LATE MAKING OF CLAIMS UNDER THE MOTOR ACCIDENTS COMPENSATION ACT (1999)

The Motor Accidents Compensation Act 1999 (“MACA”) requires the making of a claim for personal injury damages arising from a motor vehicle accident within six months of the date of that accident (s.72(1)).   The claim is to be lodged with the third party insurer where one exists or otherwise against the person against whom the claim is made (s.72) (2).

The claim must be in the form approved by the Motor Accidents Authority (s.74).

Late making of claims

This article deals with the requirement that an explanation be “full”.

There are two provisions in MACA which are necessary to consider.  These are s.73(1) and s.66(2).

S.73(1) provides:

(1)       “A claim may be made more than six months after the relevant date for the claim under s.72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim.  The explanation is to be provided in the first instance to the insurer”;

S.66(2) provides the definition of a full and satisfactory explanation:

In this chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation.  The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or to have been justified in experiencing the same delay.

Full explanation

In Walker v Howard [2009] NSWCA 408, the Court held that the requirement for an explanation to be full does not call for perfection. Nor does the section  call for “prolix” or “burdensome recounting of every moment that has elapsed”.  Diaz v Truong [2002] NSWCA 265.

In Ellis v Reko Pty Ltd [2010] NSWCA, the Court of Appeal stated:

            “The word ‘full’ is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the Court should be asked to draw inferences for correspondence etc, at least where that is not obvious.”

And in Dias v Trong [2002] CA 265, Hodgson, JA said that what was required to satisfy the requirement for a ‘full account’ was:

            “A full account of the acts and omissions of the claimant and of persons acting on behalf of the claimant, insofar as those acts and omissions are relevant to the explanation for the delay.”

Mason, P said in Bulla v Black [2005] NSWCA 45:

          “The complete explanation is, of course, an explanation of what actually happened, warts and all”.

In Russo v Aiello [2003] 215 CLR 463 Gleeson, CJ said in relation to the concept of the explanation being full:

“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.  The word “full” takes its meaning from the context.  It refers to the conduct bearing upon the delay and the state of mind of the claimant.”

We will shortly prepare a further article dealing with the requirement that an explanation be “satisfactory”.

Scott Hall-Johnston

Beilby Poulden Costello