Wang v QBE Insurance Australia Ltd - [2021] NSWPIC 465

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wang v QBE Insurance Australia Ltd [2021] NSWPIC 465
CLAIMANT:	Na Wang
INSURER:	QBE Insurance Australia Ltd
MEMBER:	Ray Plibersek
DATE OF DECISION:	17 November 2021
CATCHWORDS:	MOTOR ACCIDENTS - Application for reinstatement; failure to provide relevant particulars; three years or more after the motor accident; sections 6.2, 6.25 , 6.26 of the Motor Accident Injuries Act 2017; deemed withdrawn for not providing particulars; whether a full and satisfactory explanation for the failure to provide particulars provided; delay due to COVID-19, difficulty in obtaining medical evidence; solicitors difficulty in seeking instructions; Held - claimant has a full and satisfactory explanation for the delay in replying to the Insurer’s request for particulars; both limbs of sub-section 6.26(7) satisfied, claim is reinstated; regulated legal costs awarded, no “exceptional circumstances”.
DETERMINATIONS MADE:	1. The claim the subject of this application should be reinstated. 2. This determination takes effect on 17 November 2021. 3. Insurer to pay the Claimant’s legal costs assessed at $1,000 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under sub-section 7.13(4) of the Motor Accident Injuries Act2017
Background

This determination relates to an application for reinstatement made three years or more after the date of the motor accident made pursuant to section 6.26 of the Motor Accident Injuries Act2017 (the MAI Act).

Na Wang, (the Claimant) was injured in a motor accident on 15 May 2018.
The Claimant was driving her car in Strathfield at about 6.40 am at about 70 to 80 km per hour when her car was hit from behind. Both cars were drivable and neither police nor ambulance attended the accident.
This dispute is about whether the Claimant can reinstate her claim after it was deemed to have been withdrawn for not providing particulars about the accident to the Insurer.
On 24 March 2018 the Claimant made an application for personal injury benefits.
On 6 October 2020 liability for the accident was admitted by the Insurer.
By email dated 27 November 2020, the Insurer’s solicitors wrote to both the Claimant and her solicitors. These emails stated that the claim has not been particularised pursuant to section 6.25 of the MAI Act and attached a section 6.26 notice, (R 3,4 and 5).
The Direction was issued under section 6.26 of the MAI Act, (R 5). The Direction stated in part:
“Section 6.25 of the Act says that Na Wang must provide QBE Insurance (Australia) Limited with all relevant particulars about her claim as expeditiously as possible after the claim is made.
Relevant particulars about a claim are defined by section 6.25(2) as full details of:
(a)     the motor accident concerned, and
(b)     the injuries sustained by Na Wang in the motor accident, and
(b)     all disabilities and impairments arising from those injuries, and
(c)     any economic losses and other losses that are being claimed as damages, sufficient to enable QBE Insurance (Australia) Limited, as far as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 465
Decision Date: 17 November 2021

CaseChat Overview and Summary

In Wang v QBE Insurance Australia Ltd, the dispute arose from an application by the claimant for the reinstatement of a claim under the Motor Accident Injuries Act 2017. The claimant had initially lodged a claim for compensation following a motor accident but failed to provide requested particulars within the stipulated timeframe. Consequently, the insurer deemed the claim withdrawn. The claimant sought reinstatement of the claim, citing delays due to the COVID-19 pandemic, difficulties in obtaining medical evidence, and issues with solicitors seeking instructions.

The central legal issue was whether the claimant provided a full and satisfactory explanation for the delay in providing the particulars and whether the delay was due to exceptional circumstances. The court had to interpret sections 6.2, 6.25, and 6.26 of the Motor Accident Injuries Act 2017, particularly focusing on the requirements for reinstatement of a claim deemed withdrawn for failure to provide particulars. The court examined whether both limbs of sub-section 6.26(7) were satisfied, which require both a full and satisfactory explanation for the delay and the absence of exceptional circumstances.

The court found that the claimant had provided a full and satisfactory explanation for the delay, considering the impact of COVID-19 and the difficulties encountered in obtaining medical evidence and instructions from the claimant. The court concluded that the delay was not due to exceptional circumstances and that both limbs of sub-section 6.26(7) were met. Consequently, the court reinstated the claimant's claim and awarded regulated legal costs. The court determined that there were no exceptional circumstances warranting a deviation from the standard cost recovery principles.

Orders