Taylor v QBE Insurance (Australia) Limited
[2024] NSWPIC 591
•22 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Taylor v QBE Insurance (Australia) Limited [2024] NSWPIC 591 |
| CLAIMANT: | Mark Taylor |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 22 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages taken to be withdrawn under section 6.26(3); claimant’s application for reinstatement under section 6.26(4); statutory declarations provided from claimant and solicitor; claimant’s solicitor advised he failed to diarise the due date for provision of particulars; claimant’s evidence was he had surgery and three years after the accident his injury had not stabilised and his impairments could not be assessed; insurer did not oppose reinstatement of the claimant; Held – claimant had a full and satisfactory explanation for the delay in providing the particulars; claim should be reinstated; no matter of principle. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with s 6.26(6) of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The claim for damages made by Mr Taylor on or about 15 March 2023 taken to have been withdrawn under s 85B should be reinstated. 2. There is no order made as to the claimants costs of the application. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Mark Taylor was involved in a motor accident on 4 August 2021. In his claim form he says that a vehicle from the other side of the road turned right across his path on a red arrow. Mr Taylor said he sustained an injury to his left knee, sternum and a left wrist fracture. He was taken to Sutherland Hospital and discharged the same day.
Mr Taylor has made personal injury claims against QBE, the third-party insurer of the other vehicle. Mr Taylor has made a claim for both statutory benefits (on 26 August 2021) and damages (on 15 March 2023) under the Motor Accident Injuries Act 2017 (the MAI Act).
QBE has accepted liability for both claims and has paid Mr Taylor statutory benefits and an advance payment against his damages claim.
Mr Taylor’s claim is, by operation of the MAI Act, taken to have been withdrawn. On 2 August 2024, Mr Taylor lodged an application with the Personal Injury Commission (the Commission) seeking to reinstate his claim.
The dispute has been referred to me for assessment. I held a preliminary conference with the legal representatives of the parties on 3 September 2024. Directions were given and a further preliminary conference was held on 21 October 2024.
At the second preliminary conference, the insurer’s representative advised that QBE did not oppose the reinstatement of the claim but indicated it was a matter for the Commission to make the appropriate order if I was satisfied the claimant had a full and satisfactory explanation.
LEGISLATIVE BACKGROUND
General provisions
The MAI Act provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Part 6 of the MAI Act includes provisions concerning the duties of claimants and insurers, the making of claims and how claims are to be dealt with.
In terms of the duties, claimants and insurers have a duty to act with good faith (s 6.3) and attempt to resolve claims justly and expeditiously (s 6.4). Insurers have specific duties including a duty to determine liability in all claims (s 6.20) and to make an offer of settlement in a damages claim (s 6.21). Claimants have specific duties including to co-operate with the insurer and provide documentation and information when reasonable requests are made (s 6.24) and a duty to provide “relevant particulars of the claim” as set out in s 6.25.
The consequence for failing to comply with the duty under s 6.24 is that court proceedings cannot be commenced while the failure continues (s 6.24(4)). There is no prohibition on commencing proceedings in the Commission.
Failing to provide relevant particulars
The consequence for failing to comply with the duty under s 6.25 is set out in s 6.26 as follows:
“(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 …
(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) …
(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.”
There is a definition of “full and satisfactory explanation” set out in s 6.2 as follows:
“(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.”
AGGREMENTS AND EXPLANATION
Short chronology
The claimant’s damages claim was made on 15 March 2023.
The insurer requested information and documentation about the damages claim on 12 April 2023. There may have been confusion caused as the insurer’s solicitor has referred to this as a request for “further and better particulars.” With respect to the insurer’s solicitor, many of the 17 questions asked did not need to be asked for example:
(a) the first question requested the claimant’s name and address both of which were provided in the claim form;
(b) details of hospitals and treatment providers would appear to have been well known to QBE who had admitted liability in the statutory benefits claim and had been paying Mr Taylor his statutory treatment and care benefits, and
(c) details of employers and the claimant’s business would also appear to have been known to QBE who had retained a firm of accountants to investigate the claimant’s lost earnings and advise QBE as to Mr Taylor’s pre-accident weekly earnings to enable payment of his weekly benefits.
Although the insurer had some of the information and documentation requested, the claimant has a duty under s 6.24 to co-operate with QBE and respond to the letter providing the requested information and documents. He did not. The insurer followed up the request on 24 May, 16 August, 30 October and 11 December 2023 and again on 22 January 2024.
On 13 February 2024 the insurer sent to the claimant’s solicitor a direction to produce “relevant particulars” in accordance with s 6.26(1) within three months as required by s 6.26(3). The claimant’s solicitor conceded at the first preliminary conference:
(a) he received the direction;
(b) that it was validly served because relevant particulars had not been provided, and
(c) that it was in the form required by the Motor Accident Guidelines.
At the first preliminary conference, the claimant’s solicitor also confirmed that “relevant particulars” had not been provided in accordance with the direction and that Mr Taylor’s claim was deemed withdrawn in mid-May 2024 and had to be reinstated.
On 17 July 2024 the insurer’s solicitors wrote to the claimant’s solicitors advising that Mr Taylor’s “claim for damages is now taken to have been withdrawn”.
On 30 July 2024 the claimant’s solicitor provided a four-page response to the request for “further and better particulars” dated 12 April 2023.
On 11 October 2024 the claimant’s solicitor provided the best possible “relevant particulars” available at the time in response to the s 6.26 notice.
Explanation for the delay
The claimant provided a statutory declaration dated 11 October 2024. In it he says:
(a) at the time of the accident, Mr Jokovic was acting for him in other legal matters and he assisted the claimant to make a claim [3];
(b) QBE appointed Procare to help assess his wage loss and information and documentation was given to them [6];
(c) in early 2024 he applied for and was given an advance payment of damages from QBE [7];
(d) in late 2022 or early 2023 when his wrist was not getting better, Mr Jokovic suggested the claimant needed to see a motor accident specialist lawyer and he was referred to another firm [9];
(e) the claimant was dissatisfied with them and in mid to late 2023 returned to Mr Jokovic [12];
(f) the claimant had surgery to his wrist in September 2023 paid for by QBE and he also had treatment for a meniscal tear in his left knee paid for by QBE [11];
(g) the claimant conferred with Mr Hanna, barrister on 12 March 2024 [13] and attended a medico-legal examination with Dr Wallace who refused to assess whole person impairment (WPI) as his wrist was unstable [15];
(h) he still has problems in his left wrist and left knee [17], and
(i) he had not intention of discontinuing his claim and co-operated with the insurer and does not understand how his claim can be withdrawn [18]-[20].
Mr Jokovic signed a statutory declaration dated 10 October 2024. He says:
(a) he helped the claimant make the claim [4];
(b) he is not a personal injury specialist and referred the claimant to another firm [8];
(c) he continued to help the claimant with his other matters and in late 2023 the claimant asked him to resume acting [9];
(d) he received the notice under s 6.26 on 13 February 2024, referred it to the claimant and organised a conference with counsel [10];
(e) the appointment with Dr Wallace was discussed as was the need for Mr Taylor’s injuries to stabilise and to know his permanent impairment [12];
(f) he failed to diarise the three-month deadline [13];
(g) on 3 June 2024 he wrote to the insurer requesting a copy of Dr Wallace’s report received on 17 July 2024 (and which was dated 26 March 2024) [17], and
(h) he concedes he did not respond to the insurer’s request for particulars because the insurer had particulars of injuries and disabilities from the claim form (and associated certificates of fitness), nine authorities had been signed by the claimant to enable the insurer to obtain documents and the claimant had attended on Dr Wallace and the insurer had his report. He says particulars of past economic loss were partly supplied by the Procare investigation. He says he is unable to provide particulars of impairments as the claimant’s condition is not sufficiently stabilised [19].
CONSIDERATION OF THE ISSUES
Is the claimant’s explanation full?
The claimant’s statutory declaration provides an account of his conduct in particular his actions in engaging his current solicitors and briefly consulting other solicitors. He has explained that he did not know about particulars and the intricacies of the scheme and that he has co-operated with the insurer and followed the advice of his solicitor and barrister.
The statutory declaration from Mr Jokovic explains what he did (and what he did not do). He has “fallen on his sword” by acknowledging he failed to diarise a critical date.
I am satisfied that the statutory declarations provided by Mr Taylor and his solicitor fully explains the reasons why, from the date of the accident until the date of their statutory declarations, the claimant had not provided “relevant particulars” within the meaning of s 6.25 in accordance with s 6.26(1). Mr Taylor was unaware that he had to, and Mr Jokovic was aware but did not do so.
Is the claimant’s explanation satisfactory?
In essence the explanation for the failure to provide the “relevant particulars” until 10 October 2024 is that:
(a) the claimant had surgery in September 2023;
(b) the outcome of that surgery was not yet known, and therefore
(c) the degree of impairment and long-term economic losses were unknown.
The claimant’s solicitor failed to diarise the date by which particulars should have been provided and had not applied to the Commission for a permanent impairment assessment and therefore did not have the requisite determination under s 6.28(6) which would have excused the failure to provide the particulars.
In Nominal Defendant v Browne[1] the Court of Appeal said that what is to be evaluated is the claimant’s explanation (as provided by the claimant and/or the solicitor) and that the enquiry is not about whether the claimant’s solicitor (as opposed to the claimant) has a full and satisfactory explanation for what he or she did or did not do.
[1] [2023] NSWCA 197.
In my view a reasonable person in the position of the claimant would have been justified in failing to comply with the duty to provide “relevant particulars” of the claim. The interplay between ss 6.24 and 6.25 is, in my experience of these sections (and their predecessors) not well known certainly by injured persons. The interplay between statutory benefits claims and damages claims is also, in my experience, not well understood by claimants. Mr Taylor was aware his injuries had not recovered and were still causing difficulties. The insurer was, at least until May 2024, continuing to pay his statutory benefits including for surgery and related expenses. Mr Taylor knew that his injuries had to stabilise before he could pursue his damages claim and as he was receiving benefits he did not need to act with any urgency.
Mr Taylor had put the claim in the hands of his solicitors and did what he was advised to do.
The claimant’s solicitor has freely admitted that he failed to diarise the critical date, and he did not obtain the necessary determination from a medical assessor. It is also important to me that the report of Dr Wallace was not provided to the claimant or his solicitor before the three month period in the s 6.26 notice expired.
The claimant has now provided the best particulars he can and there are investigations still being undertaken. Dr Bodel has examined the claimant but not yet provided his report and Dr Wallace is soon to be re-examining the claimant. In the absence of those reports, the claimant has been unable to particularise his impairments. A reasonable person in his position would also have been unable to particularise their impairments. It is likely the medico-legal reports will inform the economic loss damages to be claimed. A reasonable person without medico-legal evidence would be, in my view in the same position and would be unable to accurately assess their likely future entitlements.
The reason for the lack of medico-legal evidence is the fact that more than two years after the accident the claimant was still having treatment including surgery and the end result of that surgery was not yet known.
CONCLUSION
Having been satisfied that Mr Taylor’s explanation for not providing QBE with relevant particulars two years and six months after the accident is full and satisfactory, it follows that his claim for damages should be reinstated pursuant to s 6.26(6).
Mr Hanna did not make an application for costs at the conclusion of the second preliminary conference and QBE has not had the opportunity to be heard on the issue. I note that applications for reinstatement are not a declared Miscellaneous Claims Assessment matter under Schedule 1, Part 1(3) of the MAI Act. Mr Taylor could include an amount for his costs in respect of this application when the costs of the whole claim are determined upon the assessment of damages.
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