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AHW v NRMA Insurance Ltd [2019] NSWDRS CA 210

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsFull and satisfactory explanation for delay – weekly payments of statutory benefits – time limits – worker’s compensation claim – physiotherapy – working holiday visa – limited English – application for personal injury benefits
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 6.12, 6.13(1), 6.13(3), 7.36(4), 7.36(5), Part 6, Schedule 2(3), Schedule 2 clause (3)(k)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.441
Cases citedDijakovic v Peres [2015] NSWCA 74, 71 MVR 334
Karambelas v Zaknic (No 2) [2014] NSWCA 433, 69 MVR 127
Lyu v Jeon [2012] NSWCA 446
Mancini v Thompson [2002] NSWCA 38
Russo v Aiello [2003] HCA 53, (2003) 215 CLR 643
Transport Accident Commission of Victoria v Jovanovic [2019] NSWSC 1137
Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408
Text cited N/A
Parties AHW – Claimant
NRMA Insurance Ltd – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

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, clause (3)(k) of the Motor Accident Injuries Act 2017 (NSW) (the Act) regarding a miscellaneous claims dispute concerning “statutory benefits claim time limits”.

1.   There is a dispute between the claimant and the Insurer regarding whether notice of a claim has been given in accordance with section 6.12 of the Motor Accidents Injuries Act 2017 (the Act). The issue is, relevantly, whether the claimant has provided a full and satisfactory explanation for the delay in making the claim, in accordance with section 6.2 of the Motor Accidents Injuries Act 2017 (the Act).

Explanation for delay provided

2.   In his statutory declaration dated 16 January 2019, provided to the insurer on or about, he says, 17 January 2019, the claimant sought to explain his reason for delay.

3.   He explained he is a citizen of Hong Kong who first came to Australia in 2017 on a working holiday visa.

4.   The accident occurred on 20 July 2018 when he was driving a truck in the course of his employment as a delivery driver when he was rear-ended on Victoria Road in Rozelle and injured his neck and right elbow as a consequence of this accident.

5.   He was admitted to the Emergency Department at Bankstown Hospital and he was discharged the next day. He was advised to attend upon his general practitioner for further treatment, which practitioner prescribed him with pain killers.

6.   His colleague and superior, Mr G, assisted the claimant in reporting the accident to Revesby Police the next day. Mr G also advised him to speak with a colleague in the main office, E, who would assist the claimant in lodging a worker’s compensation claim.

7.   He states that he had never been involved in an accident in Australia before and that he spoke very limited English. In his conversation with E, he was told that he, namely E, would take care of the paperwork. The claimant provided E with a copy of his hospital discharge summary and was told that the insurer (I assume the workers compensation insurer) would contact him directly. The claimant said that he assumed that this was all the information that he needed.

8.   On 23 July 2018, he attended upon Dr Chun Ma of the Healthpac Medical Centre in Hurstville who provided the claimant with some muscle relaxation exercises to do at home and advised him to continue taking pain medication as prescribed by the hospital.

9.   On 27 July 2018 he returned to Hong Kong. This trip was arranged prior to the accident so that the claimant could attend to some personal affairs.

10.   The trip was only intended to extend to two weeks, however the claimant sought treatment in Hong Kong and his treating orthopaedic surgeon, Dr Edmond Wong, recommended that he finish his physiotherapy sessions and wait until he was fit to fly.

11.   On 2 September 2018, he returned to Sydney.

12.   There is no explanation for the steps that the claimant took for the two-month period 2 September 2018 and the end of October 2018, when he states that he spoke to his neighbour, Mr L, who had a claim with Brydens Lawyers. Mr L recommended to the clamant that he seek legal advice and gave the claimant the contact details of his solicitor, Ms Cynthia Lam of Brydens Lawyers.

13.   On 29 October 2018, the claimant spoke with Cynthia Lam, who advised that the claimant only had three months from the date of the accident to complete an application for injury benefits and that this date had already passed. Ms Lam emailed the claimant a copy of the Application for Injury Benefits as well as a medical certificate for the claimant and his treating doctor to, respectively, to complete.

14.   On 9 November 2018, the claimant telephoned Ms Lam with the Police Event Number.

15.   On 12 November 2018, the claimant attended Healthpac Medical Centre in Hurstville and attempted to see Dr Chun Ma, whom he was told no longer practised from the medical centre. The claimant attended upon Dr Nancy Jia instead who competed the medical certificate.

16.   On 21 November 2018, the claimant emailed Ms Lam the details of the car at fault, as well as the discharge summary from Bankstown Hospital, the medical certificate, payslips and treatment invoices.

17.   On 29 November 2018, Ms Lam with the assistance of the claimant completed the Application for Injury Benefits over the telephone.

18.   On 8 December 2018, the clamant returned a completed Application for Injury Benefits form to Ms Lam via email which application was lodged with the insurer on 10 December 2018.

Procedural history following lodgement of claim for personal injury benefits

19.   The claimant’s statutory declaration dated 16 January 2019 was provided to the insurer on or about a date between 17 January 2019 and 21 January 2019, endeavouring to give a full and satisfactory explanation for the delay.

20.   The parties then entered into correspondence wherein the insurer initially asserted that the claimant's application was out of time. The claimant's solicitors responded, referring to the provisions of section 6.13(3) of the Act and referred to the fact that the claimant had served a full and satisfactory explanation for the delay on 17 January 2019.

21.   By email dated 4 February 2019 the insurer stated that the full and satisfactory explanation was provided the day before the 26 weeks expired. And the time to claim any benefits through this claim had expired and that the file had been closed.

22.   By email dated 6 March 2019, the claimant's solicitors sought internal review of this decision.

23.   On 20 March 2019 the insurer wrote to the claimant thanking him for providing an explanation for the delay and lodging the application for personal injury benefits and stating that unfortunately it was unable to accept the explanation provided as it did not consider it to be a full and satisfactory explanation.

24.   It appears from the material before me that this letter was not received and was resent on 27 May 2019.

25.   It also appears that a further application for internal review was received on 4 July 2019 which application was accepted by letter dated 31 July 2019.

26.   By letter dated 12 August 2019, the insurer advised the outcome of that review wherein it confirmed the decision of the claims consultant on the basis that it considered the original decision to be the correct decision. The reason for this outcome was stipulated as follows:

a.   The claimant did not set out the advice given by Dr Chun Ma given at the Health Pac Medical Centre on 23 July 2018. He has not set out the advice given following any consultation on 23 July 2018.

b.   There is no explanation for what occurred during the period between 27 July 2018 and 2 September 2018. The insurer notes that the claimant states that he was receiving physiotherapy treatment while in Hong Kong but has not provided any explanation as to what occurred, including the symptoms he was experiencing during the period, frequency and dates when he attended physiotherapy treatment and whether this therapy alleviated his symptoms.

c.   The insurer states that the claimant had not provided any explanation as to why he did not make a claim for personal injury benefits.

d.   The claimant has not given any explanation as to what occurred between 2 September 2018 (when he returned to Australia from Hong Kong) and the end of October, including the symptoms he was experiencing, the treatment and his employment status. He has not provided any explanation as to why he did not seek legal advice in relation to his rights to lodge a claim for personal injury benefits.

e.   The claimant has not provided any explanation as to what occurred between 12 November 2018 and 21 November 2018 or any explanation as to what occurred between the period of 29 November 2018 and 8 December 2018.

f.   The insurer refers to the premise that an explanation is not satisfactory 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 similar delay.

g.   The insurer observed that the Application for Personal Injury Benefits was lodged more than 5 months after the subject accident.

h.   It states that a reasonable person in the claimant's position would have sought out information about their rights and entitlements after suffering injuries to the extent that the claimant was required to extend his stay in Hong Kong in order to finish his physiotherapy treatment and wait until he was fit to fly.

i.   The claimant became aware of the 3-month limitation period and the fact that this period had already expired during his conference with his legal representative on 29 October 2018. However, he did not complete the Application for Personal Injury Benefits form until 29 November 2018, almost 5 weeks after the conference with his legal representative. The insurer opines that a reasonable person would have taken more proactive action once they became aware of the time limits and would not have experienced the same delays.

j.   The insurer opines that it is unreasonable (of the claimant) to expect the insurer to accept that he did not know that he could claim compensation as the result of injuries sustained in a motor vehicle accident when he was not at fault. The insurer opines that there has been much advertising and publicity about making claims for compensation.

27.   The insurer issued a Certificate of Determination of internal review on 31 July 2019 consistent with the findings and reasons for the decision, as set out above, following on 12 August 2019.

Documents considered

28.   I have considered the documents provided in the application and the reply; despite opportunity, no further material or information was provided by the parties.

Submissions

Claimant’s submissions

29.   The claimant provided an explanation for delay on 17 January 2019 but the insurer continued to close its claim on 4 February 2019 without responding to the explanation. There was also no further request for outstanding information.

30.   The insurer in its internal review decided that it was not reasonable for the claimant not to know he could claim compensation on the basis that “there has been much advertising and publicity about making claims for compensation”.

31.   The claimant’s solicitor submitted that he was not Australian resident and had never been involved in a motor vehicle accident before and had little command of the English language.

32.   Therefore, it is submitted that it was unreasonable to expect him to know that he had three months to lodge the claim form. Once the claimant became aware on 29 October 2019, he made efforts to obtain the necessary information and return the form as outlined in his statutory declaration.

Insurer’s Submissions

33.  The insurer disputes that the explanation provided is full for the following reasons:

a.   The claimant has not explained whether the claimant's colleague and superior, Mr G, who assisted him in reporting the accident to police, advised him that he could make a claim for statutory benefits as a result of the accident;

b.   The claimant has not advised what information was provided to him by “E”, the colleague at main office, to whom he was referred by his colleague and supervisor Mr G, as to his rights to make a claim;

c.   The claimant has not advised the date on which the contract was made with E at head office;

d.   The claimant says that he provided E with a copy of the hospital discharge summary and was advised that “the insurer would contact me directly”. The claimant has not advised what explanation was provided to him as to the claims process;

e.   The claimant has not advised the date on which he provided “E” with a copy of the hospital records;

f.   The claimant has not explained his understanding as to the reasons why he was providing “E” with a copy of the hospital notes;

g.   The claimant has not explained why he did not chase up the insurer to enquire as to his claim, not having heard back from it;

h.   No explanation has been provided as to dates on which the claimant received treatment for injuries sustained in the accident and other causes. The insurer submits that there is no medical information as to the claimant's medical condition, aside from the medical certificate, between the date of the accident to date. Furthermore, there has been no medical evidence submitted by the claimant to verify the alleged injuries, symptoms and treatment or their relationship to the motor accident. A detailed explanation of the progression of the claimant’s symptoms over the period would have contributed to the explanation of the claimant’s actions, knowledge and belief over the period;

i.   In the claimant’s statutory declaration, the claimant says that he returned to Hong Kong on 27 July 2017 until 2 September 2018. The claimant had not advised the dates that he attended the treatment and the frequency of the physiotherapy undertaken whilst in Hong Kong;

j.   The claimant has not detailed the advice given to him by his treating orthopaedic surgeon, Dr Edmund Wong, as to a formal diagnosis and prognosis of his injuries;

k.   The claimant has not advised what transpired on 2 September 2018 or on his return to Sydney until the end of October when he initially sought legal advice from his current solicitor;

l.   The claimant has not explained the period 12 November 2018, the date on which the medical certificate was provided to his solicitor, to 21 November 2018 when he provided details of his claim to his solicitor;

m.   The claimant has not explained the period between 29 November 2018 and 8 December 2018 when he emailed his completed claim form to his solicitor;

n.   In conclusion, the explanation cannot be considered full as it does not provide information necessary to address the question of whether a reasonable person in the position of the claimant would have failed to comply with the duty or experience such delay.

34.   The insurer submits that on a reading of the claimant's statutory declaration, the explanation for late lodgement is not full, as it does not provide the information necessary to address the question of whether a reasonable person in the position of the claimant would have failed to comply with the duty or experience such delay.

35.   As to whether or not the claimant's explanation is satisfactory, the insurer relies on the decision in Walker v Howard (discussed below). It accepts that a person with no English language skills is in a very different position to a person who is able to communicate in English. It also accepts that a person who has no access to the print or broadcast media by reason of their lack of English language is in a different position to a person familiar with the local legal system and their rights under that system.

36.   The insurer submits that the claimant had worked since arriving in Australia as a delivery driver. He holds a driver's licence and understands the requirements to insure and register a vehicle. It submits that he would have been aware of claims to be made through the compulsory third-party insurance by people injured in motor accidents. In other words, it submits that he would have been aware that there was a compulsory third-party scheme associated with the registration of vehicles to protect injured users of the road. It submits that he had not advised whether he owned a motor vehicle but, it is submitted that if he did, he would understand the requirements to insure and register a vehicle.

37.   It relies on paragraph 7 of the claimant’s statutory declaration, in particular that he was advised by Mr G to speak to E to seek assistance in lodging a worker’s compensation claim.

38.   The insurer submitted that it was not satisfied that any subjective or personal matters affecting the claimant were such to prevent him from acting reasonably in the pursuit of his injuries arising out of the motor accident.

39.   It also submits that there is no discretion to extend the time period of 28 days in section 6.13(2).

40.   It submits that no costs should be awarded in favour of the claimant.

Legislation

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

  • Motor Accident Injuries Act 2017 (NSW) (the Act)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

42.  I have considered the documents and submissions provided in the application and the reply.

43.  Pursuant to section 6.12(1) of the Act, a claim for statutory benefits is made by giving notice to the relevant insurer under Part 3. The time for making that claim is prescribed in section 6.13(1) as 3 months from the date of the motor accident to which the claims relate. An exception to this time limit is found in sub-section 6.13(3) which provides that a claim for statutory benefits may be made after the time prescribed in sub-section (1), if the claimant provides a full and satisfactory explanation for the delay in making the claim and the claim is made within 3 years after the date of the motor accident.

44.  Section 6.2 of the Act is almost indistinguishable from section 66(2) of the Motor Accidents Compensation Act 1999 (NSW) (MACA), which was recently considered by Basten JA sitting in the Common Law Division of the Supreme Court of New South Wales in Transport Accident Commission of Victoria v Jovanovic [2019] NSWSC 1137. There the claimant was involved in a collision and failed to lodge his claim in respect of compensation for personal injury within the prescribed six-month time limit by that Act. The matter was referred to assessment by a claims assessor after the insurer had declined to admit the claim. His Honour (at [34]) referred to the language of the statute and said that:

a.   “it requires a ‘full account’” of the claimant’s conduct and belief “from the date of the accident until the date of providing the explanation”; and

b.   a consideration of whether or not the explanation is “satisfactory”, namely “whether a reasonable person in the position of the claimant would have been justified in experiencing the same delay.”

45.   His Honour noted the introductory observations of Gleeson JA in Dijakovic v Peres [2015] NSWCA 74; 71 MVR 334 at [19], that the concept of a satisfactory explanation in section 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 has occurred was reasonably justifiable. The explanation is directed to the delay, which occurred to the time when the proceedings were commenced: Karambelas v Zaknic (No 2) [2014] NSWCA 433; 69 MVR 127 at [17].

46.   In Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 at [96] to [97], the Full Court of the NSW Court of Appeal considering the operation of s 66(2) MACA stated the following principles which are of assistance in the determination of this application:

a.   The explanation of “the conduct” required by the first sentence of the definition above quoted from s 66(2) MACA involves an account of the acts and omissions of the claimant and all relevant persons, including those acting or purporting to act on the claimants behalf, if their conduct is relevant to the explanation for the delay;

b.   The explanation should cover the conduct of agents (such as solicitors) purporting to act on the claimant’s behalf, does not broaden the meaning of “claimant” in the first sentence of the above quoted definition from s 66(2) MACA beyond its defined meaning, to include persons acting or purporting to act on the claimants behalf;

c.   The meaning of “full” in the above quoted definition from s 66(2) MACA is to be understood in the context of the purpose of the provision to enable the Court to evaluate the reasons for the delay. Therefore, all relevant information to that end is required;

d.   The definition taking the two sentences as a composite whole, describes a test of satisfactoriness meaning not merely necessary but that the explanation is sufficient.

e.   Not just the acts and omissions of the claimant but the whole explanation given is to be assessed in the test of whether it provides a full explanation satisfying the test of satisfactoriness, described in the second sentence in the above quoted definition from s 66(2) MACA; whether or not “a reasonable person in the position of the claimant... would have been justified in experiencing the same delay”. In that test, solicitors retained to assist the claimant are an aspect of the position in which the claimant was placed.

Is the explanation for delay “full”?

47.   A “full account” is required to be given as to the claimant’s actions, knowledge and belief. The requirement for a full explanation does not require that the explanation be perfect with “a prolix and burdensome recounting of every moment which has elapsed”: Walker v Howard at [104] per Allsop P.

48.   At the time of the accident, it is not apparent from his explanation whether or not the claimant knew that, if he wanted to pursue a claim for damages in respect of his injuries arising out of the motor accident, he was required to lodge a claim in an approved form with the other driver's third-party insurer within three months of the accident. This is not directly addressed in his statutory declaration.

49.   In saying this, it is relevant that the claimant is non-English speaking citizen of Hong Kong only present since 2017 and working in Australia further to a working holiday visa. At the time of the accident he had been present in Australia not more than 18 months. The insurer would invite me to speculate as to what the claimant would have known if he had owned a vehicle, namely that he was required to lodge a CTP claim within 3 months of any accident in which he was injured (see paragraph 36 above).

50.   In Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643, a case dealing with the application of s 43A(7) of the Motor Accidents Act 1988, which required that, in respect of a late claim, the Court “must” dismiss the proceedings if satisfied that the claimant “does not have a full and satisfactory explanation for the delay in making the claim”, the Court gave careful attention to the elements of the definition contained in s 40(2), corresponding with s 66(2) of the MACA. The comments of Gleeson CJ in Russo at [11] are relevant in this circumstance, albeit made in a different statutory context, which required a claimant to provide information to the insurer as well as to the Court. The Chief Justice noted that the explanation given to the insurer may be the whole of the information before the Court, or the claimant may seek to add to it. His Honour continued:

“Either way, since it is the claimant's explanation of his or her own conduct that is the subject of judicial evaluation, and since the claimant is at risk of having the proceedings dismissed, common sense will ordinarily justify the inference that a claimant does not possess undisclosed information that might assist his or her case, especially where, as here, the claimant is professionally represented.”

51.   Gleeson CJ continued in Russo at [13]:

“There may be cases in which a primary judge, or an appellate court, is tempted to speculate that, perhaps because of deficiencies in a claimant's legal representation, or because of some accident or mistake, there is information helpful to a claimant that has not been put before a court when considering whether to dismiss proceedings.”

52.   The Chief Justice warned against indulging in such speculation, as a departure from the ordinary processes of fact-finding and drawing of inferences. In these premises, it is not open to me to accept the insurer’s submissions on this issue.

53.   What is apparent from his explanation is that the claimant relied upon Evan to take care of the “paperwork” in respect of any claim arising out of the accident. As Evan was engaged in the business of which the claimant was an employee, I infer that this paperwork pertained only to worker’s compensation claim and not more. I also infer from the claimant’s willingness to make a claim for the injuries sustained in the accident that had the claimant been informed that a CTP claim was also open to him to make, he would have made such a claim simultaneously. I am fortified in this reasoning by the fact that given that shortly after he attended upon his solicitors the claimant made a claim for personal injury benefits and pursued its submission with relative diligence. For this reason, I infer that the claimant was not aware that he had a motor accident claim until he attended upon his solicitors on 29 October 2018, 9 days after the expiration of the relevant third month.

54.   I am satisfied that evidence in the claimant’s application includes a sufficient disclosure of his understanding and knowledge over the relevant period, his actions and belief and of the conduct of his solicitors so far as is required by that assessment. He has not “cherry picked” the information to be disclosed: see Mancini v Thompson [2002] NSWCA 38 at [46], Walker v Howard at [73], [86] to [89]. On this basis I am satisfied that I have the necessary information to properly assess the claimant’s explanation for the delay. I accept that an inherent part of the claimant’s explanation is his understandable ignorance of the distinction between a claim further to the CTP insurance scheme and the workers compensation scheme.

55.   The issue then is whether the claimant’s explanation is such that a reasonable person in his position would have been justified in experiencing the same delay being the delay from the accident, 20 July 2018, until 10 December 2018 when the claim was first made. This is a period of a little less than 5 months.

56.   The proper test for the purposes of section 6.12 of the Act requires that the characteristics and personal circumstances of the claimant must be taken into account in applying the objective standard: Lyu v Jeon [2012] NSWCA 446 at [22] - [23]; Walker v Howard at [97]. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay: Lyu v Jeon at [22]. The claimant is a non-English speaking visitor to Australia, working under a working holiday visa. It is not unreasonable of a person in the claimant’s position not to have known of his rights under the CTP insurance scheme. He understandably reposed his trust in those with whom he worked who made a worker’s compensation claim as is the statutory obligation of an employer in this State. It was not until he spoke with a neighbour who had experience with the CTP insurance scheme that he learned of the availability of a claim. While the insurer’s submissions valiantly catalogue for me asserted deficiencies in the claimant has satisfactorily explained the delay such that I am satisfied that the experience of that a reasonable person in the position of the claimant would have been justified in experiencing the same delay he did. His explanation is satisfactory for the purposes of s 6.13(3) of the Act.

Costs and disbursements

57.   The claimant has not made a claim for costs. The insurer opposes costs.

58.   I will hear the parties on any further application for costs that the claimant may make and amend my decision accordingly.

Conclusion

My determination of the Miscellaneous Claim is as follows.

  1. For the purposes of Part 6, the claimant has given a full and satisfactory explanation for his delay.
  2. For the purposes of section 6.12 notice of the claim has been given.
  3. For the purposes of section 6.13(1) the insurer is not entitled to refuse payment of weekly payments of statutory benefits.
  4. Legal Costs: I will hear the parties further as to costs.

B. K. Nolan
DRS Claims Assessor
Dispute Resolution Services