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ACC v AAI Limited trading as GIO [2018] NSWDRS CA 055

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsPersonal injury benefits - wholly caused by the fault of the injured person - full and satisfactory explanation for the delay - court attendance notice - loss of wages - lack of knowledge - sheltered life - medical treatment - late claim
Legislation citedMotor Accidents Injury Act (NSW) ss 6.13, 7.36(4) & (5), part 6.2, schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

Mancini v Thompson [2002] NSWCA 38
Laidlaw & Anor v Touma (2002) NSWCA 190
Ellis v Reko Pty Ltd [2010] NSWCA 319
Karambelas v Zaknic (No 2) [2014] NSWCA 433
Dijikovic v Perez [2015] NSWCA 174
Buller v Black [2003] NSWCA 45
Choukor v Spiroski [2016] NSWDC 358
Russo v Aiello [2003] HCA 53

Text citedN/A
Parties ACC - Claimant
AAI Limited trading as GIO - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantACC
InsurerAAI Limited A.B.N. 48 005 297807 trading as GIO
Date of Accident26 December 2017
DRS Reference10056307
Date of Internal Review2 October 2018
DRS Claims Assessor Terence Stern
Date of Decision10 December 2018
Claimant's solicitorGerard Morson of Turner Freeman Lawyers
Insurer/Insurer's representativePatrick Jagoszewski of Suncorp
Date of teleconference7 November 2018 at 4:15pm

The findings of the assessment of this dispute are as follows

  1. For the purpose of section 6.13 (3) the Claimant has provided a full and satisfactory explanation for the delay in making the claim.
  2. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

A brief statement of my reasons for this determination are attached to this certificate.

Terence Stern
DRS Claims Assessor
Dispute Resolution Services
Dated: 14 December 2018

Reasons for decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) of the Motor Accident Injuries Act 2017, about whether the accident was wholly caused by the fault of the injured person.

1.  ACC (‘the Claimant’) claims to have sustained injury in a motor vehicle accident on the 26 December 2017.  She did not make an Application for Personal Injury Benefits until 20 June 2018.

2.  On 8 August 2018 the Insurer wrote to the Claimant requesting a full and satisfactory explanation for the delay.

3.  On 13 August 2018 the Claimant provided the Insurer with her explanation.

4.  On 30 August 2018 the Insurer wrote to the Claimant advising that it did not consider the explanation to be full and satisfactory in the following respects:

i.      it did not explain what prompted her to seek legal advice on 20 June 2018;

ii.      it did not clarify her actions between 5 February 2018 to 20 June 2018.

5.  On 5 September 2018 Turner Freeman for the Claimant requested an Internal Review.

6.  On 2 October 2018 the Internal Reviewer confirmed the decision of the GIO Claims Team.

7.  On 19 November 2018 the Claimant’s solicitor provided a Statutory Declaration further explaining her delay.

8.  By email of 21 November 2018 the Insurer advised that it rejected the explanation as still not being full and satisfactory.

The Claimant's explanation

9.  Email of 13 August 2018

i.      the Claimant sent an email to the Insurer with her explanation in which she stated:
‘26/12/2017                motor vehicle accident

28/12/2017                Discharged from Nepean hospital

14/01/2018                consulted by GP (Dr M Hamad)…..

16/01/2018                attended physiotherapy

24/01/2018                consulted by GP

30/01/2018                attended physiotherapy

05/02/2018                returned to work on light duties

Having never been involved in a motor vehicle accident where I was injured and needed medical attention, I have……never……received legal advice regarding a compensation claim. I have never……considered the scheme apart from paying the premiums each year…… I did not link making a claim with the injuries I had received as was not sure if my injuries would be covered under the scheme but decided after much procrastination that I should approach a firm to discuss this matter – hence an appointment was made on 20/06/2018 with Turner & Freeman. The result was the claim being made……”

10.   Turner & Freeman letter of 5 September 2018

11.   The solicitor said that the Claimant had nothing further to add except that she did not consider to approach lawyers until her husband was given a Court Attendance Notice in relation to the accident.

12.   The Explanation of 16 November 2018

13.   The Claimant provided a Declaration which I briefly summarise adopting the same paragraph numbers:

2.      Early work background in Bathurst at a flour mill and at drycleaners

3.      Licence at age 16.  Was never in a car accident

4.      Moved to Richmond in 1997

5.      No motor vehicle accident prior to 26 December 2017. No prior injury

6.      Never really had much of an idea about CTP Insurance. Never injured in a car accident and never had made a claim for medical treatment or loss of wages

7.      Never really owned a car.  Her parents paid for a car when she was 17 and when she was with her husband he would attend to payment of all the bills and insurance. Wasn’t aware of the rules and procedures involved in making a motor vehicle accident claim

8.      This continued to be the case until her injury on 26 December 2017

10.    Sustained five broken ribs and fractured left shoulder as well as soft tissue injuries

11.    Ambulance, Police and Fire attended. She was in Nepean Hospital for a couple of days until discharge on 28 December 2017

12.    Is a customer service officer at Commonwealth Bank working permanent part-time. Was off work from 28 December 2017 until about 4 February 2018

13.    Understood her injuries were severe but was keen to get back to work as soon as possible. Was not aware she could lodge a motor vehicle accident compensation claim that would pay her loss of wages

14.    If she had known that her medical expenses and wages would be covered by the CTP Insurer probably wouldn’t have pushed herself to return to work as soon as she could.  Although she is back at work, she still struggles with her duties. She has worked for the CBA for over 20 years.  Her employer has been very helpful and accommodating

15.    Only became aware of being able to make a claim after seeing lawyers on or about June 2018. She was prompted to see a lawyer by her partner XXXX who was charged with negligent driving. He thought that having received a court notice she and he should see a lawyer.  Either a policeman the couple knew or her partner’s lawyer said that she should see a compensation lawyer.  She made contact with Turner Freeman of Penrith

21.    Growing up in Adelaide she had no idea of how the personal injury scheme worked.  She had no involvement in prior payment of bills for CTP insurance.  These had been taken care of her ex-husband or her partner respectively

22.    Even after the injuries as a passenger it did not occur to her that she could make a claim

The Legislation

14.   In making my decision/conducting my review I have considered the following legislation and guidelines:

i.     Motor Accident Injuries Act 2017 (NSW) (“the Act”)
‘6.13(1)          A claim for statutory benefits must be made within 3 months after the date of the motor accident……
(2)          If a claim for statutory benefits is not paid within 28 days of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made

(3)        ……a claim for statutory benefits may be made after the time required by subsection (1) if the claimant provides a full and satisfactory explanation for the delay in making the claim, …….

ii.     Part 6.2 provides:
(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 comply with the duty or would have been justified in experiencing the same delay.

Caselaw

15.       The relevant principles governing my decision of this dispute are as follows:

FULL

1.   The period for which the explanation is required is the whole of the period from the date of the accident to the date on which the explanation is given. (Mancini v Thompson [2002] NSWCA 38 (2 May 2002)) (“Mancini”).

At paragraph 46 Rolfe AJA said:

“What was required was a full explanation for delay and, in order for the explanation to be full, in had to include ‘the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation.’”

These propositions are well accepted as the current law.

2.   His Honour Stein JA in Laidlaw & Anor v Touma (2002) NSWCA 190 quoted Mancini referred to above. Paragraph 19 stated:

“….’full’ must be given some meaning and content…. It means complete…. that a complete explanation is required. This full explanation…. Is necessary before one turns to consider whether it is a satisfactory explanation.”

3.   In Ellis v Reko Pty Ltd [2010] NSWCA 319 Young JA (with whom   Beazley JA and Handley AJA agreed) stated at paras. [19-21]:

“19.      The word “full” is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious.…….”

4.  In Karambelas v Zaknic (No 2) [2014] NSWCA 433 (15 December 2014) Meagher JA considered an Appeal from Sorby DCJ who had not been satisfied that the Appellant had a full and satisfactory explanation for the delay. The length of the delay in that case was four years and nine months. The plaintiff had been advised by the Insurer as to what she should do on numerous occasions. The Judge said that she could have sought advice outside of what she received from Allianz, including from her osteopath, Dr Zekis, and from her GP, Dr Selem. She failed to do so.

Meagher JA said at para 16: -

“An explanation ….. 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"……that is the date on which the explanation is first provided…”

This formulation was repeated by the Court of Appeal in Dijikovic v Perez [2015] NSWCA 174 (29 June 2015) at para. 16.

5.  The  Court of Appeal again considered the requirement that an explanation be full referring to Mancini:

[17]  the purpose of the requirement is that the explanation be full, and the necessity to set out fully “the conduct, including the actions, knowledge and belief of the Claimant”, is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory…..

It is for this reason that it has been said that the applicant for leave cannot “pick and choose” the information to be given relevant to the delay and which the court has to decide is “satisfactory”……..

Dijakovic v Perez [2015] NSWCA 174

6. In Choukor v Spiroski:

The explanation must be “full”, not “pick and choose” the information to be given relevant to the delay.  It must be “complete”.

See Buller v Black [2003] NSWCA 45 [for an application of these legal principles see Choukor v Spiroski [2016] NSWDC 358 at paras. 21 to 28 from which this statement of principles was taken].

[2016] NSWDC 358

16.    AND SATISFACTORY

a.   Once a full explanation has been given it must be found to be ‘satisfactory’.  I refer to the definition set out in Part 6.2 quoted above.

b.   The current state of the law may be set out as follows:

a) “….the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it.”

(Russo v Aiello [2003] HCA 53 at page 3 para 7.)(“Russo”)

b)  The decision is not discretionary:-

‘….no discretion is conferred. If a certain state of satisfaction exists, the proceedings must be dismissed.’

(Ibid, paragraph 8)

c)  The persuasive onus is on the Insurer (Russo, paragraph 10);

“However, the onus remains on the applicant to satisfy the court that the claimant does not have a full and satisfactory explanation for the delay. The discharge of this onus ordinarily would involve specifying the respects in which the claimant's account is said not to be "full" in the relevant sense, and identifying why it is that a reasonable person in the claimant's position would not have been justified in experiencing the same delay.”

d) The question is not whether the Claimant possessed information but whether he gives an explanation [being something communicated to a third party] (Ibid, paragraph 12).

e) Determination of whether or not a full and satisfactory explanation has been given:-

“….it is an intellectual construct involving a value judgment, a judgment on which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgment.”

f) Prejudice is irrelevant. The High Court in Russo makes it clear that the imperative language of the Act (in that case the Motor Accidents Act 1988 but which for all intents and purposes is identical to the subject provision) renders prejudice irrelevant:-

“…leaves no room for a consideration of any "prejudice" that may be caused to the parties …. it does not confer a discretion to extend time of the type commonly found in statutes of limitation….” (Russo, paragraph 61)

g) The above formulation has been more recently followed in Karambelas v Zaknic (No 2) [2014] NSWCA 433 (para 6) where it was said the explanation must be such that a reasonable person in the position of the Claimant “would have been justified in experiencing the same delay.” At para 17:

“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 occurred was reasonably justifiable.”

h)    In Dijakovic v Perez Gleeson JA said:

‘[18]   ……..the explanation must be such that a reasonable person in the position of the Claimant “would have been justified in experiencing the same delay”.

He continued at:

[19]  The concept of a satisfactory explanation…….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’.

Consideration

17.  The Claimant has given a full explanation in that she has covered her actions, knowledge and belief from the date of the accident until the provision of the explanation.

18.  She has explained her lack of knowledge and she has explained the reasons for her consultation with Turner Freeman when she received the relevant information and gave instructions for lodgement of a claim form.

19.  The Claimant has covered all periods from the date of the accident until the date of the provision of the explanation.

20.  The explanation is satisfactory because a reasonable person in the position of the Claimant would, on the balance of probabilities, also have failed to comply with the duty or would also have been justified in experiencing the same delay.

21.  The Claimant is not a sophisticated person.  She has had only a limited education and her early employment was in, what appears to be, relatively unskilled work.

22.  The Claimant would appear for much of her life to have led a fairly sheltered existence exemplified by the fact (which I accept to be true) that everything to do with motor vehicle was looked after by her then husband and later by her current partner.

23.  It is relevant that the Claimant is a person who has never been involved in a motor vehicle accident let alone sustained injury.

24.  There is no reason why one should not accept as truthful the Claimant’s account of her lack of knowledge and given her relative sheltered life, the fact that such matters as CTP insurance were looked after by her husband or partner and the fact that she had never been involved in any accident makes it reasonable that a person in her position would have failed to comply with the duty and experienced the same delay.

25.  The Claimant’s account has some corroboration in her statement that she would not have needed to go to back to work so quickly if she had been aware that through a CTP claim her medical treatment and wages would have been provided for.

26.  The Claimant’s explanation for the delay should be accepted and she should be permitted to proceed with her claim.

Costs and Disbursements

27.  I am satisfied that the Claimant is entitled to the payment of legal costs. I allow the Claimant’s costs at $1,663.00 to which GST is added making the total awarded for costs $1,796.30 inclusive of GST.

Terence Stern
DRS Claims Assessor
Dispute Resolution Services
Dated: 14 December 2018