Zahoor v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMR 28
•17 May 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| Citation: | Zahoor v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 28 |
| ClaimanT: | Sohail Zahoor |
| Insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Merit Reviewer: | Maurice Castagnet |
| DATE OF DECISION: | 17 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review; dispute about whether the insurer is entitled to issue a direction under section 6.26 as at 30 June 2022, seeking relevant particulars from the claimant, as required by section 6.25; application for assessment of damages; whether the claimant has failed to provide all relevant particulars “without reasonable excuse” prior to the direction being issued; whether the claimant is taken to have withdrawn his claim for damages for failing to comply with the direction; Held – the insurer was not entitled to issue a direction to the claimant under section 6.26 as at 30 June 2022. |
| Determinations made: | CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 (the MAI Act) This reviewable decision concerns a dispute about whether the insurer is entitled to give a direction to the clamaint under s 6.26 of the the MAI Act (Consequences of failure to provide relevant particulars of claim for damages), which is a merit review matter under Schedule 2, cl 1 (z) of the MAI Act. 1. The insurer was not entitled to issue a direction to the claimant under s 6.26 of the MAI Act on 30 June 2022. 2. The claimant’s costs for this merit review are assessed in the amount of $1,980 inclusive of GST in accordance with the Motor Accident Injuries Regulation 2017. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Sohail Zahoor is a 29-year-old man who was injured in a motor accident on 30 October 2019.
On 6 July 2021, the claimant made a claim for damages with the insurer.
On 30 September 2021, the insurer admitted liability for the claim.
On 29 October 2022, the claimant made an application to the Personal Injury Commission (Commission) to refer his claim for assessment. The claim has been referred to me for that purpose.
Simultaneously, the claimant made an application to the Commission to have his claim reinstated pursuant to s 6.26 of the MAI Act because the insurer maintains that the claimant is taken to have withdrawn the claim by virtue of ss 6.26(3) for failing to comply with a direction issued by the insurer to the claimant to provide relevant particulars of his claim as required by s 6.25 of the MAI Act (the section 6.26 dispute).
BACKGROUND TO THE SECTION 6.26 DISPUTE
By letter dated 8 September 2021, the insurer’s legal representatives, Hall & Wilcox issued a request to the claimant to provide “further and better particulars” of his claim. The request was said to be made pursuant to s 6.25 of the MAI Act.
Under cover of a letter dated 30 June 2022 sent by email, the insurer served the claimant with a ‘Section 6.26 Direction to Produce Particulars’ also dated 30 June 2022 (the direction).
The direction was in the following terms:
“NRMA Insurance (NRMA) is of the view that you have failed to provide to NRMA all relevant particulars about your motor accident claim as required by section 6.25 of the Motor Accident Injuries Act 2017 (the Act).
Section 6.25 of the Act says that you must provide NRMA with all relevant particulars about your claim as expeditiously as possible after the claim is made.
For this purpose, relevant particulars about a claim are defined in the Act as full details of:
(a)the motor accident concerned, and
(b)the injuries sustained by the claimant in the motor accident, and
(c)all disabilities and impairments arising from those injuries, and
(d)any economic losses and other losses that are being claimed as damages,
sufficient to enable NRMA, as far as practicable, to make a proper assessment of your full entitlement to damages.
In accordance with section 6.26 of the Act, NRMA requires you to provide to it all relevant particulars about the claim within 3 months after the date this direction is given.
If you do not comply with this direction within 3 months after it is given, then in accordance with section 6.26(3) you will be taken to have withdrawn your claim.
This direction is given in the form provided by the State Insurance Regulatory Authority pursuant to Part 4 of the Motor Accident Guidelines”.
By email of 1 July 2022, the insurer sent the claimant’s legal representatives, Shaheen Legal, copies of its letter of 30 June 2022 to the claimant and the direction.
By email of Sunday 2 October 2022, Shaheen Legal wrote to Hall & Wilcox in the following terms:
“Please find attached our response to your request for Further and Better Particulars.
We noticed our response was suppose (sic) to be sent on 27 September 2022 but it was not sent due to an administrative error.
Nonetheless we have attached our response along with Notice of Assessment [sic] from June 2019 till 2022.
Also we are finalising our Schedule of Damages and supporting material for our ISC booked on 18 October 2022. We should submit those to you in the coming weeks.”
On 11 October 2022, Hall & Willcox sent a letter to Shaheen Legal by email in the following terms:
“We refer to your letter dated 27 September 2022 (received 4 October 2022) purporting to provide particulars of your client’s claim.
We confirm the above letter does not provide full particulars of your client’s claim for damages. The letter indicates that particulars of the claims for past economic loss and future economic loss are ‘yet to be finalised’. No particulars of those claims have presently been provided.
A section 6.26 direction was issued to your client on 30 June 2022, and a copy was provided to your office on 1 July 2022.
Your response to our request for further and better particulars was not received on or before 30 September 2022, and in our view, noting the particulars that remain outstanding in respect of the claims for past and future economic loss in any event, your client has failed to comply with his obligations under the section 6.26 notice and has failed to provide all relevant particulars of his claim by 30 September 2022.
Accordingly, pursuant to section 6.26(3) of the MAI Act your client is taken to have withdrawn his claim.
In those circumstances, it is inappropriate for any informal settlement conference to be held as our client considers the claim to have been withdrawn.”
DOCUMENTS CONSIDERED
In making my decision concerning this dispute, I considered the following documents:
(a) the documents, submissions and additional documents provided by the claimant in his application;
(b) the documents and submissions provided by the insurer in its reply;
(c) the claimant’s statement dated 19 December 2022;
(d) the insurer’s further submissions (with attached documents) dated 20 January 2023;
(e) the claimant’s further submissions (with attached documents) dated 14 April 2023;
(f) the insurer’s further submissions (with attached documents) dated 20 April 2023;
(g) a copy of the insurer's liability notice for the claim for damages dated – 2021 and provided by the insurer to the Commission at my request on 16 May 2023;
(h) documents provided to the Commission by the parties in a previous merit review matter concerning a dispute about weekly payments statutory benefits (APP10278189), and
(i) documents provided to the Commission by the parties in the current damages assessment matter M10542507/22.
I am satisfied that I have enough information to proceed with a determination of the dispute, on the papers.
LEGISLATION, RULES AND GUIDELINES
In making my decision, I have considered the following:
· the MAI Act;
· Motor Accident Guidelines 2017 (Versions 8 and 9.1) (Guidelines);
· Motor Accident Injuries Regulation 2017 (Regulation), and
· Personal Injury Commission Rules 2021(PIC Rules).
THE INSURER’S SUBMISSIONS
I have considered the insurer’s lengthy submissions.
In summary, the insurer proceeds on the basis that it was entitled, under the circumstances, to issue the direction to the claimant and that the claimant failed to comply with it.
The insurer notes that “relevant particulars” are full details of the motor accident concerned, the injuries sustained by the claimant in the motor accident, all disabilities and impairments arising from those injuries, and any economic losses or other losses that are being claimed as damages sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
In circumstances where the claimant fails to provide all relevant particulars of his claim to the insurer within two years and six months of the accident, the insurer has the option of issuing the direction.
The insurer notes that the claimant had been in Australia for approximately three months at the time the direction was issued. He returned to Australia on 30 March 2022.
The insurer submits that the claimant’s response to the direction dated 27 September 2022 and received on 4 October 2022 was non-compliant with the direction. The direction was issued on 30 June 2022 and a response should have been received by 30 September 2022.
The insurer further argues that only a partial response to the particulars was provided by the claimant. There were no particulars provided by the claimant for his claim for past and future economic loss. The claimant’s application for damages assessment did not contain a schedule of damages or submissions on damages as required by the PIC Rules.
In the circumstances, the insurer submits pursuant to s 6.26 (6) of the MAI Act, the claimant needs to provide a full and satisfactory explanation for the failure to provide the required particulars in order for the claim to be reinstated.
THE CLAIMANT’S SUBMISSIONS
The claimant accepts that the direction was emailed to him on 30 June 2022 but says that a copy was not sent by the insurer to his legal representatives until 1 July 2022. Due to an administrative error on the part of his legal representatives, the letter in response to the direction which was ready to be sent to the insurer on 27 September 2022, was not sent until Sunday 2 October 2022.
The claimant does not accept that he only provided a partial response to the insurer’s direction. The claimant says that he has provided the insurer with particulars of his claim for past and future economic loss together with supporting documents, in his response. The only information that was not provided with his response was his own calculations for past and future economic losses. He says that he informed the insurer that his own calculations were being finalised and would be provided to the insurer ahead of the informal settlement conference scheduled on 18 October 2022.
RELEVANT LEGISLATION
It is appropriate to set out the relevant statutory provisions.
Sections 6.25 and 6.26 of the MAI Act are in the following terms:
“6.25 Duty of claimant to provide relevant particulars of claim for damages
(1) A claim for damages must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
(2) For the purposes of this section, relevant particulars about a claim are full details of—
(a) the motor accident concerned, and
(b) the injuries sustained by the claimant in the motor accident, and
(c) all disabilities and impairments arising from those injuries, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
6.26 Consequences of failure to provide relevant particulars of claim for damages
(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.”
CONSIDERATION
The insurer’s position is that it was entitled to issue the direction on 30 June 2022 pursuant to ss 6.26(1) of the MAI Act, and that the claimant failed to comply with it within three months. As a result, the insurer maintains that the claimant is taken to have withdrawn his claim for damages.
According to ss 6.26(4) and 6.26(6) of the MAI Act, if the claimant is taken by the insurer to have withdrawn his claim for damages, the claim may only be reinstated by the Commission if the Commission is satisfied that the claimant has provided a full and satisfactory explanation for the failure to provide the required particulars.
As a consequence, the claimant has made this application to the Commission for reinstatement of his claim.
Firstly, I note that the particulars that the claimant was required to produce pursuant to the direction, are the “relevant particulars” as set out in s 6.25(2) of the MAI Act. On that basis, in considering the failure to provide the required particulars for the consequential purposes of s 6.26, the particulars requested by Hall & Wilcox in their letter to Shaheen Legal dated 8 September 2021, are therefore not relevant to my enquiry and can be put to one side.
Secondly, the provisions of s 6.26(1) suggest that before issuing the direction, the insurer should firstly satisfy itself whether the claimant had failed “without reasonable excuse” to provide the insurer with the relevant particulars about the claim, as required by s 6.25(2).
From the material before me, it does not appear that the insurer had conducted an enquiry in that regard before proceeding to issue the direction. On that basis, before considering the issue of the reinstatement of the claimant’s claim, it is appropriate to conduct that enquiry.
In proceeding with the enquiry, I note that the provisions of Clause 4.120 of Version 8 of the Guidelines (which came into effect on 29 October 2021, well before the direction was issued) are applicable. Clause 4.120 provides that before the insurer makes a request for further information pursuant to such direction, it must take into account all relevant information already available, including any information from a related statutory benefits claim.
From the information before me, I make the following findings.
Particulars of the motor accident concerned available to the insurer as at 30 June 2022
On 13 March 2020, the insurer issued a liability notice in relation to the claimant’s claim for statutory benefits. In the notice, the insurer conceded that the claimant was not wholly or mostly at fault for the motor accident and therefore accepted liability for payment of statutory benefits to the claimant beyond the first 26 weeks.
On 30 September 2021, the insurer admitted liability for the claimant’s claim for damages on the basis that the insured driver owed a duty of care to the claimant, that the insured driver had breached that duty and as a result, the claimant sustained injury and damage.
In the circumstances, I am satisfied that the insurer had full details of the motor accident concerned, well before 30 June 2022, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
Particulars of injuries sustained by the claimant in the motor accident, disabilities and impairments arising from those injuries, available to the insurer as at 30 June 2022 injuries
In his claim for statutory benefits dated 11 November 2019, the claimant provided the insurer with details of his injuries. Medical evidence of the claimant’s injuries (from the claimant’s general practitioner (GP)) were contained in the Certificate of Fitness dated 11 November 2019, which was also submitted to the insurer with the claim from.
The claimant has since provided the insurer with updated Certificates of Fitness dated 18 November 2019, 4 and 16 December 2019, 13 January 2020, 17 February 2020, 20 March 2020, 6 and 28 April 2020, 21 May 2020, 4 and 18 June 2020, 3, 14 and 30 July 2020, 13 August 2020, 4 and 28 September 2020, 22 October 2020, 20 November 2020, 17 December 2020, 18 January 2021, 26 February 2021, 16 April 2021, 25 June 2021, 23 July 2021, 30 August 2021, 30 September 2021, 12 November 2021, 10 December 2021, 21 January 2022, 23 February 2022 and 1 April 2022.[1]
[1] See page 2 of the report of Dr Andrew Keller at page 55 of the insurer’s reply bundle.
In the claim form, the claimant provided the insurer with an authority to obtain information in the course of processing and managing his claim, from any doctor, ambulance service, hospital or other related service provider.
In his application for damages under common law dated 6 July 2021, the claimant provided the insurer with a similar authority.
From the information before me, it is apparent that as at 31 May 2022, the insurer had, by acting upon those authorities, received information about the claimant’s injuries and disabilities which included:
(a) the NSW Ambulance Electronic Medical Record, dated 30 October 2019;
(b) the report of Dr Sebastian Calvache-Rubio, GP, dated 11 November 2019;
(c) the nasal bone X-ray report of Dr Zane Sheif dated 27 November 2019;
(d) the reports of Dr Nirenjen St George, psychiatrist, dated 31 March 2020, 28 April 2020, 26 May 2020, 6 August 2020, 3 September 2020 and 1 October 2020;
(e) the MRI of the lumbar spine report of Dr Andres Del Rio dated 8 August 2020, and
(f) the clinical records of Workers Doctors from November 2019 to July 2020 (including St Vincent’s Hospital records regarding attendance on 30 October 2019, documents extracted from clinical records of Blacktown Physioclinic and physiotherapy reports dated 27 November 2019, 7 May 2020 and 11 June 2020).[2]
[2] See page 2 of the report of Dr Andrew Keller at page 55 of the insurer’s reply bundle.
In compliance with his duty under s 6.27 of the MAI Act, the claimant has undergone rehabilitation assessment at the request of the insurer, with Benchmark Rehabilitation. Reports of the assessment concerning the claimant’s disabilities, impairments and restrictions have been provided to the insurer on 15 January 2020, 6 February 2020 and 17 December 2020.[3]
[3] See page 2 of the report of Dr Andrew Keller at page 55 of the insurer’s reply bundle.
In compliance with his duty under s 6.27 of the MAI Act, the claimant has undergone a medical examination at the request of the insurer, with Dr Andrew Keller, orthopaedic surgeon on 31 May 2022. Dr Keller has provided his report dated 7 June 2022, to the insurer. The report includes Dr Keller’s assessment of the claimant’s physical impairments, restrictions, reported disabilities, diagnosis of his injuries, a prognosis and an assessment of whole person impairment.
Considering the totality of the above information which was available to the insurer as at 30 June 2022, I am satisfied that the insurer had full details of the injuries sustained by the claimant in the motor accident and particulars of disabilities and impairments arising from those injuries, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.
Particulars of any economic losses and any other losses that are being claimed as damages, available to the insurer as at 30 June 2022
As previously indicated the insurer accepted liability for payment of statutory benefits to the claimant. This included weekly payments for loss of earnings incurred after the accident.
On 15 September 2020, I issued a determination regarding the amount of the claimant’s pre-accident weekly earnings (PAWE) for the insurer to determine the amount of weekly payments of statutory benefits. See APK v NRMA (Merit Review) [2020] NSWSIRADRS 206 (15 September 2020).
In their letter to Shaheen Legal dated of 8 September 2021, Hall & Wilcox acknowledged that the insurer had available to it, the claimant’s 2019 and 2020 tax returns, Business Activity Statements relating to the claimant’s self-employment as taxi driver for the period from October 2018 to December 2019.
As previously indicated, the insurer had been provided with Certificates of Fitness regarding the claimant’s capacity to work up to April 2022. In his report to the insurer dated 7 June 2022, Dr Keller provided an opinion about the claimant’s ability to work to work either full time or part time. The insurer was aware that the claimant had not worked at all since the accident.
From the information before me, I find that the insurer had available to it, sufficient medical and financial information to enable the insurer to make its own assessment of the claimant’s entitlements to damages for past and future economic loss.
On 7 June 2022, Dr Keller’s also provided an assessment of permanent impairment of the claimant’s physical injuries which was not greater than 10%. On that basis, the insurer had information available to it as at that date, that the claimant, on the insurer’s own evidence, was not entitled to damages for non-economic loss.
I find that as at 30 June 2022, the claimant has provided all the relevant particulars as required under s 6.25. The required particulars were either provided to the insurer directly by the claimant or indirectly, through the claimant’s compliance with his duty under s 6.27 and by providing appropriate authorities to the insurer to enable the insurer to obtain information from third parties.
I am therefore satisfied that as at 30 June 2022, the insurer had sufficient information to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages. As a consequence, I find that the insurer was not entitled to issue the direction it did on 30 June 2022.
It follows that I find that the claimant is not taken to have withdrawn his claim. The consequential matters referred to ss 6.26(4) and 6.26 (6) therefore do not arise for consideration.
The insurer’s compliance with its own duty
One of the objects of the MAI Act is to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.
In promoting that object, s 6.22 of the MAI Act provides that an insurer has a duty to make a reasonable offer of settlement to a claimant on a claim for damages as soon as practicable, unless the insurer wholly denies liability.
In this case, the insurer wholly admitted liability for the claim on 30 September 2021.
There is no information before me to show that the insurer has made any offer of settlement to the claimant at any stage.
I have found that as at 30 June 2022, the insurer had sufficient information to practically enable it to make a proper assessment of the claimant’s full entitlement to damages. The insurer could therefore have made a reasonable offer of settlement as at that date that may have led to either the matter resolving or the parties engaging in further negotiations to settle the dispute.
In my view, the insurer did not comply with its duty under s 6.22.
CONCLUSION
The insurer was not entitled to issue a direction to the claimant under s 6.26 of the MAI Act on 30 June 2022.
I allow the claimant’s costs for this merit review in the regulated amount of $1,980 inclusive of GST.
0
0