Stoyles v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 756
•3 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Stoyles v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 756 |
| CLAIMANT: | Scott Stoyles |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 3 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; Schedule 2(3)(h); application for late claim pursuant to section 6.13; whether claimant has given a full and satisfactory explanation for delay in making a claim for statutory benefits; Held – claimant found to have provided a full and satisfactory explanation for delay in making claim; claimant not well enough to instruct or assist his carer to bring the claim; late claim arose due to a lack of physical and mental capacity at the time to pursue it; claimant granted leave to proceed in the Commission. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act2017 and cl 7.497 of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 6.14 a late claim may be made. 2. Effective Date: This determination takes effect on 26 April 2019. 3. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a miscellaneous dispute in connection with a claim under Schedule 2(3)(h) referred to me pursuant to s 7.42 of the Motor Accidents Injuries Act 2017 (NSW) (the Act), as to whether for the purposes of Part 6 (Motor accident claims) the claimant has given a full and satisfactory explanation for delay in making a claim for statutory benefits under s 6.13 of the Act.
Scott Stoyles (the claimant) is currently 54 years of age. He was involved in an accident on 26 April 2019. He makes an application for the determination of a dispute regarding a late claim for personal injury benefits submitted on 25 February 2021.
On 5 March 2021, the insurer requested an explanation for delay. A statutory declaration was provided to NRMA on 23 April 2021. On 26 May 2021, the insurer advised that it did not accept the late explanation was full and satisfactory and requested further information. Further information was provided on 5 July 2021. On 8 July 2021, the insurer advised that it did not accept the late explanation as full and satisfactory and requested again further information. On 26 July 2021, further information was provided.
In a decision made 18 August 2021, the insurer determined that the explanation for delay was full, however, it was not satisfied that it was satisfactory. Its reasons were:
a. The claimant’s father sought advice on behalf of his son on 1 July 2019 where he was advised of the need to lodge claims within 28 days of the motor vehicle accident, and no later than three months.
b. A letter was sent to the claimant and his father on 2 July 2019 which reiterated the need to lodge a claim within three months of the accident otherwise the claim would be rejected.
c. Both the claimant and his father read through the information provided to them.
d. While the claimant had a complicated recovery following the accident, both he and his father understood the need to lodge the application for personal injury benefits in a timely manner and failed to do so.
e. From the medical records available and the timeline provided from approximately 18 July 2019 when the claimant had an appointment with Better Care Medical on 18 October 2019, when he had an appointment with Wollongong Diagnostics, the claimant did not appear to seek any ongoing or regular treatment.
On 15 September 2021, an internal review was requested and submitted to the insurer.
On 7 October 2021, the insurer provided its response for a request for an internal review and affirmed its previous decision to decline liability for the claim as in its opinion the claimant had not provided a full and satisfactory explanation for the delay in making the claim.
In a statutory declaration provided to the insurer dated 23 April 2021, the claimant said relevantly as follows:
a. He was injured in the motor accident on 26 April 2019.
b. He sustained ankle and patellar fractures.
c. He was not working at the time of the incident.
d. He underwent surgery for his injuries: metal pins were placed in his ankle and his patellar fracture was fixed.
e. He suffered complications from this surgery including osteoarthritis and experienced issues at the fracture site where intravenous antibiotics were fed into his bone for a period of six weeks. He had persisting pain and discomfort in his leg.
f. He obtained treatment for his injuries from Dr Dares, Ankle and Foot Surgeon, and Dr Azim, General Practitioner.
g. On 1 July 2019, his father sought legal advice from Jeanette Woollacott at Nikolovski Lawyers. He was advised to apply for personal injury benefits but did not have the at fault driver’s compulsory third party (CTP) insurer’s details at the time. He was only able to gather the at fault driver’s full name and telephone number.
h. At around the time he received legal advice he was struggling with his physical injuries, drug and alcohol use and other associated mental health conditions were affecting his recovery.
i. He suffered cardiac complications in 2020 and on 4 August 2020 he experienced cardiomyopathy and heart failure on 28 August 2020.
j. Given the slow recovery of his ankle and leg and intervening cardiac complications he was not able to progress this claim.
k. When his injuries stabilised, his father resumed contact with his solicitor with respect to his son’s claim on 8 February 2021.
l. On 10 February 2021, his solicitor sent him a letter enclosing an application for personal injury benefits and a certificate of capacity for his GP to complete.
m. On 12 February 2021 he completed the application for personal injury benefits and was also able to provide the registration details of the at fault driver allowing his solicitor to identify the CTP insurer.
n. On 17 February 2021 his GP completed a certificate of capacity and fitness.
o. He was advised that on 25 February 2021, his solicitor sent a letter to NRMA Insurance CTP Claims enclosing his application for personal injury benefits and referral from his GP to Dr Dares with respect to further treatment.
On 5 March 2021, he was advised by his solicitors that a letter had been received from NRMA requesting an explanation as to why he lodged his claim outside of the three-month period. His statement was produced pursuant to that request.
In a letter dated 22 June 2021, the insurer posed a series of questions by way of request for further information. The claimant responded to this request in a letter dated 5 July 2021. The claimant explained that he obtained the registration details of the at fault driver by contacting Wollongong Police Station on or around 6 February 2021 for details. These were provided to the claimant in the form of the name and telephone number of the at fault driver. The claimant provided those details to his solicitor who thereafter obtained the registration details.
With respect to what legal advice was provided as to time limits on 1 July 2019, the claimant said that he was advised that he was required to lodge an application for personal injury benefits within 28 days of the accident in order to recover medical expenses from the date of the accident, and by no later than three months after the accident date.
The claimant’s father contacted his solicitor via teleconference on 1 July 2019 for initial advice. A further teleconference took place with the claimant’s father on 8 February 2021. The claimant and his father attended his solicitor’s offices in person on 23 April 2021 whereby he signed a statutory declaration to which I have referred above. The claimant did not attend the initial teleconference on 1 July 2019 due to the extent of his injuries. This advice was discussed with the claimant upon receipt of a written record of the advice. The claimant says that at the time, he was preoccupied with attending numerous specialists and other appointments, and receiving treatment including surgery, and was not able to pursue his personal injury rights at the time. He says that he did not act on his personal injury rights on account of his physical injuries which I have set out above.
When the claimant’s father contacted the claimant’s solicitor again on 8 February 2021 by telephone following stabilisation of the claimant’s injuries, the claimant was invited to complete the application for personal injury benefits.
On 10 February 2021, the claimant’s solicitor sent a letter to the claimant enclosing a further application for personal injury benefits and a certificate of fitness for completion. This was completed, returned, and emailed to the CTP insurer on 25 February 2021.
In a further statutory declaration, the claimant set out the nature and the impact of his intravenous drug use, alcohol use, and poor state of mental health and physical injuries with respect to making the claim for personal injury benefits.
The claimant says that by reason of the pain he was suffering in his leg and ankle, he began to struggle with alcohol and IV drug use. He said that his abuse of both substances was at its worst at this time. He attended upon his GP, Dr Aziz Al Khemesy regarding his alcohol intake on 21 May 2020, 14 August 2020, 10 September 2020, and 11 September 2020.
He was primarily using methamphetamines a couple of times per week as this would “kill” the pain that he was experiencing as a result of his injuries. He was also smoking ICE. References to his drug use are included in the clinical notes, the subject of the claimant’s application.
The claimant’s mental health significantly declined after the motor accident. He was depressed and frustrated with not being able to walk and the ongoing pain he was experiencing. He was bedridden and relied heavily on his father. This impacted his mental health significantly.
He did not seek treatment for his condition, and, as a result, it worsened.
As a result of his mental health, he was not able to obtain significant treatment which he required for his leg and ankle injuries, nor did he focus on submitting a motor vehicle accident claim form.
In 2020 he began to suffer from cardiac complications which included developing heart failure on 28 August 2020. He had various admissions to hospital and the focus shifted away from his ankle and leg to the experiences he was having with his heart.
The issues with his heart stabilised in early 2021 and he was placed on medication which he must take for the duration of his life.
In early 2021, his IV drug use and alcohol intake reduced, and his heart condition stabilised which occasioned an improvement in his mental health.
It was at this stage that his father resumed contact with the claimant’s solicitor in relation to the motor vehicle accident claim.
In a statement from the claimant’s father, he says that due to the claimant’s ongoing medical issues he did not pursue the motor vehicle accident claim any further because the claimant was struggling with injuries that he had sustained in the accident, and he was helping him.
He says that he did not pursue the claimant’s claim further at the time as he did not have the insurer’s details for the other driver.
On or around 5 February 2021, the claimant was advised that he would need to seek specialist advice with respect to his injuries. Due to the medical expenses that would be occasioned by such consultation, the claimant’s father again contacted the claimant’s solicitor and sought further legal advice. It was following this contact that he had the teleconference with the claimant’s solicitor on 8 February 2021. He received a letter dated 10 February 2021, completed the claim form, and obtained a certificate of capacity and certificate of fitness from the claimant’s GP, which was then submitted to the insurer on 25 February 2021.
Insurer’s submissions
The insurer submits that the premise of the claimant’s explanation, that he was delayed due to his slow recovery of his ankle and leg, intervening cardiac complications, and that he did not have the at fault driver’s name and telephone number, while full, is not satisfactory. It does not expand upon this contention in its submissions.
I have had regard to the internal review decision to determine the basis upon which it advances this contention. It says that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay. It notes that the test for satisfactory explanation is an objective standard. It relies upon the fact that the claimant was made aware of his third-party rights and the actions that were required of him in order to claim for statutory benefits by both his solicitor and general practitioner. It found therefore that the explanation was not satisfactory.
considered Documents
I have considered the documents provided in the application and the reply and the further information provided by the parties.
Reasons
Pursuant to s 6.12(1) of the Act, a claim for statutory benefits is made by giving notice to the relevant insurer under Part 3. The time for making that claim is prescribed in s 6.13(1) as three months from the date of the motor accident to which the claims relate. An exception to this time limit is found in sub-s 6.13(3) which provides that a claim for statutory benefits may be made after the time prescribed in sub-s (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim and the claim is made within three years after the date of the motor accident.
Section 6.2 of the Act is almost indistinguishable from s 66(2) of the Motor Accidents Compensation Act 1999 (NSW), which was considered by Basten JA sitting in the Common Law Division of the Supreme Court of New South Wales in Transport Accident Commission of Victoria v Jovanovic [2019] NSWSC 1137. There, the claimant was involved in a collision and failed to lodge his claim in respect of compensation for personal injury within the prescribed six-month time limit by that Act. The matter was referred to assessment by a claims assessor after the insurer had declined to admit the claim. His Honour (at [34]) referred to the language of the statute and said that:
a. “it requires a ‘full account’” of the claimant’s conduct and belief “from the date of the accident until the date of providing the explanation”, and
b. a consideration of whether or not the explanation is “satisfactory”, namely “whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay.”
His Honour noted the introductory observations of Gleeson JA in Dijakovic v Peres [2015] NSWCA 74; 71 MVR 334 at [19], that 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 (No 2) [2014] NSWCA 433; 69 MVR 127 at [17].
The issue in Jovanovic was whether there was a requirement to take into account the period of time between the claim being lodged and the explanation being provided. As is the case here, there is a relevant delay between the date upon which the claim was lodged, and the various explanations have been provided. Relevant to my determination in these proceedings is the fact that it is open to me to take into account the further material received from the claimant, pursuant to directions made by the Personal Injury Commission (the Commission).
Is the explanation for delay “full”?
The claimant has provided an explanation for his delay with supporting documentation.
As the authorities establish, I need only consider the delay from the date upon which the statute requires the claim be lodged, which is relevantly from 27 July 2019.
As I have set out above, the insurer concedes that the explanation is full. I consider this concession is appropriate.
Is the explanation for the delay “satisfactory”?
The question remains whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
By 1 July 2019, the claimant ostensibly knew or ought to have known, that by not completing and returning an Application for Personal Injury Benefits he was putting at significant risk his right ever to make a claim.
In my view, in circumstances where he was embattled by several issues including his physical injuries, cardiac issues and substance abuse, a reasonable person in his position, after having been told that a CTP claim was available, aware of the time limits for such a claim, would nonetheless understand the necessity to bring a CTP claim within three months.
It seems on the evidence that the reason why the claim was not brought is because the claimant was not well enough to instruct or assist his father to bring the claim. He was at times not ambulatory. His father was caring for him, including I interpolate, toileting him and providing him with all necessary hygiene, meals, transport, and other amenities of daily living.
His father explained that when it was apparent to him and his son that the claimant would require further surgery, they considered it necessary to bring the claim so that the expenses could be met by the insurer.
In considering whether to grant leave to enable a claimant to bring or maintain proceedings, in cases where there is, as here, an ostensibly deliberate decision to allow a statutory limitation period to expire, that fact, if established, would ordinarily operate powerfully against a grant of leave. The claimant must therefore negative an absence of diligence or carelessness on his part.
In my view, there is a critical distinction between the circumstance of a claimant making a fully informed tactical decision not to pursue a claim, or even being careless about one's right to claim, and the very different circumstance, as here, where a late claim arose due to a lack of physical and mental capacity to pursue it. A reasonable person in the position of the claimant would most probably have had other concurrent distracting issues in his life that would also have occupied his focus and attention away from making a claim. A reasonable person in the position of the claimant would probably have left the pursuit and resolution of his claim for personal injury benefits and any related dealings with the CTP insurer to focus on his physical and mental health, as in fact the claimant did in this case. As such, a reasonable person in the position of the claimant would have experienced the delays that the claimant encountered in this case and would have been justified in doing so.
In the circumstances, I am satisfied that a full and satisfactory explanation for the delay has been given. Therefore, I grant the claimant leave to proceed in the Commission.
Legislation
In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) (the Act).
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