Singh v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Singh v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 13
CLAIMANT:	Harjeet Singh
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Shana Radnan
DATE OF DECISION:	9 January 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for assessment of damages; insurer purported to issue a direction in accordance with section 6.26(3); insurer submitted that the claimant had failed to provide all relevant particulars, as required by section 6.25; insurer argued that the claim was taken to have been withdrawn; dispute also as to full and satisfactory explanation for delay in provision of particulars; section 6.26(3); Held – as at the date the purported section 6.26 was issued the claimant had provided all relevant particulars about the claim that were reasonably available at that time; the insurer was not entitled to issue the direction; the claim has not been withdrawn and remains on foot; no need to determine the dispute in relation to full and satisfactory explanation for delay in providing particulars.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The claimant as at 20 November 2022 had provided all relevant particulars about the claim that were reasonably available at the time; the insurer was not entitled to issue the s 6.26 direction. 2. The claim has not been withdrawn and can proceed.

STATEMENT OF REASONS

INTRODUCTION

Harjeet Singh (the claimant) made a claim for damages on Insurance Australia Limited t/as NRMA Insurance (the insurer) with respect to physical and psychological injuries he suffered in a motor accident on 20 May 2020. Prior to making a claim for damages, the claimant had made a claim for statutory benefits on the insurer.
The claimant lodged an application for personal injury benefits on 11 June 2020.
On 20 October 2020, after an internal review request regarding the liability decision beyond 26 weeks, the insurer confirmed that the claimant’s injury was not minor and that it accepted liability for personal injury benefits after 26 weeks of the accident.
The claimant made an application for common law damages on 2 February 2022.
On 28 February 2022, the insurer issued a liability notice wholly admitting liability.
The insurer made a number of requests for further and better particulars under cover of letters dated 22 February 2022, 24 March 2022 and 30 May 2022. The claimant failed to respond to these requests for further information.
The insurer lodged the application for assessment of the claim in related proceedings M10560135/23, by which it sought to refer the claimant’s damages claim to the Personal Injury Commission (Commission) for assessment, on 16 February 2023.
At the preliminary conference held on 23 March 2023, the insurer argued that the damages claim is taken to have been withdrawn as a result of s 6.26(3) of the Motor Accident Injuries Act 2017 (MAI Act), in circumstances where, it asserted, all relevant particulars about the claim were not provided to it by the claimant. The claimant disputes that he failed to provide the relevant particulars.
As these proceedings were commenced within three years of the accident, the claim for damages does not require an assessment of likely damages pursuant to s 6.26(7).

A preliminary conference was held on 23 March 2023. Directions were made at that time for the parties to provide submissions and evidence in relation to s 6.26. Those directions were subsequently varied at the request of the claimant. The claimant also made an application for the reinstatement of the claim, in the event that I found the Notice had been validly issued. Submissions followed in relation to full and satisfactory explanation for delay in providing particulars.
The claimant lodged his application for reinstatement of his claim with the Commission on 19 May 2023. This was within the three year period of the date of the accident.
A second preliminary conference was held on 11 July 2023 where further directions were made for the claimant to provide the additional particulars required by the insurer no later than 31 August 2023.
A third preliminary conference was held on 27 September 2023 wherein directions were made for an extension given to the claimant to provide submissions on full and satisfactory explanation for delay in responding to the insurer’s s 6.26 Notice and final submissions in relation to the issues in dispute.
At the fourth preliminary conference a lengthy discussion took place with the parties as it related to what particulars and information was before the insurer at the date when the insurer issued its s 6.26 Notice on 20 November 2022. Directions issued that the schedule of damages prepared by the claimant for the proposed informal settlement conference which was due to take place in November 2022 (but did not take place due to the hospitalisation of the claimant at that time). The claimant subsequently provided the damages schedule it intended to rely on at the time, to the insurer and myself.
The claimant was directed to provide an updated statement with final submissions addressing “full and satisfactory explanation for failure to provide the required particulars” no later than 24 November 2023. No further statement or submissions were forthcoming.
The insurer was directed to provide its final submission no later than

8 December 2023. As there were no additional submissions made, the insurer did not provide any further material.
The parties agree that the matters to be determined under s 6.26 can be decided on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
The dispute is to be determined in two parts:
(a) was the s 6.26 Notice validly issued? If no? then the claims remains on foot.
(b) In the event the claim is taken to have been withdrawn, has the claimant provided a full and satisfactory explanation for the delay in providing the particulars of his claim and should the claim be reinstated?

The s 6.26 dispute

The insurer argues that, as the claimant has failed to comply with s 6.26(1) of the MAI Act, he is taken to have withdrawn his damages claim: s 6.26(3). Section 6.25 is relevant to the dispute as it deals with the claimant’s duty to provide relevant particulars of his claim for damages to the insurer.
Sections 6.25 and 6.26 are in the following terms:
“6.25 Duty of claimant to provide relevant particulars of claim for damages
(1)     A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2)     For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
6.26 Consequences of failure to provide relevant particulars of claim for damages
(1)    If after a period of 2 years and 6 months since the motor accident concerned a claimant for damages has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 6.25), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars.
(2)    The insurer’s direction must be given in accordance with the Motor Accident Guidelines.
(3)    If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim.
(4)    The claimant may make an application for reinstatement of the claim—
(a) to the Commission for a claim that is not exempt from assessment under Division 7.6, or
(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(5) (Repealed)
(6)    If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars.
(7)    If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
(8)    This section does not apply to a claim that, as at 2 years and 6 months since the motor accident concerned, is the subject of a determination by a medical assessor declining to make an assessment under Division 7.5 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent.”

Evidence

The claimant relies on his statement dated 20 June 2023 and submissions of Owais Shaheen dated 20 June 2023. I will refer to relevant aspects of the statements as I address the matters I am required to determine. The claimant has subsequent to the second preliminary conference also uploaded the following responses:
(a) Response dated 20 June 2023 with 81 pages containing reports:
·Dr Lim dated 3 August 2020;
·Dr St George dated 12 August 2020;
·
Consultant Occupational Therapist Dr Gouws dated

24 September 2020;
·Dr Soo dated 10 May 2021;
·MRI Brain scan 27 July 2021;
·Dr Bisht dated 26 May 2022 (insurer’s medico-legal);
·Dr Cipriani dated 9 August 2022 (insurer’s medico-legal);
·hospital records 25 October 2022, and
·Dr Huyhn dated 4 April 2023.
(b) response dated 20 June 2023 containing 283 pages each of supporting documentation which included the economic loss primary documents requested earlier by the insurer.
The insurer with its application for assessment of damages lodged a bundle of 959 pages of material to support the application for assessment.

Submissions
Insurer’s submissions

In oral submissions made on 23 March 2023, the insurer argues that the claimant's common law claim is deemed withdrawn by operation of s 6.26(3) of the MAI Act. The insurer submits that it is clear from s 6.25 that the claimant is under a positive duty to provide it with relevant particulars about his claim given the words in s 6.25(1).
The insurer submits that, given the use of the word "must" in s 6.25(1), compliance is mandatory. It is argued that s 6.25(2) makes it clear that the duty includes an obligation to provide "full particulars" of, amongst other things, "any economic losses and other losses that are being claimed as damages".
The insurer submits that the fact that s 6.26 contemplates the sanction of deemed withdrawal for noncompliance with a s 6.26 Notice suggests that the legislature regarded noncompliance with s 6.25 as a serious matter.
The insurer argues that the claimant cannot discharge his duty under s 6.25 to provide "full particulars" of his claim by pointing to the evidence served and asking the insurer to make assumptions from that material as to what the scope of the claim might be.

Claimant’s submissions

The claimant relied on his statement dated 9 October 2023.
He also relies on submissions dated 20 June 2023 produced by his solicitor.
The claimant has also provided the requested particulars under cover of letter dated

9 October 2023, which addressed a further set of particulars required by the insurer under cover of its letter dated 27 September 2023. Much of the information, the claimant asserted was a duplication of material already before the insurer as noted in its application of 16 February 2023.
His primary submission is that the insurer had all relevant particulars prior to the issue of the s 6.26 direction issued on 20 November 2022 and that the Notice should not have issued.
The claimant submits that the insurer’s s 6.26 direction amounted to no more than a direction to produce additional information to that already supplied by the claimant to the insurer or was available to the insurer from direct communications by the claimant’s solicitor, direct communications by the claimant with the insurer and the insurer’s third party agents and the supply of relevant material to the insurer as and when it became available. The claimant submits that the insurer is precluded from arguing that it did not already hold details of: the motor accident; the injuries sustained by the claimant in the accident; all disabilities and impairments arising from those injuries; and any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages at that time.
The claimant argues that the insurer was, as far as practicable, able to make a proper assessment of the claimant’s full entitlement to damages prior to its s 6.26 direction, when regard is had to the written communications between the claimant and the insurer, the claimant’s solicitor and the insurer and insurer’s solicitors, and the totality of the material provided by the claimant or on his behalf to the insurer, the insurer’s solicitor, the medical specialist qualified by the insurer and the information contained in third party files.
It is submitted that the insurer had in its possession particulars of the claim sufficient to make a proper assessment of the claimant’s entitlement to damages, as far as was practicable at the time. It had arranged for an informal settlement conference to occur on 14 November 2022.
The claimant argues that even though the insurer issued the s 6.26 direction the insurer had information on all heads of damage. The additional requests for further information contained in financial records further requested by the insurer of the claimant’s business operations and bank statements, were additional information and the claimant’s delay in providing these particulars have been rectified now with the provision of the information on the part of the claimant. The delay was due to difficulties suffered by the claimant sustaining additional injuries and complications of his injuries, including memory loss. Difficulties in obtaining instructions from the claimant was due to the claimant being overseas at the time of the Notice issuing in late 2022.
The extent of information before the insurer was sufficient for it to make a proper assessment of the claimant’s entitlement to damage and the s 6.26 Notice issued by the insurer dated 20 November 2022 should not have issued and the claim should not have been considered withdrawn.
Further the insurer lodged the application for assessment and did not raise the issue of the s 6.26 Notice at the time of lodgement. The change in approach of the insurer was contrary to the guidelines of the Commission for early resolution of disputes.
In the alternative, if the Notice is deemed valid, then the claimant has provided a full and satisfactory explanation for the delay, and the claim should be reinstated.

Insurer’s submissions in reply

In its submissions in reply dated 23 June 2022 the insurer emphasises its earlier submissions that the legislature clearly intended mandatory compliance with s 6.25 given the word "must" in that section and the mechanism in s 6.26, which can lead to a deemed withdrawal of the claim in the event of non-compliance.
The insurer submits that the clear intention of s 6.25 was to mandate that the claimant must go to the effort of providing the details required by that section, in one document, so that it is clear to the insurer what claim the claimant advances and to enhance the prospects of fruitful settlement negotiations.
The insurer’s submissions address the distinction between s 6.24 and s 6.25 and highlights that s 6.25(2)(d) of the MAI Act requires the claimant to provide "full details of…any economic losses and other losses that are being claimed as damages".
The insurer submits that quantification is precisely what s 6.25(d) calls for when it uses the language of "full details of…any economic losses and other losses that are being claimed as damages".
It is submitted that knowledge of what is being claimed is a critical step in the insurer's process of making a proper assessment of the likely quantum of the claim.
The insurer submits that the claimant failed to discharge his obligation to provide full details, in particular, of his claim for future economic loss, as required by s 6.25(2)(d).
Given the claimant's non-compliance with the insurer's s 6.26 Notice, the insurer submits that the claim is deemed withdrawn by operation of s 6.26(3) and cannot proceed unless reinstated pursuant to ss 6.26(4) to (7).

DETERMINATION

As recorded earlier, the term “relevant particulars” is defined in s 6.25(2) as follows:
“(2) For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.”
The term “relevant particulars”, as used in s 6.26, takes its meaning from s 6.25(2). In this regard, s 6.26 makes reference to the provision of all relevant particulars about the claim “as required by section 6.25”.
The insurer’s s 6.26 direction was issued on 20 November 2022. To my mind, the first matter for me to determine is whether, when the direction was issued, the claimant had failed without reasonable excuse to provide the insurer with all relevant particulars about the claim by reference to s 6.25(2). If he had not failed to provide relevant particulars s 6.26(1) was not triggered, and the insurer was not entitled to give the claimant a direction under s 6.26.

The letters for provision of further particulars

The letter of 22 February 2022 requested:
(a)    Personal details of claimant: name, date and place of birth, marital status, names of dependants
(b)    Details of treatment: nature and extent of all injuries and disabilities, treaters, hospitals, medical records, clinical records
(c)    Details of other motor vehicle accidents
(d)    Other non-motor vehicle accidents
(e)    The questions asked relating to economic loss was as follows:
“Economic loss
5.1           Employer's name and address at the time of accident.
5.2           Nature of employment and duties performed.
5.3           Period of employment.
5.4 Average net (after tax) wage at the time of the accident, including overtime and bonuses, if any.
5.5           Date on which your client recommenced work after the accident.
5.6 Particulars of any alteration in the nature of duties performed following your client's recommencement of work after the accident.
5.7 Particulars of any alteration in your client's post accident wages alleged to be a result of the accident.
5.8 Details of any continuing or anticipated future economic loss claimed, on a net weekly basis.
5.9 Details of any sick pay received in respect of any incapacity allegedly resulting from the accident, including whether a claim for reimbursement exists.
5.10 Details of any recreation pay received in respect of any incapacity allegedly resulting from the accident including whether a claim for reimbursement exists.
5.11 Details of any workers compensation received in respect of any incapacity allegedly resulting from the accident including whether a claim for reimbursement exists.
5.12 Is your client currently receiving workers compensation payments as a result of the accident and if so, the net weekly sum?
5.13 Is or was your client in receipt of workers compensation payments as a result of a determination by the Compensation Court of New South Wales or any other such body and if so, please supply the date of hearing, the matter number and the name of the respondent.
5.14 Please supply complete work history of your client, both prior and subsequent to the accident, specifying:
(a)       names and addresses of employers;
(b)        periods of employment;
(c)        occupation and duties performed;
(d)       reasons for termination;
(e)       rates of pay;
(f) your client is making a claim for economic loss or loss of earning capacity, please supply Tax Returns, Group Certificates, Tax Stamps, Tax Assessment Notices and Statements of Benefit from the Department of Social Security for the period from five years before the date of accident up to now. (Tax Returns alone are not sufficient);
5.15         For each of your client’s businesses provide the following particulars:
(a)        the type of business conducted at the time of the accident;
(b)        its location;
(c) an accurate statement setting out full details of the loss of income and profits, past, present and future claimed as a result of the accident;
(d) where and when discovery of relevant records may be had or instead, please furnish us with copies of Tax Returns, Group Certificates, Tax Stamps and Tax Assessment Notices for the period five years before the accident up to now. (Tax Returns alone are not sufficient);
5.16Was or is your client in receipt of any Department of Social Security benefit or pension, and if so:
(a)when your client first enrolled for unemployment, sickness benefits or pension and when this terminated;
(b)            the rate of payment your client was or is receiving;
(c) the reason why your client is or was on such benefit or pension; and
(d)if your client is or was in receipt of an invalid pension, please supply the names and addresses of the doctors who certified your client eligible for such pension.
5.17 Please state the method by which your client intends to prove the alleged economic loss:
(a)            comparable earnings;
(b)            an award and if so, which award and classification;
(c) tax returns, tax assessment notices, statements of benefits, accountant's reports or similar evidence; and
(d) reference to a general loss of earnings capacity not referable to the above.
Supporting documentation must be provided in accordance with the Court Rules.
6 Continuing treatment
6.1           Please provide full details of treatment provided and continuing including:
(a) names and addresses of medical practitioners and frequency of attendance;
(b)       types and frequency of medication; and
(c) names and addresses of physiotherapists and frequency of attendance.
6.2           Details of operations since the accident including:
(a)       names and addresses of hospitals;
(b)       names and addresses of operating doctors;
(c)       periods of hospitalisation; and
(d)       nature of each operation.
6.3 What attempts has your client made to rehabilitate and return to the work force? ”

In the prompting letter dated 30 May 2022 the insurer requested responses to the following:
(a)    questions raised in letter date 22 February 2022;
(b)
a reply to request for financial evidence and particulars dated

17 March 2022;
(c)    copy of bank account statements – 2 accounts ;
(d)    copy of drivers license, and
(e)    execution of a number of authorities.
The request dated 17 March 2022 sought:
(a)    company tax returns 2015 - 2021;
(b)    Profit and loss statements 2015 to 2021;
(c)    BAS statements 2015 to date;
(d)    bank statements six months prior to accident;
(e)    details of car washing business;
(f)    financial records of the business;
(g)    Individual Tax returns and assessments 2015- 2021;
(h)    bank statements, and
(i)    payslips 1 January 2019 to 30 April 2019 and 31 May 2020 to 2022.
The claimant has provided this requested information in his response dated

20 June 2023 with 230 pages of Income Tax Returns between 2015 to 2022 and financial records of Ishaan Pty Ltd 2015 to 2022.
The claimant has provided the information requested. Much of this information is to the evidence of loss, not the particularisation of loss. The information already obtained by the insurer as at the date the Notice was issued, in my view, was comprehensive and the insurer has made an assessment of pre-injury weekly earnings to support the payment of weekly benefits in the sum of $1,039.67. The determination of this sum taking place on 20 September 2020.
Further, I infer that the insurer had the details it needed about the accident to enable it to admit liability for the damages claim in June 2022. I am satisfied that the claimant’s responses to the insurer’s request for information constituted the provision of full details of the motor accident to the insurer. The response also included details of his post-accident treatment.
With respect to his economic loss claim, the insurer has information before it sufficient to enable statutory payments to be paid. Whilst the claimant was requested under cover of a letter dated 22 February 2022, 17 March 2022 and 30 May 2022, to provide additional information including financial records of his business and bank statements, this information requested goes to substantiation of business enterprise required by the insurer to defend its claim. It does not of itself establish that without the provisions of such information, the insurer did not have “all relevant particulars about the claim sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages”.
The information requested under cover of letter 22 February 2022 was a proforma letter issued by the solicitors for the insurer without regard to the information already obtained by the insurer’s in applications filed and information contained in medical reports on hand. Much of the request was unnecessary as the information was within the insurer’s file.
The s 6.26 direction was issued as a proforma document and failed to specify what particulars were being sought. The claimant would not have known what was required in the form issued.
At the time the s 6.26 direction was issued, the insurer had available to it sufficient financial information to enable it to assess the claimant’s entitlements to weekly payments of statutory benefits under Part 3 of the MAI Act. In this regard, I note that the claimant’s weekly payments were assessed in September 2020.
I also note that, when determining the claimant’s entitlement to weekly payments, the insurer would have been required to make a determination about matters including: whether he suffered a total or partial loss of earnings; the difference between his pre-accident weekly earnings and his post-accident earning capacity; and whether he had suffered a total or partial loss of earning capacity.
At the time the s 6.26 direction was issued, the claimant had provided the insurer with certificates of capacity/fitness in support of his entitlement to weekly payments of statutory benefits. These certificates included details of his injuries and work capacity.
Section 6.26(2) states that the insurer’s direction must be given in accordance with the Motor Accident Guidelines. The current version of the Guidelines, Version 8.2, includes cls 4.119 and 4.120, which state as follows:
“Claimant failure to provide relevant particulars – damages claim
4.119 Under Division 6.4, section 6.26 of the Act, if a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars of their claim within two years and six months, insurers may send a Direction to Provide Particulars form.
4.120 Before making a request for further information, the insurer must take into account all relevant information already available, including any information from a related statutory benefits claim.”
It is clear to me that it would have been reasonable for the insurer, before it issued the s 6.26 direction, to have taken into account all relevant information already available to it, including the information it had in relation to the claimant’s statutory benefits claim. It may also be that to have taken such an approach could be considered to be consistent with the insurer’s duty to act towards the claimant with good faith in connection with the claim: s 6.3 MAI Act.
At the time the s 6.26 direction was issued, the insurer also had available to it considerable medical information.
The insurer held:
(a)    Application for personal injury dated 11 June 2020;
(b)    Application for common law damages dated 2 February 2022;
(c)    accident report dated 21 June 2020;
(d)    claimant’s statement dated 6 July 2020;
(e)    NSW Police report dated 14 July 2020;
(f)    NTI Limited claim file;
(g)    Suncorp property damage file;
(h)    Common Law liability decision dated 28 February 2022;
(i)
expert report Dr Yasmin Khan occupational physician dated

26 October 2021;
(j)    supplementary report Dr Khan dated 20 January 2022;
(k)    expert report Dr Bisht psychiatrist dated 26 May 2022;
(l)    expert report of Mr Cipriani psychologist dated 9 August 2022;
(m)     expert report Dr Roldan (previous claim) dated 12 July 2017;
(n)    expert report Dr Jungfer (previous claim) dated 31 July 2017;
(o)    MRI brain dated 27 July 2020;
(p)    MRI left knee dated 22 September 2020;
(q)    progress notes Pacific Medical Centre Blacktown;
(r)    clinical records Main Street Family Medical Centre;
(s)    report Dr Singh dated 22 May 2019;
(t)    report Jeffrey brown 29 May 2020;
(u)    various certificate of fitness;
(v)    initial needs assessment Stephanie Gouws dated 24 September 2020;
(w)   Vocational assessment Louisa McCaskey dated 19 December 2021;
(x)    Benchmark progress reports;
(y)    PKF report dated 22 September 2020;
(z)    Individual Tax return 2019;
(aa)    Notice of assessment 2019;
(bb)    company Tax return 2019;
(cc)     company profit and Loss 2019-2020;
(dd)    business activity statement July 2019 to March 2020;
(ee)    Payslips 1 June 2019 to 31 May 2020;
(ff)    Westpac Bank statements 1 May 2019 to 31 May 2020;
(gg)    ANZ Bank statements 1 May 2019 to 31 May 2020;
(hh)    letter from CB Tax dated 12 June 2020, and
(ii)    Allianz Insurance file (2017 Accident claim) 1 April 2022.
This information contained considerable details of the claimant’s accident, injuries, treatment and particulars of economic loss and prior accidents and treatment sufficient to enable the insurer to make a proper assessment of the claimant’s full entitlement to damages.
The insurer to submit that s 6.26 was not complied with purely because it did not have the extent of records dating back to 2015 does not convince me that it could not make a proper assessment of the claim at the time it issued the notice.
In terms of the injuries sustained by the claimant in the accident, as at

20 November 2022, the insurer had, amongst other material, police records, clinical records and expert opinions. The insurer also had certificates of capacity/fitness completed by the claimant’s general practitioner, Dr Lim.
A list of the claimant’s accident related injuries was provided in the applications before the insurer and contained in the various medical records of Drs Ogut, Soo, Singh,

St George and Khan.
I am satisfied that the cumulative effect of this material is that, as at

20 November 2022, the insurer had full details of the injuries sustained by the claimant in the motor accident and the disabilities and impairments arising from those injuries as they stood at that time, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
The question then arises as to whether, as at 20 November 2022, the insurer had been provided with full details of any economic losses and other losses that are being claimed as damages sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
In this regard, it is to be noted that the insurer has made weekly payments of statutory benefits to the claimant. It has made determinations about his pre-accident weekly earnings. It has assessed his entitlements in accordance with Part 3 Division 3.3 of the MAI Act.
The additional financial records were provided by the claimant to the insurer pursuant to further requests for particulars on which include the business and individual records. In the initial personal Injury claim form, the claimant advised weekly losses of $3,000 gross. Upon further investigation by the insurer the insurer was able to identify average weekly earnings and this was relied upon in September 2020 to comply with its obligations to make statutory payment.
The insurer appears to have been provided with financial records that were available to the claimant. While it is proposed by the insurer to seek a forensic accountant’s opinion of economic loss the insurer now has the additional information provided to it by the claimant pursuant to my directions made.
As to the claim for future economic loss, the insurer was aware that a claim was being made. I am satisfied that the insurer had been provided with both financial records and medical evidence that would have enabled it, as far as practicable, to make an assessment of the claimant’s full entitlements to damages for future economic loss, as the evidence stood at 20 November 2022.
As at 20 November 2022 the claimant did not have a forensic accountant’s report. In these circumstances, the report could not have been provided to the insurer at, or before, the time the s 6.26 direction was issued. The insurer has flagged it will be obtaining a forensic accountant’s report now that it holds the various individual and company records.
The other matter that should be noted is that, as at 20 November 2022, the Notice issued was a proforma document in general terms, by reference to s 6.25, and did not reflect the fact that the insurer had accepted liability for the damages claim, or that the claimant had already provided the insurer with a significant amount of information relevant to his claim. In this regard, the document provided no details as to the specific particulars that were said to be required or outstanding.
Given that one of the objects of the MAI Act is to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes, I do not consider it is reasonable to expect a claimant to provide an insurer with information that it has already been provided or is otherwise in the insurer’s possession. This would result in a duplication of work and would not be cost effective. It would add little, if anything, to the insurer’s ability to make a proper assessment of the claimant’s full entitlement to damages.
In my view, to the extent that the insurer considered the claimant had failed to provide relevant particulars of the claim, it should have made a tailored request that sought provision of only that information it did not already have and that it required to enable it, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
I find that as at 20 November 2022, the claimant had provided all relevant particulars about the claim that were reasonably available at that time and that those particulars would have enabled the insurer, as far as practicable, to make a proper assessment of his full entitlement to damages. I am not satisfied that the claimant had failed to provide the insurer with all relevant particulars about the claim when the s 6.26 direction was issued. As a consequence, I do not consider that the insurer was entitled to issue the s 6.26 direction it purported to issue on 20 November 2022.
It follows that the claimant is not taken to have withdrawn his claim. Accordingly, the matters with which ss 6.26(4), and (6) are concerned do not arise.
As a consequence of my determination, I am not required to address the issue of whether the claimant has provided a full and satisfactory explanation for delay in the provision of the additional particulars requested by the insurer. I note that the claimant has at the time of this determination provided the additional particulars requested by the insurer under cover of two responses dated 20 June 2023 each with an additional 81 and 230 pages of financial records and medical reports.
I also note that the claim is currently subject to a medical dispute within the Commission relating to whole person impairment. The assessment of damages cannot take place until this issue is determined.
Costs will be reserved upon the final determination.
On or before 23 January 2024 the parties are to confirm the claim M10560135/23 should be placed into the stood over list.

[2024] NSWPIC 13

9 January 2024