The Motor Accidents Compensation Act 1999 (“MACA”) prescribes a number of timeframes with which claimant’s need to comply in order to receive compensation in relation to motor vehicle accidents in which other persons are at fault. Perhaps the most important obligation on the part of the claimant is to submit a completed Motor Accident Personal Injury Claim Form to the insurer of the driver at fault within six months of the accident having occurred (s72 MACA). Failure to submit a claim form within six months represents a complete bar to a claim unless the claimant provides a ‘full and satisfactory’ explanation to the insurer for the delay pursuant to (s73 MACA).
Submit a personal injury claim
All person injured in a motor vehicle accident, however modestly, should submit a personal injury claim form to the insurer of the driver at fault as soon as possible following an accident to protect their entitlements. Many people consider their injuries to be too minor to consider a claim. It is often the case that due to what appear to be more pressing circumstances, for example, medical treatment, car repairs, organising alternative transport, arrangements in relation to employment and so forth that compensation is often the last matter on people’s minds. The onset of symptoms is sometimes delayed. Injuries that are initially dismissed as minor can deteriorate. For those reasons, it is unfortunately the case that people do not consult a lawyer within six months following the accident and are therefore required to submit their claim out of time and provide a full and satisfactory explanation.
The meaning of “full and satisfactory” has been discussed in a number of Court of Appeal decisions. One such decision was Karambelas -v- Zaknic (No 2) [2014] NSWCA 433 (15 December 2014) where Meagher JA stated at paragraphs 16 and 17 of his judgment:
- 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.
- 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.
The ‘fullness’ of an explanation is rarely a difficult issue to address unless the claimant’s memory is very poor or documents relating to the accident and any advice provided have not been kept. The ‘reasonableness’ of a claimant’s explanation is the more contentious issue because the assessment of ‘reasonableness’ involves a discretionary judgment. McHugh J stated in Russo –v- Aiello [2003] HCA 53 at paragraph 27,
A ‘full and satisfactory explanation’ for delay is an intellectual construct involving a value judgement, a judgement on which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgement.
The ‘reasonable’ person is generally not entitled to sit on their hands. Ignorance is a legitimate excuse, but one that will only carry so far, and a claimant would be well advised to obtain legal advice at an early stage. There are decisions to the effect that a ‘reasonable’ person will seek legal advice in relation to their compensation entitlements, even where they are ignorant of their rights and receiving workers compensation benefits in relation to the same accident (see for example Figliuzzi -v- Yonan [2005] NSWCA 290).