Torsney v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 613
•1 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Torsney v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 613 |
| CLAIMANT: | Yvonne Torsney |
| INSURER: | NRMA |
| MEMBER: | Jeremy Lum |
| DATE OF DECISION: | 1 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claim for statutory benefits not made within 3 months after the motor accident under section 6.13; whether the claimant has provided a full and satisfactory explanation for the delay in making the claim; factors relevant for the explanation to be “satisfactory”; Held – claimant has provided a full and satisfactory explanation; the claim for statutory benefits dated 2 May 2024 may be made. |
| DETERMINATIONS MADE: | CERTIFICATE The claimant has given a full and satisfactory explanation for the delay in making a claim for statutory benefits in accordance with s 6.13 of the Motor Accident Injuries Act2017. Accordingly, the claim for statutory benefits lodged on 2 May 2024 may be made. |
STATEMENT OF REASONS
BACKGROUND
On 24 February 2023, Ms Torsney (the claimant) was a passenger in the front seat of a car driven by her son. They were stopped in traffic when a Freightliner Argosy Truck with Victorian registration carrying a load of six cars impacted the rear of her car, pushing them into the truck in front. There was extensive damage to the front and rear of the car.
The claimant and her two sons were driven to Maitland Hospital where she complained of abdominal discomfort and pain in both thumbs. She saw her general practitioner (GP) the following month with complaints of weakness, tingling and numbness in both hands. She also had sleep disturbance and psychological issues including re-occurring nightmares and anxiety.
There was delay in the claimant making a claim for statutory benefits with the claim form not lodged until 2 May 2024, some 15 months after the accident. Annexed to the claim form was a statement from the claimant dated 8 May 2024 containing an explanation for the delay.
The insurer made a decision to deny liability for the claim as it was not made within three months after the motor accident. Further, the insurer did not accept the claimant’s explanation for the delay as being full and satisfactory.
The claimant requested the insurer to conduct an internal review of its decision and provided a further statement dated 7 August 2024[1] to explain the delay.
[1] Hereafter referred to as the “statement” as this is the statement the claimant relies upon in its submissions.
In an internal review decision, the insurer affirmed its original decision that the claimant’s explanation for the delay in lodging her claim was not considered full and satisfactory.
On 27 September 2024, the claimant lodged at the Personal Injury Commission (the Commission) an application for assessment of a miscellaneous claims dispute. The insurer lodged a reply opposing the application.
PRELIMINARY CONFERENCE
At the preliminary conference on 25 October 2024, the claimant maintained that her explanation was full and satisfactory which the insurer disputed.
After some exploration of the issues, the insurer conceded that the explanation was full but maintained that it was not satisfactory. I indicated that I had sufficient information to determine the matter on the papers which was agreed to by the parties.
RELEVANT LEGISLATION AND CASE LAW
Section 6.13(1) of the Motor Accident Injuries Act2017 (the Act) provides (as relevantly) that a claim for statutory benefits must be made within three months after the date of the motor accident to which the claim relates.
However, sub-s (3) provides that a claim for statutory benefits may be made after the time required if the claim is made within three years after the date of the motor accident and the claimant provides a full and satisfactory explanation for the delay in making the claim.
A “full and satisfactory explanation” by the claimant for delay is defined in s 6.2 of the Act as:
“(1) … 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.”
There has been considerable case law that has interpreted the meaning of “full and satisfactory”.
For an explanation to be full, it needs to be complete in the sense that it says what happened and why. Neither perfection nor a prolix or burdensome recounting of every moment that has elapsed is required.[2] The acts and omissions of all relevant persons should be canvassed in the explanation to allow an evaluation to be made as to whether the explanation is full.[3] The meaning of ‘full’ is to be understood in context: to enable the evaluation of the reasons for the delay. Thus, all relevant information to that end is required.[4] A complete explanation is needed before one turns to consider whether it is a satisfactory explanation.[5]
[2] Walker v Howard [2009] NSWCA 408 (Walker) Allsop P at [104].
[3] Walker Allsop P at [106].
[4] Walker Allsop P at [56].
[5] Laidlaw v Anor v Touma [2002] NSWCA 190 Stein JA at [19].
A satisfactory explanation 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 occurred was reasonably justifiable.[6] There is a substantial spectrum of reasonableness. It is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay.[7] The test does not require a claimant to establish that all reasonable persons within that spectrum would have experienced the same delay. Considerations such as the claimant’s age, life experience and understanding of the claim process are relevant.[8]
[6] Karambelas v Zaknic (No 2) [2014] NSWCA 433 (Karambelas) Meagher JA at [16] and [17].
[7] Russo v Aiello [2001] NSWCA 306 Hodgson JA at [17].
[8] Hunter v Roberts [2019] NSWCA 116 Meagher JA at [20].
SUBMISSIONS
Both parties provided written submissions which are summarised below.
The claimant
The claimant had never made a Compulsory Third Party (CTP) claim and was unaware of the requirement to lodge a claim within three months of the date of accident[9] until she received advice from her solicitor in April 2024.
[9] Smith v Grant [2006] NSWCA 244 at [64].
The claimant’s explanation for the delay is satisfactory because of the following circumstances:
(a) The confusion relating to the jurisdiction of the claim noting the at fault vehicle’s Victorian registration.
(b) Her complete lack of knowledge of the CTP system and the ancillary time limits.
(c) Her lack of experience with workers compensation and motor accidents claims.
(d) Difficulties reporting the accident to the police.[10]
[10] At paragraphs 17 to 20 of statement.
(e) Prioritisation of investigation and treatment of injuries.
(f) The effects of the psychiatric condition such as poor sleep, anxiety, lack of motivation and concentration, and low mood.[11]
(g) The false presumption that her claim would need to be made in the Australian Capital Territory (ACT) noting the at fault vehicle’s registration.[12]
(h) Frustrated attempt to engage Tayscott Lawyers in the ACT, in the wrong jurisdiction.
(i) The difficulty in processing the property damage claim.
(j) The misunderstanding with the State Insurance Regulatory Authority (SIRA).[13]
(k) The frustrating dealings with Prixcar.
(l) The absence of notice provided to the clamant of time limits from the Transport Accident Commission (TAC) senior solicitor, police, SIRA and medical treaters.[14]
(m) Significant workplace difficulties.[15]
(n) The effects of her psychiatric and physical injuries on her ability to balance her role as a mother, a business owner and employee of the same, the need to maintain the running of her business, the contemporaneous workplace difficulties, an injured person attending to her treatment, the property damage claim noting she did not have a vehicle as a consequence of the accident.
[11] At paragraph 37 of statement.
[12] At paragraph 28 of statement.
[13] At paragraph 29 of statement.
[14] At paragraph 10 of statement.
[15] At paragraph 46 of statement.
The claimant says she had to balance her business commitments and her duties as a mother with obtaining treatment for her physical and psychological symptoms. As such, the claimant was forced to cancel earlier appointments with her psychologists. Specifically, her first consult with a psychologist occurred on 17 May 2023, being outside the three-month timeframe. In addition, she was not referred for investigations and treatment for her wrists until May 2024, some 15 months following the motor accident.
Due to the claimant’s commitments, her husband was the main author of the communications including emails annexed to the claimant’s statement.
It is submitted that a reasonable person in the position of the claimant, having required to balance all the variables before her together with her ignorance of the three-month timeframe, would not have managed to lodged the claim within time.
The insurer
The insurer submits that the claimant was made aware of her CTP eligibility by SIRA since 7 March 2023. The claimant, on her own admission states that she only read the first couple of lines at paragraph 28 of her statement.
The claimant was then advised by TAC on 10 March 2023 that the claim would need to be lodged with SIRA and provided the claimant with a claim form.
Having been aware of her CTP eligibility since at least 7 March 2023, the insurer says it is contradictory for the claimant to assert that she was not provided with help or pointed in the right direction.
The insurer says the claimant does not explain why there was nothing done after she was made aware of her CTP eligibility until she saw an advertisement for Slater and Gordon in April 2024.
A reasonable person in the claimant’s position would have acted more promptly in lodging the claim once they became aware of the requirements.
THE EXPLANATION
The claimant’s explanation is aptly summarised in the claimant’s submissions and need not be repeated here. Essentially, the claimant says at no stage was she aware or made aware of any time limits associated with the lodgement of a CTP statutory benefits claim.
The claimant says following the motor accident, she was preoccupied with matters such as attending to her business needs as a self-employed owner/worker, the management of her injuries and her duties as a mother of two teenage sons. She did not seek legal advice until she had continual issues with her hands and that she and her family were financially impacted by the medical bills.
IS THE EXPLANATION FULL?
There is no dispute that the claimant’s explanation, comprised by her two statements dated 8 May 2024 and 7 August 2024, is full.
At the preliminary conference, I indicated that it was my preliminary view that the explanation was full. That remains my view, namely, that the claimant’s explanation is a full account of her conduct, including her actions, knowledge and belief, from the date of the accident until the date of providing the explanation.
Accordingly, the claimant’s explanation is full.
IS THE EXPLANATION SATISFACTORY?
The insurer’s argument at first glance and without consideration of the entirety of the claimant’s circumstances is persuasive. It is true from SIRA’s email that the claimant was made aware of her eligibility to lodge a CTP claim on 7 March 2023, just a couple weeks after the motor accident. It is also true that a few days later, by email on 10 March 2023, the TAC advised the claimant that a claim would need to be lodged with SIRA and a claim form was provided to the claimant. These are accepted facts and are readily conceded by the claimant in her evidence and submissions.
However, there are a number of factors, particular to the claimant, that explain why she delayed making a claim until she contacted a solicitor in April 2024.
First and foremost, there is no challenge to the claimant’s explanation that she was unaware of the existence of any timeframes in which to lodge a claim for statutory benefits until she saw a solicitor in April 2024.
I acknowledge SIRA’s email dated 7 March 2023 refers to the three-month timeframe towards the end of the email, however I accept the claimant’s explanation that she only read the first couple of lines.
It is reasonably justifiable for a person in the claimant’s position to only read the first couple of lines when one examines the circumstances of the claimant at the time. She was confronted with what could be described as a maze of information (and misinformation) from TAC, SIRA and the various bodies associated with the claimant’s property damage claim.
The claimant was first told by SIRA that she should make a claim with TAC. She then lodged a claim with TAC only to be subsequently told that SIRA was the correct body. The first couple of lines from SIRA’s email then refers to the inability of SIRA “to connect the claimant with the insurer of the at fault vehicle as the vehicle is Victorian registered (interstate)”. While this was happening, the claimant was also dealing with her injuries and ensuring her responsibilities as Hotel Manager in her self-employed business and contractual obligations were met.
In my view, there would be a number of persons within the spectrum of reasonable persons in the claimant’s position that would have only read the first couple of lines in SIRA’s email and not made a claim at that time.
Turning now to the insurer’s argument that the claimant, having been made aware of her CTP eligibility in March 2023, failed to provide a satisfactory explanation as to why her claim was not lodged until April 2024.
The claimant’s explanation is contained in her explanation and in the clinical notes and certificate of capacity from her GP, Dr Chan. Dr Chan appears to refer to what he told the claimant about her CTP entitlement when he saw the claimant two days after the motor accident.
The claimant refers to this at paragraph 58 of her further statement:
“Dr Chan noted in the certificate ‘self employed and so was not overly keen for CTP at the time’. At the time I was speaking with the doctor, and he asked about CTP. I knew that I couldn’t’ take time off work as we don’t have any annual leave or sick leave entitlements. If I don’t work, I don’t get paid. I really had no idea about what CTP involved but I was focussed on the fact that I was unable to take time off and thought that if I cannot take time off work at risk of losing our contract, then there is nothing to gain from making a claim. Dr Chan did not give me any advice beyond that, he did not explain what is involved in a CTP Claim. I explained to the Doctor that I was fearful if I had to have time off I wouldn’t have an income.”
The claimant therefore felt “at the time” that she did not wish to lodge a CTP claim. Importantly, I accept that she was not informed of the existence of any strict time limits from the police, her treating doctors or the state insurance bodies (with the exception of the email from SIRA dated 7 March 2023 discussed and addressed above).[16]
[16] At paragraphs 35-38 above.
In the months that followed, the claimant continued to work in her business, manage her physical symptoms and receive psychological treatment. In October 2023, she told her psychologist that work had been very difficult with managing a hotel on her own. She had various staffing issues and was very busy as her business operated from 7.30am-7.00pm, seven days a week. She was also a mother with both her sons exhibiting signs of stress and dropping out of school following the motor accident.
It was not until April 2024, when the financial impact of the claimant’s injuries was realised, namely the claimant’s ongoing issues with her right hand requiring referral to a neurologist for possible surgical treatment, that the claimant took action to see a solicitor.
This is not a case where the claimant, with knowledge of her CTP eligibility, was not occupied with anything else. Following the motor accident to the time she saw a solicitor, she was an owner and worker in what appears to be a very demanding hotel management business while juggling the demands of being a mother with two teenage sons, each with their own issues. This was all while attempting to attend to her own medical appointments and psychological treatment sessions.
In my view and in such circumstances, there would be a number of persons within the spectrum of reasonable persons that would have experienced the same delay in lodging the claim form or to seek legal advice.
Claim for statutory benefits may be made
I find that for the purposes of s 6.13 of the Act, the claimant has given a full and satisfactory explanation for the delay in making a claim for statutory benefits.
Accordingly, the claim for statutory benefits lodged on 2 May 2024 may be made.
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