REASONS FOR DECISION - MISCELLANEOUS CLAIMS ASSESSMENT

Issued under Division 7.6, Subdivision 3 of the Motor Accident Injuries Act 2017 (late claims)

1. This determination relates to whether the claimant has provided a full and satisfactory explanation for the delay in making a claim for modified common law damages after three years from the date of the motor accident as required under s 6.14(3) of the Motor Accident Injuries Act 2017 (the Act).
2. This miscellaneous claims dispute has been referred for assessment under Part 7, Division 7.3, Subdivision 3 and Schedule 2, cl 3(h) and (l) of the Act.
3. The late claim "for modified common law damages" may not be made.

1. This determination relates to whether the claimant has provided a full and satisfactory explanation for the delay in making a claim for modified common law damages after three years from the date of the motor accident as required under s 6.14(3) of the Motor Accident Injuries Act 2017 (the Act).
2. This miscellaneous claim dispute has been referred for assessment under Part 7, Division 7.6, Subdivision 3 and Schedule 2, cl 3(h) and (l) of the Act.

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

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

(4) Having regard to Procedural Direction PIC 2, the documents that are before me, including the parties' submissions that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances."

1. The claimant is a male aged to 28 years. The subject accident occurred on 11 July 2020 at approximately 9.40pm at the intersection of Hampshire Boulevarde and Delaware Street in Spring Farm. The claimant was a passenger in the insured vehicle. It was travelling approximately 150 kmph down Hampshire Boulevarde when the driver lost control and hit two parked cars and a power pole. There is a suggestion that the insured driver was under the influence of alcohol.
2. An application for personal injury benefits was lodged by the claimant on 10 August 2020 when the claimant was self-represented.
3. By a Liability Notice issued on 4 November 2020, the insurer accepted liability for payment of statutory benefits after 26 weeks from the date of the motor accident. That notice was silent as to the claimant's entitlement to and requirements for a claim for common law damages.
4. The claimant returned to his pre-injury employment on 9 November 2020 after his treating general practitioner (GP) certified that he was fit to return to normal work duties.
5. The claimant first sought legal advice from his solicitors on 12 May 2024.
6. On 24 June 2024, the claimant's treating GP referred him to a psychologist for assessment and management of mental health plan due to increased anxiety symptoms arising from the subject accident.
7. The claim for common law damages was made late on 11 June 2024 (3 years and 11 months after the date of the subject accident). The insurer declined the claim on

18 June 2024 pending receipt of a full and satisfactory explanation for the delay in making the claim. 8. On 18 July 2024, the claimant's solicitors provided the insurer with the claimant's statement dated 17 July 2024 providing an explanation for the delay with the lodgement. The claimant's supplementary statement explaining the late claim was provided on 2 July 2025. 9. On 6 August 2024, the insurer's legal representatives informed the claimant that the insurer did not accept the explanation supplied as it was neither full nor satisfactory and the rejection of the claim for damages, in accordance with the insurer's decision of 18 June 2024, was maintained. 10. The claimant's solicitors requested an internal review of the decision dated 6 August 2024 which was confirmed. 11. On 5 September 2024, Rita Furfaro of Gerard Malouf & Partners filed a Notice of Ceasing to Act for the claimant. 12. On a subsequent unspecified date, Slater & Gordon Lawyers commenced to act for the claimant in circumstances that have not been explained. 13. The claimant's new solicitor uploaded a Miscellaneous Claims Application for determination of the late claim dispute on or about 23 October 2025.

1. The claimant relied upon the following documents which I have considered:

(a) claimant's summary of damage dated 2 July 2024;

(b) Application for personal injury benefits dated 6 August 2020;

(c) Application for damages under common law dated 11 June 2024;

(d) outcome of internal review of NRMA dated 5 August 2025;

(e) statement of claimant dated 18 July 2024;

(f) supplementary statement of claimant dated 2 July 2025;

(g) email of NRMA to claimant dated 25 March 2021;

(h) email of NRMA to claimant dated 2 December 2021;

(i) letter of NRMA to claimant dated 18 June 2024, and

(j) letter of Hall & Wilcox to Gerard Malouf dated 6 August 2024.

1. The insurer relied upon the following documents which the Panel has considered:

Email to insurer attaching application for personal injury benefits, or records, certificates of fitness

Email from insurer (CTP Injury claims) acknowledging receipt of the application for personal injury benefits form

Email from the claimant to the insurer enclosing updated CEF, plus further tax and employment materials

Email from the claimant to the insurer enclosing payslips and payment summary

Email from insurer to claimant enclosing 52 week liability notice

1. This dispute is governed by s 6.14 of the MAI Act, which prescribes a strict three year limitation for the making of claims for damages. Section 6.14(2) provides that a claim must be lodged within three years of the motor accident. Section 6.14(3) permits a late claim to be made only if the claimant provides a "full and satisfactory explanation" for the delay. Section 6.14(5) is expressed in prohibitory terms: a late claim "cannot be referred for assessment under Division 7.6 unless" either the insurance has lost the right to reject the claim or the Commission determines that a full and satisfactory explanation has been provided.
2. The expression "full and satisfactory explanation" is defined in s 6.2(1) and (2) of the MAI Act. That definition is materially identical to the definition contained in s 66(2) of the former Motor Accidents Compensation Act 1999. The authorities decided under the former Act are therefore directly relevant to the construction and application of s 6.14 of the MAI Act. A "full" explanation requires a complete account of the claimant's conduct, knowledge and belief from the date of the accident until the explanation is given. An explanation is "satisfactory" only if a reasonable person in the claimant's position would have been justified in experiencing the same delay.

1. The issues that I am to decide, having regard to the evidence and the parties' submissions, are as follows:

(a) did Mr Unicomb relevantly have a full and satisfactory explanation for the delay in making the claim when his explanation was first given?

(b) can the late claim be made?

The period for which a "full and satisfactory" explanation is required

1. Pursuant to s 6.2(1) of the Act, the period to be explained is from the date of the accident until the date of giving the explanation.[1] In this case, the relevant period for explanation of the delay, in making the claim, is from 11 July 2020 until 18 July 2024 (the date upon which the explanation was given).

1. The "full account of the conduct" required by s 6.2 of the MAI Act is an account of the acts or decisions of the claimant and all relevant persons, including those acting or purporting to act on the claimant's behalf, if their conduct is relevant. Such an explanation may be "full" even though it does not recount in perfect detail every moment that has elapsed within that period.[2] and cases therein cited referencing claims under the Motor Accidents Compensation Act 1999.
2. "Full" means "complete" so all relevant information is to be provided. The focus of the statutory concept of a satisfactory explanation is upon justifying the delay rather than excusing it.

1. The test of "satisfactory" is objective as to whether a reasonable person in the position of the claimant would have been justified in experiencing delay.[3] An explanation for a delay in commencing a motor accident claim will be "satisfactory" if at least one hypothetical person within a spectrum of reasonable persons would have experienced the same delay.[4]

1. The term "full and satisfactory" is a composite expression. If an explanation is found to be incomplete, it is unnecessary to consider whether or not it is relevantly satisfactory. Even if an explanation relevantly is full, it may not justify a reasonable person, in the position of the claimant, experiencing the same delay. That is, even though the explanation relevantly is full, it may not be satisfactory.
2. An explanation is full if it is complete in the sense that it sets out what happened and why. Neither perfection nor prolixity is demanded. In Walker v Howard (see below), Allsop P observed that the account must be sufficient to allow the evaluative judgment to be made. His Honour emphasised that the acts and omissions of all relevant person, including solicitors, must be included in the explanation insofar as they bear on delay. Mancini v Thompson[5] and Laidlaw v Touma[6] make plain that "full" means complete. The claimant cannot select which facts to disclose.
3. The concept of a satisfactory explanation requires the making of an evaluative judgment. The question is whether, by reference to and objective standard and having regard to the claimant's position, the delay was reasonably justifiable.[7] There is a spectrum of reasonableness. It is enough that some reasonable person in the claimant's position might have experienced the same delay.[8] See also Hunter v Roberts [2019] NSWCA 116, noting that considerations such as the claimant's age, life experience, and reliance on legal advice are relevant. Reliance on solicitors can constitute a satisfactory explanation.[9]
4. It is established that the explanation must cover the conduct of those acting for the claimant. In Nominal Defendant v Browne [2013] NSWCA 197, Basten JA explained that the explanation may not be full if it fails to describe the instructions given to, and the advice received from, solicitors. That is because those matters form part of the claimant's position. In Rahman v Al-Maharmeh [2021] NSWCA 31 at (39) to (44), Brereton JA (Meagher and Leeming JJA agreeing) confirmed that the explanation must narrate solicitor conduct so far as relevant to delay, but the claimant is not required to speculate on the solicitors' knowledge or reasons for inaction. The explanation is judged by reference to what was in the claimant's own knowledge and control.

1. In his statement dated 18 July 2024, the claimant relevantly said in relation to DELAY as follows:

"37. Throughout the COVID-19 pandemic starting in 2020, I struggled mentally and physically, which hindered my ability to attend appointments due to reminders of the high-speed collision.

1. In 2022, I began sessions with Paula F, a psychologist, initially for an unrelated matter, but the accident subsequently became a focus. Treatment continued until her relocation in 2023.
2. I did not seek legal advice until recently as severe mental distress from the accident, including frequent nightmares and physical limitations, particularly with work due to hip discomfort, made coping challenging during the period from 2020 to 2023. Furthermore, I only recently noticed an email received from the insurer requiring a damages claim to be lodged within three years of the accident. I confirm that this email was received in 2021, however, I was not regularly checking my emails during that time. If I had noticed that there was a time limitation to lodge a damages claim form, I would have sought legal advice earlier and attended to lodging the application within time. I have not previously made any CTP claims or any other compensation claim for that matter and was unaware of the requirements and time restrictions involved.
3. Upon the realisation, and with assistance from my partner, I immediately contacted Gerard Malouf Partners on 29 May 2024 to initiate my inquiry and to seek legal advice in relation to my claim.
4. Subsequently, my solicitors have informed me they have been in the process of obtaining the insurer's file, reviewing it, completing a Personal Injury Claim damages application, quantifying my loss of income by way of reviewing all pre-accident and post-accident payslips, and assisting in completing this statement.
5. I understand that:

(a) the application for damages under common law was served by my lawyers on 12 June 2024;

(b) the PIC damages application was subsequently lodged on 2 July 2024."

1. In his statement dated 2 July 2025, the claimant relevantly said as follows:

"3. In or around May 2024, my mother and I discussed my claim and injuries. She is employed as a nurse. She suggested I obtain legal advice. She had no concept of the requirements to make a claim or the time limits that apply.

1. Following the discussion with my mother, I saw Gerard Malouf & Partners advertised on the side of a bus. I decided to make an inquiry with them.
2. I note that NRMA sent me an email dated 2 December 2021 which advised me of the right to bring a common law claim. Following the subject accident, I was infrequently checking my emails, and it was primarily managed by my partner, Mackaylar Priddis. She initially used my email to send certificates and requests for treatment. At the time the aforementioned email was sent, my Inbox was rarely monitored. Reading this email in May 2024 was the first time I became aware of my potential entitlement to bring a claim or common law damages.
3. I only became aware of this email when I was collating the relevant documents for my initial consultation with Gerard Malouf & Partners. This was around 30 May 2024. I became aware of the email as I had typed NRMA into the search box and it appeared.
4. On 30 May 2024, I first consulted Gerard Malouf & Partners. They advised me of the right to bring a claim for common law damages and that the claim must be made on the insurer within three years of the date of accident Gerard Malouf advised me that I was outside the time limit to bring a claim for common law damages but this delay could be explained. I was advised that I had a good case I being able to explain why the claim was not made on the insurer within three years of the accident.
5. Despite returning to work, I continue to experience pain and symptoms, as listed in my initial statement. My primary concerns were my return to work and managing my injuries and symptoms.
6. Had I been aware that a three year limitation applied in respect of my claim, I would have sought legal advice earlier and also taken steps to ensure that the application was lodged.
7. It is for these reasons that there has been a delay in respect of lodgement of my claim for common law damages."

1. The insurer initially rejected the claimant's explanation on 18 June 2024 which was confirmed upon internal review that was notified by letter dated 5 August 2025. The insurer's Internal Reviewer considered the claimant's statements dated 17 July 2024 and 2 July 2025 in which he provided his explanation for the delay in lodging the claim. In maintaining the initial decision to reject the claim on the basis that the explanation supplied was neither full nor satisfactory, the insurer's Internal Reviewer said inter alia as follows:
   • there has been no restriction on work from a psychiatric perspective;
   • in the absence of evidence to support the purported "severe mental distress", I find that a reasonable person in your position would have had the cognitive capacity and ample opportunity to make inquiries as to the possible rights of redress, including a possible common law claim, prior to the expiry of the statutory period, particularly in circumstances where you had already lodged a claim for Personal Injury Benefits, and particularly in circumstances where NRMA had already alerted you to your rights to bring a common law claim, as per the email from the insurer dated 2 December 2021, and
   • I further find that a failure to check your emails would not be considered a satisfactory explanation.
2. In its Reply Submissions dated 10 November 2025, the insurer's lawyers summarised the claimant's explanation for the late claim in the following terms:
   • I did not seek legal advice until recently as severe mental distress from the accident made coping challenging during the period from 2020 to 2023;
   • I was not regularly checking my emails during that time, and
   • If I had noticed that there was a time limitation to lodge a damages claim form, I would have sought legal advice earlier.

The insurer's lawyers set out the reasons "The" insurer rejects those proffered explanations, and then states as follows:

"5.13 The insurer maintains that the claimant has not provided a full and satisfactory explanation in accordance with s 6.2 of the Act. The Personal Injury Claim Form was lodged approximately three years and eleven months late.

5.14 The insurer submits that the claimant cannot proceed with the claim pursuant to s 6.14 of the MAIA."

1. The claimant's submissions in reply dated 5 December 2025 relevantly stated as follows:

"4. The insurer alleges gaps in the claimant's explanation for the delay. The insurer has focussed on one particular part of the claimant's statement and failed to consider the entirety of his explanation. The claimant's explanation for the delay does not simply hinge on his mental state and evidence of such as alleged by the insurer. The claimant submits that his explanation as a whole meets the requirements of s 6.2 in being a full account of his conduct, actions, knowledge and belief, from the date of accident to the date of providing the explanation.

1. The claimant's explanation has addressed his mental state, lack of prior CTP experience, mistaken belief that the insurer's finalisation of the statutory benefits claim that the matter was concluded, his failure to check his emails and lack of awareness that he was able to make any further claims. He has also explained what subsequently caused him to seek legal advice, being prompting from his mother, and the realisation after reviewing old emails that a potential claim and time limit had existed.
2. The claimant's logical, coherent and complete sequence of events satisfies the "full" limb. The claimant's conduct, knowledge and beliefs from 2020 to 2024 have been accounted for. The claimant's evidence is not challenged and ought to be accepted.
3. As established in Walker, this attest of "satisfactory" is objective, applied by referenced to a reasonable person in the claimant's circumstances, including his education, health, and lack of legal knowledge.
4. The insurer argues that because the claimant did not report psychological symptoms to his GP from 2020 to 2022, he could not have been suffering distress. This is an incorrect and overly rigid inference. It is well-established that many people do not disclose psychological symptoms to a doctor without prompting. The insurer argues that because the first psychology consultation in April 2022 related to family issues, the claimant could not have been affected by the accident. This is misconceived. The absence of a spontaneous disclosure in that consultation does not negate the later documented impact of the accident on the claimant's psychological state.
5. The insurer also suggests that because the claimant returned to work and later obtained new employment, he could not have been experiencing psychological symptoms stemming from the subject accident. There is no merit in this argument. Many people with significant psychological injuries are able to maintain employment thereafter.
6. The insurer submits it is unreasonable that the claimant did not check his emails for years. The claimant asserts that once the statutory benefits were closed in 2021, he believed the matter had concluded. The claimant was young, inexperience with CTP, unfamiliar with legal processes, and not expecting further communications. The claimant was focussed on new employment and his recovery.
7. The claimant continues to assert that he had no prior experience with CTP or compensation claims. He relied on the fact that the insurer had accepted his statutory benefit claim, had closed that claim in March 2021, and provided no oral explanation of the claim for common law damages, limitation dates, or consequences of missing such.
8. The claimant submits that his explanation is full as it provides a coherent and complete account of his actions, knowledge and beliefs over the relevant period. It is satisfactory because a reasonable person in his circumstances, with his level of understanding, psychological state, and lack of legal knowledge, could reasonably have experienced the same delay.
9. The claimant therefore respectfully requests that the Commission grant leave under s 6.14 of the Act for the claim to proceed out of time."

The claimant's lawyers also note that it was his claim for common law damages that was lodged approximately three years and eleven months late, not his personal injury claim form, as asserted by the insurer's lawyers in their reply submissions. As much can be accepted.

1. The chronology is not in dispute. The accident occurred on 11 July 2020. The statutory period expired on 11 July 2023. No damages claim was lodged until 11 July 2024. The insurer declined the claim on 18 June 2024 pending receipt of a full and satisfactory explanation for the delay in making the claim. The claimant's explanation for the delay was provided on 18 July 2024 in his statement dated 17 July 2024 which was supplemented by a further statement made on or about 2 July 2025.
2. On 6 August 2024, the insurer's legal representatives informed the claimant that the insurer did not accept the explanation supplied as it was neither full nor satisfactory.
3. On 2 December 2021, the insurer sent an email to the claimant informing him as to his rights to seek additional compensation by applying for common law damages and advising of the limitation date. The email detailed how to make the claim for common law damages. The claimant acknowledges that he received that email, but did not read it, nor act upon it, for some 30 months thereafter, when he was preparing for his initial consultation with his then solicitors Gerard Malouf & Partners. The claimant addresses that failure in his statements.
4. The question is whether the explanation is both full or satisfactory.
5. The explanation is much less than complete. The claimant's written statements do not say anything about his believing that the claim was finalised in March 2021 when his statutory benefits claim was concluded. The submissions made by his solicitors to that effect are without any evidentiary basis.
6. There is no evidence from the claimant's partner, nor his mother, both of whom he identifies in his statements as having played some part in the relevant sequence of events. Nor is there any evidence from his treating doctor and/or treating psychologist, except by way of their clinical notes, which were provided by the insurer.
7. I note that the treating GP (Dr David Sor) certified on 16 January 2023 as follows:

"I certify that Daniel is physically and psychologically well. He is fit to continue working normally."

That certificate appears at page 183 of the insurer's bundle. (R10)

1. I further note that on 24 June 2024, Dr Sor referred the claimant to Positive Affect Narellan (treating psychologists) with the following notation.

"..... He has been experiencing increased anxiety symptoms relating to a serious car accident......."

1. I observe that the clinical notes indicate the claimant had a very troubled childhood. He was in juvenile detention and using psychotic drugs from the age of six years. He had severe psychological issues from 10 months post-accident. The treatment notes from 28 April 2022 indicate that both the claimant and his partner were having treatment. The claimant is described as having "severe OCD". He was using cannabis to help with sleep and anger management issues. He had family issues arising from the death of a grandfather.
2. Unfortunately, there is no interpretative report from the treating psychologist to assist me in understanding how the claimant's psychological history and issues may have related to his failure to lodge his claim within time. It is left to me to speculate unaided by relevant expert evidence.
3. I could accept that the claimant may have been affected adversely by reason of the fact that the subject accident occurred during the time of the COVID-19 shutdown, but the claimant's statements do not really address that issue, except tangentially at paragraph 14 of his statement dated 18 July 2024.
4. I note that the claimant changed his legal representation shortly after Gerard Malouf Partners provided his statements to the insurer. It may be that the change of representation has some relevance for my consideration in terms of the application for common law damages claim and the explanatory statements being lodged sooner. However, there is no evidence from the claimant's former solicitors, nor his current solicitors, nor the claimant as to those matters.
5. I accept the claimant was inexperienced in legal process and was relatively unsophisticated as his former solicitors submitted on his behalf.
6. As to the claimant's admitted failure to read the insurer's email in December 2021, I think that, in the digital/social media age, failure to regularly monitor emails is sufficiently unusual as to require further explanation. Evidence from the claimant's partner may have been of assistance in that regard. Did the email go to the claimant's junk folder? He doesn't say.
7. I understand there may be good reasons why the claimant's mother and partner have not given statements. However, in the absence of evidence, I am again left to speculate.
8. Having regard to the evidence, for the reasons stated, I am not satisfied that the explanation is relevantly "full". That being so, the further issue of whether the explanation is "satisfactory" does not arise for consideration.

1. The claimant has not provided a full explanation for the delay in lodging his claim for damages. The statutory pre-condition in s 6.14(5)(b) is not met.
2. The claimant's late claim for damages may not be made and will not be referred for assessment.

1. The insurer will pay the claimant's cost prescribed by the regulation, as agreed or assessed.

[1] McNamara v Fitzgibbons [2005] NSWCA 274 and Hickey Transport Pty Limited v Gordon [2008 NSWCA 167.

[2] Dahdah v Witte [2023] NSWCA 304. See also Nominal Defendant v Browne [2013] NSWCA 197.

[3] Walker v Howard [2009] NSWCA 408. See also Hunter v Roberts [2019] NSWCA 116 and Rahman v Al-Maharmeh [2021] NSWCA 31.

[5] [2002] NSWCA 38.

[6] [2002] NSWCA 190.

[7] Karambelas v Zaknic (2) [2014] NSWCA 433 at (17).

[8] Ruzzo v Aiello [2003] HCA 53; [2003] 215 CLR 643 at (4).

[9] Smith v Grant [2006] NSWCA 244: 67 NSW LR 735 at (60).