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ADK v Allianz Australia Insurance Ltd [2019] NSWDRS CA 89

Overview

Jurisdiction:   Miscellaneous Claims Assessment

Catchwords:   Full and satisfactory explanation – delay – ‘bush lawyer’- legal advice  

Legislation cited:  Motor Accident Injuries Act 2017, Part 6 sections: 6.2 and 6.13, Schedule 2(3)

Cases cited:

  • Mancini v Thompson [2002] NSWCA 38
  • Ellis v Reko Pty Ltd [2010] NSWCA 319
  • Russo v Aiello [2003] HCA 53
  • Karambelas v Zaknic (No 2) [2014] NSWCA 433
  • Dijikovic v Perez [2015] NSWCA 174
  • Laidlaw & Anor v Touma (2002) NSWCA
  • Figliuzzi v Yonan [2005] NSWCA 290

Text Cited:   N/A

Parties:

  • ADK – Claimant
  • Allianz Australia Insurance Limited - Insurer

Disclaimer:  This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous claims assessment certificate

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Issued in accordance with cl 7.445 of the Motor Accident Guidelines.

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

Claimant

ADK

Insurer

Allianz Australia Insurance Ltd

Date of Accident

23 February 2018

DRS Reference

10072854

Insurer Claim Number

Date of Internal Review

75C000845

19 December 2018

DRS Decision Maker

Claims Assessor Terence STERN

Date of Decision

19 March 2019

Date of Preliminary Conference

Participating at the Preliminary Conference for Claimant

29 January 2019 at 3.30pm

Chris Long of P K Simpson

Participating at the Preliminary Conference for Insurer

Christina Boyadjian of Allianz Australia

The findings of the assessment of this dispute are as follows:

1.

i.[Miscellaneous Claim, which is a reviewable decision under Schedule 2  (3) (K) of the Motor Accident Injuries Act 2017 (‘the Act’) about whether the Insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with Section 6.13 (Time for making of claims for statutory benefits)].

The Insurer is not entitled to refuse payment of weekly payments of statutory benefits.


ii.[Dispute under Schedule 2, Clause (3) (H) whether for the purposes of Part 6 (Motor Accidents Claims) the Claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay].

The Claimant has given a full and satisfactory explanation for the delay.

2.

Legal costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,862.30 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: 19 March 2019

Reasons for decision

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

Introduction

1.This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2 (3) (K) of the Motor Accident Injuries Act 2017 (‘the Act’) about whether the Insurer is entitled to refuse payment of weekly payments of statutory benefits in accordance with Section 6.13 (Time for making of claims for statutory benefits).
2.Further DRS has referred to me a Dispute under Schedule 2, Clause (3) (H) whether for the purposes of Part 6 (Motor Accidents Claims) the Claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay.

Chronology

3.I set out a brief chronology:

X/X/1968    birth of ADK (the Claimant)
23/02/2018    Claimant alleges she was injured in a motor vehicle accident
26/06/2018    Claimant reports the accident to New South Wales Police –
Police Constable Dianne Louise Kelly
16/07/2018    PK Simpson submit the Claimant’s Personal Injury Claim form
08/08/2018    medical certificate of Dr Calligeros
27/09/2018    letter from Insurer that Allianz does not accept liability for payment of statutory benefits on the basis that the claim was lodged out of time
06/12/2018    application for internal review
19/12/2018    decision of the Insurer confirming the primary decision to deny liability on the basis that the claim was late and noting that the decision maker on the internal review was not satisfied that the Claimant had provided a full and satisfactory explanation of the delay as she had not provided a full account of her conduct including her actions, knowledge and belief from the date of the accident until the date of providing the explanation. Noting also that there was no medical evidence provided to confirm that the Claimant complained of her injuries prior to the initial certificate of fitness of 8 August 2018 and noting further that the Claimant had self – reported the accident to the Police on 26 June 2018 over 4 months after the date of the accident.

Preliminary conference

4.I held a Preliminary Conference at 3.30pm on 29 January 2019 at which I made directions for a further statement to be provided to me by the Claimant and for a submission by way of response by the Insurer in the event that the Insurer still did not accept the explanation.
5.Both the Claimant and the Insurer provided further material.

Non-availability of Dr Peter Calligeros

6.By letter of 7 March 2019 the Claimant’s solicitor submitted that the matter could not be properly determined until I had in hand a copy of the treating clinical notes from Dr Calligeros. I do not have those notes but consider I am able to decide the matter without them.

The materials on which the decision is based

7.I have the following materials which I have considered:
i.the Personal Injury Claim Form
ii.the Medical Certificate of Dr Calligeros
iii.the Police Report
iv.the Insurer’s denial of liability on the basis of late lodgement
v.the Application for Internal Review
vi.the Internal Review Decision
vii.the Application to DRS for determination of a Miscellaneous Late Claim Dispute
viii.the Statement of the Claimant of 22 February 2019
ix.the further submission of the Insurer of 7 March2019

The claimant's explanation

8.I briefly summarise the Claimant’s explanation:
i.in the DRS Application Form the Claimant says at page 5:

‘The claimant lodged her claim outside of 3 months from the date of accident. The insurer rejected lodgement of the claim on this basis and requested a full and satisfactory explanation which was subsequently provided. The crux of the explanation is simple and not controversial – the claimant had no understanding or knowledge whatsoever of the 3 month time limit brought in under the new CTP legislation. The insurer rejected the explanation on the basis the claimant somehow should have been well abreast of the new CTP changes, notwithstanding she is not a lawyer or  a person with any expertise in CTP law. This application is regarding the late dispute, however the claimant is also awaiting determinations from the insurer in relation to both LIABILITY (FAULT) and MINOR/NON- MINOR injury.’

ii.in her statement of 22 February 2019 the Claimant states (and I very briefly  summarise):

  • attended high school to year 12.  Has worked as an actor and fashion production manager.
  • no prior experience or training in legal matters. Has always worked in the arts industry and fashion. Had never had to deal with CTP because she either had a company car or used her brother’s car. Had not had an accident involving CTP and    insurance.
  • in 2017 developed increasing back pain due to the nature and conditions of her employment.
  • came to a spinal laminectomy at L4/L5 by Dr Johnny Wong on about 16 January 2018.
  • the operation was successful.
  • on 23 February 2018 was injured in the accident and aggravated her back pain. Has continued to have almost constant pain and discomfort since the accident. Her back was very sensitive and fragile after the operation.
  • was not immediately sore after the accident as was still taking pain medication. Was due to go to a shoot the first of year. Could not afford not to go. Exchanged details with the other driver. Reported the incident to the crew manager and the nurse of her employer as well as to her agent. Had spent over 8 weeks being misdiagnosed and in excruciating pain. Was a little hesitant to see any doctors at that time.
  • the other driver would not supply his registration so tried the police and the incident line without success even went to Marrickville Police Station to try to report the accident without success. Her brother went past the other driver’s house to get a photo of his registration plates on about 9 April 2018.
  • had dealings with Allianz about the property damage claim.
  • nobody from Allianz told her about a time limit for making a personal injury claim.
  • the other driver was alleging that the accident was her fault in relation to the property damage claim.
  • on or about 26 June 2018 saw somebody from PK Simpson who took a statement.  She signed a claim form and was provided with a blank medical certificate of capacity.
  • at this time the person from PK Simpson explained the time limits. She had never previously known this nor been told it by any lawyer, representative of Allianz or any other person. She had no idea about time limits.
  • has never made a CTP claim.
  • saw Law Partners re legal action for initial back injury in 2017. Was told she could not pursue a workers compensation claim  as she was on retainer not employed.
  • had difficulties getting Dr Calligeros to complete the medical certificate.  He was overseas from July 2018 until early August 2018.  Had the certificate completed as soon as she    could get to see Dr Calligeros.
  • on 26 August 2018 she had to go to Greece due to a family emergency and did not return until 26 September 2018.
  • still suffering pain and restrictions in her low back which she believes were caused by the aggravation.’

Submissions by the insurer

9.In addition to the Internal Review Decision the Insurer on 7 March 2019 submitted:

  • the Claimant has failed to provide a full and satisfactory explanation for the delay.
  • no explanation as to the dates of treatment, doctors consulted, tests performed or referrals made.
  • given that the Claimant alleged that she was suffering from excruciating pain  from the accident it is irreconcilable that she did not obtain medical treatment/opinion before 8 August 2018 particularly given     surgery one month before the accident.
  • in assessing whether a reasonable person would have experienced the same delay the Claimant must be considered as an injured person as a result of the accident. There are significant difficulties in   distinguishing the Claimant’s injuries given the classification of an exacerbation and that it    occurred six months following the accident.
  • the material in respect of the property damage claim does not  assist the explanation.
  • no clarification regarding the phone calls from a person the Claimant assumed to be PK Simpson.
  • notwithstanding legal advice on 26 June 2018 the claim was only lodged on 30 August 2018.
  • the Claimant’s brother obtained the registration number of the other driver in April 2018.  She does not explain why she did not lodge a statutory benefit claim nor seek legal advice.
  • the Claimant consulted Law Partners in relation to a public  liability claim.
  • questionable that she did not seek advice in relation to the  motor vehicle accident.
  • a reasonable person in the Claimant’s circumstances would have made enquiries in relation to their legal rights following the accident.’

Part 6

10.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 have complied with the duty or would have been justified in experiencing the same delay.

Section 6.13

11.Section 6.13 provides:

(1) a claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates…….

(2) if a claim for statutory benefits is not made within 28 days after the date of the motor accident, weekly payments of statutory benefits are not payable in respect of any period before the claim is made.

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

(a) the claim is made within 3 years after the date of the motor accident……’

The relevant principles

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

Full

a.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.
b.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.  
…….”


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].

c.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.
d.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.”

13.   And satisfactory

e.Once a full explanation has been given it must be found to be ‘satisfactory’.  I refer to the definition set out in Section 66(2) quoted above.
f.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.”

Consideration

14.Is the explanation full?

15.The explanation covers the whole of the period from the date of the accident until when the Claimant saw a solicitor at PK Simpson on 26 June 2018.

16.The explanation further covers the period until the Claimant was able to obtain a certificate from Dr Calligeros on his return from overseas.

17.I consider the explanation to be full in that it covers all periods of delay between the date of the accident and until the date of the provision of the explanation and of the medical certificate.

18.Is the explanation satisfactory?

19.The Claimant’s short explanation is that she knew nothing about the time limits which applied in respect of her motor vehicle accident for the lodgement of a claim form.

20.The Claimant says that she had no knowledge of CTP having always driven cars provided by her employer or having used her brother’s car.

21.The Claimant says that she had never been involved in any motor vehicle accident nor had she the need to make any claim.

22.The Claimant is a person whose education and background has been wholly focused on fashion and the arts world having pursued a successful career as an actor and appearing in the various productions to which she refers.  She had no prior experience or training in legal matters and always worked in the arts industry and the fashion industry.

23.The Claimant’s accident happened quite early in the operation of the new Act namely

23 February 2018 and as a matter of common-sense a reasonable person such as the Claimant probably would not have known about the quite short time limits so early in the operation of the new CTP Scheme.

24.In the Certificate of Capacity/Certificate of Fitness Dr Calligeros who provided the medical certificate on 8 August 2018 certified that the Claimant had sustained an exacerbation of low back pain in the accident. Nevertheless, the Claimant had been working through on reduced hours from 23 March 2018 until at least until 26 June 2018.

25.Prior to the accident since the Claimant’s back surgery in January 2018 the Claimant had only been working one day a week.

26.A reasonable person in the Claimant’s position would not have considered it self-evident that she should consult a solicitor for legal advice as to lodgement of a CTP claim form.

27.The Insurer refers to Figliuzzi v Yonan [2005] NSWCA 290 but the two fact situations are not comparable.  In Figliuzzi v Yonan the Claimant was working in an office where lawyers were readily available and the question was in those circumstances was she assuming the role of a ‘bush lawyer’ to work out her own legal issues.

28.Here you do not have a clerk working in an office where many lawyers are available but rather you have an actress/fashion industry person who is working for herself.

Conclusion

29.I conclude that a reasonable person in the Claimant’s position would have failed to have complied with the duty or would have experienced the delay.

30.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 (under cl 35 of the Regulation) making the total awarded for costs $1,829.30 inclusive of GST.

Terence Stern
DRS Claims Assessor
Dispute Resolution Services
Dated: 19 March 2019