Shelly v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 229
•20 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Shelly v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 229 |
| CLAIMANT: | Noorjahan Shelly |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 20 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (the Commission) for assessment more than 3 years after the motor accident; 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 (the MAI Act); meaning of “full and satisfactory explanation” in the context of section 7.33 of the MAI Act; 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 listed for further directions. |
INTRODUCTION
The claimant, Noorjahan Shelly, is a 57-year-old woman who suffered injuries in a motor accident on 3 July 2018 when the insured vehicle collided with her vehicle as she was attempting to make a right-hand turn on a green arrow signal at the intersection of Liverpool Road and Cosgrove Road, Strathfield South.
On 17 August 2020, the claimant made a claim for common law damages with the insurer.
PROCEDURAL ISSUE
On 13 July 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 10 days 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 clause 10(d) of Procedural Direction MAI1, for six months, so that the parties can engage in settlement negotiations.
THE CLAIMANT’S EXPLANATION
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 statement dated 16 December 2021.
(b) The statement of the claimant’s legal representative, Minaa Mohmand dated 16 December 2021.
(c) The claimant’s submissions dated 16 December 2021 and 13 January 2022.
Ms Mohmand submits that the claimant’s application for assessment was 10 days late due to an administrative error in her law office. The timeframe for the lodgement of the claim was overlooked.
THE INSURER’S POSITION
On 10 January 2022, the Commission was advised by Mr Wholohan of McCabes Lawyers that the insurer had considered the claimant’s explanation and that no issue is taken by the insurer with respect to the late referral of the claimant’s application for the assessment of his claim.
STEPS TAKEN BY THE CLAIMANT TO PROGRESS HER COMMON LAW CLAIM
As previously noted, the claimant made a claim for common law damages with the insurer on 17 August 2020.
The claimant has provided the Commission with a bundle of documents comprising of the medical evidence on which she so far relies for the assessment of her claim for damages. The evidence covers the period ranging from 15 August 2018 to 10 May 2021.
On 24 June 2021, the claimant was assessed by Assessor Alexander Woo as having sustained a minor injury for physical injuries caused by the accident.
Due to an administrative oversight in the insurer’s office, the insurer did not take any steps to deal with the claimant’s claim until after lodgement of her application for assessment with the Commission in July 2021.
On 28 September 2021 the claimant was assessed by Assessor Enrico Parmegianni as having sustained a non-minor injury for psychological injury caused by the accident.
On 6 December 2021, the insurer denied liability on the basis that there were ongoing investigations with the technicalities of the subject set of traffic lights and that such technical information would take some time to obtain.
On 21 December 2021, the insurer conceded that the claimant’s permanent impairment exceeded the 10% threshold.
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 3 July 2021. The application to refer the claim for assessment was therefore lodged 10 days 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 MAI 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 purposes 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 after 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 concede the permanent impairment threshold until 21 December 2021. Therefore, by virtue of the provision of section 6.14(1), the claimant could not in any event have commenced her claim for damages until 3 March 2020.
The period of enquiry in this matter is therefore from 3 March 2020 to 13 July 2021.
During that period, the claimant took appropriate steps to progress her damages claim. As previously noted, she made her claim on 17 August 2020.
The claimant has served the medical evidence upon which she seeks to rely. She has taken steps to resolve the issue of non-minor injury with assessments conducted by the Commission.
Apart from the lodgement of her taxation returns with the Commission, it is apparent that the claimant has completed all necessary steps to have her claim ready for settlement or assessment.
I consider that the claimant has acted reasonably in making, preparing and advancing her claim towards a resolution, within the short window of time allowed by the MAI Act.
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, for the purposes of section 7.33, the claimant has provided a full and satisfactory explanation for the delay in referring her claim for assessment.
Having regard to sections 1.3 (4) and (5) of the MAI Act, section 4(2) and section 42 of the Personal Injury Commission Act2020, I am satisfied that I should grant the claimant leave to refer her claim for assessment.
The parties agree that they should be given an opportunity to conduct an informal settlement conference in the coming months prior to the matter being set down for assessment.
I agree that the parties should be given some time to explore settlement and for the matter to be re-listed for a teleconference sometime in August 2022 to commence the assessment process if the parties have not reached a resolution.
ORDER
The claimant is granted leave to refer her claim for assessment by the Commission.
DIRECTION
The matter is listed for a further teleconference on Thursday 4 August 2022 at 10.30am to determine whether the matter should proceed to an assessment conference.
Member Maurice Castagnet
Motor Accidents Division
PersonalInjury Commission
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