Time’s up: when has a claimant failed to produce particulars

By Daniel Stoddart, Martin Samyia and Liam Hart

Zahoor v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMRP 1 (22 March 2024)

In a significant case for compulsory third-party (CTP) insurers, the NSW Personal Injury Commission (PIC) Review Panel revoked the Certificate of PIC Member Castagnet. It confirmed claimants who make a common law claim for damages have a positive obligation to provide the insurer with particulars. It’s not the insurer’s responsibility to deduce the details from the material relied on by the claimant.

Facts

Sohail Zahoor (Claimant) was involved in an accident on 30 October 2019 and brought a claim under the Motor Accidents Injuries Act 2017 (NSW) (MAI Act). On 30 June 2022, under section 6.26 of the MAI Act, the insurer issued a direction to the Claimant to provide all relevant particulars of their claim for damages. Consequently, the Claimant had until 30 September 2022 to respond. After this date, a statutory presumption arises that the claim is withdrawn.

On 4 October 2022, the Claimant’s solicitors responded to the insurer’s section 6.26 direction. They provided information about the Claimant’s injuries, treatment history and employment history. Additionally, they enclosed signed authorities to release third-party records. However, their response failed to particularise any calculations for the Claimant’s past and future economic loss claims, stating such calculations were ‘yet to be finalised.’

Consequently, on 14 October 2022, the insurer wrote to the Claimant, stating it considered their claim to have been withdrawn as per section 6.26 of the MAI Act.

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 on 17 May 2023, issued a Merit Review Certificate in favour of the Claimant (Certificate).

In his reasons, Member Castagnet held that through access to certificates of fitness, treating medical records, expert medical evidence and 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. Consequently, he deemed the insurer’s section 6.26 notice defective and held that the claim was not taken to be withdrawn.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 Certificate by the PIC Review Panel.

Issues

The primary issue was whether the Claimant had, through the provision of evidence, particularised their claim for future and past economic loss to the standard required of section 6.25 of the MAI Act.

The insurer submitted that the fact it held material relevant to the economic loss claim doesn’t affect the Claimant duty to particularise their claim. All material provided regarding the Claimant’s economic loss claim was characterised as ‘evidence’ rather than ‘particulars.’^[1] Additionally, it was submitted that Member Castagnet’s decision shifted the statutory burden onto the insurer to ‘piece together a claim without any further information.’^[2]

Decision

The Review Panel, consisting of Merit Reviewers Medland, Boyd-Boland and Ruschen (Review Panel) held the wording of section 6.25 of the MAI Act places a positive obligation upon a Claimant making a claim for damages to provide the insurer with relevant particulars.^[3]

In their reasoning, the Review Panel determined medico-legal and other expert reports are, in fact, ‘evidence’ and not ‘particulars.’ Additionally, they held authorities to release, and the third-party information they are used to procure, doesn’t amount to ‘full details’ of the claim made as required by section 6.25 of the MAI Act.^[4] The Review Panel emphasised this point, particularly in the context of economic loss claims, stating ‘[t]he claimant’s future plans is something that only the claimant can particularise.’

This meant the Claimant hadn’t particularised their claim, and the insurer’s section 6.26 notice was effective. The claim was taken to have been withdrawn.

Implications for CTP insurers

This case applies to insurers issuing directions to produce particulars under both section 6.26 of the MAI Act and section 85B of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act).

The claimant, in providing particulars, has a positive obligation to provide full details of their claim, particularly concerning a claim for economic loss or any other losses claimed as damages.

Insurers should note the interplay between their obligation to make a reasonable offer of settlement and the claimant’s obligation to provide particulars, as well as the tight time frames placed on insurers regarding this.

Insurers have an obligation to make a settlement offer once the claimant has provided their particulars. In circumstances where they believe particulars have not been provided in full detail, the insurer must request further particulars within two weeks. Failure to do so may require the insurer to make an offer even though particulars appear insufficient.

Additionally, section 6.26 only provides a two-month period for insurers to issue a 6.26 direction.

The objects and structure of the MAI Act encourage parties to come to quick, cost effective, and just resolutions of disputes. Zahoor shows this creates important and strict obligations on claimants to prosecute their case. CTP insurers should seek timely advice when a claimant doesn’t uphold their obligations.