The NSW Personal Injury Commission (PIC) Review Panel has recently revoked the Certificate of PIC Member Castagnet, confirming that a claimant who commences a common law claim for damages has a positive obligation to provide an insurer with particulars.
Background
The claimant, Sohail Zahoor was involved in a motor vehicle accident on 30 October 2019. A claim was commenced under the Motor Accidents Injuries Act 2017 (NSW) (MAIA).
On 30 June 2022 the insurer issued a direction to the claimant to provide all relevant particulars of the claim for damages under section 6.26 of the MAIA. The claimant had until 30 September 2022 to respond. A statutory presumption arises that the claim is withdrawn after this date.
On 4 October 2022 the claimant's solicitors responded to the insurer's section 6.26 direction. Information regarding the claimant's injuries, treatment history and employment history was provided. They further enclosed signed authorities to release third-party records. The response failed to particularise any calculations for the claimant's past and future economic loss claims, advising that these calculations were 'yet to be finalised.'
On 14 October 2022 the insurer wrote to the claimant, advising it considered their claim to have been withdrawn per section 6.26 of the MAIA.
On 29 October 2022 the claimant filed an application for reinstatement of their claim with the PIC. Member Castagnet presided over the merit review proceedings and issued a Merit Review Certificate in favour of the claimant on 17 May 2023.
In his reasons, Member Castagnet held that by access to certificates of fitness, treating medical records, expert medical evidence and income taxation records, there was sufficient medical and financial information to enable the PIC to make its own assessment of the claimant's entitlements to damages for past and future economic loss.
Member Castagnet deemed the insurer's section 6.26 notice defective and held that the claim was not taken to be withdrawn. The insurer filed an application seeking review of the Merit Review Certificate by the PIC Review Panel.
Issues
The primary issue was whether the claimant had particularised their claim for future and past economic loss to the standard required of section 6.25 of the MAIA through the provision of evidence.
The insurer submitted that the fact it held material relevant to the economic loss claim did not impact the duty of the claimant to particularise their claim. The insurer also submitted that material that had been provided regarding the claimant's economic loss claim was categorised as 'evidence' instead of 'particulars.' It was further submitted that Member Castagnet's decision shifted the statutory burden to the insurer to calculate the claim.
The Decision
The Review Panel held that the wording of section 6.25 of the MAIA places a positive obligation upon a claimant making a claim for damages to provide the insurer with relevant particulars.
In their reasoning, the Review Panel determined medico-legal and other expert reports are, in fact, 'evidence' and not 'particulars.' Furthermore, they held authorities to release, and the third-party information are used to procure, and do not amount to providing 'full details' of the claim made as required by section 6.25 of the MAIA. This point was emphasised in the context of economic loss claims, as being plans that only a claimant can particularise.
The result being that the claimant had not particularised their claim, and the insurer's section 6.26 notice was effective and therefore the claim was taken to have been withdrawn.
Key considerations
It is important that claimants are aware that this case will apply to any directions to produce particulars that a claimant receives under section 6.26 of the MAIA and section 85B of the Motor Accidents Compensation Act 1999 (NSW) (MACA).
A claimant has a positive obligation to provide full particulars of their claim, especially regarding any claim for economic loss or any other losses claimed as heads of damage. Once full particulars have been provided, an insurer then has the obligation to make a settlement offer which is in line with the overriding intent of the MAIA for a just, quick and cheap resolution of claims. You can read the full Decision here.
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