Smith v IAG Limited t/as NRMA Insurance
[2022] NSWPIC 199
•5 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Smith v IAG Limited t/as NRMA Insurance [2022] NSWPIC 199 |
| CLAIMANT: | Peter Smith |
| INSURER: | IAG Limited t/as NRMA Insurance |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 5 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claimant seeks leave from the Personal Injury Commission to lodge his claim for damages after the three-year limitation period section 7.33 Motor Accident Injuries Act 2017 (the MAI Act); satisfied a full and satisfactory explanation for the delay section 6.14(3) of the MAI Act within the meaning, sections 6.2(1) and 6.2(2) of the MAI Act; Held- leave granted for the claim to be referred for assessment in accordance with the Motor Accident Guidelines. |
| DETERMINATIONS MADE: | 1. For the purposes of Part 6 the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay. 2. Effective date: This determination takes effect on 5 May 2022 3. Legal costs: The claimant is seeking the maximum regulated costs for the application relating to the late claim, a claim for damages. I am satisfied the claimant is entitled to the maximum regulated costs for the above application. Only if the parties are unable to agree on the amount for costs, I invite the parties to provide me with evidence and submissions on the claim for costs and the insurer’s reply. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to: the time limits for making a claim for damages
The claimant, Mr Peter John Smith was involved in a motor vehicle accident on 22 August 2018 (the accident). He was crossing the roadway at the pedestrian crossing at Darling Point when the insured’s driver collided with him knocking him to the ground causing serious injuries.
Mr Smith sought legal advice from Stacks Goudkamp on 13 September 2018. A claim for damages was lodged with the insurer, IAG Limited t/as NRMA Insurance. The following three years the claimant had regular contact with his legal representatives.
After participating in a settlement conference with the insurer, Mr Smith lodged a claim for an assessment of damages.
The Motor Accident Injuries Act 2017 (the MAI Act) requires a claim to be lodged within three years from the date of the accident unless a full and satisfactory explanation for the delay is provided.
The claimant seeks leave from the Personal Injury Commission (the Commission) to lodge his claim for damages after the three year limitation period.
Jurisdiction of the Personal Injury Commission
The application in this matter was lodged at the Commission.
The Commission commenced operation on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
Legislation
The following legislation applies:
a. the MAI Act, and
b. Motor Accident Injuries Regulation 2017 (the Regulations) and the Guidelines.
The claimant seeks a determination with respect to a miscellaneous claim assessment matter. I have jurisdiction to determine this miscellaneous claim pursuant to Schedule 2(3)(h) and (l).
Late claim – claim for damages
The time for making a claim for damages must be made within three years after the date of the accident, section 6.14(2) of the MAI Act. Nevertheless, sections 6.14(3) and 6.14(4) of the MAI Act relevantly state;
“6.14(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.
6.14(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 such explanation.”
Section 6.2 of the MAI Act gives meaning of a full and satisfactory explanation:
“6.2(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.
6.2(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.”
The claimant’s explanation for delay
The claimant has filed a statutory declaration dated 18 March 2022. He gives a full conduct of his conduct, actions, knowledge and belief from the date of the accident to the lodging of his claim for damages. He says at no time was he given advice about the requirement to lodge his claim for damages within three years of the date of the accident.
A further explanation for the delay can be found in the statutory declaration dated 7 March 2022 of Managing Director of Stacks Goudkamp, Thomas Julius Goudkamp.
Mr Goudkamp explains he was relying on his knowledge and experience set out in the Motor Accidents Compensation Act which has no such three year limitation period. He admits the claimant was never informed by his firm of the requirements of section 7.33 of the Act.
Insurer’s submissions
The insurer concedes the claimant’s explanation for the delay is both full and satisfactory and that there is no further material to be provided by them that would add to the explanation that would assist me regarding the claimant’s explanation for the delay in lodging his claim for damages.
Is the explanation for the delay full and satisfactory
I am satisfied the claimant’s explanation for the delay is full and satisfactory. He has provided a full account of his beliefs, knowledge and conduct from the date of the accident until the time the claim for damages was lodged. At no time did the claimant have any advice his claim for damages must be lodged within three years from the date of the accident.
This explanation is supported by the further statutory declaration by Mr Goudkamp.
A reasonable person in the position of the claimant would have been justified in experiencing the same delays.
For the reasons set out above, I accept the claimant’s explanation for the delay in lodging his claim for damages is full and satisfactory.
Conclusion
The claimant is entitled to non economic loss and as such, his injuries are not minor.
Having accepted the claimant’s explanation for the delay in lodging his claim for damages is full and satisfactory, I grant leave for Mr Smith’s claim to be referred for assessment in accordance with the Guidelines.
Costs
The claimant is seeking the maximum regulated costs for the application relating to the claim for damages. If the parties are unable to agree on the amount for costs, I invite the parties to provide me with evidence and submissions on the claim for costs and the insurer’s reply.
Elyse White
Member (Motor Accidents Division)
Personal Injury Commission
0
0
0