Saha v Insurance Australia Limited t/as NRMA

[2021] NSWPIC 535

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Saha v Insurance Australia Limited t/as NRMA [2021] NSWPIC 535
CLAIMANT:	Arati Saha
INSURER:	Insurance Australia Limited t/as NRMA
MEMBER:	Brett Williams
DATE OF DECISION:	15 December 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous assessment; claim referred to the Personal Injury Commission (Commission) for assessment 3 years and 12 weeks after the accident; whether the claimant has provided a full and satisfactory explanation for the delay; whether leave should be granted to refer the claim for assessment; claimant relied on her lawyer to pursue her claim; delay due to omissions of lawyer; section 7.33 of the Motor Accident Injuries Act 2017; Lee v Allianz Australia Insurance Limited applied, Karambelas v Zanic (No 2), Walker v Howard, Russo v Aiello, and Hunter v Roberts applied; Held - the claimant has provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment; leave granted for the claim to be referred for assessment.

INTERIM DECISION

INTRODUCTION

1. Mrs Arati Saha suffered injury in a motor accident that occurred when she was on her way to work on 15 June 2018. At the time of the accident she was a pedestrian. She came into contact with the insured vehicle after stepping out onto Hilltop Road, Merrylands. Mrs Saha was taken by ambulance to Westmead Hospital where she was admitted for a number of weeks. A fractured pelvis and (dominant) right elbow were diagnosed. She underwent open reduction and internal fixation of the arm fracture. According to Dr Nossar[1] she was unable to return to her administrative role, in the radiology department at the Royal Prince Alfred Hospital, for four months.

   [1] Report dated 4 October 2019.

2. Having previously made a claim for statutory benefits in August 2018, Mrs Saha made a claim for damages on 15 April 2020. In a s 6.20 notice dated 6 August 2020 the insurer denied breach of duty of care and admitted the claim was a no-fault accident. Contributory negligence of 75% was alleged.

3. These proceedings were commenced on 6 September 2021. In its submissions the insurer has raised that the claimant is in breach of s 7.33 of the Motor Accident Injuries Act 2017 (MAI Act), having referred the claim for assessment 12 weeks outside the 3 year time limit for referring a claim to the Personal Injury Commission (Commission) for assessment under Division 7.6 of the MAI Act.

4. As the claim was referred for assessment outside the three year time limit, the claim cannot be referred for assessment unless Mrs Saha 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.

On the papers

1. The parties submit that the s 7.33 determination can be made on the papers. Having considered both s 52 of the Personal Injury Commission Act2020 (PIC Act) and Procedural Direction PIC2 I have concluded that the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the s 7.33 issue without holding a formal hearing.

Evidence

1. The claimant has provided a statement dated 30 September 2021. The statement includes an account of the accident, her post-accident medical treatment, employment and continuing disabilities. The statement records that, as a result of the accident, she suffered fractures to her right elbow and pelvis, together with bruising to the back of her head and body. It is recorded that the claimant underwent fixation surgery for her right elbow injury. She was referred to specialists, consulted her GP, underwent physiotherapy and commenced hydrotherapy. Despite treatment her condition began to deteriorate. She was referred to an orthopaedic surgeon in February 2020 and subsequently underwent right elbow surgery on 5 November 2020. The statement provides details of the claim for statutory benefits the claimant submitted to the insurer. Liability for the statutory benefits claim was  accepted for the first 26 weeks after the accident and denied thereafter on the basis that the claimant was wholly at fault for the accident. That decision was the subject of a dispute that proceeded to the Dispute Resolution Service (DRS). There was a finding by the DRS of 50% contributory negligence in those proceedings. The statement records that, on 1 April 2020, the claimant signed an application for damages at the request of her lawyers. The claimant states that she has relied on her lawyers to act on her claim and follow the necessary processes and procedures and to pursue her legal entitlements in respect of her claim. She was unaware that her claim had to be referred for assessment within three years from the date of the accident until advised by her lawyers in November 2021. The claimant states that English is not her first language and that she often has difficulty communicating with her legal representative. She relies on family members to interpret for her.

2. The claimant also relies on a statement from her solicitor, Mr Redman, dated 3 December 2021. Mr Redman states that on 15 April 2020 an application for damages was served on the insurer. His evidence is that it was not until the claimant had undergone and recovered from the November 2020 surgery that her injuries were capable of assessment to quantify the damages claim. The statement records that on 8 July 2021, the insurer’s legal representatives sent a letter to Slater and Gordon Lawyers advising that three years post-accident had passed and they would oppose any application made to the Commission. On 9 August 2021, another letter was sent by the insurer’s legal representatives to that effect. Mr Redman states that in September 2021 the application for damages assessment was filed with the Commission. He says that the late lodgement of the application for damages assessment was due to administrative oversight on his part as he was also attempting to manage the various issues arising in the matter, including monitoring the claimant’s condition and arranging the appropriate assessments once her condition was stable. It is stated that the claimant is yet to complete her medical assessments and her level of whole person impairment is yet to be determined. Mr Redman states that it is unclear whether there will be a medical dispute in relation to non-economic loss. He also states that COVID-19 has had an impact on the delay. Mr Redman states that it was his understanding that early lodgement of the application would have resulted in unnecessary cost to the claimant and that it was contrary to the objectives of the MAI Act. It was not until he was advised by counsel retained in the matter that he became aware of the significance of lodgement within the three year time period post-accident. He observes that under the Motor Accidents Compensation Act1999 (MAC Act) this strict time limit did not apply. Mr Redman states that at all times the claimant has left him to deal with her legal matters and had a constructive and interested approach to the determination of her matter.

Submissions

1. The claimant submits that her statement and that of her lawyer, Mr Redman, provide a full and satisfactory explanation for the delay for the purposes of s 7.33 and that the Commission should grant leave for the claim to be referred for assessment. The decision of Lee v Allianz Australia Insurance Limited[2](Lee) is relied on with respect to the interpretation of s 7.33 and the claimant’s explanation for the delay.

   [2] [2021] NSWPIC 351.

2. The insurer argues that the claimant’s explanation for the delay is neither full nor satisfactory. The insurer says that it is unclear:

   (a) what steps were taken after the first and second letters were issued placing the claimant on notice of the s 7.33 issue;

   (b) when counsel was first instructed in the matter, when counsel was instructed to provide advice on s 7.33 and when that advice was obtained;

   (c) why it took two months, after the first notice that issue would be taken with late lodgement under s 7.33, to lodge an application;

   (d)   on what basis it was submitted, when the claimant lodged the application for assessment, that her solicitor was ‘instructed that the claimant’s injuries are not yet stable’[3], when the claimant’s statement suggests she has stabilised; and

   (e)   why, despite having obtained counsel’s advice, the claimant’s solicitor did not seek leave, or provide a full and satisfactory explanation, within the original application to the Commission.

   [3] A2, supporting document 1 to claimant’s application.

3. The insurer argues that the claimant has not provided a full and satisfactory explanation for the delay in referring the claim for assessment and opposes a grant of leave to do so by the Commission. In the insurer’s submission, the proceedings should be dismissed.

Determination

1. Section 7.33 is in the following terms:

   “7.33   Time limits for referring claims and making assessment

   A party to a claim cannot refer a claim for assessment under this Division more than 3 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.”

2. In Lee I found that the MAI Act does not contain a definition of ‘full and satisfactory explanation’ for the purposes of s 7.33[4]. I determined that, in order to interpret s 7.33 in a way that is harmonious, logical and consistent with the MAI Act when read as a whole, it was appropriate to proceed on the basis that the term ‘full and satisfactory explanation’ used in s 7.33 means 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. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay[5]. I noted that this accords with the definition of ‘full and satisfactory explanation’  found in s 6.2 of the MAI Act[6]. I determined that, as the definitions of ‘full and satisfactory explanation’ in the MAI Act and the MAC Act[7] are in material respects the same, the authorities that address the meaning of ‘full and satisfactory explanation’ in the context of the MAC Act are relevant to determining whether the claimant has provided a full and satisfactory explanation for the purposes of s 7.33 of the MAI Act.[8]

   [4] At [17].

   [5] At [23].

   [6] At [24].

   [7] Section 6.2 MAI Act and section 66(2) of the MAC Act.

   [8] At [25].

3. The authorities establish that an explanation is ‘full and satisfactory’ if it satisfies two requirements. First, it must include 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[9]. To be full, the explanation needs to be complete in the relevant sense as saying what happened and why. The provision does not call for perfection or for prolix or burdensome recounting of every moment that has elapsed. The section requires the explanation for the delay from the date of the accident.[10] The acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is ‘full’[11]. The meaning of ‘full’ is to be understood in the context of the purpose of the provision and the explanation: to enable the evaluation of the reasons for the delay. Thus all relevant information to that end is required.[12] The delay is the period during which the claimant was late in making the claim.[13]

   [9] Karambelas v Zanic (No 2) [2014] NSWCA 433 at [16].

   [10] Walkerv Howard [2009] NSWCA 408 Allsop P at [104].

   [11] Walker Allsop P at [106].

   [12] Walker Allsop P at [57].

   [13] Karambelas at [16].

4. The concept of a satisfactory explanation requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable.[14] There is a substantial spectrum of reasonableness. Accordingly, it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay. The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay.[15] In this context, considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[16] To provide the requisite explanation, the claimant must address acts and omissions relevant to the delay from the date of the accident until the date of providing the explanation.[17] The physical makeup of the claimant must be transferred to the hypothetical reasonable person. That includes the age, sex and capacity of the claimant. The cultural background of the claimant, at least within limits, is also transferred across.[18]

   [14] Karambelas at [17].

   [15] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].

   [16] Hunter v Roberts [2019] NSWCA 116 at [20].

   [17] Walker Allsop P at [54].

   [18] Walker Young JA at [138].

5. The claim was referred for assessment on 6 September 2021, 3 years and 12 weeks after the accident occurred. The claimant has provided evidence in relation to the treatment she has undergone since the accident together with details about when her claim for damages was made. She confirms that she relied on her lawyers to act on her claim and follow the necessary processes and procedures. She says that she relied heavily on her legal representatives to pursue her legal entitlements. She was not aware of the three year time limit until advised by her lawyers in November 2021.
   Mr Redman explains that a number of factors led to the delay. In his statement, he provides a timeline in relation to the progress of the claim.

6. I am satisfied that the claimant’s explanation for the delay is complete. It explains what happened and why. Perfection is not required, nor is a prolix or burdensome recounting of every moment that has elapsed. The acts and omissions of her lawyers are canvassed in Mr Redman’s statement. I find that the claimant’s explanation for the delay in referring her claim to the Commission for assessment is ‘full’.

7. The claimant’s evidence is that she relied heavily on her legal representatives to pursue her legal entitlements. She signed an application for damages on 1 April 2020. The damages claim was made on 15 April 2020. She explained that English is not her first language and that she often has difficulty communicating with her legal representative. She relies on family members to interpret for her. Mr Redman’s evidence is that the delay in referring the matter was due to a number of factors including his oversight, that he was not aware of the significance of referring the matter for assessment within  three years of the accident and challenges created by Covid 19. In short, Mr Redman explains that the delay in referring the claim for assessment was largely attributable to his omissions.

8. Having evaluated the evidence, I am satisfied that the delay in referring the claim for assessment was reasonably justifiable. I am satisfied that the claimant has, through both her and Mr Redman’s evidence, addressed the acts and omissions relevant to the delay from the date of the accident until the date of providing the explanation. I have concluded that a reasonable person in the position of the claimant would have been justified in experiencing the same delay.

9. I find that, for the purposes of s 7.33 of the MAI Act, the claimant has provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment. Leave is granted for the claim to be referred for assessment.

Member Brett Williams

Personal Injury Commission