Sansour v Allianz Australia Insurance Limited
[2023] NSWPIC 13
•13 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Sansour v Allianz Australia Insurance Limited [2023] NSWPIC 13 |
| Claimant: | Tarek Sansour |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Ray Plibersek |
| DATE OF DECISION: | 13 January 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Application for statutory benefits; more than eighteen months after the motor accident; sections 6.2 and 6.13 of the Motor Accident Injuries Act2017; whether a full and satisfactory explanation for delay in making the claim; Held – late claim for statutory benefits may be made after the time required; claimant has a full and satisfactory explanation; insurer advised claimant that his claim was late; claimant also had legal advice but delayed making a claim; claimant suffered from a history of mental illness, was severely affected by his mother’s illness and death and also had other difficulties in his personal life such as to flooding events and COVID-19 illness; legal costs awarded to the order of $1660 plus GST. |
| determinations made: | Certificate Issued under ss 6.2 and 6.13 of the Motor Accident Injuries Act 2017 1. A late claim for a claim for statutory benefits may be made after the time required by 2. The claim for statutory benefits are payable from the date of the making of the claim on 14 February 2022. 3. The insurer is to pay the claimant’s legal costs in this matter which are assessed at $1,660 plus GST. |
BACKGROUND AND INTRODUCTION
This determination relates to a dispute about an application for a late claim for an assessment under s 6.13 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 7 July 2020 the claimant, Mr Tarek Sansour was travelling along Old Windsor Road, Pendle Hill NSW. He was injured in a motor vehicle accident when a Toyota Land Cruiser collided with his car. The impact of the collision caused Mr Sansour’s car to flip and roll about four to five times.
Immediately after the accident the claimant did not go to hospital but later that day he went to Hawksbury Hospital.
In July 2020 Mr Sansour made contact with Allianz, the property and compulsory third party insurance (CTP) insurer. He says his main objective was exploring his property damage rights and that he was unaware of his CTP rights. Then in 2021 his mother was diagnosed with terminal cancer. After his mother died he took steps to pursue his CTP claim, (A 1).
In applications both dated 1 February 2022 the solicitor for Mr Sansour lodged an application for Personal Injury Benefits and also an application for common law damages, (A 2 and A 3). Copies of both applications were sent to the insurer by letter dated 14 February 2022, (A 5).
On 29 April 2022 the insurer issued a notice refusing to accept the claim, (A 10). The letter advised that Allianz first received notification of the motor vehicle accident following the receipt of the claim form on 4 April 2022.
On 4 May 2022 the claimant requested an internal review.
On 17 May 2022 the insurer advised that it affirmed its original decision. The insurer declined the claim for statutory benefits on the basis that the claimant’s explanation was not full and satisfactory, (A 12).
The claimant’s explanation for the delay was that his mental and physical health deteriorated and he had to care for his mother who was diagnosed with cancer and died in 2021, (A 1 and A 4).
The claimant’s solicitors have applied for a miscellaneous claims assessment in accordance with Schedule 2, sub-cls 3(h) and 3(k) of the MAI Act.
The dispute comes before me to determine if a late claim can be made and whether the claimant has provided a full and satisfactory explanation for the delay in making the claim for statutory benefits.
Statements
I have considered the documents provided with the claim form, the reply and further information including the parties submissions and the claimant’s statements.
I will first briefly summarise the claimant’s explanation contained in his statements and then review the submissions concerning the full and satisfactory explanation made by both parties.
The claimant has provided a statement dated 1 February 2022, (A 4). The claimant states that as a result of the accident his mental health deteriorated and he experienced severe anxiety. He states that he contacted the insurer in late 2020 and was advised that he had to provide an explanation for his late claim. He states that about that time his mother was diagnosed with cancer and his health deteriorated. He further states that in September 2021 he consulted with his lawyers and was advised that he would need to provide a full and satisfactory explanation for the delay in lodging his claim. The claimant further stated that he lost his mother in late 2021 and as a result his mental health further deteriorated and he became extremely depressed not contactable and self-isolated. He also states that as a result of his rapidly declining mental health and personal circumstances, he was unable to attend to his claim lodgement within three months of the accident.
The claimant has provided a supplementary statement dated 22 August 2022, (A 4). The claimant states that he had no idea about a motor accident compensation scheme and had never made a claim before. Soon after his accident the claimant says that his mother’s cancer and condition deteriorated. The claimant helped his father look after his mother. The claimant says his mental and physical condition continued to deteriorate. He contacted lawyers in September 2021. He spoke to a lawyer at Law Partners and was advised that he had to provide a full and satisfactory explanation for the delay making his claim.
The claimant’s mother died on 19 September 2021. Her death had a significant detrimental impact on his already poor mental health. The claimant states that as a result of the accident, compounded with the loss of my mother, he self-isolated himself and became uncontactable to the outside world. This was for a period of a few months until he was able to stabilise himself. He states that in February 2022 he again contacted Law Partners and decided to proceed with his claim completing the necessary claim forms and documentation. However he did not have the police event number which she tried on several occasions to obtain from Windsor or Ermington Police Station.
Attached to the supplementary statement of Mr Sansour there are about 20 pages of medical reports, medical certificates and hospital notes. One report from Dr Vishal Patel dated 7 April 2021 shows that the claimant has a history of anxiety and panic attacks and a history of mental illness.
Submissions
Claimant’s submissions – undated
In undated written submissions, (A 1), the solicitor for the claimant refers to s 6.13(1) of the MAI Act which requires an application for personal injury benefits be lodged within three months of the subject accident. Section 6.13(3) notes that should a claim be lodged outside of that period, the claimant must provide a full and satisfactory explanation for the delay and have their claim lodged within three years of the accident.
The claimant’s solicitor refers to the internal review decision where the insurer references a telephone conversation with Mr Sansour on 10 May 2022 in which Mr Sansour reiterated his struggles with obtaining access to medical care along with his personal struggles with his mother’s passing and two occasions of residential flooding events. Furthermore, Mr Sansour was diagnosed with COVID-19 during this time which caused him to be confined to his home for at least a week.
The claimant’s solicitor submits that the common law imposes a requirement of reasonableness not perfection. The insurer’s position is wholly unreasonable. Anyone, let alone a reasonable person, in the position of Mr Sansour who experienced: a serious motor accident, a tragic loss of a family member to cancer, two significant residential flooding events and contracted COVID-19 would have experienced the same delay in lodging their claim.
The claimant’s solicitor submits that the claimant has satisfied the definition of a satisfactory explanation for the delay in lodging his claim consistent with the legal authorities cited in their submissions.
Claimant’s submissions – dated 10 August 2022
The claimant’s solicitor provided further submissions dated 10 August 2022 (AD 3).
In these submissions the claimant’s solicitor acknowledges that the Insurer has rejected the claimant’s statutory benefits claim as they required clarification on the following:
(a) explanation of delay from 31 July 2020 to September 2021; (b) date of diagnosis of the claimant’s mother, and (c) when the claimant first attended the police station.The solicitors note that the claimant’s mother was diagnosed with terminal cancer in or around 2014. Her condition significantly deteriorated in July 2020 and she died on 19 September 2021.
The claimant’s solicitors refer to the claimant’s psychological/mental capacity at the time in question. The loss of his mother had a had a significant detrimental impact on his already poor mental health. Clinical records from Hawkesbury Hospital record that he has “anxiety and some panic attacks since accident”. A Medical Report from Dr Vishal Patel dated 7 April 2021 notes the claimant is forgetful, loses his keys and wallet, is confused and disorientated and suffers from ongoing panic attacks and also has difficulty sleeping at night.
Insurer’s submissions – dated 12 July 2022
In written submissions dated 12 July 2022, (AD 2 in the Portal - R 1), the insurer’s solicitors referred to the decision in the NSW Court of Appeal in Karambelas v Zaknic (No. 2) [2014] NSWCA 433. The insurer also provided a detailed timeline of the actions taken by the claimant.
The insurer submits that the claimant has provided neither a full nor a satisfactory explanation.
The insurer submits that the relevant period is the date of the subject accident, being 7 July 2020 to the date the explanation was provided, being 14 February 2022. The insurer says the claimant was made aware of his entitlement to pursue a claim for statutory benefits claim 24 days following the subject accident on 31 July 2020, at the very latest. At this time the claimant was provided with information as to how to pursue his claim.
The insurer submits that its request for an explanation of delay from 31 July 2020 to September 2021, representing an approximately 14 month plus gap in his explanation, is not a burdensome recounting of every moment that has elapsed and is required to be accounted for under common law.
The insurer submits that asking about the date of diagnosis of the claimant’s mother’s cancer diagnosis is an entirely reasonable question to pose in circumstances where the claimant is relying upon such a diagnosis to support his failure to provide an explanation from the date he was made aware of his entitlement to pursue a claim on 31 July 2020 to the date of explanation on14 February 2022. The insurer says this is an approximately 18 month plus delay.
The insurer submits that the claimant’s argument is flawed in respect to his assertion that he could not pursue his claim due to the illness of his mother. They say the claimant is internally inconsistent with the fact he obtained legal advice in September 2021 when he was specifically advised about providing a full and satisfactory explanation, despite alleging that he didn’t have the capacity to pursue his claim during the period from 31 July 2020 to the date of explanation on 14 February 2022.
The insurer submits that this act clearly demonstrated the claimant’s capacity to pursue his claim and his knowledge about time limitations and the making of a full and satisfactory explanation, even if he was not initially made aware of that in July 2020.
The insurer submits that the claimant has failed to provide a satisfactory explanation and a reasonable person in the claimant’s position ought to have acted in a manner which would have negated his failure to comply with the statutory obligations for making an application.
The insurer contends that the claimant’s failure to comply with his duty is particularly unjustified in circumstances where he had advice about pursuing an application for personal injury benefits 24 days following the subject accident on 31 July 2020. He had legal advice expressly advising of the need to provide a full and satisfactory explanation in September 2021.
The claimant, despite alleging that he continued to have considerable symptoms, impairment, and intervening factors which inhibited him from making his claim, did not act on any legal advice for 14 months following initially being advised of his entitlement. Then on receipt of legal advice, he waited another six months to lodge his application for personal injury benefits and provide a full and satisfactory explanation for the delay of claim.
Insurer’s submissions – dated 12 September 2022
In written further submissions dated 12 September 2022, (AD 4), the insurer’s solicitors refer in detail to the contradictory statements made by the claimant about the timing of his mother’s cancer diagnosis.
The submissions note that the claimant received an email from Allianz on 31 July 2020 regarding a phone conversation and advising of the next steps for lodging an Application for Personal Injury Benefits and documents regarding NSW CTP claims.
The submissions also refer to claimant in his statements to provides any particulars regarding the claimant’s attendance at Windsor Police Station or subsequent attempts at contacting Ermington Police Station following the subject accident.
The insurer reiterates its submission that the claimant’s actions, knowledge and beliefs from the date of the accident until the date of providing the explanation are not fully or satisfactorily accounted for, particularly in respect to the delay from 31 July 2020, when he was made aware of his entitlements to pursue a personal injury claim, to September 2021, when he first sought legal advice, representing an approximately 14 month plus gap in his explanation.
The insurer submits that explanation is incomplete and notably devoid of full or satisfactory explanation for the delay in the claimant’s application. Accordingly, the insurer concludes that the subject proceedings ought to be dismissed.
Insurer’s Application to Admit Late Documents
In application dated 18 November 2022, the solicitors for the insurer made an Application to Admit Late Documents pursuant to Personal Injury Commission Rules 2021 rule 67 and Procedural Direction PIC3 – Documents and late documents. The documents sought to be admitted were approximately 75 pages of medical records of Quality Medical Practice including from Dr Ashraf Joseph George Aboud dated 21 October 2022. The application also sought the admission of a one-page email address to the claimant’s solicitors dated 17 November 2022.
Having read the Application to Admit Late Documents together with the attached medical records, I find the documents are relevant and in the interests of justice I have decided to admit the late documents under the Personal Injury Commission Rules 2021 Rules and Procedural Direction PIC3.
Briefly summarised the medical records attached to the late documents application show that the claimant has had long-standing history of psychiatric issues including anxiety and depression and was being treated with a range of strong psychiatric drugs before the accident the subject of these proceedings. The claimant’s mental state and his medication bears directly on his state of mind and is relevant to his explanation as to why his claim was late.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Sub-section 6.13 (2) of the MAI Act provides that if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable for any period before the claim is made.
“Claim” is defined in s 1.4 of the MAI Act to mean a claim for statutory benefits or a claim for damages.
Section 6.13 provides (in part):
“6.13 Time for making of claims for statutory benefits
(1) A claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.
(2) If a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.
(3) However, a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, and either—
(a)the claim is made within 3 years after the date of the motor accident, or
(b)the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.”
Whether for the purposes of Part 6 (Motor accident claims) the insurer is entitled to refuse payment of statutory benefits in accordance with s 6.13 is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-cl 3 (k) of the MAI Act.
The meaning of “full and satisfactory” is set out in s 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by Claimant
(cf s 66 MACA)
(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a full account of the conduct, including the actions, knowledge and belief of the claimant , from the date of the accident until the date of providing the explanation.
(2) The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”
Whether for the purposes of Part 6 (Motor accident claims) the claimant has given a full and satisfactory explanation for non-compliance for the delay is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-cl 3 (h) of the MAI Act.
Consideration of relevant case law
As referred to above, ss 6.2 and 6.13 require that the claimant cannot refer a claim for statutory benefits more than three years after the motor accident unless they provide a full and satisfactory explanation for the delay in making the claim.
There is considerable case law about the meaning of the phrase “full and satisfactory”. The case of Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) discussed the meaning of sub-s 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to s 6.2 of the MAI Act.
The NSW Court of Appeal in Karambelas Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) 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’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, 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 delay is the period during which the Claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party Insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed”.
Is the explanation full?
Sections 6.2 and 6.13 require that the claimant provide a full and satisfactory explanation for the delay in making the claim. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”.
In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2) MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In its written submissions the insurer has rejected Mr Sansour’s explanation, (R 1). It requested an explanation of the delay from 31 July 2020 to September 2021. The insurer also raised questions about the date of the claimant’s mother’s cancer diagnosis and the date of her death and how that impacted on the claimant’s decision not to make a claim within time. The insurer submits that because the claimant was advised of his entitlement to pursue a claim on 31 July 2020 he needs to provide more a more detailed explanation from that date to the date of his explanation provided on 14 February 2022.
In response, the claimant made two statements and his solicitors made detailed written submissions. In substance those submissions that anyone, let alone a reasonable person, in the position of Mr Sansour who experienced: a serious motor accident, the loss of his mother to cancer, two significant residential flooding events and contracted COVID-19 would have experienced the same delay in lodging their claim.
In addition to those submissions, I note there is significant medical evidence provided by the claimant’s solicitors and also produced by the insurer solicitors attached to their Application to Admit Late Documents. I have referred to some of this material in my reasons above. It suffices to say that the claimant appears to have a long and significant history of anxiety, panic attacks and other mental illnesses first noted in about 2011. I also note the medical notes of Dr Ashraf Aboud during 2022 warning the claimant about the addictive effects of “benzos” and not to drive whilst taking benzos.
In my view, I find that the claimant’s explanation in this case is sufficient to be considered a full explanation as to why his application was late. The reasons given by him and his solicitors are sufficient to be considered a full account of the claimant ’s conduct, actions, knowledge and belief.
I note the insurer’s submissions make a strong case as to why the claimant’s explanation was not full and satisfactory given the lengthy delay by the claimant in making his explanation and the significant evidence that he was told by the insurer in July 2020 that he needed to explain why his claim was late. Notwithstanding the valid points made by the insurer, it is clear that the claimant suffered from a substantial and lengthy history of mental illness, was severely affected by his mother’s illness and death and also had other difficulties in his personal life such as to flooding events and Covid illness. Balancing all these considerations I find that the claimant’s explanation is sufficient to satisfy the requirements of ss 6.2 and 6.13 of the MAI Act.
Is the explanation satisfactory?
I will now turn to a consideration of whether the claimant’s explanation is “satisfactory”.
Section 6.2 requires that the claimant provide a full and satisfactory explanation for the delay in providing the required particulars. The legislation states that an 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.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant . The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) 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 has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
In my view, the claimant’s statements and the submissions from the claimant’s solicitors gives an explanation which supports a finding that a reasonable person in the position of the claimant would have been justified in experiencing the same delay. I am satisfied there is sufficient evidence before me to support a finding that the reasonable person in the claimant’s position would have experienced the same delay. The relevant test is whether a hypothetical reasonable person in the claimant ’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306.)
The claimant’s explanation for the delay in making his application for damages was set out in the statements made by himself and the submissions of his solicitor. Mr Sansour has a long history of treatment for mental illness and experienced: a serious motor accident, the loss of his mother to cancer, two significant residential flooding events and contracted COVID-19. Any reasonable person in the claimant’s position would have experienced the same delay caused by the factors described above.
Conclusion
I am satisfied that the claimant has a full and satisfactory explanation for the delay in lodging his application for statutory benefits. I find that the claim for statutory benefits may be made from the date of his application made on 14 February 2022 and received by the insurer. I will issue a certificate to that effect.
Legal costs
In this late claim matter the claimant’s solicitors made submissions on whether legal costs should be awarded for this dispute.
The claimant’s solicitors submit that an award of legal costs should be made because they investigated the claimant’s entitlement, sought and reviewed evidence, complied with the obligations of the MAI Act, Regulation and Guidelines applicable to the NSW CTP Scheme for claims on or after 1 December 2017 and drafted submissions in an attempt to resolve this dispute.
The claimant’s solicitors claim regulated legal fees of $1,660 plus GST pursuant to Schedule 1, Part 1, Clause 3 of the Motor Accident Injuries Regulation 2017.
I have carefully considered the submissions, evidence and statements before me provided by both the claimant’s and insurer’s solicitors. Based on the submissions and information before me, and in the exercise of my discretion, I find the legal work provided by the claimant’s solicitors in this case was reasonable and necessary. The case concerned legal and evidentiary issues about the application and interpretation of ss 6.2 and 6.13 of the MAI Act and advising Mr Sansour about his late claim application.
Under ss 8.3 and 8.10 of the MAI Act and the Motor Accident Injuries Regulation 2017, I assess the amount of legal costs to be paid by the insurer to the claimant in the amount of $1,660 plus GST.
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