Wang v QBE Insurance Australia Ltd
[2021] NSWPIC 465
•17 November 2021
| 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three years or more after the motor accident; sections 6.2, 6.25 , 6.26 of the Motor Accident Injuries Act 2017; deemed withdrawn for not providing particulars; whether a full and satisfactory explanation for the failure to provide particulars provided; delay due to COVID-19, difficulty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This dispute is about whether the Claimant can reinstate her claim after it was deemed to have been withdrawn for not providing particulars about the accident to the Insurer.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 practicable, to make a proper assessment of the full entitlement of Na Wang to damages.
In accordance with section 6.26 of the Act, QBE Insurance (Australia) Limited requires you to provide to it all relevant particulars about the claim within 3 months from the date of this direction.”
In a letter dated 29 January 2021 (R 5), the Insurer’s solicitor served on the Claimant two medical reports from Dr George and Dr Bosanquet. Both doctors assessed the Claimant's injuries at a whole person impairment lower than 10%. The letter requested a concession the Claimant's whole person impairment is not greater than 10% and she is not entitled to damages for non-economic loss.
On 11 March 2021 the Claimant’s solicitors replied to the Insurer’s request for particulars, (R 6). The letter detailed the Claimant’s injures, listed her ongoing disabilities and made a claim for future economic loss of $50,000.
On 6 July 2021 the Claimant’s solicitors wrote to the Insurer’s solicitors and served a copy of the report of Dr James Bodel dated 25 February 2021, (R 7). This report assessed the Claimant’s whole person impairment at 19%.
On 16 July 2021 the Insurer’s solicitors wrote to the Claimant’s solicitors stating in part:
“Your client was obliged to respond to our request for particulars by no later than 27 February 2021.Unfortunately, your client responded on 11 March 2021.
Your client's claim is deemed withdrawn on account of the non-compliance pursuant to section 6.26(3) of the Motor Accident Injuries Act 2017 (NSW) ("the Act").
If your client wishes to continue with her claim, she will have to apply to have it reinstated as outlined in section 6.26(7) of the Act. The Act requires a full and satisfactory explanation of the delay from your client and for the expected award of damages to exceed 25% of the maximum award for damages for non-economic loss as at the date of the accident. We calculate this to be $131,750.
We note your client has particularised a claim of $50,000. Accordingly, it does not appear an application for reinstatement of the claim will succeed.”
On 27 July 2021 the Claimant’s solicitors lodged an application for a merit review.
Documents considered
I have considered the documents provided in the application and the reply, statements, medical reports, submissions and any further information provided by the parties.
Statements
In a statement dated 27 September 2021, (AD 2), the Claimant describes:
· her personal circumstances, how the accident occurred and lists her injuries;
· her medical treatment of physiotherapy and psychological from 2018 to 2020;
· in early 2020 the Insurer stopped paying for further medical treatment;
· on 6 October 2020 she was notified that QBE insurance accepted liability for her damages claim;
· underwent MRI scans in 2018 and 2019;
· on 14 and 15 October 2020 attended medical appointments with Dr Graham George and Dr Bosanquet;
· in February 2021, was advised by her solicitors that they were trying to schedule appointments with specialists;
· she received regular updates from her lawyers by email and telephone;
· she was stressed when she was advised that her claim had been withdrawn;
· she understood that her claim was withdrawn for not submitting medical evidence and providing information earlier;
· her lawyers explained that the delay was due to the doctor’s report not being settled;
· the COVID pandemic made it difficult to see her lawyers face to face;
· it was also difficult for her lawyers to schedule an appointment earlier with specialists due to there being a very long waiting time and backlog;
· it was also difficult to provide her lawyers with instructions about details of her immigration status, future employment plans and details on the doctors previously seen;
· English is her second language and has difficulty speaking English and communicating via email;
· she struggled to provide a detailed medical history and relied on her solicitors to obtain relevant records from her treating GP;
· she holds a bridging visa and cannot work in Australia;
· in future she plans to work in Australia;
· she was unfamiliar with the CTP claims process, and
· she relied on her lawyers to look after her claim and get information to the insurance company.
In a statement dated 27 September 2021, (AD 3), the Claimant solicitor states:
· that she has enclosed the chain of correspondence exchanged between her firm and the Insurer’s lawyers;
· she maintained contact with her client remotely by zoom, telephone and email;
· she kept the Claimant updated on the matter and gathered information on her medicals, immigration status, and intentions regarding employment, and
· she emphasised her client’s difficulty in communicating in English and understanding her own matter which hindered her ability to collect and provide the Insurer ’s solicitors with all the necessary information required.
In the Application dated 27 July 2021, (AD 3), the Claimant’s solicitor gave a detailed explanation and chronology of her conduct of the matter and her correspondence with the Insurer and the Insurer’s solicitors. The solicitor states :
· she describes in detail trying to make specialist medical appointments for her client to be medically examined;
· receiving the medical reports of Dr George and Dr Bosanquet and then the delay and waiting to obtain her own medical evidence;
· the delay in late February 2021 in accessing and lodging material in the PIC Portal;
· she describes in detail the exchange of numerous emails and letters between her firm and the Insurer’s solicitors from March to July 2021, and
· she then refers to the letter from the Insurer’s solicitors dated 16 July 2021 deeming the claim as withdrawn.
In the Application dated 27 July 2021, (AD 3, page 10 ), the Claimant’s solicitor gave the following explanation for the delay :
“We furthermore acknowledge and provide by way of an explanation the reason for the delay in providing the particulars by the required date was due to the Covid 19 Pandemic, which had caused delay and pause in progressing the matter. There have been extensive interruptions in providing particulars under the circumstances of being unable to liaise with experts, arranging face to face appointments with medical professionals, to allow for assessment of our client’s condition and provision of particulars based on the report and findings of such assessments.
It would have been prejudicial to our client to provide you with particulars by the due date based on premature and incomplete medical reports.
Furthermore, due to the above delays, there was a delay in obtaining our client’s medical files, and of critical importance, Dr Bodel’s report dated 25 February 2021 was served on us 21 June 2021, which assisted in crystalising our client’s level of injury and condition.”
Submissions
The Claimant’s counsel made written submissions dated 6 October 2021 for reinstatement of the claim, (AD 4). Those written submissions included the following arguments:
· the Claimant says that her claim is not deemed to have been withdrawn under the MAI Act. In the alternative, the Claimant says that her claim should be reinstated;
· at no stage has the Insurer identified what ‘relevant particulars’ have not been provided such that they could properly issue a notice to the Claimant under section 6.26 to provide ‘those particulars’. That failure is fatal, with the consequence that the insurer was not entitled to have deemed the claim to have been withdrawn;
· it is inappropriate for an insurer to state, in general terms, that a claimant has not provided ‘relevant particulars’ and leave it to the claimant to ascertain what is missing;
· no criticism can be made of the Claimant, much less it be said they have failed to provide ‘relevant particulars’;
· there were numerous difficulties associated with providing the particulars, including the situation created by COVID, with those problems compounded by the claimant’s limited command of English, and inability to obtain medical evidence;
· it was entirely reasonable for the Claimant to have relied on her solicitors to take steps to obtain the information necessary to provide what they thought might be the ‘relevant particulars’ referred to by the Insurer. Given that reliance, a reasonable person in her position, in particular given her personal circumstances, would have experienced the same delay;
· determining the damages threshold is a predictive exercise which asks whether the total damages of all kinds likely to be awarded will exceed the threshold. It is based on a preliminary enquiry involving a cursory assessment of the available material (from Rahman v Al-Maharmeh [2021] NSWCA 31 at [47] );
· based on the report of Dr Bodel, who assessed the Claimant’s whole person impairment greater than 10%,the Claimant would likely be entitled to non-economic loss and damages higher than 25% of the maximum amount that may be awarded for non-economic loss, and
· in conclusion, the Claimant’s claim was improperly deemed to have been withdrawn. In the alternative, the Claimant says that her claim should be reinstated as she has provided a full and satisfactory explanation for the delay and is likely to recover damages more than 25% of the maximum amount which may be awarded for non-economic loss as at the date of the accident.
The Insurer’s solicitors made written submissions dated 15 May 2018 opposing the reinstatement application, (R 1). Those written submissions included the following arguments:
· the Insurer opposes the application to reinstate the claim because the Claimant cannot satisfy the requirements for reinstatement set out in section 6.26(3);
· the Insurer submits the likely award of damages under section 6.26(3)(b) is not likely to exceed $131,750 because the Claimant is not entitled to damages for non-economic loss and has not sustained any economic loss;
· there is no claim for past economic loss. The Claimant had not lost income because of the accident;
· the Claimant claimed future economic loss totalling $50,000 in her particulars dated 11 March 2021. But this claim is contrary to the evidence that the Claimant never intended to work as she has a bridging visa not allowing her to work;
· the Claimant's solicitors provide submissions but no real explanation as to why particulars were not provided in time;
· the Claimant has not provided a full and satisfactory explanation for the failure to provide particulars as required by section 6.26(3);
· whether or not the Claimant is entitled to damages for non-economic loss will likely be determinative in this application, and
· the Insurer submits that a fair resolution of the application to reinstate the claim can only be made once the Claimant's whole person impairment is either agreed between the parties or determined by the Personal Injury Commission.
The Insurer’s solicitors made further written submissions dated 21 October 2021 opposing the reinstatement application and making submissions on legal costs, (AD 6). Those written submissions included the following arguments:
· the Member must make a finding that there has been no full or satisfactory explanation for the delay in responding to the Insurer's section 6.26 notice;
· the Claimant and her solicitor failed to identify what action they took and when they took it in respect of the section 6.26 notice;
· it is not clear when the Claimant and her solicitor conducted conferences to discuss the section 6.26 notice;
· there is no explanation of the Claimant, or her solicitor's, 'knowledge and beliefs' about the section 6.26 notice;
· there is mention of the COVID-19 pandemic causing issues and waiting for the report from Dr Bodel to be completed;
· the Claimant is not entitled to damages for non-economic loss which must be determined by the Personal injury Commission;
· if the Claimant were to be found to be entitled to damages for non-economic loss, the Insurer concedes any such award would likely exceed $100,000;
· section 4.7 of the MAI Act requires any award of future economic loss be based on the Claimant's 'most likely future circumstances but for the injury';
· the Insurer submits the evidence before the Member indicates the Claimant's most likely circumstances but for the accident were not work because of her visa or live off her savings or be supported by others, and
· regarding legal costs, the Insurer submits there is nothing in this dispute that causes it to be any different from any other dispute about a deemed withdrawal. In the circumstances, the Claimant's application for an 'exceptional' costs order pursuant to section 8.10(4) of the MAI Act should be rejected.
The Claimant’s solicitor sent an email to the Personal Injury Commission Portal dated 5 November 2021. This email referred to counsel’s further submissions. The email submitted in part:
“Counsel has asked that we draw to your attention, for the purpose of the current application, to the decision of Smith v Grant [2006] NSWCA 244, in particular the observations of Basten JA at [60] where his Honour said:
‘Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51 at [22] (Beazley JA, Tobias JA agreeing) in relation to the 1999 Act.’”
Legislation
Section 6.25 of the MAI Act imposes an obligation on a claimant to provide an insurer with all relevant particulars about the claim as expeditiously as possible after the claim is made. The particulars must be sufficient to enable an insurer to make a proper assessment of a claimant’s full entitlement to damages.
Under section 6.26 of the MAI Act, a claim can be reinstated if the court or the Commission is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars and if total damages likely to be awarded to the claimant are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13.
Under section 4.13 the maximum amount that a court may award for non-economic loss is $521,000 as adjusted or indexed by section 4.22.
Section 6.26 of the MAI Act provides as follows:
“6.26 Consequences of failure to provide relevant particulars of claim for damages
cf s 85B MACA)(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
(b) to a court of competent jurisdiction for a claim that is exempt from assessment under Division 7.6.
(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) If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Commission is satisfied that—
(a) the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13 as at the date of the motor accident.
(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.”
The meaning of “full and satisfactory” is set out in section 6.2 of the MAI Act as:
“6.2 Meaning of ‘full and satisfactory explanation’ by claimant (cf s 66 MACA)
(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.”
Reasons
Having briefly referred to the legislation I will now briefly consider some of the relevant case law about a full and satisfactory explanation. I will then consider whether the requirements of sections 6.2 and 6.26(7) have been met.
Consideration of relevant case law on full and satisfactory
Under the first limb of sub-section 6.26(7)(a) the claimant has to give a full and satisfactory explanation for the failure to provide the required particulars.
“Full and satisfactory” is defined in section 6.2 and there is considerable case law about the meaning of the phrase.
In the NSW Court of Appeal in Karambelas v Zaknic (No. 2) [2014] NSWCA 433, Justice Meagher (with whom Basten and Simpson JJA agreed) discussed the meaning of "full and satisfactory" at [16]:
“An explanation is ‘full and satisfactory’ within s 66(2) if it satisfies two requirements. First, it must include 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’. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant ‘would have been justified in experiencing the same delay’. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer.”
In Walker v Howard [2009] NSWCA 408 at [104], Justice Allsop stated: “The provision does not call for perfection, or … for prolix or burdensome recounting of every moment that has elapsed.”
In the recent decision of Rahman v Al-Maharmeh [2021] NSWCA 31 (Rahman) Brereton JA at [39] states:
“While the ‘full account of the conduct’ referred to in the first sentence of s 66(2)MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include ‘the actions, knowledge and belief’ of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant’s delay in commencing proceedings.”
In respect to whether the explanation is “satisfactory” Brereton JA in Rahman states at [43]:
“As to the test of a ‘satisfactory’ explanation, it suffices that some reasonable persons in the claimant’s position would have experienced the same delay as the claimant. [12] As Meagher JA explained in Hunter v Roberts: [13]
‘The relevant test directs attention to whether a hypothetical reasonable person “in the [applicant’s] position” would have experienced the same delay. Here that delay was a period of 4 months and 14 days from 28 September 2013. As Hodgson JA (dissenting in the result) emphasised in Russo v Aiello [2001] NSWCA 306 at [17] there is “a substantial spectrum of reasonableness” and accordingly “it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay”. The test does not require a claimant to establish that all “reasonable” persons within that spectrum would have experienced the same delay.’
The next issues I will consider are whether the explanation offered by the Claimant in this case was “full and satisfactory”.
Is the explanation full?
The first step to consider is whether the explanation offered by the Claimant and her solicitors was full.
Sections 6.2 require that the Claimant and her solicitors provide a full and satisfactory explanation for the delay in supplying the particulars. The legislation requires that a “full” account must include an account of the conduct, actions, knowledge and belief of the claimant.
The meaning of “full” in a previous version of the MAI Act, was considered by Gleeson CJ in Russo v Aiello [2003] HCA 53. Referring to the concept of a “full and satisfactory explanation” in the Motor Accidents Act 1988, his Honour stated at [4]: “The word ‘full’ takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant.”
In its submissions, (R1 and AD 6), the Insurer makes succinct and well-argued submissions as to why it says the explanation provided by the Claimant is not full.
The Insurer submits that the explanation offered is not full. The Claimant and her solicitor failed to identify what action they took and when they took. There is no detail of when the Claimant and her solicitor conducted conferences to discuss the section 6.26 notice. There is no explanation of the Claimant, or her solicitor's, 'knowledge and beliefs' about the section 6.26 notice.
There is a statement from the Claimant giving an account of her conduct, actions, knowledge and belief for the delay in responding to the Insurer’s request for particulars. There is also a statement and detailed explanation in the application made by her solicitors. The explanation offered for the delay in the response in these statements is that it was attributable to a number of factors including: failure of the Insurer to identify what ‘relevant particulars’ have not been provided; English language barriers, the COVID outbreak; difficulty getting instructions; difficulty in getting medical appointments and reports; difficulty in getting the GP records, and the delay in getting an appointment and a crucial report from Dr Bodel.
Is the explanation satisfactory?
Section 6.2 requires that the Claimant provide a full and satisfactory explanation for the delay in provide the required particulars. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
The concept of a reasonable person in the position of the claimant was considered by Mason P in Buller v Black [2003] NSWCA 45. Referring to a similar provision in the Motor Accidents Act 1988, he said at [61]:
“Section 43A precedes on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness; not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”
In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA stated:
“[19] 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 at [17].”
In its submissions, (R 1 and AD 6), the Insurer says the explanation provided by the Claimant is not satisfactory.
The Insurer submits that the explanation offered is not “satisfactory” because the Claimant and her solicitor’s explanation for the delay, in seeking instructions from the Claimant being due to COVID and the difficulty in getting medical evidence, is not a satisfactory explanation.
There is a statement from the Claimant giving an explanation which could support a finding that a reasonable person in the position of the Claimant would have been justified in experiencing the same delay. There is also a statement and a submission made on her behalf by her solicitors. Their explanation is that due to the COVID outbreak it was difficult to get instructions from the Claimant. The COVID outbreak also prevented the solicitors from completing their gathering of medical evidence and getting appointments and reports from medical assessors.
Is the Claimant’s solicitors explanation for the delay a “satisfactory” explanation? Would a reasonable person in the position of the Claimant been justified in experiencing the same delay? The relevant test is whether a hypothetical reasonable person in the Claimant’s position would have experienced the same delay. The test does not require a claimant to establish that all “reasonable” persons within “a substantial spectrum of reasonableness” would have experienced the same delay. (See Rahman v Al-Maharmeh [2021] NSWCA 31 and Russo v Aiello [2001] NSWCA 306.)
Conclusion on full and satisfactory
After carefully considering the available evidence and submissions, I am satisfied that the Claimant has a full and satisfactory explanation for the delay in replying to the Insurer’s request for particulars. I base my findings on the effect of the COVID crisis which resulted in the Claimant’s solicitors having difficulty in obtaining instructions from the Claimant and gathering medical evidence and getting appointments and reports from medical assessors. Without this evidence a full and complete response to the Insurer’s request for particulars could not be given. I note and have taken into consideration the Insurer’s submissions that there are a number of unexplained gaps, in the Claimant’s explanation of her actions, 'knowledge and beliefs' for her delay that were not addressed in the Claimant’s statements or submissions. Despite the failures highlighted by the Insurer’s submissions, the required standard is reasonableness, not perfection. It is the reasonableness of a person placed in the actual position of the particular claimant. In this case the Claimant acted reasonably given her language difficulties and the delay caused by the COVID outbreak which in turn made it difficult for her solicitors to obtain medical records and reports form medical experts.
I note the submission from the Claimant’s counsel dated 5 November 2021 to the effect that a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. I am unsure whether counsel was submitting that his instructing solicitors may have been negligent in their conduct or advice given to the Claimant in this case. I do not make any such finding nor do I rely on this submission as a reason or explanation for the Claimant or her solicitor’s delay in providing particulars in this case.
I also note that in written submissions, Claimant’s counsel argues that at no stage has the Insurer identified what ‘relevant particulars’ have not been provided such that they could properly issue a notice to the Claimant under section 6.26 to provide ‘those particulars’. The Claimant’s counsel argues that her claim was improperly deemed to have been withdrawn. Whilst there is merit in the submissions made by the Claimant’s counsel, I find it unnecessary to decide this point. This is because of my other findings in favour of reinstatement and also because I did not have before me all of the correspondence and evidence of communications between the Insurer and the Claimant’s solicitors.
Damages that may be awarded
Under the second limb of sub-section 6.26(7)(b) the Commission has to be satisfied that the total damages of all kinds likely to be awarded to the Claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss.
I note that there is a wide divergence in the available evidence, schedules and submissions about the extent of the Claimant’s injuries, the degree of her whole person impairment and the likely amount of damages that may be awarded to the Claimant.
The Insurer relies on the reports of psychiatrist Dr George dated 20 October 2020, (R 10) and orthopaedic surgeon Dr Bosanquet dated 17 November 2020 (R 11). Dr George’s report finds that the Claimant does not have a diagnosed psychiatric injury, there is no recommendation for ongoing treatment and she is fit for employment and normal domestic duties. The report from Dr Bosanquet diagnosed the Claimant with a whiplash injury to her cervical and lumbar spine where there are minor underlying degenerative changes. Given her age, these should resolve completely with time. Dr Bosanquet finds that the Claimant has the capacity to work full time with some restriction. He concludes that as a result of the motor accident the Claimant has a 3% whole person impairment.
Regarding the amount of damages, the Insurer submits that the Member would not be satisfied that the total damages that may be awarded to the claimant would exceed $131,750, (R 1).
The Claimant relies on a report by Dr Bodel. In a report dated 25 February 2021, (A 1), Dr Bodel assess that the Claimant has 19% whole person impairment that was caused by the accident. The Claimant’s solicitors claim in their schedule of damages an amount totalling $951,850. This figure comprises of $380,000 for non-economic loss, $500,000 for future economic loss, $71,850 for future superannuation. No claim is made for past economic loss as the Claimant has not worked while in Australia.
Having considered the medical evidence, submissions, schedule and the issue of the total amount of damages that may be awarded, I find that under sub-section 6.26(7)(b) I am satisfied that the total damages of all kinds are likely to be awarded to the Claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 4.13.
In reaching this conclusion about the medical evidence and the threshold, I have taken into account the reasoning of Brereton JA in Rahman v Al-Maharmeh [2021] NSWCA 31 at [47] and [49]. There His Honour stated the Court is required to predict whether the damages likely to be recovered will exceed the threshold. The Court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports arguably favourable to the insurer but contradicted by the claimant’s medical evidence.
Taking into account the evidence of Dr George, Dr Bosanquet and the contrary evidence of Dr Bodel that the WPI is 19%, I find the damages likely to be recovered by the Claimant in this case will exceed the threshold.
Conclusion
As I have found that both limbs of sub-section 6.26(7) have been satisfied the claim is to be reinstated.
Legal costs
In view of my findings and conclusions, I will assess legal costs in favour of the Claimant.
Section 8.3 of the MAI Act provides for the fixing of maximum costs recoverable by Australian legal practitioners. Sub-section 8.10(1) provides that a claimant for statutory benefits is (subject to that section) entitled to recover from the insurer ‘reasonable and necessary’ costs in connection with the claim. This is qualified by sub-sections (3) and (4) which provide that the recovery of costs is allowed if payment is permitted by the Regulations or the Commission, if satisfied that the claimant is under a legal disability or exceptional circumstances exist.
An interesting aspect of the assessment of legal costs in this case is that it may be argued that it contains two aspects. The dispute before me is miscellaneous claims assessment matter and also a merit review.
Under schedule 2 sub-clause 3 (h) of the MAI Act, a full and satisfactory explanation for non-compliance with a duty or for delay, is declared to be miscellaneous claims assessment matter for the purposes of Part 7 of the MAI Act.
Under schedule 2 sub-clause 1 (y) of the MAI Act, whether the claimant has provided the insurer with all relevant particulars about a claim in accordance with section 6.25, is declared to be a merit review matter for the purposes of Part 7 of the Act.
Under schedule 1 sub-clause 3 (1) of the Motor Accident Injuries Regulation 2017 (the Regulation), the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units. Whether the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay under Part 6, is included in the definition of regulated miscellaneous claims assessment by schedule 1 sub-clauses 3 (1) and (2) (h).
Accordingly, in this dispute I can award legal costs up to 16 monetary units. Schedule 3 provides a definition of a monetary units and for an adjustment of maximum costs and fees for inflation.
Applying my discretion and experience, I consider it appropriate to allow legal costs of $1,000 (plus GST) payable by the Insurer to the Claimant.
I note that the Claimant’s solicitors applied for exceptional legal costs.
The Claimant’s counsel submitted that legal costs should be awarded on “exceptional circumstances” basis under sub-section 8.10 (4) of the MAI Act, (AD 5).
The Claimant’s counsel submits that the failure by the Insurer to have actually requested specific particulars of her and then take the position they have, makes this dispute exceptional. The Insurer’s position has necessitated the Claimant trying to ascertain what particulars were outstanding then try and satisfy that uncertain request. Also noting the Claimant’s language difficulties and situation created by COVID greatly complicated her complying with what was already a vague and uncertain request.
The Insurer submits that legal costs should not be awarded as exceptional circumstances do not exist in this case, (AD 6). The Insurer argues that there is nothing in this dispute that causes it to be any different from any other dispute about a deemed withdrawal. In the circumstances, the Claimant's application for an 'exceptional' costs order pursuant to section 8.10(4) of the MAI Act should be rejected.
Following Wright J in AAI Ltd trading as GIO v Moon [2020] NSWSC 714 at [99-103] and Campbell JA in San v Rumble (No. 2) [2007] NSWCA 259 at [67], I do not find that exceptional circumstances exist in this dispute that would justify the award of legal costs in this case. I agree with the Insurer’s argument that there is nothing in this dispute that causes it to be any different from any other dispute about a deemed withdrawal. In my view this present dispute does not involve any exceptional circumstances or unusual degree of complexity which would justify a finding that legal costs should be awarded.
Accordingly, I allow costs in the amount of $1,000 (plus GST) totalling $1,100 in respect of the application for a reinstatement made three years or more after the date of the motor accident made pursuant to section 6.26 of the MAI Act.
Ray Plibersek
Member (Motor Accidents Division)
Personal Injury Commission
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