Claims for damages must be referred to the PIC within three years of the date of the MVA. If not, a claimant is required to provide a full and satisfactory exposure for the delay. We discussed below a recent case in the PIC concerning a late claim.
Under the Motor accident Injuries Act 2017 (MAI Act) a claimant must refer his or her claim to an assessment of damages with the Personal injury Commission (PIC) within three years of the date of the motor vehicle accident. If this does not occur, the claimant must provide a full and satisfactory explanation for the delay in referring the claim for the assessment.
Once that explanation has been provided, and if it is a full and satisfactory explanation, leave would be granted to refer the claim for an assessment of damages see section 7.33 of the MAI Act.
In Agathe v AAI Limited t/as GIO [2022] NSWPIC the delay was over five months late. The claimant relied upon his lawyer to refer the assessment to the PIC. The lawyer was a sole practitioner and contracted Covid on 3 January 2022. The lawyer was unaware that an assessment could be lodged with the PIC before a minor injury dispute had been determined.
The PIC referred to Walker v Howard [2009] NSW CA 408 that permits a finding that a reasonable person would have failed to have complied with the duty would have been justified in experiencing the same delay. It was submitted that the explanation does not need to be “perfect”.
The PIC member consider the evidence and reasoned that for an explanation to be full it needs to be complete in the sense that it says what happened and why. The concept of satisfaction explanation requires the making of an evaluative judgement 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 member was satisfied that a reasonable person in the claimant’s position would have been justified in experiencing the same delay. He found the explanation satisfactory and leave was granted to refer the claim to assessment.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
