Sims v Insurance Australia Limited t/as NRMA

[2021] NSWPIC 537

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sims v Insurance Australia Limited t/as NRMA [2021] NSWPIC 537
CLAIMANT:	Kieran Sims
INSURER:	Insurance Australia Limited t/as NRMA
MEMBER:	Brett Williams
DATE OF DECISION:	22 December 2021
CATCHWORDS:	MOTOR ACCIDENTS - Late referral of claim to Personal Injury Commission for assessment; claim referred 3 years and 8 months after the accident; section 7.33 of the Motor Accident Injuries Act 2017; full and satisfactory explanation; Lee v Allianz Australia Insurance Limited, Karambelas v Zanic (No 2), Walker v Howard and Hunter v Roberts applied; reliance by claimant on legal representative; delay due to multiple factors including omissions of legal representative; Held - the claimant had provided a full and satisfactory explanation; leave to refer the claim for assessment granted.

INTERIM DECISION

Background

1. Kieran Sims alleges that he suffered physical and psychological injuries in a motor accident that occurred on 4 January 2018. He lodged a claim for damages with respect to which the insurer has denied liability on the basis that Mr Sims only injuries resulting from the accident were minor injuries: section 4.4 Motor Accident Injuries Act2017 (MAI Act).

2. These proceedings were commenced on 8 September 2021, three years and eight months after the accident. As the claim was referred to the Commission more than three years after the accident it cannot be referred for assessment by the Commission under Division 7.6 of the MAI Act unless Mr Sims 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.

Teleconference

1. The matter was listed for a teleconference on 2 November 2021. The parties confirmed that the matter was not ready for assessment of the damages claim. It was agreed that I should proceed to determine whether the claimant had provided a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment and whether leave should be granted for the claim to be referred for assessment in accordance with s 7.33.

2. Both parties sought an opportunity to lodge additional evidence and submissions in relation to s 7.33. Directions were made in this regard. The parties subsequently lodged submissions. While the claimant’s submissions address s 7.33 the submissions lodged by the insurer[1] do not. On 21 December 2021, the Commission sought clarification from the insurer’s solicitors as to whether the insurer intended to address s 7.33. In a response received that day, the insurer’s solicitors confirmed that the insurer did not intend to make further submissions and that the insurer considered the s 7.33 issue was a matter for the Commission to determine.

   [1] Dated 20 December 2021 [AD6].

On the papers

1. The parties submitted that the s 7.33 issues should be determined on the papers. I agree. Having considered both s 52 of the Personal Injury Commission Act 2020 (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 in connection with the proceedings to allow me to determine the s 7.33 issues without holding a formal hearing.

Evidence

1. Mr Sims relies on his statement dated 29 November 2021 and a statement from his solicitor, Mr Redman, dated 26 November 2021.

2. In his statement, Mr Sims provides details of his education, employment history, the accident, his injuries, disabilities, and treatment. He left school in year 9 and partially completed the TAFE equivalent of year 12. He has completed various TAFE courses. He has worked as a bartender, waiter, as a picker and packer, a tree lopper, factory hand and disability support worker. The accident occurred when he was driving a work van whilst transporting a client who was in his care at the time. The client was killed as a result of the accident. In addition to sustaining physical injuries in the accident, Mr Sims states that he was diagnosed with post-traumatic stress disorder. Throughout 2019 and 2020 he underwent extensive treatment for his psychological injury at the hands of his psychologist, psychiatrist and pain specialist. As he was working at the time of the accident, he lodged a worker’s compensation claim which was accepted by Employers Mutual Limited (EML), the worker’s compensation insurer. In early February 2021, EML ceased payment of weekly compensation. They continue to fund the majority of his medical and treatment related expenses. He also lodged a claim for statutory benefits with the at fault driver’s insurer. The insurer sought an explanation for the delay in making the claim. The claim was eventually accepted. He was advised that the worker’s compensation insurer would continue to fund his weekly compensation benefits and medical and treatment related expenses. On 7 September 2020, he signed an application for damages under common law. He understood that his solicitors sent the claim to the insurer shortly thereafter. He says that he has left his claim and legal matters in the hands of his solicitors. He states that he has undergone some assessments on behalf of the insurer. It is his understanding that his injuries are not yet stable. Although his solicitors have kept him updated in respect of the claim, he was not aware that an application for assessment of damages was required to be lodged within three years of the date of accident. He was advised of this by his lawyer in November 2021. Mr Sims states that he has relied on his solicitors to act on his claim and follow the necessary processes and procedures. He has subsequently been advised that the application for assessment of damages had been lodged with the Commission outside the three-year time limit. He confirms that he was not aware of the time limit until advised by his lawyers. He has relied heavily on his legal representatives to pursue his legal entitlements in respect of the claim. As a result of his psychological injury and the medications he has been on, Mr Sims states that he has experienced difficulty dealing with his claims. These factors made it more difficult for him to understand the processes. He has difficulty providing instructions to his legal representatives given his injuries and the use of medication. He has tried to stay on top of everything, but says it is difficult given the debilitating symptoms he is experiencing as a result of the injuries sustained in the motor accident. He has primarily been focused on treatment, recovery, and his workers compensation claim. He states that it is for these reasons there has been a delay in respect of lodgement of his application for assessment of damages.

3. Mr Redman states that on 8 July 2019, Mr Sims instructed Slater & Gordon Lawyers to act on his behalf. An application for personal injury benefits was sent to the insurer. As Mr Sims had lodged a worker’s compensation claim, there was no involvement from the insurer other than to request an explanation in respect of the lodgement of the claim outside the three-month period, which was subsequently provided. Given the worker’s compensation insurer were paying statutory benefits in respect of the claim, there was little involvement from the CTP insurer. By letter dated 22 September 2020, an application for damages under common law was served on the insurer. No response was forthcoming in respect of the application. On 28 January 2021, he sent an email to the insurer again providing a copy of the signed application for damages under common law and noted that it was posted in September 2020. By letter dated 5 February 2021, the insurer acknowledged receipt of the application for damages. In February 2021, Mr Sims’ grandfather, whom he cared for and lived with, passed away. He was then required to sort out funeral arrangements, assist with and work out care arrangements for his grandmother. In March 2021, the insurer instructed solicitors to act on their behalf. On 13 April 2021, the insurer’s solicitors requested further and better particulars of the claim. By letter dated 7 May 2021, the insurer advised that liability was still being investigated and they expected a response within three months. Mr Sims continued to deal with family issues thereafter whilst also undergoing significant treatment. In July and August 2021, his grandmother was in hospital for a period of time. As at the date of making the statement no liability notice had been issued by the insurer in respect of the claim for common law damages. Mr Redman states that it is unclear as to whether Mr Sims’ injuries are stable. Medical assessments have been arranged in order to assess his injuries and to determine whether they are as yet stable. He had been attempting to manage the various issues arising in the matter, including monitoring Mr Sims’ condition and arranging the appropriate assessments once his condition was stable. Mr Sims is yet to complete his medical assessments and his level of whole person impairment is yet to be determined. Due to administrative oversight and the outstanding issues in relation to Mr Sims’ injuries and assessment thereof, the application for damages assessment was lodged outside the three year timeframe found in s 7.33 of the MAI Act. It was not until such time that Mr Redman was advised by Counsel in another matter that he became aware of the significance of lodgement within the 3-year time period post-accident. This time limit did not apply under the Motor Accidents Compensation Act 1999 (MAC Act). Mr Redman states that at all times Mr Sims has left him to deal with his legal matters. At all times, he has tried to protect Mr Sims legal interests and advance his claim. It is for these reasons that the application was filed outside the three-year time limit under s 7.33.

Submissions

1. Mr Sims relies on written submissions dated 26 November 2021. His statement, together with that of his solicitor, Mr Redman, is relied upon in terms of the provision of a full and satisfactory explanation for the delay in referring the claim to the Commission for assessment. Mr Sims relies on the decision of Lee v Allianz Australia Insurance Limited [2021] NSWPIC 351 (Lee) in respect of the interpretation of s 7.33 of the MAI Act and his explanation for the delay.

2. As recorded earlier, the insurer has lodged written submissions dated 20 December 2021. The insurer’s submissions do not address s 7.33.

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 observed that the MAI Act does not contain a definition of ‘full and satisfactory explanation’ for the purposes of s 7.33[2]. I found 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’, as 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[3]. I noted that this accords with the definition of ‘full and satisfactory explanation’  found in s 6.2 of the MAI Act[4]. As the definitions of ‘full and satisfactory explanation’ in the MAI Act and the MAC Act[5] 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 a claimant has provided a full and satisfactory explanation for the purposes of s 7.33 of the MAI Act.[6]

   [2] At [17].

   [3] At [23].

   [4] At [24].

   [5] Section 6.2 MAI Act and s 66(2) of the MAC Act.

   [6] At [25].

3. For an explanation to be full, it needs to be complete in the relevant sense as saying what happened and why. Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required. The section requires the explanation for the delay from the date of the accident.[7] 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[8]. The meaning of ‘full’ is to be understood in context: to enable the evaluation of the reasons for the delay. Thus all relevant information to that end is required.[9] The delay is the period during which the claimant was late in making the claim.[10]

   [7] Walkerv Howard [2009] NSWCA 408 (Walker) Allsop P at [104].

   [8] Walker Allsop P at [106].

   [9] Walker Allsop P at [57].

   [10] 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.[11] There is a substantial spectrum of reasonableness. 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.[12] Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[13] 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.[14]

   [11] Karambelas at [17].

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

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

   [14] Walker Allsop P at [54].

5. In his statement, Mr Sims explains that he lodged a workers compensation claim in relation to the accident as it happened during the course of his employment. He received workers compensation benefits. He instructed lawyers to act on his behalf in relation to the CTP claim in July 2019. A statutory benefits claim and a damages claim were made. He states that his grandfather, with whom he lived, died in February 2021. Mr Sims was required to make funeral arrangements and arrangements for the care of his grandmother. In July and August 2021, his grandmother was in hospital. Mr Sims has provided an account of his post-accident treatment and the deterioration of his accident related injuries. He was not aware that his claim had to be referred to the Commission for assessment within three years of the accident until he was made aware of the time limit when ‘recently’ advised by his lawyers. He relied on his lawyers to act on his claim and follow necessary processes. His evidence is that as a result of his psychological injury and the medication he has been on, he has had difficulty dealing with his claims. These factors made it more difficult for him to understand the processes. He experiences difficulty providing instructions to his legal representatives given his injuries and the use of medication. He says that he has tried to stay on top of everything, but finds it is difficult given the debilitating symptoms he is experiencing as a result of the injuries sustained in the motor accident.

6. Mr Redman explained that due to administrative oversight and the outstanding issues in relation to Mr Sims injuries and assessment thereof, the application for damages assessment was lodged with the Commission late. His evidence is that it was not until such time as he was advised by counsel in another matter that he became aware of the significance of lodgement within the three-year period post-accident. Mr Redman explained that, at all times, Mr Sims has left him to deal with his legal matters.

7. In terms of his explanation for the delay, I am satisfied that the statements of Mr Sims and Mr Redman explain what happened and why from the day of the accident. This evidence contains a full account of the conduct, including the actions, knowledge and belief of Mr Sims, from the date of the accident until the date of providing the explanation. I consider that I have sufficient evidence to enable me to make an evaluation of the reasons for the delay. I find that Mr Sims’ explanation is full.

8. I have concluded that, given his position, the delay which occurred, 8 months, was reasonably justifiable. Mr Sims was dealing with the effects of the injuries he suffered in the accident, undergoing treatment for those injuries and taking medication that he had been prescribed. His grandfather, with whom he lived, died in February 2021. This in turn gave rise to other domestic matters that required his attention. The evidence establishes that he relied on his lawyers to do what needed to be done to progress his claim. I consider that it was reasonable for him to do so in light of the matters to which I have referred. A further consideration is that, not having been assessed with a permanent impairment of greater than 10%,  Mr Sims was required to wait 20 months after the accident before he could make his claim for damages.[15] This means that Mr Sims had a 16 month window in which to make, prepare and refer his damages claim for assessment rather than the full 3 years.

   [15] Section 6.14(1) MAI Act.

9. I find that Mr Sims’ explanation for the delay in referring his claim for assessment is satisfactory.

10. Leave is granted for Mr Sims’ claim to be referred for assessment in accordance with s 7.33.

Member Brett Williams

Personal Injury Commission