Sharma v IAG Ltd t/as NRMA Insurance
[2021] NSWPIC 297
•13 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Sharma v IAG Ltd t/as NRMA Insurance [2021] NSWPIC 297 |
| CLAIMANT: | Nancy Sharma |
| INSURER: | IAG Ltd t/as NRMA Insurance |
| MEMBER: | Terence O'Riain |
| DATE OF DECISION: | 13 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits in respect of motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitations period; statutory benefits; reasonable person in claimant’s circumstances; reliant on husband’s recommendation to seek legal advice; Held - insurer is not entitled to refuse payment of weekly payments of statutory benefits; claimant’s costs assessed in accordance with the Motor Injuries Regulation 2017. |
| DETERMINATIONS MADE: | 1. For the purposes of section 6.13 the insurer is not entitled to refuse payment of weekly payments of statutory benefits 2. Effective Date: This determination takes effect on 28 July 2020. 3. Legal Costs: The amount of the claimant’s costs are assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,826 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
This determination relates to whether Ms Sharma has provided a full and satisfactory explanation for her late claim for statutory benefits as required under s6.13(3)(a) of the Motor Accident Injuries Act 2017 (the MAI Act).[1]
Documents Considered
I have considered the documents provided in the Application and the Reply and any further information provided by the parties.
The documents in the portal are marked A for Mrs Sharma, R for the insurer and are numbered sequentially.
Background
This miscellaneous claim dispute has been referred for resolution under Part 7, Division 7.6, subdivision 3 and Schedule 2, clause 3(k) of the MAI Act.
I am satisfied that sufficient information has been supplied to the Commission in connection with proceedings, so that I may determine this matter without a formal hearing pursuant to section 52(3) of the Personal Injury Commission Act 2020 (the PIC Act) and the Procedural Direction PIC2.
On 3 December 2018, Ms Sharma, a married lady and Caltex employee (the Claimant) was driving on Wills Street, Rooty Hill, NSW when the vehicle she was driving was struck by a car leaving a driveway (the accident).
The drawing included in the Application for Personal Injury Benefits (claim form) dated 28 July 2020 shows that Mrs Sharma’s vehicle was struck on the driver’s side.[2]
[2] Document A1
Mrs Sharma suffered injuries, which caused soreness to her cervical spine, left ankle and right elbow.
Following the accident, Mrs Sharma took a week off work and subsequently returned to work in pain, using medication and feeling impaired.[3]
[3] Document A3
Mrs Sharma went to India in March 2019 and underwent physiotherapy there.
Upon Mrs Sharma’s return from India at the end of March 2019 she discussed the impact of her injuries on her work capacity with her employer who agreed to modify her duties.
By June 2020 the disabilities were still impacting her work and domestic duties.
Mrs Sharma’s husband recommended that she seek legal advice, and she did so.
Mrs Sharma says that she did not know that there were any time limits for making claims until she spoke to her current solicitor on 21 July 2020.
Mrs Sharma made her claim for statutory benefits on 28 July 2020, which is one year and four months later than 3 March 2019, being three months after the accident.
The claim form was served on SIRA, who wrote to Mrs Sharma’s lawyers to inform them that IAG Ltd t/as NRMA Insurance (the insurer) was the relevant insurer.[4]
[4] Document R3
By letter dated 10 September 2020 the insurer declined the claim for being made more than three months post the accident in breach of section 6.13(1) of the MAI Act.[5]
[5] Document A2
The letter sought further information including specific questions as follows:
“a. What date did you first become aware that your claim lodgement was required to occur within a particular timeframe?
b. What prompted you to get legal advice regarding lodgement of your claim?
c. What legal advice were you given regarding lodging a claim?
d. Who specifically provided you with the legal advice?
e. What date was the legal advice provided?
f. When did you become aware that you must provide a full and satisfactory explanation for the delay and late lodgement of your claim?
g. What steps have you taken and when were they taken to provide a full and satisfactory explanation for the delay in lodgement of your claim?
h. What caused your delay in providing or attempting provision of a full and satisfactory explanation?”
On 8 October 2020 Mrs Sharma's lawyers sent Mrs Sharma's statement, which addressed these questions.[6]
[6] Document A3
The insurer requested a copy of her Indian passport[7].
[7] Document A7
Mrs Sharma applied for internal review.
The insurer wrote to Mrs Sharma’s lawyers on 3 February 2021 seeking additional information pursuant to section 6.13(3)(a) of the MAI Act.[8]
[8] Document R6
The insurer sought additional information on the following issues:
(a) Details as to whether Mrs Sharma had lodged a property damage claim following the motor accident with a comprehensive car insurer seeking:
(b) the name of the comprehensive car insurer;
(c) the property damage claim number.
(d) the precise date the property damage claim was made and/or lodged.
(e) whether the property damage insurer advised Mrs Sharma about CTP rights;
(f) details of the precise dates taken off work;
(g) details as to whether, at any stage, Mrs Sharma’s employer was aware that she had been involved in a motor accident on 3 December 2018 and details of the nature of the discussion and whether the employer provided information on CTP;
(h) details of when she initially consulted her treating general practitioner / treatment provider and whether they advised and/or prompted her to lodge a CTP claim;
(i) details of the period Mrs Sharma undertook treatment, the type of treatment undertaken, the details of treating provider(s) and whether they provided information on CTP;
(j) a full account of her actions, knowledge and beliefs for periods late March 2019 to February 2020, March 2020 to June 2020, and August 2020 to October 2020;
(k) details of the nature of the conversation in mid June 2020 with Mrs Sharma’s husband and the content of the advice received and whether her husband had advised and/or prompted Mrs Sharma to obtain legal advice prior to that time, and
(l) the insurer’s representative noted that on 21 July 2020, Mrs Sharma obtained advice from her legal representative and sought details of the content of the advice.
(m) The insurer also sought a “sufficient explanation as to (her) general knowledge and beliefs of the CTP Scheme, and whether at any stage (she was) aware of the possibility of making a CTP claim.”
The insurer flagged in the requisitions that the delegate would make her decision in 14 days.
The original decision was affirmed on 17 February 2021.[9]
[9] Document A11 letter affirming insurer’s decision
Mrs Sharma’s solicitors replied to the requisitions from 3 February 2021 on 18 February 2021 as follows:[10]
[10] A12
(a) Mrs Sharma confirmed that the comprehensive property damage claim was lodged with this insurer's property damage department. Further she confirmed that this claim was made the day after the motor accident (at the teleconference on 26 May 2021 it was confirmed that Mrs Sharma's husband had made the claim). The insurer did not prompt Mr Sharma regarding CTP's time limits.
(b) Mrs Sharma was off work for one week after the accident and there was a further period from 27 February 2019 to 28 March 2019, while in India.
(c) Mrs Sharma confirmed that her employer was aware of the circumstances of her injuries but did not provide advice regarding CTP.
(d) Mrs Sharma received her first tranche of treatment between 3 to 23 March 2019[11].
(e) Mrs Sharma sought treatment when she returned to Australia on 15 April 2019 for her neck pain and later saw her GP on 8 July 2019.
(f) She was undergoing further treatment from August 2019 2 December 2019 and from March 20 22 October 2020.
(g) Her health care providers did not provide CTP advice regarding claim time limits.
(h) In respect of her actions, knowledge and beliefs during the relevant periods she refers the insurer to her statement dated 8 October 2020.
(i) Mrs Sharma explains the circumstances of the advice from her husband as follows: after her return from treatment in India she returned to Australia in order to pursue her usual duties at work and domestic obligations. She was self-medicating with pain killers and expected she would recover.
(j) In 2020 she reduced her shifts at work and her pain progressed, which impacted her negatively. It was only in June 2020 that Mr Sharma recommended that she should get legal advice about making a claim.
(k) Mrs Sharma confirms that she received advice on time limits and the need to provide an explanation to the insurance company as a result of her discussion with her current solicitor on 21 July 2020.
(l) Mrs Sharma confirms she had no knowledge about CTP and had never made a claim before this. It was her husband's recommendation in June 2020 that led to her obtaining legal advice.
[11] Document A4
Mrs Sharma’s solicitor lodged this dispute with the Personal Injury Commission (PIC) on 4 March 2021.
Mrs Sharma is consistent that the factors that prompted her to seek legal advice was the continuing impairment she was experiencing and because her husband recommended seeking legal advice.
Submissions
Mrs Sharma’s solicitor has not provided formal submissions, rather these are contained in the material provided in answer to the insurer’s requisitions.
Insurer’s submissions[12]
[12] R1 dated 21 April 2021
The submissions state that Mrs Sharma’s explanation is not full because she had not responded to the insurer’s supplementary questions dated 3 February 2021. This may be an error as the questions were addressed in Mrs Sharma’s solicitor’s email dated 18 February 2021.
The insurer submits that Mrs Sharma’s explanation for the delay in making her claim is not satisfactory.
In Dijakovic v Peres [2015] NSWCA 74; 71 MVR 334 at [19], Gleeson JA observed that 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 has occurred was reasonably justifiable.
The insurer is disquieted by the following aspects of Mrs Sharma’s delay:
b. she delayed making a claim because she expected her injuries to improve and fully resolve so that she would not need to pursue and/or make a claim.
c. Mrs Sharma delayed seeking treatment in Australia until mid-April 2019 despite her symptomatology and the need to take time off work.
A reasonable person in the position of Mrs Sharma would have taken steps to obtain treatment and seek information and advice from her treating provider(s) as well as seeking legal advice about her rights and entitlements under the CTP Scheme.
Reasons
Is the explanation full
The applicable cases regarding whether a claim can be accepted outside the time limits are largely higher courts’ rulings on the Motor Accidents Compensation Act 1999 (the MACA) and Motor Accident Act 1988 (the MAA), which set the same tests contained in sections 6.2[13] and 6.13(3) of this Act.
[13] 6.2 Meaning of “full and satisfactory explanation” by claimant (cf s 66 MACA)Regarding whether the explanation satisfies the test for s66(2) MACA, Mancini v Thompson [2002] NSWCA 38 says it is necessary to set out in full the conduct, the actions, knowledge and belief of the claimant so the court can evaluate all of the reasons for the delay and decide whether an explanation is full and satisfactory.
The High Court in Russo v Aiello 125 CLR 643 (Aiello)states that a full explanation must provide details of the acts and omissions relating to the delay and must cover the full period of the delay.
In Walker v Howard [2009] NSW CA 408 (Walker) the court held that generally what is required for a full explanation is a "chronology of the events from the date of accident to the date of the giving of the explanation explaining what happened and why. The provision does not call for perfection or prolix or burdensome recounting of every moment that has elapsed." (emphasis added)
On reviewing Mrs Sharma’s statement dated 8 October 2020[14], the emails from her lawyer, and notice of claim with disclosures at the teleconference, I am satisfied that I understand how the accident occurred, the injuries and disabilities that she suffered, that treatment from health care providers was not sought prior to, but after the expiration of the limitation period, who her treatment providers were, the impact on her economic capacity and why there was delay.
[14] A3
The explanation is full as it addresses each point relevant to Mrs Sharma’s actions regarding the motor accident sequelae, right up to the time when she lodged her claim.
In her statement 8 October 2020 and in an email from her solicitor dated 18 February 2021, she confirms that she relied on her husband to encourage her to seek legal advice about her injuries.
It is a comprehensive account.
In Aiello, Gleeson CJ referred to the concept of a “a full and satisfactory explanation” as expressed in the MACA stating at [4]:
“The word full takes its meaning from the context and refers to the conduct bearing upon the delay, and state of mind of the claimant.”
I find that the explanation is full in accordance with the ratio in Aiello and Walker v Howard.
Is the explanation satisfactory
As to whether Mrs Sharma's explanation is satisfactory, the test for s6.2 of this Act is the same as for s66(2) MACA.
That test is whether a reasonable person in the claimant's position would have been justified in experiencing the delay in making a claim. Walker[15]
[15] Ibid
Regarding delay, there are explanatory points on delay referred to in Mrs Sharma’s statement as follows:
(a) Mrs Sharma did not know that there were time limits for making a claim.
(b) She was managing her condition with medication, treatment and modified work duties.
(c) Neither her employer nor her health care providers alerted her that she could make a claim.
(d) She expected her condition would recover and she endured her problems, even taking additional shift work and maintaining her commitment to domestic duties.
(e) She was reliant on her husband to recommend that she seek legal advice on making a claim.
As McHugh J says at [27] of Aiello
(The question of what is a full and satisfactory explanation) is a factual and not a legal issue, the criterion of the full and safe satisfactory explanation for the delay does not involve any perception by the senses of some matter, event or entity in the external world. It does not depend on sight, hearing, feeling or touch. A “full satisfactory explanation” for delay is an intellectual construct involving a value judgement, a judgement in which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgement.
It is not expected that a husband would pursue compensation for motor accident property damage immediately after the date of accident and yet not make arrangements to inform himself about personal injury compensation to ensure his wife’s needs for treatment and time off work arising from the accident were met.
However, the law requires me to assess Mrs Sharma’s conduct and knowledge and not her husband’s.
Mrs Sharma was in circumstances where she was trying to manage her condition and recover, relying on her husband to recommend seeking legal advice and was ignorant about her obligations to make her claim for personal injury compensation within time limits.
I find that it was reasonable, given Mrs Sharma’s circumstances, to have failed to comply with her duty to lodge the claim within three months and incur the subsequent delay.
Costs and disbursements
There is no stated dispute between Mrs Sharma and the insurer in respect to recovery of legal costs under section 8.8 of the MAI Act.
The parties have made no submissions as to costs.
I find that due to the considerable work done on Mrs Sharma's behalf to meet the insurer's requisitions, her lack of knowledge of the system and the subsequent application that it was reasonable and necessary for her to engage her solicitor to conduct her case.
I am satisfied that the claimant is entitled to the payment of legal costs.
I allow costs in the sum of $1,826 inclusive of GST.
Conclusion
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 6.13 the insurer is not entitled to refuse payment of weekly payments of statutory benefits.
Effective Date: This determination takes effect on 28 July 2020.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW) (the MAI Act)
·Motor Accident Injuries Regulation 2017
·Personal Injury Commission Act 2020, and
·Personal Injury Commission Rules 2021
Terence O'Riain
Member (Motor Accidents Division)
Personal Injury Commission
(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%.
(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for noncompliance
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.
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