INJURED MOTORIST ASKS FOR ASSESSMENT DESPITE THE WITHDRAWAL OF CLAIM DUE TO INACTION
Wahhab v Insurance Australia Ltd [2021] NSWSC 521 (12 May 2021)
This is a judicial review of the decision of the principal claims assessor under Motor Accidents Compensation Act 1999 (NSW) not to refer the claim for assessment since the claim is deemed to have been withdrawn.
Facts:
The plaintiff, Samier Wahhab, claims to have been injured in a motor vehicle accident that occurred on 26 March 2016. His solicitors, who continue to act for him, made a claim for damages for personal injury, served on the defendant-insurer.
Between 1 December 2016 and 18 June 2018, seven letters were sent by the insurer to the plaintiff’s solicitors seeking a response to the request for particulars. On 28 September 2018, a final letter was sent, it now being more than two years and six months since the date of the accident, noting that a failure to provide all relevant particulars within three months would lead to the claim being deemed to have been withdrawn.
On 21 March 2019, the plaintiff made an application for the claim to be reinstated. On 3 July 2019, that application was rejected on the basis that the claimant had not provided a full and satisfactory explanation for the failure to provide the required particulars within the time permitted.
On 12 November 2019, the plaintiff applied for referral of his claim for a general assessment. On 23 January 2020, a claims assessment officer, Ms Michelle Boyle, rejected the application on the basis that there was no claim to be assessed. There was no challenge to that decision. Rather, on 5 March 2020, the plaintiff made a further application for a general assessment. On 11 August 2020, the principal claims assessor concluded that a second claim could not be made following an unchallenged refusal to reinstate the original claim, in effect affirming Ms Boyle’s decision of 23 January 2020.
The plaintiff’s case turned on two propositions: the first was that the Act contained no prohibition on the lodgement of a second claim (or indeed a third claim) and that the principal claims assessor was therefore obliged to refer the plaintiff’s claim for general assessment
Issue: Should there be an assessment despite the claim having been deemed withdrawn?
Law:
- Motor Accidents Compensation Act 1999 SS. 3, 72, 73, 74, 85, 85A, 85B, 90, 93, 94, 95, 96; Ch 4; Pt 4.2; Pt 4.3; Pt 4.4, Div 2
Analysis:
As senior counsel for the plaintiff submitted, there is nothing in the Act which expressly precludes a claim being made more than once. However, the statutory scheme suggests two responses to this assertion. First, if a claim has been properly made and has proceeded through various steps prescribed by the Act and is taken to have been withdrawn, that claim can no longer be referred for assessment. There is only one claim and once disposed of, there is no power to make the same claim again.
There is no provision permitting one claim to be made twice (or more times). Sending a copy of a claim form to the insurer for a second (or third) time is not the making of the claim. In a sense, the plaintiff conceded that: his request for an assessment assumed that all relevant particulars had been supplied. Such a document had in fact been supplied to the insurer, but only after the deemed withdrawal. The plaintiff’s case thus required that all prior non-compliance with the Act be disregarded. To imply the availability of such a course would be to subvert the scheme of the legislation and cannot be accepted.
It is, of course, true that there are procedures whereby judicial proceedings may terminate without prejudice to an applicant’s right to commence fresh proceedings where there has been no final determination. However, the proper construction of the Act turns not on analogies which might be drawn from proceedings in other statutory and institutional frameworks, but by an understanding of the operation of the Act itself. The meaning of S.85B is clear: if a claim is withdrawn, there is no extant claim. Therefore, there is no claim which can be referred by either party for assessment. Accordingly, there is no obligation, or power, on the part of a principal claims assessor to make arrangements for an assessment to be undertaken.
Conclusion: For these reasons, the proceedings in this Court must be dismissed
