Smith v AAI Limited t/as GIO
[2021] NSWPIC 531
•21 December 2021
| 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 the Claimant’s solicitor confirmed that as the matter is not ready his application was that the matter be referred to the stood over list.
Also at that Preliminary Conference the solicitor for the Insurer stated that the Insurer may accept that a full and satisfactory explanation for the delay has been given by the Claimant and that the matter should be placed on the stood over list.
The Commission has not received any correspondence confirming in writing whether or not the Insurer’s position is that it accepts that a full and satisfactory explanation for the delay has been given by the Claimant.
The dispute comes before me to determine if a late claim can be made and whether the Claimant has provided a full and satisfactory explanation for the delay in making the claim for an assessment of damages.
Submissions
I have considered the documents provided with the Claim form, the reply and further information including the parties submissions and the statement from the Claimant.
I will briefly summarize the submissions concerning the full and satisfactory explanation and then summarise the Claimant’s explanation.
Claimant’s solicitor’s submissions dated 13 August 2021
The Claimant’s solicitor’s submissions dated 13 August 2021 (A 1), of relevance to the full and satisfactory explanation, submit that:
(a) in about early to mid-July 2021, the Claimant contacted the solicitor’s office to make a general enquiry about wage benefits;
(b) on 15 July 2021 the Claimant attended an initial client conference and gave her instructions in late July 2021;
(c) on 2 August 2021, the matter was allocated to GIO under the Nominal Defendant Scheme;
(d) on 11 August 2021, the Insurer issued a liability notice denying the claim for common law damages and requesting a full and satisfactory explanation for the delay in lodging the claim;
(e) on 12 August 2021, the Claimants explanation for late lodgement and due search and inquiry dated 6 August 2021 (A 3) was served on the Insurer;
(f) the Claimant relies on her statement dated 6 August 2021 and submits that her claim suffered significant disruption and delays as a result of the explanation in her statement;
(g) the Claimant submits her matter was not ready for a claims assessment at the three-year juncture, being 13 June 2021;
(h) the Claimant requests her matter be referred to the Stood Over List on the basis that the Claimant’s whole person impairment is yet to be finalised;
(i) the claim is not currently being ready for assessment, the Claimant has been forced to lodge this application prematurely due to section 7.33 of the MAI Act;
(j) it is necessary to lodge this application to protect the Claimant’s interests in accordance with the objects of the MAI Act,
(k) the application has been outside of the three-year limitation due to the reasons in the submissions and her statement; and
(l) the Claimant requests that this explanation and application be accepted and the matter be moved to the Stood Over List until such a time that the matter is ready for assessment.
Insurer’s solicitor’s submissions undated 2021
The Insurer’s solicitor’s made brief undated 2021 submissions(R 1). The submissions of relevance to the full and satisfactory explanation, submit that:
(a) in a letter dated 11 August 2021, the Insurer denied liability because the Claimant failed to comply with section 6.14(2) of the MAI Act, for lodging the claim outside of three years from the accident;
(b) the Claimant’s explanation purporting to address the delay was received by the Insurer on 16 August 2021;
(c) the Insurer has until 15 October 2021 to issue its decision as to whether or not the explanation is full and satisfactory;
(d) the Claimant has failed to furnish a medical certificate relating to the claim in contravention of section 6.15 of the MAI Act;
(e) as the application for common law damages was lodged outside of three years from the date of the accident the Insurer relies on section 6.14(5) of the Act; and
(f) as the requirements of subsections (a), (b) and (c) above have not been satisfied, the matter cannot be referred for assessment under Division 7.6 and the application ought to be dismissed.
Documents considered- Claimant’s explanation
The explanation for the late application is contained in a statement made by the Claimant summarised briefly as follows.
Claimant’s statement dated 6 August 2021
The Claimant’s statement dated 6 August 2021 (A 3), states that:
(a) on 13 June 2018, she was involved in a motor vehicle accident whilst travelling to a site in the course of her employment. At that time of the accident, she was working for Alsco Pty Ltd trading as Fresh and Clean;
(b) she was driving a 4.5 tonne truck along Pennant Hills Road in Oatlands (in a northerly direction). Her co-worker, Jill, was in the passenger seat;
(c) immediately before the accident she noticed that a semi-trailer, travelling in the opposite direction, had drifted onto her side of the road and was travelling towards her truck;
(d) the back trailer of the semi collided with the side of her truck, causing the truck she was driving to lift onto the two left wheels;
(e) the driver of the semi-trailer did not stop. She could not see the registration number as it was already too far away. The semi-trailer accelerated and fled from the scene;
(f) she contacted the police and waited for them at the scene of the accident;
(g) she contacted her employer and advised them of the accident;
(h) the police attended and she provided them with information about the accident. The Police Event Number is E132704302;
(i) she had no knowledge that she could lodge a CTP claim or the requirements for due search and inquiry until her solicitors advised her in July 2021;
(j) after the accident she was in a lot of left shoulder pain and shock;
(k) she had surgery to re-attach her biceps tendon on 5 December 2018;
(l) after her surgery she had about three months off work to recover;
(m) she returned to work on light duties for quite some time and then regular duties;
(n) on 15 May 2021 she injured her right arm and tore her bicep tendon. She reported that injury and lodged a Workcover claim. She had about one week off and has been doing light duties for 20 hours per week ever since;
(o) in early July 2021 she saw a Facebook add from PK Simpson regarding workers compensation and made an enquiry about her pay;
(p) she was contacted by PK Simpson and then made an appointment to talk to a solicitor;
(q) on 15 July 2021 she spoke to Mr Ivan Vukic from PK Simpson who explained CTP claims to her .Before that conversation, she had no knowledge or awareness that she could make a CTP claim;
(r) she had previously only known about Workcover and that they will pay for your treatment and wages but did not have any idea that she had any entitlement to make a claim for damages;
(s) had she known that she could make a CTP at the time of the accident, she would have made a claim then; and
(t) she continues to experience pain and restrictions as a result of the accident.
Relevant legislation
The legislation relevant to this late claim can be briefly summarised as follows.
Under section 6.14 of the MAI Act a claim for assessment cannot be referred more than three years after the motor accident unless a full and satisfactory explanation for the delay in making the claim is provided.
Section 6.14 provides:
6.14 Time for making of claims for damages
(cf ss 72 and 73 MACA)
(1) A claim for damages cannot be made before the expiration of 20 months after the motor accident to which the claim relates unless 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%.
(2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the date within which the claim must be made.
(3) A claim for damages may be made after the time required by subsection (2) (a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
(4) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.
(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless—
(a) the insurer has lost the right to reject the claim on the ground of delay, or
(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or
(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.
(6) The insurer loses the right to reject a late claim on the ground of delay if the insurer—
(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or
(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.”
Under Division 7.6 subsection 7.33 of the MAI Act, a claim for assessment cannot be referred more than three years after the motor accident unless a full and satisfactory explanation for the delay is provided.
Subsection 7.33 provides:
“7.33 Time limits for referring claims and making assessment
(cf s 91 MACA)
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.”
The meaning of “full and satisfactory” is set out in section 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by claimant
(cf s 66 MACA)
(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance 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.”
Whether for the purposes of Part 6 (Motor accident claims) the Claimant has given a full and satisfactory explanation for non-compliance for the delay is declared to be a miscellaneous claims assessment matter for the purposes of Part 7 by Schedule 2 sub-clause 3 (h) of the MAI Act.
Consideration of relevant case law
As referred to above, sections 6.2, 6.14 and 7.33 require that the Claimant cannot refer a claim for assessment more than three years after the motor accident unless they provide a full and satisfactory explanation for the delay in making the claim.
There is considerable case law about the meaning of the phrase “full and satisfactory”. Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (Karambelas) case discussed the meaning of sub-section 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to section 6.2 of the MAI Act.
The NSW Court of Appeal in Karambelas Justice Meagher (with whom Basten and Simpson JJA agree) stated at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include 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’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed”.
Is the explanation full?
Sections 6.2, 6.14 and 7.33 require that the Claimant provide a full and satisfactory explanation for the delay in making the application. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation.
In this matter the Claimant’s solicitors argue that the application was only submitted a little over seven weeks late. In this case the full account by the Claimant was supplied in mid-August 2021 when they submitted her statement and submissions. So I have taken the relevant period for which an explanation is required is to be from 13 June 2021 (three years after the accident) until mid-August 2021 when the completed explanation was provided.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant”.
31. In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In its submissions the Insurer’s solicitor argue that the Claimant and Claimant’s solicitor have failed to provide a full and satisfactory explanation. At the Preliminary Conference on 22 November 2021 the Insurer’s solicitor indicated he would write and advise whether or not the Insurer’s position is that it accepts that a full and satisfactory explanation for the delay has been given by the Claimant. I also note in its written submissions the Insurer’s solicitors note that the Insurer has until 15 October 2021 to issue its decision as to whether or not the explanation is full and satisfactory. To date, I am not aware of that any correspondence has been received by the Commission from the Insurer or its solicitors since the previous Preliminary Conference on 22 November 2021.
The Claimant’s explanation for the delay in making her application for damages was set out in her statement and in submissions made by her solicitor. The Claimant states that she was injured at work driving a truck. She received workers compensation benefits and was unaware that she was entitled to make a CTP claim until advised by her lawyer in mid to late July 2021. It was shortly after receiving legal advice in July 2021 that she made her claim and also made her statement in August 2021.
In my view, I find that the Claimant’s explanation in this case is sufficient to be considered a full explanation as to why her application was late. The reasons given by her and her solicitor are sufficient to be considered a full account of the Claimant’s conduct, actions, knowledge and belief. The Claimant’s explanation satisfies the requirements of sections 6.2,6.14 and 7.33 of the MAI Act.
Is the explanation satisfactory?
I will now turn to a consideration of whether the Claimant’s explanation is “satisfactory”.
Section 6.2 requires that the Claimant provide a full and satisfactory explanation for the delay in providing the required particulars. The legislation states that an 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.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
38. In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] The concept of a satisfactory explanation in s 66(2) 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 explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”
In its submissions the Insurer contends that the explanation provided by the Claimant is not full and satisfactory. No detailed submissions are made by the Insurer or its solicitors as to why they contend that the Claimant’s explanation is not full.
Without repeating in detail the Claimant’s explanation, it was that she was injured at work driving a truck and was unaware that she was entitled to make a CTP claim until advised by her lawyer in mid to late July 2021.
In my view, the statement from the Claimant gives an explanation which supports a finding that a reasonable person in the position of the Claimant would have been justified in experiencing the same delay. I am satisfied there is sufficient evidence before me to support a finding that the reasonable person in the Claimant’s position would have experienced the same delay. The relevant test is whether a hypothetical reasonable person in the Claimant’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306.)
Due inquiry and search
42. Apart from some brief mentions in the statement of the Claimant and submissions, neither party made any detailed submissions on the issue of whether due inquiry and search has been made to establish the identity of the unidentified semi-trailer concerned.
43. The legislation relevant to this late claim can be briefly summarised as follows.
44. Under subsections 2.30(1) and (2) of the MAI Act an action for the recovery of damages against an unidentified vehicle cannot be made against the Nominal Defendant unless due inquiry and search has been made to establish the identity of the unidentified motor vehicle.
Subsections 2.30(1) and (2) of the MAI Act provide in part:
“2.30 Claim against Nominal Defendant where vehicle not identified
(cf s 34 MACA)
(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(2) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.”
46. Based on the Claimant’s statement, I find there has been due inquiry and search to establish the identity of a motor vehicle by the Claimant and her solicitors to attempt to find the unidentified truck driver who struck her vehicle. The Claimant tried to identify the vehicle at the accident site and then she called and reported the accident to the NSW Police who attended the scene of the accident. Her inquiry and search are detailed in her statement.
Conclusion
I am satisfied that the Claimant has a full and satisfactory explanation for the delay in lodging her application for damages. I find that the claim for assessment may be made more than three years after the date of the motor accident. I will issue a certificate to that effect.
As some medical assessments are still to be made, 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.
Legal costs
In this late claim matter neither party made any application or submission on the awarding of legal costs for this dispute.
I assess legal costs in this matter at $NIL.
Ray Plibersek
General Member and Merit Reviewer
Personal Injury Commission
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