Williams v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williams v QBE Insurance (Australia) Limited [2022] NSWPIC 164
CLAIMANT:	Tracy Lee Williams
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Shana Radnan
DATE OF DECISION:	6 April 2022
CATCHWORDS:	MOTOR ACCIDENTS - Claims assessment; claim referred to the Personal Injury Commission (Commission) more than 3 years after the motor accident; whether the claimant has provided a full and satisfactory explanation for the delay; whether leave should be granted by the Commission; operation of section 7.33 of the Motor Accident Injuries Act 2017 (MAI Act); meaning of ‘full and satisfactory explanation’ where the term is defined for the purposes of Part 6 of the MAI Act but not Part 7;  comparison with provisions in the Motor Accidents Compensation Act 1999 (1999 Act); applicability of authorities addressing 1999 Act provisions relating to ‘full and satisfactory explanation; application for referral to the stood over list; Held- for the purposes of section 7.33 of the MAI 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.
DETERMINATIONS MADE:	1. For the purposes of section 7.33 of the Motor Accident Injuries Act 2017 the claimant has provided a full and satisfactory explanation for the delay in referring the claim for assessment. 2. The Personal Injury Commission grants leave for the claim to be referred for assessment.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

Tracy Lee Williams (the claimant) was involved in a motor accident on 22 January 2018. Having previously submitted an application for statutory benefits, on 12 November 2019 the claimant submitted an application for damages to QBE Insurance (the insurer). The insurer accepted liability for the claim for damages on 6 February 2020. The claimant submitted an application for the assessment of damages to the Personal Injury Commission (the Commission) on 24 February 2022, more than three years after the date of the accident. In the application the claimant seeks leave for the claim to be referred for assessment.
Pursuant to s 7.33 of the Motor Accidents Injury Act 2017 (MAI Act) the claimant must provide a full and satisfactory explanation for the delay in referring the claim for assessment to the Commission. She also requires leave from the Commission before her claim can be referred for assessment.
The parties agree that the application can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act2020 and Procedural Direction PIC2, I find that the application can be determined on the papers. I am satisfied that sufficient information is available in connection with application to allow me to determine the application.

Relevant statutory provisions

The claimant seeks leave from the Commission for the claim to be referred for assessment in accordance with s 7.33, which is in the following terms:
“7.33 Time limits for referring claims and making assessment (cf s 91 MACA)
A party to a claim cannot refer a claim for assessment under this Division more than 3 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.”

Section 6.2 is relevant to this determination for reasons addressed later in this decision. The section is in the following terms:
“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.”

Evidence

In support of her application the claimant relies upon her statutory declaration dated 23 February 2022 (A2) and a statement from her solicitor, Mark Joseph Mulock, dated 22 February 2022.
Mr Mulock the claimant’s solicitor explains that the claimant first attended upon him on 30 May 2018. The claim form was submitted to the insurer on or about 6 February 2018. He detailed the attendances and the difficulties obtaining treating doctor’s clinical records at first instance from Dr Bill Moss.
The claimant also experienced significant difficulties obtaining the records from her doctor.
Despite numerous attendances by the claimant and calls from the secretarial staff to the medical practice, the notes were not released until a further two authorities of the claimant had been issued to the practice. A further four months elapsed before
Dr Moss provided an invoice for the release of the notes and on 10 May 2021 sought payment of $466.18. This was paid immediately and the notes were not received until mid-June 2021.
The treating doctor, Dr Moss failed to provide full records which included specialists reports and details of all investigations undertaken. This occasioned delay in the preparation of the matter.
In the declaration of Mr Mulock, he confirmed the claimant kept him regularly informed of her medical conditions. The left shoulder injury, tendonitis and bursitis which required a repair in April 2019. The right hip injury and groin issues required multiple surgical procedures including arthroscopy, lateral repair in July 2018, iliotibial release in June 2020 and gluteus medius and minimus repair in June 2021. Whilst hip replacement was recommended in October 2021 the claimant decided in November 2021 not to undergo this at this point in time. It was only at this point could medical opinions be obtained to establish the basis of her claim.
Requests for particulars issued by the insurer were responded to and the insurer has conceded through their legal representation that whole person impairment exceeded the 10% threshold on 23 October 2020.
Issuing of proceedings was delayed awaiting the outcome of the surgery performed in June 2021 by Dr Kalanie. The claimant’s medical condition was not stable at the time. Dr Kalanie noting the failure of the surgery undertaken subsequently recommended hip replacement. The claimant sought to consider her options and decided in November 2021 that she would not undertake the further hip surgery. Medical opinions were obtained as soon as possible noting the delays caused by Covid.
Dr Porteous who saw the claimant on 23 November 2021. He issued his report on 2 December 2021. Dr Bodel was seen on 18 November 2021. He issued his report on 16 January 2022. Proceedings were lodged on 24 February 2022.
The parties advised that subject to this determination, the matter was ready for assessment.

Submissions

In support of her application for leave the claimant’s submissions prepared by RJM Foord, counsel noted as follows:
a.    the evidence comprised of her statement and her solicitors. The details and the chronology of events relied upon constitutes a full explanation for the delay, in that it provides a full account of the actions, knowledge and belief of the claimant from the date of the motor accident up to the date that she completed her statutory declaration;
b.    her explanation is satisfactory, on the basis that it was reasonable for her, in the circumstances to have experienced much the same delay. The parameters of her claim needed to be ascertained before proceedings could issue and it was not until late January 2022 upon receipt of medico-legal opinions could the claim be pursued;
c.     Covid restrictions have significantly impacted on the claimant’s ability to prepare the matter, caused delays with treatment, and delays in obtaining medico-legal reports;
d.    the fundamental explanation for delay is indicated in paragraphs 3 to 5 of the statement of Mr Mulock as follows –
“In short it is submitted that the claimant acted in a timely fashion until such times as the onset of the pandemic, The matter has lagged since that time due to the constraints imposed by the pandemic, A couple of examples is the deferral of the claimant’s surgery on 24 March 2020 because of a spike in her temperature and in being able to obtain medico-legal appointments with dr Bodel and Dr Porteous. These were only able to be arranged late last year ..without these reports the claimant had no medical evidence to support her claim for loss of earning capacity.
…the Police were notified immediately as they were on the scene and the claim form was submitted within 3 weeks if the MVA. Notification of the claim being made for damages was made within time and acknowledged by QBE on 15 November 2019.
…the application for assessment of her damages has been filed as soon as the medical position was known as best as it could be. Relying on the decision of Member Plibersek of 27 November 2021, in Ferizovic v IAG t/as NRMA Limited [2021] NSWPIC 485. The observations made therein including the review of relevant authorities and the impact of the Covid pandemic. Reliance was placed upon the Personal Injury Commission Rules including the desirability of applications only being filed when they are ready.”;
e.    the proceedings were commenced on 24 February 2022 noting the claimant’s claim for damages was required to be lodged within three years after the date of the accident by reason of s 6.14 of the MAI Act her application was late by one year one month and two days. The explanation provided covered the period from the date of the accident to the date of explanation;
f.     she has satisfied the obligation of providing a full and satisfactory explanation for the delay;
g.    provisions relating to explanations for delay have been fairly consistently interpreted in New South Wales across each of the Motor Accidents Act 1988; Motor Accidents Act 1999 (MAC Act); and the MAI Act respectively;
h.    the claimant’s condition has only recently stabilised, this is a factor which should be taken into account in considering whether the subject explanation for delay is satisfactory;
i.     the impact of Covid upon treatment and ability to obtain medico-legal opinion has been considerable. There has been no inaction on the part of the claimant’s legal representatives. This should be taken into consideration when determining whether the explanation is full and satisfactory;
j.     there is a reasonable, full and satisfactory explanation for the delay in referring the matter for assessment to the Commission, and
k.     should leave be granted the proceedings should be placed in the stood over list.
In submissions dated 30 March 2022 the insurer submitted I could deal with the procedural issue now or wait till the Assessment. I consider it appropriate to deal with the late claim leave application before the assessment of damages.
The insurer admits that there has been a breach of duty of care. Liability has been admitted. The assessment of damages is to be undertaken on an undiminished basis.
The insurer had previously deferred arranging a medico-legal examination, given the claimant’s ongoing treatment and periods of recovery from surgery, as well as the advice of the claimant’s solicitors that the claimant’s condition was not stable for assessment.
The claimant has subsequently served medico-legal evidence in recent weeks and elected not to pursue surgery of the right hip, which had previously been approved by QBE.
The insurer has therefore arranged a medico-legal examination with Dr Andrew Keller, occupational physician, to take place on 19 April 2022.
The insurer submits that the listing of the Assessment Conference should take place sufficiently in the future to allow for receipt of that medico-legal report and an opportunity for each party to provide updated submissions following service of the insurer’s evidence.
Limitation issue - section 7.33 The subject accident occurred on 22 January 2018. The claimant’s Application for Assessment of Damages was lodged on 24 February 2022, more than four years after the accident. The insurer refers to s 7.33 of the MAI Act:
“7.33 Time limits for referring claims and making assessment A party to a claim cannot refer a claim for assessment under this Division more than 3 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.”
“Full and satisfactory explanation” is defined in s 6.2 of the Act as follows:
“6.2 Meaning of ‘full and satisfactory explanation’ by claimant 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.”
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.
The claimant has quite simply not attended to the lodgement of the Application for Assessment of Damages in the timeframe required under the Act. The Act makes clear the timeframe for lodgement and this has occurred more than one year late.
The insurer placed the claimant on notice of her failure to comply with s 7.33 of the Act by way of its letter dated 3 May 2021, a copy of which is annexed to the claimant’s Commission Application at page 22. That letter highlighted that the claimant had failed to commence proceedings within the three year timeframe prescribed under s 7.33.
The claimant’s solicitors responded by their letter dated 25 June 2021, raising that they had not been able to obtain necessary medical evidence to commence the application.
The insurer submits that this position is, unfortunately, not a reasonable one when faced with the clear issue regarding the timeframe prescribed under s 7.33.
The insurer notes that the Commission has a clear procedure for the way that claims are to proceed if they are not yet ready for assessment. The Personal Injury Commission Rules at clause 101 allow for the standing over of motor accident proceedings for assessment of damages. This process has been in place for a significant period. The rules were first issued on 8 February 2021. Whilst this is slightly after the s 7.33 timeframe which expired on 22 January 2021, the claimant and her solicitors were aware of this three year timeframe and yet did not comply.
Further, at the time that the insurer placed the claimant on notice that the three-year timeframe had expired, which the insurer was not required to do, the PIC Rules were in place and the stood over proceedings list had been operating for some time. The claimant still took no steps to lodge the Commission application.
The insurer submits that the statements provided by the claimant and her solicitor that are annexed to the application do not provide a full and satisfactory explanation to excuse the delay for lodgement of the application. They do not constitute what would be considered the actions of a reasonable person when faced with this three-year delay.
A key aspect referred to in the statements as to why the matter was unable to progress was that there was great difficulty obtaining the clinical records of Dr Bill Moss, general practitioner. The statements refer to actions taken by the claimant and her solicitor between December 2020 and obtaining the clinical records in July 2021. This is during the period when the three-year limitation period expired (22 January 2021). However, the insurer notes that the records of Dr Moss were obtained by the insurer and served on the claimant’s solicitors on 18 May 2020. This included both pre-accident and post-accident records up to that point. This should have afforded the claimant and her solicitors sufficient information at that stage as to her treatment status. Even if the updated records were to be sought, it is unclear why this should have prevented the application for assessment of damages from being lodged.
The claimant’s statement and that of her solicitor also refer to the numerous operations undergone by the claimant and the COVID-19 pandemic as being reasons for the failure of the claimant to lodge the application within the three-year limitation period. Whilst the insurer acknowledges those issues, the simple fact is that they do not prevent the lodgement of the damages assessment application. A mechanism was in place as noted in the PIC Rules at clause 101 and has been operating in this manner for a significant period of time.
Further, once placed on notice by the insurer’s solicitors on 3 May 2021, the claimant and her solicitors still took no action to lodge the application until February 2022.
When presented with this limitation period in stark terms, the claimant and her solicitors still took no action to progress the claim. The simple action that could have been taken was to lodge the application and seek that it be sent to the stood over list, given the ongoing treatment being undergone by the claimant preventing medical assessment. The claimant and her solicitors did not take this action.
The insurer also submits that the explanation is not full given that the statements do not provide evidence as to the claimant’s knowledge of the limitation periods and the advice that was provided by her solicitors as to those time periods. Given that we can only presume that the claimant’s solicitors did advise of that relevant time period, it is submitted that the claimant has not acted in a reasonable fashion by taking no action to adhere to the legislative timeframe.
The insurer submits that the claimant has clearly breached the s 7.33 timeframe. The statements do not provide any compelling evidence to suggest that there was a reason why the procedures in place by the Commission as to the stood over list could not be followed. Further, the statements do not demonstrate the consideration in response to the insurer’s letter dated 3 May 2021 and what action was taken after that time with respect to the lodgement of proceedings. The insurer submits that the claimant has not provided a full and satisfactory explanation for the delay and accordingly, the application should be dismissed and the claimant is not entitled to seek an assessment of damages with the Commission.

Determination

In accordance with s 7.33, the claimant cannot refer her claim for assessment under Division 7.6 of the MAI Act more than three years after the motor accident unless she 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. Before I address whether the claimant has provided a full and satisfactory explanation for the delay and whether leave should be granted, it is appropriate to consider what the term ‘full and satisfactory explanation’ means for the purposes of s 7.33.

What does ‘full and satisfactory explanation’ mean?

Section 7.33 is found in Part 7 of the MAI Act. The term ‘full and satisfactory explanation’ is not defined in Part 7 of the Act. The term is, however, defined in s 6.2, in the terms set out earlier in these reasons. Section 6.2 is found in Part 6 of the Act.
There is no definition of ‘full and satisfactory explanation’ in the MAI Act for the purposes of Part 7.
The issue that arises as to the meaning of ‘full and satisfactory explanation’ for the purposes of s 7.33 of the MAI Act is to be contrasted with the position in the MAC Act. In the MAC Act, s 66(2), which defines ‘full and satisfactory explanation’, is found in Chapter 4 of the Act. In the same way that s 7.33 commences with the words “For the purposes of this Part…”, s 66(2) commences with the words ‘In this Chapter…’.[1] Chapter 4 relates to motor accident claims and contains the provisions in the MAC Act that impose time limits on the making of a claim and commencing court proceedings in respect of a claim. Unlike the position in the MAI Act, the provisions in the MAC Act that contain the term ‘full and satisfactory explanation’ are contained in one Chapter of the Act, Chapter 4.
[1] Section 66(2) of the MAC Act is in the following terms:

The MAC Act does not contain a provision equivalent to s 7.33. Section 91 of the MAC Act provides time limits for referring claims for assessment, but unlike s 7.33, s 91 does not provide an outer time limit of three years or any other period. Rather, it provides certain pre-conditions which had to be satisfied before a matter could be referred for assessment.
In the MAI Act, Part 6, in which s 6.2 is found, deals with motor accident claims and court proceedings, including time limits on commencing court proceedings in respect of a damages claim. The term ‘full and satisfactory explanation’, in the context of delay, is found in s 6.13(3), which relates to the time for making claims for statutory benefits,
s 6.14(5), which relates to a late claim for damages, and 6.32(3), which relates to time limitations on the commencement of court proceedings.
In this context, the critical difference between the MAI Act and the MAC Act is s 7.33, which imposes a time limit for referring a claim to the Commission for assessment and is found in a different Part of the Act to the other provisions that relate to time limits and delay.
The provisions in both Part 6 and Part 7 of the MAI Act in which the term ‘full and satisfactory explanation’ is used address time limits and delay. Given that the term is used in both Part 6 and Part 7 of the Act, and there is a definition of the term in, and for the purposes of, Part 6, it is not clear why there isn’t a definition of the term in, or for the purposes of, Part 7. A definition could have been included in Part 7. The definition in s 6.2 could have been extended to Part 7 rather than limited to Part 6. A single definition, for the purposes of the whole Act, could have been included in s 1.4.
In order to interpret s 7.33 in a way that is harmonious, logical and consistent with the MAI Act when read as a whole, it is appropriate to proceed on the basis that the term ‘full and satisfactory explanation’ used in s 7.33 means 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 and the 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.
As can be seen, the meaning I have applied to ‘full and satisfactory explanation’ is consistent with the definition of the term as found in s 6.2.
Further, given that the definitions of ‘full and satisfactory explanation’ in the MAI Act and the MAC Act are in material respects the same, the authorities that address the meaning of ‘full and satisfactory explanation’ for the purposes of the MAC Act are relevant to determining whether the claimant has provided a full and satisfactory explanation for the purposes of s 7.33.

The claimant has provided a full and satisfactory explanation for the delay

The meaning of ‘full’ is to be understood in the context of the purpose of the provision and the explanation: to enable the Commission to evaluate the reasons for the delay. Thus all relevant information to that end is required.[2] What is required is a full account of the conduct of the claimant and of persons acting on behalf of the claimant, in so far as that conduct was relevant to the delay.[3] The provision does not call for perfection, or for prolix or burdensome recounting of every moment that has elapsed.[4]
[2] See Walker v Howard [2009] NSWCA 408 per Allsop P at [57].
[3] Walker at [72].
[4] Walker at [104].
I am satisfied, on the evidence before me, that the delay was the result of a decision on the part of the claimant’s solicitor, who was of the belief that the action could not be commenced until there was sufficient medical evidence to support the claim for damages and this could only be done once her conditions had stabilised post-surgery, and medico-legal opinion obtained thereafter. Against the background there was also the impact of the Covid pandemic lockdowns, difficulties obtaining medical appointments and the chaos referred to in the statement of the claimant’s solicitor as to the impact Covid had on running the practice as set out in the statutory declaration of Mr Mulock. The claimant having placed her trust in the expertise of her lawyers and having relied on them to prosecute her case.
In these circumstances, whilst the insurer submits an alternate action should have been taken to lodge the application and seek it be placed into the stood over list, the Commissions and its change to procedures were breaking ground for practitioners since 1 March 2021 and whilst there was a procedure available to the claimant to lodge a claim and seek the matter be stood over until ready, the claimant’s solicitor was of the genuine belief the matter required full particularisation before commencement. The conduct relevant and explanation for the delay has been provided.
Whilst the insurer submits there is no explanation as to why the claim was not pursued after its letter issued on 3 May 2021 and took no action to lodge the application until February 2022, the submission that no action was taken is not correct. The fact that proceedings were not commenced, is true but to say no action was taken is incorrect. The claimant was undertaking surgery, awaiting results, considering her options of hip replacement and obtaining the necessary medical evidence to support the claim.
I am satisfied that the claimant has given 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. A detailed chronology 12 pages in length provided details of all attendances on her doctors, her solicitor and upon the insurer and other related events. I find that the claimant’s explanation for the delay is ‘full’.
Her evidence is that since retaining Mr Mulock she has relied upon him to prepare her matter. As she was aware her lawyers were carrying out all the steps necessary to progress her matter. Her day-to-day management of her injuries, undertaking further surgery, recovering from surgery required time for her to contemplate whether she would also undertake hip surgery. Covid pandemic then intervened during this period delaying surgery, the provision of further treatments and the ability to obtain medical opinions. In these circumstances, I am satisfied that a person in the position of the claimant would have been justified in experiencing the same delay when taking into consideration the impact of surgery and Covid restrictions. I find that the claimant’s explanation is ‘satisfactory’.
I find that the claimant has provided a full and satisfactory explanation for the delay in referring her claim to the Commission for assessment. Leave should be granted for the claim to be referred for assessment.

Shana Radnan

Member (Motor Accidents Division)

Personal Injury Commission

“66 Definitions (cf s 40 MAA)

(1)…

(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to 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. 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.”

[2022] NSWPIC 164

6 April 2022