1. The claimant has not provided a full and satisfactory explanation for the delay in making her claim for damages, such that a late claim cannot be made in accordance with s 6.14 of the Motor Accident Injuries Act 2017.
2. The insurer is to pay the claimant's legal costs in the amount of $2,031 plus GST.

A statement setting out the Personal Injury Commission's reasons is included with this certificate.

1. Ursula Botros (claimant) was involved in a motor accident on 29 November 2018 in the underground carpark of Bankstown Shopping Centre. Ms Botros was returning her trolley to the trolley bay in the direction of oncoming traffic. A car that was driving towards her hit her trolley and she was propelled backwards onto the ground (accident).
2. On 11 December 2018, Ms Botros lodged an application for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (MAI Act) on CIC Allianz Insurance Limited (the insurer).
3. On 24 August 2023, she made an application for damages on the insurer. The current dispute regards Ms Botros's damages application.
4. Relevantly, the insurer has denied liability on the basis that Ms Botros's application was lodged outside the required timeframe and without a full and satisfactory explanation. Ms Botros accepts that her application for damages was lodged outside the required timeframe. However, she submits that it should be accepted as her explanation is both full and satisfactory.
5. This matter requires determination of whether Ms Botros's explanation is full and satisfactory for the purposes of s 6.14 of the MAI Act, such that a late claim can be made.
6. This dispute constitutes a miscellaneous claims assessment matter under schedule 2, cls 3(h) and (l) of the MAI Act.

1. Section 6.14 of the MAI Act provides for the time for the making of a claim for damages and reads:

(2) A claim for damages must be made within 3 years after the date of the motor accident to which the claim relates. The regulations may amend this subsection to change the period within which the claim must be made.

(3) A claim for damages may be made after the time required by subsection (2) (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.

(4) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(5) If a late claim for damages is made, the claim cannot be referred for assessment under Division 7.6 unless -

(a) the insurer has lost the right to reject the claim on the ground of delay, or

(b) the Commission has determined that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c) the claim is referred only for a certificate of exemption from assessment under Division 7.6.

(6) The insurer loses the right to reject a late claim on the ground of delay if the insurer -

(a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b) does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(7) The insurer may apply to the court in which proceedings on a late claim for damages are commenced to have the proceedings dismissed on the ground of delay if -

(a) the application to have the proceedings dismissed is made not more than 2 months after the statement of claim is served on the defendant and received by the insurer, and

(b) the insurer has not lost the right to reject the claim on the ground of delay.

The court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.

(8) In this section, insurer includes the person against whom a claim for damages is made."

1. The definition of "full and satisfactory explanation" for the purposes of Part 6 of the MAI Act is set out in s 6.2 and provides:

"6.2 Meaning of "full and satisfactory explanation" by claimant

(1) For the purposes of this Part, a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is 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.

(2) 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 would have been justified in experiencing the same delay."

1. Section 52(3) of the Personal Injury Commission Act 2020 (NSW) (PIC Act) provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. At the preliminary conference on 29 August 2025, I made directions listing the matter for an assessment conference. Subsequently, both parties submitted that they considered it appropriate for the dispute to be determined on the papers and without holding a formal hearing.
2. Having considered s 52 of the PIC Act, Procedural Direction PIC2 and the documents before me, I am satisfied that I have sufficient information available to me to allow me to determine the issues in dispute 'on the papers' and without holding a formal hearing, and that this is the appropriate course in the circumstances.

1. Ms Botros has put on written submissions dated 25 November 2024 and 3 September 2025.[1]
2. Ms Botros notes that the insurer has accepted that Ms Botros has a full explanation for the delay, but alleges that the delay is not satisfactory.
3. Ms Botros notes that, since she lodged her late claim application, she has been assessed as having non-threshold psychological and physical injuries.
4. Ms Botros acknowledges that an explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay. She refers to the comments of Mason P in Buller v Black (2003) NSWCA 45, Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 (Walker), Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 (Russo) and Figliuzzi v Yonan [2005] NSWCA 290 (Figliuzzi).
5. Ms Botros refers to her application for statutory benefits and the advice she received from Ms Spasojevic dated 17 December 2018. It is acknowledged by Ms Botros that this advice clearly set out that she must commence proceedings within three years of the motor accident.[2]
6. The claimant's submissions refer to her subsequent correspondence with the insurer following that advice and that the insurer was attempting to close her file. It also refers to her statement.
7. Ms Botros submits that, while she accepts she was provided with advice about lodging a damages claim when she first saw her solicitor at the end of 2018, this advice was contingent upon her having more than a minor injury. The insurer determined she had a minor injury. She submits that a reasonable person in her position would have done exactly what she did. Her submission continues "She was told there was a time limit and she acknowledges that, but she was also told that in the solicitor's opinion she had suffered minor injuries".
8. She submits that, within 24 hours of seeing her current solicitor, her claim form was lodged.
9. She submits that the following medical reporting is relevant, being:

(a) the diagnosis of somatic symptom disorder by Medical Assessor Verma in the medical assessment certificate dated 24 July 2025;

(b) the diagnosis of post-traumatic stress disorder and the psychological symptoms recorded by Dr Kumar in his medicolegal report of 8 August 2025;

(c) the diagnosis of persistent depressive disorder and post-traumatic stress disorder, and the psychological symptoms in the report of Nezihe Ali, psychologist, dated 5 September 2023, and

(d) ongoing pain recorded by Medical Assessor Shazhad and his finding of motor accident related injuries in the cervical spine and ankle.

1. Ms Botros submits that she was justified in experiencing the delay and a reasonable person in her position would also be so justified.
2. Ms Botros further submits that the insurer was on notice of the accident, Ms Botros's injuries and her claim for statutory benefits, as this was lodged approximately two weeks after the accident. Ms Botros submits that the insurer has not raised any issue in relation to prejudice and she submits there is no prejudice or potential prejudice to the insurer if her late claim were allowed.

1. The insurer relies on written submissions dated 18 December 2024. The insurer has conceded that Ms Botros has provided a full explanation for her delay by way of her statutory declaration dated 25 May 2024. However, the insurer maintains that Ms Botros's explanation is not satisfactory.
2. Relevantly, the insurer submits that a reasonable person would not have failed to comply with the duty or would not have been justified in experiencing the same delay.
3. The insurer submits that Dijakovic v Ferez [2015] NSWCA 174 establishes that the "satisfactory" element of the predecessor to s 6.2 of the MAI Act was by reference to an objective standard, given the claimant's position.
4. The insurer submits that on 17 December 2018, being less than a month after the accident, Ms Botros was provided with a written advice from Ms Spasojevic of Slater and Gordon Lawyers, referencing a conference on 30 January 2018 (which appears to be a typographical error). In that advice, Ms Botros was informed of her potential entitlement to both statutory benefits and common law damages.
5. The insurer submits that the advice sets out the time limits imposed by the MAI Act in the following format:

Within 3 months of the motor accident but within 28 days for maximum benefits

Not before 20 months post-accident but within 3 years of motor accident

1. The insurer submits that, at the time of the advice being provided in 2018, Ms Botros's injuries were considered to fall within the definition of "minor injury" (now "threshold injury").
2. As the accident occurred on 29 November 2018, the insurer submits that Ms Botros would have been required to lodge her claim for damages by 29 November 2021, so as to comply with s 6.14 of the MAI Act. Ms Botros's claim for damages is dated 24 August 2023, being almost two years out of time. The insurer submits this is significant, as it is not a delay of days or months, but years.
3. While Ms Spasojevic's written advice reflects her preliminary assessment that Ms Botros's injuries were likely to be threshold injuries, she invited Ms Botros to contact her office in the event there was a change or deterioration of her injuries.
4. The insurer submits that it appears there was a worsening of Ms Botros's condition as she was referred to Dr McKechnie, neurosurgeon, whom she initially saw in February 2019. The insurer submits that Ms Botros consulted with Dr McKechnie on a "couple of occasions" during 2019 and again in 2020.
5. Further, the insurer submits that Ms Botros presented to Bankstown Hospital complaining of left knee pain in November 2019.
6. In 2022, Ms Botros was again referred to Dr McKechnie who referred her to Dr Yu, pain management specialist.
7. Despite the above, which the insurer submits would indicate a worsening of her condition, Ms Botros did not contact Ms Spasojevic.
8. The insurer submits that, in mid-2023, Ms Botros contacted Slater and Gordon Lawyers for advice in relation to payment of treatment expenses. She spoke with Mr Mithieux on 23 August 2023, who urged her to lodge a damages claim. The claim was lodged the next day.
9. The insurer refers to Karambelas v Zaknic, and the test for whether an explanation is full and satisfactory.
10. The insurer submits that, within three weeks of the accident, Ms Botros had consulted with a solicitor in relation to her potential entitlements and was informed about making a claim for both statutory benefits and damages.
11. The insurer submits that, while Ms Botros is not a solicitor, she was informed about her prospective common law entitlements within three weeks of the accident. She was informed about the timeframes associated with lodging a claim for damages in a clear and straight forward manner, which a reasonable person would have been able to understand. Finally, she was invited to contact her solicitor in circumstances where her condition deteriorated and, presumably, where a further decision could be made as to whether she had a non-threshold injury.
12. The insurer notes that, in her statutory declaration, Ms Botros concedes that she had been provided with advice about lodging a damages application at the end of 2018 and had been informed that the claim should be lodged within three years of the accident. The insurer submits that a reasonable person in the claimant's position would have observed this date and, in the case of uncertainty, contacted her solicitor.
13. The insurer rejects that Ms Botros did not lodge a damages claim, despite being informed of the timeframe, because she was "primarily focused on having my treatment expenses paid for". The insurer submits that the test is not what Ms Botros elected to focus on, but rather, what a reasonable person in Ms Botros's position would have done.
14. The insurer disputes that Ms Botros's explanation is satisfactory for the purpose of s 6.2(2) of the MAI Act.

1. Ms Botros's application for personal injury benefits dated 11 December 2018 records the accident date as 29 November 2018.
2. Ms Botros describes the accident as:

"I was returning a trolley to the trolley bay after unloading my groceries to my car. I had crossed over the lates (where cars drive) as the trolley bay was on the other side and was walking (pushing the trolley) as close to the parked cars as practicable. I was walking 'against traffic'. A car came around the corner in the middle of the driving lanes. I noticed it was headed towards me and not slowing down. I looked at the driver and saw that she was facing her passenger and not where she was driving. The car hit the trolley, which hit me and propelled me backwards onto the ground."

1. Ms Botros's application for damages dated 24 August 2023 has been reviewed.

1. The statutory declaration of Ms Botros dated 25 May 2024 has been considered and evaluated.
2. This states that the statutory declaration was made in relation to her claim for damages, and to provide an explanation for not lodging this claim within three years.
3. Ms Botros's statement extracts the explanation of the accident from her application for statutory benefits. She states that she was transported to Bankstown Hospital via ambulance and was discharged from hospital the following day. She states that she obtained a medical certificate from Bankstown Hospital indicating that she was unable to attend work from 29 November 2018 to 4 December 2018. She obtained a subsequent medical certificate certifying that she was unfit for work on 6 and 7 December 2018.
4. She obtained a medical certificate from Dr Nosir at NAS Advanced Medical Centre who certified her to have capacity to work 20 hours per week until 31 December 2018.
5. Ms Botros stated that she attended NAS Advanced Medical Centre several more times in December 2018. In addition to the injuries described in her application for statutory benefits, she states that she noticed a considerable amount of lower back pain, and pain and restriction in her right ankle. She also said her right wrist and shoulder were sore.
6. She states the accident was having a significant impact on her, and she was referred for treatment with a physiotherapist and a psychologist.
7. She was certified as being totally unfit for work from 22 December 2018 to 4 January 2019. Thereafter she was certified to work for 20 hours per week.
8. Ms Botros stated that it was obvious to her that she was going to need ongoing treatment and decided to get into contact with a lawyer. She had a conference with Zorana Spasojevic at Slater and Gordon Lawyers. Ms Spasojevic provided her with some written advice, which is annexed to the statement.
9. Ms Botros stated that, having spoken to Ms Spasojevic and looking at her advice, she understood that she had two potential claims, and that she could not make a damages claim if she had a minor injury. She notes that she was advised at that point that she had minor injuries. She concentrated on recovery and rehabilitation.
10. Ms Botros said that she hoped with appropriate treatment she would recover, so her treatment expenses and wage loss were her main concern. At that time, the insurer was covering these expenses.
11. Ms Botros notes that she was referred to Dr McKechnie and saw him in February 2019 for neck pain and headaches. The insurer paid for these consultations. Dr McKechnie told her she had disc protrusions in her neck and lower back and recommended non-operative treatment. Ms Botros said she was hopeful that she would recover with appropriate treatment.
12. In March 2019, the insurer wrote to Ms Botros indicating that her payments would be stopped at 26 weeks post-accident as she had sustained minor injuries. At this point in time, Ms Botros notes she was working reduced hours and receiving some weekly wage payments from the insurer.
13. Ms Botros states that in about 2019, she started working as an Accounts Officer at Nude by Nature. She was certified fit to work for 40 hours per week. She said she could no longer manage her role at Bamm Group due to not being able to focus and retain information, nor deal with the high levels of stress that was part of her role.
14. Ms Botros says that, while she was disappointed in the insurer's decision, she was back at work full-time and earning more in her new role than she was pre-accident.
15. Ms Botros notes that she continued to submit claims for treatment expenses and the insurer paid for some of those expenses. In June 2020, she says that she lodged an internal review in relation to some treatment expenses which had not been paid for by the insurer.
16. In November 2019, Ms Botros presented to Bankstown Hospital regarding pain in her left knee. She had been at the beach the day prior and experienced pain when she went to get up off the sand.
17. Ms Botros noted that she saw Dr McKechnie on a couple of occasions in 2019 and was referred back to see him in 2020. She was prescribed Lyrica but it did not provide her with any relief. She ceased taking it as it made her drowsy and she had difficulty doing everyday tasks while taking it.
18. She was still complaining of significant pain in her right knee, ankle and foot. She was referred for investigations and saw Dr Suthersan in 2021. Dr Suthersan recommended conservative treatment and physiotherapy.
19. Ms Botros notes that the insurer would close or attempt to close her file on occasion, and she would always ask that her file remain open or be re-opened.
20. Ms Botros states that in October 2019, the insurer attempted to finalise her claim. She asked that her claim be re-opened and noted the difficulties she was having with her injuries.
21. Ms Botros says she recalls that, in the second half of 2020, she was told by the insurer that if she wanted her medical expenses paid she would need to proceed with a dispute in the DRS. She says her response indicated that she was struggling to find the mental capacity to manage her chronic pain, attend appointments and organise her claim.
22. She states that in August 2021, the insurer again sought to close her claim. She advised that she was attempting to obtain legal advice but it had been delayed due to lockdown restrictions. She says that she did not end up seeking legal advice, and instead tried to cope with her injuries as best she could.
23. Ms Botros says that one of the consequences of the accident was that work became "very difficult". She says she could not maintain her position at Nude by Nature and instead obtained a role as an Assistant Accountant at St Andrew's College. This role was not paid as well as her Nude by Nature role.
24. She says that in 2022, she was again referred back to Dr McKechnie. He recommended and performed an injection into her cervical spine. Ms Botros states that she found the injection very painful and that it didn't provide any significant ongoing relief. Dr McKechnie indicated that a cervical discectomy was an option for her and referred her to Dr Yu, a pain management specialist.
25. Ms Botros notes that she has not followed up on the suggestion of surgery but did consult with Dr Yu and underwent further injections into her lower back.
26. Ms Botros also stated that, in 2021, she began to see a psychologist, Nezihe Ali, in relation to psychological symptoms. Ms Ali diagnosed Ms Botros as suffering from post-traumatic stress disorder and that she tries to avoid doing anything to do with the accident.
27. Ms Botros said that, in mid-August 2023, she made a further inquiry with Slater and Gordon Lawyers. By this time, she was becoming despondent about how she was going to pay for the treatment recommended by Dr McKechnie and Dr Yu. She wanted to know if there was a way she could get the insurer to pay for her treatment expenses.
28. On 23 August 2023, Ms Botros states that she spoke with Mr Mithieux and was advised that she may have ongoing rights and entitlements. Mr Mithieux urged Ms Botros to lodge a damages claim form. Ms Botros said that this was the first time she had considered aspects of a potential claim other than coverage of treatment expenses. Ms Botros lodged an application for damages on the insurer on 24 August 2023. Unfortunately, page 3 of the application was missing. She lodged a complete application on 29 August 2023.
29. Ms Botros states that she accepts she had been provided with advice about lodging a damage claim towards the end of 2018, and that the advice indicated she should lodge a claim within three years of the accident. She says this advice was contingent upon her having more than a minor injury and that the insurer had determined she had a minor injury.
30. She says she was primarily focused on having her treatment expenses paid for and did not focus on the damages claim at all. She said that after having spoken to Mr Mithieux the importance of lodging a claim for lump sum compensation was stressed on her and, at that point, it became apparent to her that she needed to focus on both her treatment expenses and how the injuries were going to affect her earning capacity for the rest of her life. Once she understood the significance, she says she worked diligently to lodge the application.

Claim documents and correspondence with the insurer

1. The Liability Notice - benefits after 26 weeks from the insurer dated 11 March 2019 states that the insurer does not accept liability for payment of statutory benefits beyond 26 weeks, as it determined Ms Botros's injuries fell within the definition of "minor injury".
2. On 3 October 2019, the insurer emailed Ms Botros attaching a letter said to be in relation to the finalisation of her claim.
3. On 8 October 2019, Ms Botros responded to the insurer and stated that she was under the impression her claim was finalised in May. She stated that she would appreciate not receiving "these unnecessary emails as I am still dealing with the injuries not only sustained in the accident but issues that continue to develop as a result of said injuries, not to mention the mental and financial toll this accident continues to have".
4. On 26 November 2019, Ms Botros emailed the insurer requesting she be re-sent documentation regarding re-opening her claim, noting she is still dealing with the injuries sustained in the accident and developing issues directly related to those injuries.
5. An Internal Review application determination dated 16 June 2020 upheld the decision to decline liability for "further psychology and physiotherapy consultations, reimbursement of acupuncture, dental treatment and crutches and for the left knee MRI".
6. On 26 November 2020, the insurer emailed Ms Botros and noted that she had said she was going to pursue a DRS application. The insurer had not seen this come through and noted it would proceed to finalise her claim if she was no longer going to pursue this application. It requested an update on her claim.
7. On 27 November 2020, Ms Botros responded to the insurer, noting "I have been spending a lot of time trying to fix these ongoing injuries and haven't had the mental capacity to deal with the chronic pain, attend appointments and organise the claim. I will try to make it a priority in the next little while. Please do not finalise the claim". She also referred to a referral for a cortisone injection.
8. On 30 August 2021, the insurer emailed Ms Botros and noted that, due to the extended period of inactivity, the insurer would be closing her claim.
9. Later on 30 August 2021, Ms Botros responded to the insurer and stated that "As previously advised, I will be pursuing legal advice regarding this claim, which has been delayed due to the Covid lock down restrictions" [sic].
10. The Liability Notice - claim for damages dated 24 October 2023 from the insurer advises liability had been denied. This is on the basis of Ms Botros's injuries from the accident having been assessed as threshold injuries. The insurer also notes that Ms Botros did not lodge her claim for damages in compliance with s 6.14 of the MAI Act and she was yet to respond to the requests for a full and satisfactory explanation, which were issued on 5 September 2023, 19 September 2023 and 4 October 2023.
11. The email from the insurer to the claimant's legal representatives dated 3 June 2024 maintains the decision to deny Ms Botros's claim for damages on the basis that her explanation is not satisfactory.
12. The certificate of determination - internal review dated 27 June 2024 by the insurer upheld the decision to decline Ms Botros's claim for damages on the basis that, while her explanation was full, it is not satisfactory and therefore is not a full and satisfactory explanation.

1. The letter of advice dated 17 December 2018 addressed to Ms Botros from Zorana Spasojevic, Associate - Accredited Specialist in Personal Injury Law from Slater and Gordon dated 17 December 2018 has been considered.
2. This letter refers to a conference on 30 January 2018. It is accepted that this date is a typographical error, however there is no evidence before me as to the actual date this conference occurred. I find that it occurred between the date of the accident, being 29 November 2018, and the date of the letter of advice, being 17 December 2018.
3. The letter contains a summary of Ms Botros's instructions and notes that Ms Botros has lodged a "CTP claim" with the insurer.
4. The letter sets out Ms Botros's potential rights and entitlements. This includes a section titled "statutory benefits", which says that the focus of statutory benefits is on the timely benefits of incapacity payments, treatment and care needs. It notes they are payable for at least 26 weeks and can, in certain situations, continue for life. It states there are a number of entitlement periods depending on her accident and injuries.
5. The section titled "damages claims" states that the focus of a damages claim is compensating her in a once-and-for-all settlement for past income losses, future income loss and for pain and suffering. It states that the entitlement to claim damages is only available for injuries which are not considered "minor" and where there is a person responsible for the accident that is not Ms Botros.
6. The section titled "Time Limits" states that "The Act imposes strict time limits on when a claim must be made for motor accident 'statutory benefits' and 'damages' claims. I ask that you please take note of these time limits for your information as they are very important". The advice then sets out the table extracted above at paragraph [27].
7. Under "Advice" it is noted "I have formed the preliminary view that your injuries fall within the definition of 'Minor Injury' within the Act. Should this situation change and your injuries worsen please contact me again" (emphasis in original).
8. Annexed to the advice is a summary of the statutory benefits entitlement periods and the definition of "Minor Injury". It states that:

"A minor injury is a soft tissue injury or minor psychological injury which is not likely to persist beyond 6 months after the accident occurred or has good prospects of resolving without proper treatment. Examples of a minor injury include (but are not limited to):

1. The referral from Dr McKechnie to Dr Yu dated 14 September 2022 has been considered. This refers Ms Botros for Dr Yu's expert opinion and treatment recommendations.
2. A letter from Dr McKechnie to Dr Yu dated 8 August 2023 notes that the previous referral has expired, and confirms the letter is a new referral.
3. The radiology reports, including the MRI of Ms Botros's cervical spine collected on 13 October 2023, have been considered.

Medical Assessment - Threshold Injury (Physical)

1. The Medical Assessment Certificate of Medical Assessor Farhan Shahzad dated 13 July 2025 certified that Ms Botros's injuries to her lumbar spine and skin were threshold injuries for the purposes of the MAI Act, and her cervical spine and right ankle injuries were not threshold injuries for the purposes of the MAI Act. The Medical Assessor also certified that Ms Botros's right knee injury was not caused by the accident.
2. The reasons set out in the Medical Assessor's certificate have been considered and evaluated.

Medical Assessment - Threshold Injury (Psychological)

1. The Medical Assessment Certificate of Medical Assessor Surhabi Verma dated 25 July 2025 certified that somatic symptom disorder caused by the accident is not a threshold injury for the purposes of the MAI Act.
2. Medical Assessor Verma noted that she disagreed with Dr Kumar's diagnosis of post-traumatic stress disorder, given Ms Botros did not report any re-experiencing or symptoms related to the accident, and that the accident did not fulfil criterion A. Medical Assessor Verma also noted that Ms Botros did not report any intrusive symptoms, nightmares, flashbacks, distressing memories or any intense or prolonged psychological distress or psychological reactions to internal or external cues. Medical Assessor Verma noted that Ms Botros shows no significant avoidance symptoms and has been able to visit shopping malls and complexes as she did before.
3. Medical Assessor Verma noted that she had also considered the diagnosis of major depressive disorder but did not believe it accurately reflected Ms Botros's current condition. Ms Botros reported feeling angry and frustrated due to the pain not improving and did not report feeling depressed. Ms Botros attributed her frustration to the insurance company, which did not approve the treatments, and her lack of interest in activities is due to her physical injuries, not her mood.
4. Medical Assessor Verma opined that Ms Botros's presentation is consistent with somatic symptom disorder and her psychological symptoms are directly associated with the excessive thoughts and behaviour related to her chronic pain.

1. The report of Dr Mukesh Kumar, psychiatrist, addressed to the claimant's lawyer dated 8 August 2024 has been considered and evaluated.
2. Dr Kumar diagnosed Ms Botros with post-traumatic stress disorder, with a whole person impairment of 17%.

1. The letter of Nezihe Ali, psychologist, to Dr Nosir dated 1 September 2021 notes that "upon further assessment", Ms Botros reported symptoms consistent with major depressive disorder, single episode, moderate, adjustment disorder with depressed mood.
2. The letter of Ms Ali dated 5 September 2023 notes that, in addition to her physical pain, Ms Botros has been diagnosed with persistent depressive disorder, and that she displays symptoms that are suggestive of post-traumatic stress disorder. It is noted that Ms Ali has been providing treatment since mid-2021.

1. It is accepted that Ms Botros did not comply with s 6.14(2) of the MAI Act. The three-year anniversary of the motor accident occurred on 29 November 2021. Ms Botros sent her claim for common law damages to the insurer on 24 August 2023, and sent a complete claim on 29 August 2023. Her damages claim was therefore made approximately four years and 9 months after the accident, making it approximately 21 months late.
2. Ms Botros's claim for damages may only be made if she provides a full and satisfactory explanation for the delay in making the claim.[3]
3. Further, a damages claim made after the third anniversary of the accident cannot be referred for assessment unless the insurer has lost the right to challenge the claim (it is accepted it has not) or a party is referring the claim for exemption from assessment (it is not), or the Commission has determined that the claimant has a full and satisfactory explanation for the delay.[4]
4. The meaning of "full and satisfactory" for the purposes of Part 6 of the MAI Act, being the part in which s 6.14 appears, is provided by s 6.2 of the MAI Act.

Is Ms Botros's explanation full and satisfactory?

1. There is considerable case law regarding the meaning of the phrase "full and satisfactory".
2. Karambelas v Zaknic (No. 2) [2014] NSWCA 433 discussed the meaning of s 66(2) of the Motor Accidents Compensation Act 1999 (the MAC Act) which is the predecessor to s 6.2 of the MAI Act. Justice Meagher (with whom Basten and Simpson JJA agreed) stated:

"[16] 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'."

1. It is accepted that "[t]he provision does not call for perfection, or ... for prolix or burdensome recounting of every moment that has elapsed".[5]
2. The "conduct" is an account of the acts and omissions of Ms Botros and all relevant persons whose conduct is relevant to the explanation for the delay, however this does not broaden the meaning of "claimant" in the first sentence of s 66(2).[6]
3. The insurer has conceded that Ms Botros's explanation is full. Section 42 of the PIC Act provides that the Commission must give effect to the guiding principle, being to facilitating the just, quick and cost effective resolution of the real issues in the proceedings. Accordingly, I directed the parties to confirm on or before 1 October 2025 whether the "fullness" of the claimant's explanation was in dispute. If it was in dispute, then I proposed to hold an assessment conference with the parties. On 1 October 2025, the insurer confirmed that it consented to the matter being dealt with on the papers, being that the "fullness" of the claimant's explanation was not in dispute.
4. Accordingly, while s 6.14(5)(b) of the MAI Act requires the Commission to be satisfied that Ms Botros has both a full and satisfactory explanation for the delay, I have approached the analysis of the "fullness" of her explanation in light of the above.

1. As to whether Ms Botros's explanation is "full", the word "takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant".[7]
2. In Rahman v Al-Maharmeh (2021) 95 MVR 394; [2021] NSWCA 31 (Rahman), Brereton JA noted, in respect of the predecessor to s 6.2 of the MAI Act:

"[39] While the 'full account of the conduct' referred to in the first sentence of s 66(2) MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include 'the actions, knowledge and belief' of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant's delay in commencing proceedings."

1. Accordingly, the explanation for the delay is to be provided by Ms Botros.
2. Ms Botros's claim was made on 24 August 2023. Pursuant to s 6.2 of the MAI Act, Ms Botros's explanation must account for the period 29 November 2018 to 24 August 2023.
3. I note Ms Botros's statutory declaration dated 25 May 2024 and the documents annexed thereto, which I have summarised in detail above. I find that Ms Botros's explanation is full for the requisite period because it accounts for her actions, knowledge and beliefs in sufficient detail to explain how and why the delay occurred.
4. While I accept that Ms Botros's evidence is relatively high level, and there are some gaps in the periods of time, it provides me with sufficient basis to understand what she was doing throughout the entire period of delay. As noted in Walker, Ms Botros's account does not need to be prolix, nor account for every moment that has elapsed.[8]

1. Section 6.2 of the MAI Act requires that Ms Botros's explanation be both full and satisfactory. The legislation states that an explanation is not a satisfactory explanation unless a reasonable person in the position of Ms Botros would have failed to comply with the duty or would have been justified in experiencing the same delay. This is an objective test.[9]
2. The persuasive onus is on the insurer to demonstrate that a reasonable person in Ms Botros's position would not have been justified in experiencing the same delay.[10]
3. Notably, and as recognised in Walker, while the nature and character of the injury caused by the accident must be taken to be part of the "position of the comment", Parliament has not seen fit to suspend the running of time even in circumstances where the claimant's injury has impacted their ability to comply with s 6.14 of the MAI Act.[11] They must still provide a full and satisfactory explanation complying with s 6.2.
4. Here, while it is accepted that Ms Botros was dealing with her injuries throughout the time since the accident, Ms Botros's activities, knowledge and belief must also be examined.
5. In determining whether a reasonable person in the position of Ms Botros would have been justified in experiencing the delay, I note her position as follows:

(a) she was injured in a motor vehicle accident as a pedestrian;

(b) there are no certificates of fitness before me. However, based on Ms Botros's statement, on which she was not cross-examined, I find that Ms Botros had a short period off work following the accident, being to 4 January 2019. She then commenced work in a part-time capacity, before returning to work full time in or around early 2019 when she was certified to have capacity to work 40 hours per week. This was in a new role. She subsequently sought new employment at an unspecified time at St Andrew's College, allegedly because of the impact of her accident caused injuries on her ability to work;

(c) she was able to and did lodge a claim for statutory benefits on 11 December 2018, being within the statutory timeframe;

(d) she sought legal advice from solicitors within three weeks of the accident. This advice clearly stated that she only had three years in which to make a claim for damages. She was advised the time limits were very important and to diarise these. She was also advised to contact her solicitors if her injuries worsened. This part of the advice was emphasised by being underlined;

(e) the legal advice also set out a table with examples of minor injuries. It explained that a minor injury is one not likely to persist beyond six months after the accident;

(f) Ms Botros's psychological injuries are said to have progressively got worse, resulting in her attending a psychologist in 2021 and being diagnosed with major depressive disorder, and

(g) Ms Botros's physical injuries are said to have progressively deteriorated, resulting in several specialist referrals throughout 2019 to 2022.

1. Ms Botros's evidence is that she understood the 2018 legal advice. Analogous to Russo, there is no basis for concluding that Ms Botros did not receive prompt and competent legal advice.[12] It is accepted that Ms Botros was aware of the time limitations shortly after the accident. This is not a matter where Ms Botros's claim is out of time because her lawyer has allowed this to happen. Rather, Ms Botros was advised by her solicitor as to the existence of the limitation period. She ignored that advice.
2. Ms Botros reports that the insurer kept attempting to close her file, despite her continuing difficulties with her injuries. In October 2019, the insurer attempted to finalise her claim. Ms Botros asked that her claim be re-opened and noted the difficulties she was having with her injuries. A similar email exchange occurred in November 2019 and again in November 2020.
3. In August 2021, the insurer again sought to close Ms Botros's claim. While Ms Botros responded on the same date to advise that she was attempting to obtain legal advice, her evidence is that she did not end up seeking legal advice.
4. The email exchanges with the insurer occurred after six months following the accident. Ms Botros refers to developing issues directly related to the injuries sustained in the accident. I find that a reasonable person in Ms Botros's position would have reached out to her solicitor at this time to seek an opinion as to whether her injuries still fell outside the definition of "minor injury", noting the definition provided in the 2018 legal advice.
5. In respect of her developing psychological injuries, Ms Botros states that she commenced seeing a psychologist in 2021. Ms Botros's statement in this regard simply notes:

"She diagnosed me as suffering from Post-Traumatic Stress Disorder. One of the things we spoke about was the fact that I try to avoid anything to do with the accident. Ms Ali has advised me that this is one of the symptoms associated with Post Traumatic Stress Disorder."

1. There is otherwise no elaboration or further evidence to support this statement or how the impact of the claimant's alleged suffering of post-traumatic stress disorder impacted her behaviour in relation to her damages claim.
2. I note that the letter dated 1 September 2021 from Ms Ali does not refer to post-traumatic stress disorder or any avoidant behaviour. Rather, it diagnosed "major depressive disorder, single episode moderate adjustment disorder with depressed mood".
3. The letter of Ms Ali dated 5 September 2023 also does not diagnose post-traumatic stress disorder, but rather diagnoses persistent depressive disorder and notes "Ursula also displays symptoms that are suggestive of post-traumatic stress disorder (PTSD), such as intrusive thoughts, flashbacks, hyperarousal, and emotional numbing". There is again no reference to avoidant behaviour.
4. I note that Medical Assessor Verma certified that she disagreed with a diagnosis of post-traumatic stress disorder for several reasons, including that Ms Botros did not report any intrusive symptoms, nightmares, flashbacks, distressing memories or any intense or prolonged psychological distress or psychological reactions to internal or external cues, nor did she show significant avoidance symptoms.
5. In any event, as Ms Botros's diagnosis of major depressive disorder in September 2021 was a new injury said to be caused by the accident, it is unclear why she did not seek legal advice at this time or shortly after.
6. In respect of her developing physical injuries, Ms Botros's evidence is that she was referred to Dr McKenchie in 2019, 2020 and 2022, and Dr Suthersan in 2021. Surgery was recommended to Ms Botros in September 2022. She was also referred to a pain management specialist at this time.
7. The legal advice provided to Ms Botros in 2018 would have put a reasonable person in the position of Ms Botros on notice that, if her injuries persisted beyond six months, they may fall outside the definition of minor injury. Further, a reasonable person in the position of Ms Botros, comparing her injuries with those in the example table, would have been on notice that her injuries may fall outside the definition of minor injury such that she could make a claim for damages.
8. The current circumstances can be distinguished from Blackburn v Allianz Insurance Australia Ltd (2004) 61 NSWLR 632; [2004] NSWCA 385 as here Ms Botros knew of the need to make an application for damages, and the time limits for doing so, within three weeks of the accident. The circumstances of Ms Botros can also be distinguished from the position of the claimant in Figliuzzi, as Ms Botros was aware she had a potential claim in damages if her injuries were not "minor injuries".
9. Analogous to the circumstances in Russo, Ms Botros had been informed of the time limit which she was required to comply. She experienced recurrent symptoms, the severity of which became gradually more apparent to her, and yet she failed to make a claim which she knew should have been made within three years of her accident.
10. While I accept Ms Botros's submissions that her solicitor advised she had minor injuries, I note that this was stated to be her solicitor's "preliminary view". Her solicitor also emphasised that Ms Botros should be in contact should her injuries worsen. There is no real explanation provided as to why Ms Botros ignored both the advice in respect of the limitation period and the advice in respect of contacting the solicitors if her injuries got worse until August 2023.
11. I accept that Ms Botros was dealing with her injuries throughout the period from the accident in November 2018 to when she lodged her claim for damages in August 2023. However, I do not accept that a reasonable person in her position, being a person who was on notice of the relevant time limitations, able to work full-time, and whose symptoms from the effects of her injuries had not dissipated but had in fact worsened, would continue to delay obtaining legal advice or lodging a claim.
12. During the period from the date of the accident to August 2023, Ms Botros managed to action other aspects of her claim, including responding to emails from the insurer, submitting treatment and care requests and lodging internal reviews. She also managed to lodge a claim for statutory benefits within the requisite timeframe and seek legal advice within three weeks of the accident.
13. Section 6.2 requires examination of what a reasonable person in the position of the claimant would have done. It is not a question of whether the claimant had a bona fide belief that her injuries were not sufficient to make a damages claim. Rather, would a reasonable person, whose injuries have allegedly been getting worse, ignored the possibility that they may be considered no longer to be "minor injuries" and taken the very basic step of getting back into contact with her solicitor? I would not expect a reasonable person to have been justified in experiencing a delay of almost five years from the date of the accident before seeking further legal advice or lodging a damages claim
14. I find that Ms Botros's behaviour, viewed holistically, point to a failure on her part to measure up to the standard of the reasonable person in her position, such that they would not have been justified in experiencing the same delay.
15. I note Ms Botros's submissions that the insurer has not suffered prejudice by the delay. As noted by Gleeson CJ in Russo, what the MAI Act requires is a satisfactory explanation that justifies the delay, not demonstration that the delay caused no harm.[13] In any event, I respectfully note the comments Gleeson CJ as to the potential prejudice that may be caused to insurers due to a late claim.
16. While I have accepted that Ms Botros's explanation is "full", I do not consider it to be "satisfactory" because I have found that a reasonable person in her position would not have been justified in experiencing the same delay.

1. Ms Botros has not provided a full and satisfactory explanation for the delay in making a claim for damages in accordance with ss 6.2 and 6.14 of the MAI Act.

1. At the preliminary conference on 29 August 2025, I directed the parties to file further submissions which should deal with the issue of costs.
2. Despite this direction, neither party provided submissions addressing costs.
3. In the circumstances and noting the work undertaken by the claimant's solicitors in preparing this application, I find it is appropriate to allow costs in accordance with Schedule 1, Part 1 of the Motor Accident Injury Regulation 2017, being $2,031 plus GST.

[1] It is noted that the claimant's submissions are dated "3 September 2015". It is assumed this is a typographical error and the year should read "2025".

[2] See the claimant's submissions dated 3 September 2025 at [26].

[4] See sub-s 6.14(5)(b) of the MAI Act.

[5] Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 (Walker) at [104].

[7] Russo v Aiello [2003] HCA 53 per Gleeson CJ.

[9] Walker at [64], [108], [134].

[11] See the comments in Walker at [65]-[66].

[12] See the discussion in Russo at [6].