. On the same day, Stacks Goudkamp requested Sparke Helmore to provide a response on whether the insurer conceded the permanent impairment threshold.
On 20 October 2021, Sparke Helmore advised Stacks Goudkamp that they would provide a response once they have obtained further medical documentation.
The claimant was examined on behalf of the insurer by orthopaedic surgeon,
Dr Greggory Burrow on 13 December 2021 and by psychiatrist, Dr Thomas Newlyn on 15 December 2021.On 4 July 2022, I was informed by the Registry that a medical assessment of the treatment dispute is due to take place on 2 September 2022 and that a medical assessment for the permanent impairment dispute has not yet been scheduled.
DISCUSSION
Section 7.33 of the MAI Act provides that a party to a claim cannot refer a claim for assessment by the Commission more than three years after the motor accident concerned unless the party provides a full and satisfactory explanation for the delay to the Commission and the Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules.
In the present case, the three-year anniversary of the motor accident occurred on
24 July 2021. The application to refer the claim for assessment was therefore lodged about three months late.Section 7.33 is found in Part 7 of the MAI Act. Part 7 deals with “Dispute Resolution”. The phrase ‘full and satisfactory explanation’ is not defined in Part 7.
Part 6 of the MAI Act deals with “Motor Accident Claims” and relevantly sets out the duties of a claimant in making a claim (including making a late claim) and the duties of the insurer in handling a claim.
A meaning for the phrase ‘full and satisfactory explanation’ by a ‘claimant’ is found in section 6.2 in Part 6 of the Act. Section 6.2 however, expressly stipulates that the meaning of the phrase is “for the purposes of this Part”, that is, Part 6 of the MAI Act.
I am therefore not persuaded that the meaning given to the phrase ‘full and satisfactory explanation’ under Part 6 should be applied when considering a party’s explanation for the delay for the purpose of section 7.33 of the MAI Act.
Different considerations apply to obligations for making a claim for damages on time and referring a claim for damages for assessment on time.
The duty to make a claim on time rests solely with a claimant. Thus, any delay in making the claim requires the claimant to provide 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”[1] and “the explanation is not satisfactory 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”.[2]
[1] Section 6.2(1) of the MAI Act
[2] Section 6.2(2) of the MAI Act
Under Part 7, either a claimant or an insurer, as a party to a claim, may refer the claim for assessment. If the referral is more than three years from the date of the accident, the party who makes the application is required to provide a “full and satisfactory explanation” for the delay.
I find that the enquiry about whether there is a “full and satisfactory explanation” for the delay in referring a claim for assessment for the purposes of section 7.33 is contained within Part 7 itself. I consider that the enquiry is informed by the referring party’s actions in compliance with section 7.32(3) of the MAI Act. The period of enquiry should be from the date that a claimant is eligible to make a claim for damages to the date of referral of the claim for assessment.
Section 7.32 (3) of the MAI Act provides that parties to a claim must use their best endeavours to settle the claim before referring it for assessment by the Commission.
According to section 6.14(1) of the MAI Act, a claim for damages cannot be made before the expiration of 20 months after the motor accident unless the claim is in respect of injury resulting in a degree of permanent impairment that is greater than 10%.
In the present case, the insurer did not at any stage concede the permanent impairment threshold. Therefore, by virtue of the provision of section 6.14(1), the claimant could not have commenced her claim for damages until 24 April 2020. As I have noted, she did so on 25 May 2021.
The period of enquiry is therefore from 24 April 2020 to 19 October 2021.
It is apparent that during the period between 24 April 2020 to the date of making her claim for damages on 25 May 2021, the claimant was actively prosecuting her claim in endeavouring to resolve the minor injury dispute directly with the insurer.
From the material before me, it appears that the process was protracted partly through administrative confusion and partly because of developing medical evidence arising from the claimant’s ongoing physical and psychological disabilities.
It is apparent that as soon as the insurer conceded the non-minor injury issue on
7 April 2021, the claimant took appropriate steps to progress her damages claim. She lodged her claim with the insurer on 25 May 2021 and served some 36 medical reports by way of supporting evidence.It is also apparent that she actively continued to pursue a resolution of the permanent impairment issue directly with the insurer. In the face of an insurer being tardy in organising its own medical assessments to resolve the issue, the claimant proceeded to lodge her application with the Commission to resolve the dispute.
Subject to the outcome of the medical dispute, the service of her economic loss documents and section 6.25 particulars, the matter should be ready for settlement or assessment.
Considering the issues that were and those remaining in dispute, I am of the view that the claimant has acted reasonably in making, preparing and advancing his claim towards a resolution, within the short window of time allowed to by the MAI Act.
Considering the material before me, the insurer’s suggestion that the claimant has not complied with her duty to act in good faith, is insupportable.
CONCLUSION
I am required to determine whether the claimant has provided a full and satisfactory explanation for delay and, if so, whether I should exercise my discretion to refer the claim for assessment.
I am satisfied that, for the purposes of section 7.32(3), the claimant has acted reasonably to progress her claim to a resolution prior to making her application to the Commission to refer her claim for assessment. I am satisfied that the claimant has provided a full and satisfactory explanation for the delay in referring her claim for assessment by three months.
I am satisfied that I should grant the claimant leave to refer her claim for assessment.
There is no practical utility in pursuing a settlement of the claim until the medical assessment dispute and the treatment disputes are concluded.
The claim should be referred to the stood over list.
ORDER
The claimant is granted leave to refer her claim for assessment by the Commission.
DIRECTION
Pursuant to rule 101(2)(a) of the Personal Injury Commission Rules 2021 and
cl 10 (a) of Procedural Direction MA1, I direct that the proceedings be stood over generally.
The parties have liberty to restore the proceedings for hearing of further directions before 9 December 2022.
Member
Maurice Castagnet
Motor Accidents Division Personal Injury Commission
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