Visser-Lewis v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 578
•20 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Visser-Lewis v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 578 |
| Claimant: | Kieran Visser-Lewis |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 20 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claims assessment application; where the application has been referred to the Personal Injury Commission (Commission) for assessment more than 3 years after the motor accident; the application was made about three and half months late; administrative oversight in lodging the application on time; outstanding medical assessment dispute; whether the claimant has provided a full and satisfactory explanation for the delay for the purposes of section 7.33 of the Motor Accident Injuries Act 2017 (2017 Act); meaning of “full and satisfactory explanation” in the context of section 7.33 under Part 7 of the 2017 Act; whether leave should be granted by the Commission; Held – for the purposes of section 7.33 of the 2017 Act the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment; leave granted for the claim to be referred for assessment. |
ORDERS made: | 1. The claimant is granted leave to refer his claim for assessment by the Commission. |
| DIRECTIONS MADE: | 2. The matter is adjourned to a teleconference on 17 February 2023 at 10.30am to await the outcome of the medical assessment and to determine whether it is ready to be set down for an assessment conference. |
INTRODUCTION
The claimant, Kieran Visser-Lewis, is a 23-year-old man who suffered injuries in a motor accident on 11 July 2018. The claimant was travelling as a front-seat passenger in a truck which collided with the rear of a stationary truck on Vanessa Street, Kingsgrove.
On 7 August 2020, the claimant made a claim for common law damages with the insurer.
On 11 September 2020, the insurer admitted liability for the claim.
PROCEDURAL ISSUE
On 27 October 2021, the claimant applied to have his claim for common law damages referred to the Personal Injury Commission (the Commission) for assessment pursuant to s 7.32(1) of the Motor Accident Injuries Act2017 (the MAI Act).
The referral was about three and a half months outside the time permitted for referral under s 7.33 of the MAI Act.
Section 7.33 of the MAI Act provides that a party cannot refer a claim for assessment more than three years after the date of the motor accident 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.
ORDERS SOUGHT BY THE CLAIMANT
The claimant seeks leave from the Commission for his claim to be referred for assessment.
The claimant also seeks a direction that his claim be referred to the stood over list pursuant to cl 10(a) of Procedural Direction MAI1, pending the conclusion of a medical assessment of his permanent impairment by the Commission.
In support of his application seeking leave and by way of a full and satisfactory explanation, the claimant relies on written submissions from his legal representatives, dated 26 October 2021 and 23 March 2022.
THE INSURER’S POSITION
The insurer submits it is a matter for the Commission to grant leave for the claim to be referred for assessment. However, the insurer says that the claimant’s submissions do not constitute a full and satisfactory explanation for the delay.
The insurer also submits that in light of cl 10(a) of Procedural MAI 1, it was not necessary for the claimant to wait until the whole person impairment assessment in order to lodge an application for assessment of damages. The path was open to the claimant to lodge that application and apply to have the matter placed in the Stood Over List in order for the claimant to undergo the medical assessment.
STEPS TAKEN BY THE CLAIMANT TO PROGRESS HIS CLAIM FOR DAMAGES
On 2 September 2020, the claimant was assessed by orthopaedic surgeon, Dr Eugene Gehr. Dr Gehr issued a report on the same day.
Dr Gehr found that the claimant’s physical injuries gave rise to a whole person impairment of 11%.
On 30 September 2020, the insurer requested particulars of the claimant’s claim.
On 24 November 2020, the claimant was assessed by an occupational and environmental physician, Dr Thomas Rosenthal on behalf of the insurer. Dr Rosenthal provided a report on 25 November 2020.
Dr Rosenthal found that the claimant’s physical injuries gave rise to a whole person impairment of 4%.
Although not entirely clear from the claimant’s submissions, it appears that the insurer served the report of Dr Rosenthal on or shortly after 25 November 2020 and proceeded on the basis that the claimant’s degree of permanent impairment was not greater than 10%.
On 1 December 2020, after some administrative delays, the claimant served the report of Dr Gehr, with a request to the insurer to concede that the claimant’s degree of permanent impairment is greater than 10%.
In the absence of a response from the insurer, on 15 January 2021, the claimant sought an internal review of the insurer’s decision. On 5 February 2021, the insurer notified the claimant that the insurer maintained its original decision.
On 15 February 2021, the claimant lodged an application with the Commission for a medical assessment of the permanent impairment dispute.
On 24 February 2021, the claimant provided his response to the insurer’s request for particulars made on 30 September 2020.
The claimant was scheduled by the Commission to attend a medical assessment with Medical Assessor Peter Giblin on 17 August 2021. The appointment was postponed to 22 November 2021 as a result of the Covid-19 pandemic. On that occasion, the claimant was unable to attend the assessment. As an unvaccinated person, he did not meet the Commission’s Covid-19 vaccination protocol that was in force at the time.
The claimant is now due to attend a medical assessment with Medical Assessor Herald on 6 December 2022.
DISCUSSION
Section 7.33 of the MAI Act provides that a party to a claim cannot refer a claim for assessment by the Commission more than three 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.
In the present case, the three-year anniversary of the motor accident occurred on 11 July 2021.The application to refer the claim for assessment was therefore lodged about three and half months late.
Section 7.33 is found in Part 7 of the MAI Act. Part 7 deals with “Dispute Resolution”. The phrase ‘full and satisfactory explanation’ is not defined in Part 7.
Part 6 of the MAI Act deals with “Motor Accident Claims” and relevantly sets out the duties of a claimant in making a claim (including making a late claim) and the duties of the insurer in handling a claim.
A meaning for the phrase ‘full and satisfactory explanation’ by a ‘claimant’ is found in s 6.2 in Part 6 of the MAI Act. Section 6.2 however, expressly stipulates that the meaning of the phrase is “for the purposes of this Part”, that is, Part 6 of the MAI Act.
I am therefore not persuaded that the meaning given to the phrase ‘full and satisfactory explanation’ under Part 6 should be applied when considering a party’s explanation for the delay for the purpose of s 7.33 of the MAI Act, under Part 7 of the MAI Act.
Different considerations apply to obligations for making a claim for damages on time and referring a claim for damages for assessment on time.
The duty to make a claim on time rests solely with a claimant. Thus, any delay in making the claim requires the claimant to provide 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”[1] and “the explanation is not satisfactory 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.”[2]
[1] Section 6.2(1) of the MAI Act.
[2] Section 6.2(2) of the MAI Act.
Under Part 7, either a claimant or an insurer, as a party to a claim, may refer the claim for assessment. If the referral is more than three years from the date of the accident, the party who makes the application is required to provide a “full and satisfactory explanation” for the delay.
I find that the enquiry about whether there is a “full and satisfactory explanation” for the delay in referring a claim for assessment for the purposes of s 7.33 is contained within Part 7 itself. I consider that the enquiry is informed by the referring party’s actions in compliance with s 7.32(3) of the MAI Act. The period of enquiry should be from the date that a claimant is eligible to make his or her claim for damages to the date of referral of the claim for assessment.
Section 7.32(3) of the MAI Act provides that parties to a claim must use their best endeavours to settle the claim before referring it for assessment by the Commission.
According to s 6.14(1) of the MAI Act, a claim for damages cannot be made before the expiration of 20 months after the motor accident unless the claim is in respect of injury resulting in a degree of permanent impairment that is greater than 10%.
In the present case, the insurer did not at any stage concede the permanent impairment threshold. Therefore, by virtue of s 6.14(1), the claimant could not have commenced his claim for damages until 11 March 2020.
The period of enquiry is therefore from 11 March 2020 to 27 October 2021.
From the material before me, it appears that the claim for damages was prepared in July 2020 and lodged with the insurer on 7 August 2020. In my view, the claim was made reasonably soon after the claimant became eligible to lodge the claim.
Considering all the subsequent steps taken by the claimant that I have outlined, I am of the view that the claimant has used his best endeavours to progress his claim towards a settlement before referring it for assessment by the Commission.
The claimant’s legal representatives acknowledged that due to an administrative oversight, the claimant’s application to refer his claim for assessment, was not made until 27 October 2021. I accept that explanation. Ultimately, the delay in the lodgement of the application for assessment caused by the oversight was immaterial because the medical dispute is still on foot and the application to resolve that dispute was lodged within the three-year limitation period on 15 February 2021.
In my view, there is no practical utility in pursuing a settlement of the claim until the medical assessment dispute is concluded.
Subject to the outcome of the medical dispute and the service of any refresher medical evidence and updated particulars of economic loss, it is apparent that the claimant has completed all necessary steps to have his claim ready for settlement or assessment.
I consider that the claimant has acted reasonably in making, preparing and advancing his claim towards a resolution, within the short window of time allowed to him to do so by the MAI Act.
CONCLUSION
I am required to determine whether the claimant has provided a full and satisfactory explanation for delay and, if so, whether I should exercise my discretion to refer the claim for assessment.
I am satisfied that, for the purposes of s 7.32(3), the claimant has acted reasonably to progress his claim to a resolution prior to making his application to the Commission to refer his claim for assessment. I am satisfied that, for the purposes of s 7.33, the claimant has provided a full and satisfactory explanation for the delay in referring his claim for assessment.
Having regard to ss 1.3(4) and (5) of the MAI Act, s 4(2) and s 42 of the Personal Injury Commission Act2020, I am satisfied that I should grant the claimant leave to refer his claim for assessment.
ORDER
The claimant is granted leave to refer his claim for assessment by the Commission.
DIRECTION
I note that the medical assessment with Medical Assessor Herald is due to take place on 6 December 2022. In order to progress the matter to an assessment conference, I consider that it is more appropriate to list it for a teleconference early next year rather than referring it to the Stood Over List.
I therefore adjourn the matter to a teleconference on 17 February 2023 at 10.30am to await the outcome of the medical assessment and to determine whether it is ready to be set down for an assessment conference.
0
0
0