Smith v AAI Limited t/as GIO - [2021] NSWPIC 531

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v AAI Limited t/as GIO [2021] NSWPIC 531
CLAIMANT:	Christine Joy Smith
INSURER:	AAI Limited t/as GIO
MEMBER:	Ray Plibersek
DATE OF DECISION:	21 December 2021
CATCHWORDS:	MOTOR ACCIDENTS - Application for a late claim for an assessment; more than three years after the motor accident; sections 2.30,6.2,6.14 and 7.33 of the Motor Accident Injuries Act 2017; Claimant truck driver in a collision with unidentified semi-trailer truck; injured at work driving a truck; received workers compensation benefits; unaware of entitlement to make a CTP claim until advised by her lawyer; claim made shortly after receiving legal advice; whether a full and satisfactory explanation for delay in making the application, Held - Claimant has a full and satisfactory explanation; delay due to lack of knowledge that she could make a CTP claim; late claim may be made more than three years after the date of the motor accident; due inquiry and search to establish the identity of unidentified truck driver who struck Claimant’s truck; 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 in making the claim for assessment. 2. The Personal Injury Commission grants leave for the claim for damages to be referred for assessment. 3. I refer this matter to the Personal Injury Commission Registry with a direction that it be placed to the stood over list until Monday 2 May 2022. 4. 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 sections 6.2,6.14 and 7.33 of the Motor Accident Injuries Act 2017 (the MAI Act). There is also a consideration of whether the matter should be placed on the stood over list pursuant to Rule 101 of the Personal Injury Commission Rules 2021 and Procedural Direction MA 1.

The Claimant, Christine Joy Smith was injured in a motor vehicle accident on 13 June 2018. She was driving a 4.5 tonne truck along Pennant Hills Road in Oatlands when she was hit by an oncoming semi-trailer and injured.
After the accident the Claimant made a claim and was paid workers compensation benefits.
On 28 July 2021, the Application for Personal Injury Benefits was lodged by the Claimant’s solicitors.
An Application for Common Law damages was lodged on the Insurer on 6 August 2021, about seven weeks outside of three-year limitation period.
In a letter dated 11 August 2021, the Insurer denied liability for the Application for Common Law damages. The Insurer alleged that the Claimant failed to comply with sub-section 6.14(2) of the MAI Act lodging the claim outside three years from the accident, (R 1).
The matter first came before me on 22 November 2021 at a Preliminary Conference.
At that Preliminary Conference on 22 November 2021…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 531
Decision Date: 21 December 2021

CaseChat Overview and Summary

Smith, a truck driver, was injured in a motor accident while driving for work. She collided with an unidentified semi-trailer truck and was unaware she could claim under the motor accident scheme until she consulted a lawyer. She subsequently lodged a late claim with AAI Limited, trading as GIO. The dispute was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The central issue was whether Smith had a full and satisfactory explanation for the delay in making her claim under the Motor Accident Injuries Act 2017. The NCAT had to consider whether the delay was due to circumstances beyond Smith's control, as required by section 7.33 of the Act.

The NCAT examined the evidence and found that Smith had a full and satisfactory explanation for the delay. She had been unaware that she could make a CTP claim until her lawyer informed her. The Tribunal noted that Smith had been receiving workers' compensation benefits and had no reason to believe she could claim under the motor accident scheme. Additionally, Smith had undertaken due inquiry and search to establish the identity of the unidentified truck driver who struck her truck. The NCAT was satisfied that Smith's delay in lodging her claim was due to her lack of knowledge about her entitlement to make a CTP claim. As a result, the NCAT allowed the late claim, and the insurer was ordered to pay the claim. The Tribunal also awarded Smith her legal costs, which amounted to $NIL.

The NCAT's decision highlights the importance of claimants being aware of their rights and entitlements under the motor accident scheme. The Tribunal recognised that claimants may not always be aware of their entitlements and that they may rely on legal advice to inform them of their rights. The decision also emphasises the need for insurers to consider late claims on their merits and to take into account the circumstances of each case. The NCAT's decision in this case provides guidance to claimants and insurers on the application of the Motor Accident Injuries Act 2017 and the circumstances in which a late claim may be allowed.

Orders