Sayef v IAG Limited t/as NRMA Insurance
[2022] NSWPIC 270
•6 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Sayef v IAG Limited t/as NRMA Insurance [2021] NSWPIC 270 |
| CLAIMANT: | Marwah Sayef |
| INSURER: | IAG Limited t/as NRMA Insurance |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 6 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Application for a late claim for an assessment; more than three years after the motor accident; sections 6.2 and 7.33 of the Motor Accident Injuries Act 2017; delay was nine days whether a full and satisfactory explanation for delay in making the application; Held- claimant has a full and satisfactory explanation; delay due to an outstanding Whole Person Impairment dispute; disruptions caused by the solicitor with carriage of the matter contracting COVID; disruptions caused by the Easter public holidays; legal costs awarded, $NIL |
| DETERMINATIONS MADE: | 1. A late claim for assessment may be made more than three years after the date of the motor accident in this case as the claimant has provided a full and satisfactory explanation for the delay to the Personal Injury Commission (the Commission) in making the claim for assessment. 2. The Commission grants leave for the claim to be referred for assessment in accordance with the Commission rules. 3. Legal costs in this matter are assessed at $NIL. |
BACKGROUND AND INTRODUCTION
This determination relates to a dispute about an application for a late claim for an assessment under section 7.33 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 10 April 2019 the claimant, Marwah Sayef was injured in a motor vehicle accident on Long Street near Winson Road, Smithfield NSW.
Ms Sayef reported injuries to her: spine; both shoulders; right hip; Post-Traumatic Stress Disorder and Major Depressive Disorder
Ms Sayef’s injuries are still being medically assessed. There is an ongoing dispute about the degree of her whole person impairment.
In a certificate dated 2 December 2021 Assessor Johnathan Herald assessed the claimant’s permanent impairment at 13%.
The insurer sought a review of the certificate of Assessor Johnathan Herald.
On 19 April 2022, the Medical Review Panel issued Directions advising the claimant would be re-examined.
On 20 April 2022, the claimant’s solicitor lodged an application for claims assessment. The application for claims assessment was lodged nine days after the three year limitation period had expired.
The claimant’s solicitor applied for the matter to be placed in the stood over list and for leave to be granted to make a late claim under section 7.33 of the MAI Act.
The matter first came before me on 31 May 2022 at a preliminary conference.
At that preliminary conference on 31 May 2022 the claimant’s solicitor confirmed that the matter was not ready for assessment as there is an ongoing dispute about the degree of the claimant’s whole person impairment.
Also at that preliminary conference the solicitor for the insurer stated that the insurer accepted that a full and satisfactory explanation for the delay has been given by the claimant and that leave should be granted by the Commission.
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 an assessment.
Submissions
I have considered the documents provided with the claim form, the reply and further information including the parties submissions.
I will briefly summarise the submissions concerning the full and satisfactory explanation and then summarise the claimant’s explanation.
In written submissions dated 17 April 2022, (A 1), the solicitor for the claimant confirmed that the application for claims assessment was lodged nine days after the three-year limitation period had expired. He submitted that the application was late because of: the outstanding whole person impairment dispute; disruptions caused by the solicitor with carriage of the matter contracting COVID in early April 2022 and disruptions caused by the Easter public holidays.
The claimant further submits that her matter is currently not ready for a claims assessment. It was not ready at the three-year mark on 10 April 2022 as a medical assessment with Dr Enrico Parmegiani was still to take place on 30 May 2022 and also because of the outstanding whole person impairment dispute still before the Medical Review Panel.
In written submissions dated 19 May 2022, (R 1), the insurer accepts that the claimant has provided a full and satisfactory explanation for the non-compliance with section 7.33. The insurer submits that the damages dispute should be referred to the Stood Over list, pursuant to clause 101 of the Personal Injury Commission Rules 2020 and paragraph 10(a) of the Procedural Direction MA1 pending the outcome of the insurer's Review application of Assessor Herald's Certificate (R-M10477705/21) in the whole person impairment dispute.
At the teleconference on 31 May 2022 the claimant was represented by Mr Meoni .
At the teleconference on 31 May 2022 the insurer was represented by Ms Reddy.
At the teleconference Mr Meoni submitted that the matter will not be ready for assessment until a dispute about whole person impairment before a Medical Review Panel is determined. He also submitted that the late claim under section 7.33 needs to be resolved and noted the insurer had in written submissions dated 19 May 2022 accepted the claimant’s explanation for the late claim.
At the teleconference Ms Reddy agreed that the Medical Review Panel dispute remains to be determined. She reiterated that the insurer had accepted the claimant’s explanation for the late claim application.
I indicated that I had briefly reviewed the parties written submissions. My preliminary view is that I would grant leave to make the late application under section 7.33. I noted the delay in obtaining medical assessments in the Commission. I indicated I would give brief written reason for the section 7.33 application.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Under Division 7.6 sub-section 7.33 of the MAI Act, a claim for assessment cannot be referred more than three years after the motor accident unless a full and satisfactory explanation for the delay is provided.
Sub-section 7.33 provides:
“7.33 Time limits for referring claims and making assessment
(cf s 91 MACA)
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.”
The meaning of “full and satisfactory” is set out in section 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-clause 3 (h) of the MAI Act.
Consideration of relevant case law
As referred to above, sections 6.2 and 7.33 require that the claimant cannot refer a claim for assessment 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-section 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 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 7.33 require that the claimant provide a full and satisfactory explanation for the delay in making the application. 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 my view, I find that the claimant’s solicitors explanation in this case is sufficient to be considered a full explanation as to why her application was late. The reasons given by her solicitor are sufficient to be considered a full account of the claimant ’s conduct, actions, knowledge and belief. The claimant’s explanation refers to the delay being caused by the outstanding whole person impairment dispute; disruptions caused by the solicitor with carriage of the matter contracting COVID in early April 2022 and disruptions caused by the Easter public holidays. The claimant’s explanation satisfies the requirements of sections 6.2 and 7.33 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 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 her application for damages was set out in the submissions made on her behalf by her solicitor. The claimant ’s explanation is that the delay was caused by the outstanding whole person impairment dispute; disruptions caused by the solicitor with carriage of the matter contracting COVID in early April 2022 and disruptions caused by the Easter public holidays. Any reasonable person in the claimant’s position would have experienced the same delay caused by a delay in getting a medical assessment and a misplaced reliance on her solicitors conduct of the matter.
Conclusion
I am satisfied that the claimant has a full and satisfactory explanation for the delay in lodging her application for damages. I find that the claim for assessment may be made more than three years after the date of the motor accident. I will issue a certificate to that effect.
Legal costs
In this late claim matter neither party made any application or submission on the awarding of legal costs for this dispute.
I asses legal costs in this matter at $NIL.
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