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AGV v NRMA [2019] NSWDRS CA 180

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – rear ended – stationary at traffic lights – full and satisfactory explanation for delay – time limitation – cultural engagement officer – certificate of capacity – CTP claim process – late claim
Legislation CitedMotor Accident Injuries Act 2017 (NSW) ss 6.2, 6.9, 6.13, 6.13(1), 6.13(2), 6.13(3), 7.36(4). Sch 2(3)(k)

Motor Accident Injuries Regulation 2017

Motor Accident Guidelines 4.15.1, 4.15.2, 4.18

Motor Accidents Compensation Act 1999 s 66(2)
Cases CitedWalker v Howard [2009] NSWCA 408

Karambelas v Zaknic (No. 2) [2014] NSWCA 433

Mancini v Thompson [2002] NSWCA 38

Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214

Smith v Grant [2006] NSWCA 244
Text CitedN/A
PartiesAGV – Claimant

NRMA – Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

MISCELLANEOUS CLAIMS ASSESSMENT CERTIFICATE

REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT

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

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 statutory benefits in accordance with section 6.13 of the Act (Time of making of claims for statutory benefits).

BACKGROUND

1. The claimant, a 36-year-old man, was injured in a motor accident on 19 May 2018. His motor vehicle, a Ford EcoSport was stationary in traffic at a set of traffic lights when it was rear ended by the insured’s motor vehicle, a Toyota Kluger.

2. The claimant claims to have sustained injuries to his neck, left arm, left shoulder and back.

3. On 3 August 2018, he consulted his legal representatives, PK Simpson Lawyers with the intention of making a claim for his injuries. This was about two and half months after the date of the motor accident.

4. Six weeks later, on 17 September 2018, his legal representatives lodged an application for personal injury benefits on his behalf with the insurer. It was received by the insurer on 20 September 2018.

5. On 21 November 2018, the insurer wrote to the claimant, advising him that his application was not accepted because it was received more than 3 months after the date of the motor accident. To receive further consideration, the insurer requested the claimant to provide a full and satisfactory explanation for the delay, by way of a signed statement.

6. On 20 March 2019, the claimant provided his signed statement (of the same date) to the insurer.

7. On 23 April 2019, the insurer wrote to the claimant advising of its decision that the explanation given for the delay in his statement was not full and satisfactory.

8. On 29 April 2019, the claimant made an application for an internal review of the insurer’s decision.

9. On 17 June 2019, the insurer sent an email to PK Simpson requesting further information from the claimant about the explanation for the delay.

10. On 15 July 2019, PK Simpson sent an email to the insurer providing further information about the claimant’s explanation for the delay.

11. On 22 July 2019, the insurer issued a Certificate of Determination - Internal Review affirming its original decision.

12. On 13 August 2019, the claimant lodged an application to resolve the dispute with the Dispute Resolution Service (DRS).

DOCUMENTS CONSIDERED

13. I have considered the documents and submissions provided by the claimant in his DRS application and by the insurer in its DRS reply. I have also considered a letter dated 12 June 2019 from the insurer to the claimant, a further statement from the claimant dated 28 October 2019 and a statement from Mr Chris Long of PK Simpson also of the same date. These documents were provided to me in response to the directions I made at the teleconferences on 4 October 2019 and 28 October 2019.

ISSUES TO BE DETERMINED

14. The claim for statutory benefits was not made within 3 months after the motor accident as required by subsection 6.13 (1) of the Act. It was made on 17 September 2018 and received by the insurer on 20 September 2018, one month late.

15. Subsection 6.13 (3) provides that a claim for statutory benefits may be made after the time required by subsection 6.13(1) if the claimant provides a full and satisfactory explanation for the delay in making the claim provided that the claim has been made inter alia, within three years after the date of the accident.

16. The claim has been made within three years after the date of the accident.

17. The sole issue for me to determine is whether the claimant has provided a full and satisfactory explanation for the delay in making the claim.

THE CLAIMANT’S RELEVANT INFORMATION AND HIS ACTIONS DURING THE PERIOD 19 MAY 2018 TO 25 MARCH 2019

18. The claimant arrived in Australia in November 2002 from XXXXX. He was 19 years old. He is now an Australian Citizen.

19. At the time of the accident, he was 35 years old. He was employed by XXX as a Cultural Engagement Officer.

20. Following the accident, he experienced pain in his neck, both shoulders, left arm, left hand and back.

21. He was initially off work for 8 days. He returned to work on light duties. His work contract was terminated on 6 June 2018. He was able to find part-time work with a new employer in September 2018.

22. He consulted various doctors for his injuries at the Wentworthville Medical Centre. He saw Dr Das on the day of the accident, 26 May, 7 July and 19 July 2018. He saw Dr Heang on 11, 12 and 16 July 2018.

23. On 11 July 2018, Dr Achar of Wentworthville Imaging Centre did x-rays of his cervical spine and chest.

24. On 12 July 2018, Dr Pascoe did a CT scan of his cervical spine at the Wentworthville Medical Centre.

25. On 26 July 2018, he was seen by Dr V J Maniam, an orthopaedic surgeon. He was told that he had to lodge a personal injury benefits claim with the CTP insurer to access medical treatment costs.

26. He then sought legal assistance through an online personal injury claim service which referred him to PK Simpson.

27. On 29 July 2018, Dr Dimmick of Westmead Practice did an MRI scan of his cervical spine.

28. On 3 August 2018, a solicitor, Colin Thompson from PK Simpson had a conference with him at his home.

29. Mr Thompson gave him a lot of documents to sign. He believes that most of them were various authorities to allow his lawyers to obtain information on his behalf from third parties. Some related to his legal costs. He says it is possible that Mr Thompson may have given him a Certificate of Capacity at that time, but he could not recall this document.

30. He says that he was not given any letters from PK Simpson about the CTP claims process or the requirement to report the accident to the Police. The only letter he received from PK Simpson at that time was dated 8 August 2018. The letter advised him to keep a record of his medical expenses and to take all of his x-ray films to all doctors’ appointments.

31. On 6 September 2018, he saw Dr Maniam for further treatment.

32. In early September 2018, he received an email from Ms Melaiza Chavez of PK Simpson. A blank Certificate of Capacity was attached and he was asked to have the form completed by his treating doctor.

33. On 13 September 2018, he saw Dr Sebastian Calvache - Rubio of Workers Doctors at Parramatta. A completed Certificate of Capacity was then issued.

34. From the documents before me, it appears that the claimant sought treatment for his injuries from this new general practitioner medical practice because they offered deferred payment for treatment costs.

35. He is aware that his personal injury benefits claim form was lodged by PK Simpson on 17 September 2018 and received by the insurer on 20 September 2018.

36. He does not recall Mr Thompson telling him at the initial conference on 3 August 2018 that he had to report the accident to the Police. He told Mr Thompson that he did not report the accident to the Police and that they did not attend the scene of the accident. He recalls that Mr Thompson told him that the insurer may ask him to report the accident to the Police at a later stage.

37. He says that he did not receive any written advice from PK Simpson regarding his obligations or requirements to report the matter to the Police. The first time that he knew about his obligation to report the accident to the Police was through a much later conversation with a claims officer of NRMA.

38. He then reported the matter to Merrylands Police Station on 1 November 2018 and provided the insurer with an event number on 4 November 2018.

39. In late November 2018, the claimant received a letter from the insurer dated 21 November 2018 advising him that it was unable to accept his claim for personal injury benefits because it was received more than three months after the date of the accident. The insurer requested that he provide a full and satisfactory explanation for the delay in making the claim. The insurer advised that the explanation must be a signed statement that includes full details of his “actions and knowledge” from the date of the accident until the date that the explanation is provided. He was requested to provide the statement “as soon as possible”.

40. On 3 December 2018, the claimant saw Mr Twemlow of PK Simpson in conference to address the insurer’s requirements. The claimant says that he provided Mr Twemlow with as much information as he could recall since the date of the accident, to prepare the statement.

41. He was aware that Mr Twemlow then went on holidays until late January 2019. By that time, he still had not received any statement from PK Simpson and he assumed that Mr Twemlow had everything under control.

42. He continued seeing Dr Lim from the Workers Doctors in Parramatta. He was aware Dr Lim provided scans, reports and other medical evidence to PK Simpson and this evidence was provided to NRMA on or about 21 February 2019. By that stage he still had not received anything from PK Simpson regarding his late explanation statement.

43. On 6 March 2019, he had a teleconference with Mr Twemlow. He gave Mr Twemlow an update on his injuries and he was told by Mr Twemlow that he would now finalise his late statement.

44. On 7 March 2019, he received a draft of his statement by email. He responded by email with some amendments. The statement was amended and re-sent to him on 20 March 2019 and he signed and returned it that same day.

45. The claimant is aware PK Simpson provided his statement to the insurer on 20 March 2019 and received by the insurer on 25 March 2019.

46. The claimant believes that it would be unfair to dismiss his claim simply because he was unaware of the legal technicalities involved in making and pursuing a CTP claim. He says that he had no prior experience with the CTP claims process. He says that he has serious injuries and disabilities which require ongoing treatment, including proposed cervical spinal surgery from two different surgeons.

THE CLAIMANT’S LAWYER’S STATEMENT

47. Chris Long, solicitor of PK Simpson currently has the conduct of the claimant’s matter. He participated in the teleconferences on behalf of the claimant in the current DRS process.

48. At the teleconferences, I requested Mr Long to provide me with a statement on the history of the conduct of the matter on behalf of the claimant by PK Simpson since they received instructions on 3 August 2018. I received his statement dated 28 October 2019 on the same day.

49. He confirmed that Mr Thompson conducted the initial conference with the claimant on 3 August 2018. Mr Twemlow, solicitor, then assumed conduct of the matter until his resignation in August 2019. Mr Long thereafter had conduct of the matter.

50. In relation to the advice provided by Mr Thompson at the initial consultation with the claimant on 3 August 2018, he has reviewed the file and, from his reading of the file, including the application for personal injury benefits and the statements given by the claimant, understood that the claimant genuinely believed he would only be required to report the accident to the Police if the insurer took issue with the non-reporting at the accident scene. This is consistent with the claimant's confirmation that he later attended a Police station at the request of the insurer to ultimately report the accident, albeit more than 6 months post-accident.

51. He says that it is also apparent upon review of the file that no comprehensive CTP letter of advice was provided to the claimant following Mr Thompson's initial consultation on 3 August 2018. The only letter sent to the claimant after this consultation was a precedent letter regarding medical expenses which is sent to all new clients once a file is opened. No written advice on the issues of late claim or reporting to police was provided to the claimant. He enclosed a copy of the letter to the claimant dated 8 August 2018.

52. He has reviewed the extensive and voluminous medical evidence on the claimant’s file which indicate the claimant has genuine and, serious injuries and disabilities resulting from the accident for which he has consistently required and received treatment since the date of the accident and continuing without any significant gap in his treatment.

THE INSURER’S SUBMISSIONS

53. The insurer made extensive submissions in it reply to the DRS application to reinforce its original decision that the claimant’s explanation was not full and satisfactory. In essence it pointed to the gaps in the explanation, including limited information about the claimant’s actions between 19 May 2018 and 13 July 2018, the history of the claimant’s treatment between 19 May 2018 and 13 September 2018 , legal advice given to the claimant and the conduct of his solicitors in relation to the matter since 3 August 2018.

54. I explored these issues with the parties at the teleconferences and the insurer did not have any objection to me, making directions for the claimant to provide a further statement and for his solicitor to provide a statement to address them. Those statements were received on 28 October 2019 and considered in the review.

LEGISLATION AND AUTHORITIES CITED

55. In conducting my review and making my decision, I have considered the following legislation, guidelines and authorities:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017 (“the Regulations”)
  • Motor Accident Guidelines effective 15 January 2019 (“the Guidelines”)
  • Walker v Howard [2009] NSWCA 408 (“Walker”)
  • Karambelas v Zaknic (No. 2) [2014] NSWCA 433 (“Karambelas”)
  • Smith v Grant [2006] NSWCA 244(“Smith”)

THE RELEVANT STATUTORY PROVISIONS

56. The following are the relevant statutory provisions applicable to this dispute.

57. Subsection 6.13(1) of the Act provides that a claim for statutory benefits must be made within 3 months after the date of the motor accident to which the claim relates.

58. Subsection 6.13(1) of the Act provides however, that 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, and either:

a) the claim is made within 3 years after the date of the motor accident, or

b) the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10 %.

59. Section 6.2 of the Act provides a definition of a “full and satisfactory explanation” as follows:

(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.”

THE RELEVANT AUTHORITIES

60. The meaning of the phrase, “a full and satisfactory explanation” has been considered in many court decisions over the years.

61. The meaning attributed to the phrase in the past authorities is relevant in the present context because the definition provided in s6.2 of the Act mirrors the definition in s 66(2) of the Motor Accidents Compensation Act 1999 (the MACA) which in turn is identical with its predecessor in the Motor Accidents Act 1988 (the 1988 Act).

62. For the purpose of determining the issue in this dispute, I have relied essentially on three Court of Appeal decisions.

63. In Walker, the Court of Appeal, with a bench comprising of five judges considered the meaning of the definition of “a full and satisfactory explanation” in s 66(2) of the MACA.

64. The explanation of “the conduct” required by the first sentence of s 66(2) (the equivalent to s 6.2(1) of the Act) is an account of the acts and omissions of the claimant and all relevant persons, including those acting or purporting to act on the claimant’s behalf, if their conduct is relevant to the explanation for the delay (At paragraphs [53],[106] and [133]).

65. The explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant’s behalf, but this does not broaden the meaning of “claimant” in the first sentence of s 66(2) beyond its defined meaning, to include any person acting or purporting to act on his or her behalf (At paragraph [55]).

66. The meaning of “full” in s 66(2) is to be understood in the context of the purpose of the provision which is to enable the court to evaluate the reasons for the delay; therefore all relevant information to that end is required (At paragraph [57]).

67. The test contained in the second sentence of s 66(2) (the equivalent to s 6.2(2) of the Act) is an objective test of whether a reasonable person in the claimant’s position would have been justified in experiencing the delay (At paragraphs [64], [108], [134]).

68. In Karambelas, the Court of Appeal said the following in relation to whether an explanation is “full and satisfactory” within the meaning of the MACA:

[16] “An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until "the date of providing the explanation". In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing.

[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. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant "has a full and satisfactory explanation". The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided "in the first instance". However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made.” [emphasis added].

69. In Smith the Court of Appeal said that the weight of authority under the 1988 Act in the Court of Appeal favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings (At paragraph [60]).

70. The actions of the solicitor are undoubtedly a relevant part of the explanation for the delay. There is nothing in the language of s66(2) which directly requires that the conduct of the solicitor be “justified”. Indirectly, the solicitor’s conduct may be called into question to the extent that it is relevant to determining whether a reasonable person in the position of the claimant would have been justified in experiencing the delay (At paragraph [74]).

CONSIDERATION

71. Having considered the documents received, the relevant statutory provisions and the principles in Walker, Karambelas and Smith, I make the following findings.

72. The claimant was late by one month in lodging his claim for statutory benefits. It was received by the insurer on 20 September 2018 when it should have been lodged by 20 August 2018.

73. I find that the statements relied on by the claimant, constitute, collectively, a comprehensive account of the conduct of the claimant and his solicitors during the period between the date of the accident to the date of the explanation on 20 March 2019.

74. I find that the explanation is full because it accounts for the actions, knowledge and beliefs of the claimant as well as the actions (and inactions) of his solicitors, sufficient enough to explain how and why the relevant delay occurred.

75. Following the accident, he was pre-occupied with obtaining medical treatment. At the time of his visit to Dr Maniam’s surgery on 26 July 2018, someone from that medical practice suggested to him that he lodge his personal injury benefits claim form to recover his medical treatment costs. Within days, he promptly took action by contacting a personal injury claim referral service.

76. On 3 August 2018, a week after the claimant attended Dr Maniam, Mr Thompson attended the claimant at home. Mr Thompson did not, however, advise the claimant on that occasion he would need to lodge his claim by 20 August 2018 to satisfy the requirements of s 6.13(1) of the Act. Mr Long has confirmed as much in his statement. Had the claimant received that advice, he would have taken that action, considering his prompt action a few days before, in seeking legal advice.

77. The claimant was contacted by PK Simpson on 13 September 2018 to complete a Certificate of Capacity. Again, he was not provided with any advice that the time limitation had passed and there was, therefore, any urgency in submitting his claim form. The claimant attended diligently to do what was requested of him and returned the document within days. On 17 September 2018, PK Simpson lodged his claim form late and without providing a” full and satisfactory explanation” for delay.

78. In his statement, Mr Long also confirms that the claimant was not provided with advice concerning the verification requirements of the Act and the claimant’s obligation to notify the Police of the accident within 28 calendar days. Indeed, Mr Long confirmed that he was provided with the incorrect advice. The claimant was told to wait for the insurer to query the non-reporting of the accident to the Police. As soon as he became aware from the insurer of his obligation to do so, the claimant attended Merrylands Police Station to report the accident.

79. In the period between receiving the advice received from the insurer on 21 November 2018 and providing an explanation for the delay to the insurer on 20 March 2019, I find that the claimant took all reasonable steps to advance the matter. In that period, he reasonably relied upon the actions and advice of his solicitors to progress the provision of his statement to the insurer.

80. The initial explanation provided to the insurer supplemented by further statements, lead me to find that the claimant has given a full account of his conduct from the date of the accident to the date of providing the explanation.

81. I find that the claimant acted reasonably and I find that a reasonable person in his position would have been justified in experiencing the same delay.

82. I therefore find that for the purposes of Part 6 of the Act (Motor Accidents Claims) the claimant has provided a full and satisfactory explanation for the delay in making his claim for statutory benefits.

REPORTING THE ACCIDENT TO THE POLICE

83. There is one issue that requires clarification rather than a determination.

84. In its submissions the insurer has suggested that non-compliance by the claimant with a duty to report the accident to the Police should form part of the explanation for the delay in lodging the claim for statutory benefits.

85. Section 6.9 of the Act and Clauses 4.15.1 and 4.15.2 of the Guidelines provide that the claimant is obliged to verify the motor accident by reporting it to the Police within 28 calendar days after the accident if a police officer has not attended the scene of the accident and to thereafter provide the Police event number to the insurer.

86. Clause 4.18 of the Guidelines provides that the claim for statutory benefits need not be “dealt with” by the insurer until the motor accident verification requirements are complied with.

87. As previously noted, the claimant complied with these requirements by 4 November 2018.

88. I consider the words “dealt with” to mean that the claimant’s claim for statutory benefits could not be processed for payment of the benefits until after the compliance with these requirements, not that the claimant is only entitled to statutory benefits as from that date.

89. Section 6.13 (2) of the Act makes it clear however, that weekly payments of statutory benefits are not payable in respect of any period before the claim is made. The claimant is therefore not entitled to any weekly payments prior to 20 September 2018.

CONCLUSION

90. My determination of the Miscellaneous Claim is as follows:

(a) For the purposes of section 6.13 of the Act, the insurer is not entitled to refuse payment of statutory benefits to the claimant.

(b) The effective commencing date for the payment of any eligible weekly payments of statutory benefits is 20 September 2018.

(c) I determine that the amount of the Claimant’s reasonable and necessary legal costs in accordance with the Regulations is $1,633 plus GST.

Maurice Castagnet

DRS Claims Assessor

Dispute Resolution Services

4 November 2019