CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Clarke v Allianz Australia Insurance Limited [2023] NSWPIC 213	
		
Claimant:	Sharon Clarke	
		
insurer:	Allianz Australia Insurance Limited	
		
Member:	Terence O'Riain	
		
DATE OF DECISION:	1 May 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for damages for motor vehicle accident where claimant lodged claim outside statutory time limit; whether claimant had a full and satisfactory explanation for delay in making claim; whether reasonable person in position of claimant would have been justified in experiencing the same delay; late claim; full and satisfactory explanation; delay; limitation period; damages; reasonable person in claimant’s circumstances; legal advice given on time limits before 3rd anniversary of motor accident; claimant failed to respond to her solicitor’s communications seeking instructions; pandemic; claimant’s inconsistent statements; medical evidence and corroborating evidence confirmed mental disorder; mental disorder impaired claimant’s ability to respond to legal advice; claimant’s son’s evidence is that she required his assistance to complete forms and correspondence and that her circumstances were she could not manage without his help; Held – late claim can be made as claimant had a full and satisfactory explanation for delay. 	
determinations made:	Certificate
Issued under s 7.36(4) of the 
Motor Accident Injuries Act 2017
The findings of the assessment of this dispute are as follows:
1.	For the purposes of Part 6, the claimant has given a full and satisfactory explanation for non-compliance with a duty or for delay.
2.	For the purposes of s 6.14 a late claim may be made.
3.	Legal Costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is nil.	

Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to a dispute about an application for a late claim for a damages under ss 6.2 and 6.14 of the Motor Accident Injuries Act 2017 (the MAI Act). I must decide whether the claimant has provided a full and satisfactory explanation for the failure to lodge the claim form within 3 years of the date of accident.
1.	Ms Sharon Clarke, the claimant, was born in 1968.
2.	The claimant sustained an injury in a motor vehicle accident on 4 July 2018 (the accident). The claimant says her injury occurred when she was crossing the road at a green light, and a car struck her right side. The force of the collision threw her to the ground. The accident mechanism is disputed but that is not relevant to this dispute.
3.	An ambulance took her to Westmead Hospital. The medical staff assessed Ms Clarke’s neck, shoulders, and left knee for injuries. The X-rays of her left knee showed an un-displaced patellar fracture. The hospital treated the left knee with a back splint. 
4.	She attended the hospital fracture clinic for her follow-up treatment. The splint was on her left leg for six to eight weeks. Afterwards, she had physiotherapy for her left knee, left leg, neck and right shoulder.
5.	She returned slowly to normal mobility without needing walking aids.
6.	Ms Clarke applied to the Personal Injury Commission (the Commission) for an assessment of damages on 2 March 2022, 241 days after the third anniversary of the accident, 4 July 2021.
7.	Ms Clarke sent her claim for damages under common law to the insurer on 28 March 2022, 266 days after the third anniversary. Consequently, Ms Clarke served the claim out of time in breach of 6.14(2) of the MAI Act.
8.	The third anniversary is the latest date that the claimant could serve the notice of claim under s 6.14 of the MAI Act without requiring a full and satisfactory explanation for her delay.
9.	The insurer declined liability on the basis that Ms Clarke has not provided a full and satisfactory explanation for delaying in making a claim.
10.	The insurer informed the claimant that the late claim could not be referred for assessment before the insurer or Commission decided to accept an explanation for the late claim under s 6.14(5)(b) of the MAI Act. 
11.	Section 54 of the Personal Injury Commission Act (the PIC Act) and rule 77 of the Personal Injury Commission Rules 2021 (the Rules) prescribe the powers to dismiss proceedings in the Commission.
12.	The Commission cannot, of its own motion, amend an application to assess damages to include a miscellaneous assessment to assess whether the claimant has made a full and satisfactory explanation for lodging the claim for damages after the third anniversary of the accident. 
13.	Accordingly, the earlier application to assess damages was not viable. 
14.	I dismissed the application on 11 April 2022 because the application was without foundation under s 54(2)(b) of the PIC Act.
Jurisdictional issues
15.	On 8 July 2022 the claimant’s solicitor lodged this application for a miscellaneous claims assessment of the liability dispute under Schedule 2(3)(j) of the MAI Act. A claimant can make such an application at any time (see s 7.42(1)).
16.	Section 6.14 of the MAI Act (as it was then) provided:
“6.14 Time for making of claims for damages
(cf ss 72 and 73 MACA)
(1) 	A claim for damages cannot be made before the expiration of 20 months after the motor accident to which the claim relates unless the claim is in respect of the death of a person or injury resulting in a degree of permanent impairment of the injured person that is greater than 10%.
(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 date 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.”
17.	Section 6.2 of the MAI Act defines “full and satisfactory” as follows:
“6.2 Meaning of ‘full and satisfactory explanation; by claimant (cf s 66 MACA)
(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.”
18.	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 had not) or the Commission has determined that the claimant has a full and satisfactory explanation for the delay – this what I must assess – or a party is referring the claim for exemption from assessment (it is not).
19.	At the teleconference 22 August 2022 both parties agreed it was appropriate for the matter to be determined on the papers in accordance with the Commission’s Procedural Direction PIC2 – Determination of matters ‘on the papers'
20.	The rules of evidence do not apply to this assessment. I may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
21.	The claimant filed the common law damages claim date 21 March 2022. The claimant has my approval to admit the form under Personal Injury Commission Rules 2021 rule 67 and Procedural Direction PIC3 – Documents and late documents.
Documents considered
22.	I have considered the documents provided in the application and the reply and any further information provided by the parties, which are as follows:
(a)	application for common law damages (AD2-ALD); 
(b)	claimant’s submissions dated 3 August 2022 (AD1);
(c)	the insurer’s reply marked R1 
(d)	Dr Murray Hyde Page’s report 8 April 2021;
(e)	Luke Power's statement dated 5 April 2022;
(f)	insurer's internal review determination dated 5 April 2019 setting aside the insurer's decision that Ms Clarke was wholly at fault for her injuries;
(g)	Turner Freeman letter dated 10 May 2021 2 Ms Clarke with advice and enclosing a completed damages claim form for her completion;
(h)	Turner Freeman letter dated 4 June 2021 advising Ms Clarke of the relevant three-year limitation date for bringing a common law damages claim, and of their efforts to contact her with letters and phone calls;
(i)	Turner Freeman letter dated 21 June 2021 advising Ms Clarke the firm had progressed her claim for non-economic loss damages;
(j)	the claimant’s son Phil Clarke's statement dated 21 April 2022 setting out his observations of the claimant's behaviour;
(k)	Sharon Clarke's statement dated 21 April 2022 setting out her explanation;
(l)	Phil Clarke's supplementary statement dated 30 May 2022;
(m)	Sharon Clarke's supplementary statement dated 30 May 2022;
(n)	insurer's letter dated 20 May 2020 affirming its decision to reject Ms Clarke's explanation as it was neither full nor satisfactory;
(o)	insurer's letter dated 27 June 2022 denying liability for Ms Clarke's late claim for damages as it was made after the three-year limitation period expired and she had not provided a full and satisfactory explanation for the delay;
(p)	insurer's letter dated 29 July 2022 rejecting Ms Clarke's explanation;
(q)	insurer's submissions-late claim dated 12 August 2022;
(r)	Sharon Clarke's supplementary statement dated 8 December 2022;
(s)	insurer’s supplementary submissions dated 19 January 2023 with Dr Vickery’s report dated 5 January 2023, and
(t)	Dr Rastogi’s report dated 3 August 2022.
Submissions
Claimant’s submissions
23.	On 5 April 2022, Luke Power, solicitor for the claimant completed a statutory declaration. The following content is referred to:
“2.	I confirm I initially conferred with Ms Sharon Clarke on 13 September 2018.
3.	I provided her a detailed letter of advice advising her of her requirements to pursue her claim within the requisite three years.
4.	I also confirm that as at the time of her conferring with our office her claim had been denied by way of contributory negligence.
5.	I wrote to the insurer on Ms Clarke's behalf and was successful in having that decision overturned and he claim accepted for the purposes of her entitlement to statutory benefits and the like. A copy of that decision is attached.
6.	I confirm I arranged for Ms Clarke to be assessed for the purposes of her whole person impairment with respect to her physical injuries and as per the DRS application have sought that the insurer concede that Ms Clarke exceeds the relevant threshold for the purposes of her work motor vehicle accident claim.
7.	I confirm that as the timeframe for her to commence her damages claim became relevant, I began to write to her providing her an update as to the status of the claim, enclosing the relevant damages claim form as well as our costs agreement to commence the claim.
8.	I did not hear from her nor did I receive a completed damages application. I confirm I again wrote to Ms Clarke on 10 May 2021, 4 June 2021 and 21 June 2021. Copies of that correspondence is attached
9.	Noting the timeframe that was shortly to lapse, we filed a DRS application form in the Commission however withdrew same as we could not contact her. I accordingly wrote to her on 14 February 2022 advising that we intended to close her file.
10.	I confirm approximately a fortnight later I was contacted by Ms Clarke and she indicated to me that she wished to pursue her claim.
11.	I wrote to Ms Clarke on 11 March 2022 advising her that we had arranged appointments for her to be further assessed for her psychiatric injuries on 4 August 2022 with Dr Rastogi, Psychiatrist and 30 March 2022 with Dr Peter Giblin.
12.	I also briefed Mr Rohan De Meyrick, Barrister to provide an advice as the claim was now out of time. On 28 March 2022 I conferred with Mr De Meyrick, the claimant and the claimant's son. Ms Clarke explained to me that she was having significant psychological difficulties and further, this was verified by her son who advised that she had changed completely as a person and had particular difficulties with her memory.
13.	I also asked that she provide our office an explanation as to why we were unable to contact her for approximately 20 months.
14.	I was advised that the delay was caused by her changing phones, her difficulties in posting a letter to our office including writing down the wrong address on her letters (she attempted to send her damages claim form to our street address and not our PO Box address) as well as being significantly hampered by the severity of her psychological condition.
15.	The above is the best explanation I can give for the delays with respect to Ms Clarke's matter.”
24.	Phil Clarke's statement dated 21 April 2022 observed:
“2.	Since the motor vehicle accident I have noticed that my mother has become forgetful, prone to breaking out in tears and finds it difficult to follow day to day tasks or long term plans.
3.	I have recently been living with her and noted that numerous correspondences have been sent by her solicitors, Turner Freeman Lawyers regarding the need to action her CTP damages claim.
4.	It is clear that she is so affected by her psychological condition as well as been computer illiterate that have made it very difficult to action her claim.
5.	I am currently helping her with her affairs and believe that if the accident had not happened, she would have easily in the past attended to competing the relevant form and assisting with the expediting of her claim.
6.	This is the best explanation I can give as to the delays in her matter and particularly her failure to complete the relevant application for damages and to remain in touch with her solicitors.”
25.	Phil Clarke's supplementary statement dated 30 May 2022 added:
“2. 	In my original statement I confirmed that numerous mail was received at mine and my mother's shared address. I am unable to confirm specifics as to the dates in which certain letters were received however I can confirm that they were not actioned at all. 
3.	Since my mother's accident she has become very reliant on me for assisting her with her day-to-day living. That is why I moved back in with her in the first place. However, as unforeseen as the COVID pandemic was, for the past couple of years I have been worked to the point of exhaustion.
4.	I am considered a frontline worker as I am a cleaner at Concord Hospital. During the pandemic, particularly midway throughout 2021, I was working extremely long hours. By the time I would come home of an afternoon I was physically and mentally drained. I would come home, have something to eat and then go straight to bed to be ready for the next day.
5.	Throughout this period I do recall seeing mail though I was in no state to go through the pile and read through them with my mother. If I knew of the seriousness of the content then I definitely would have read them earlier and actioned them.
6.	As life began to return to somewhat normality in 2022 my days at work began to be less draining and demanding. In February 2022 I recall seeing a letter from Turner Freeman Lawyers. The letter was dated 14 February 2022 and essentially explained to my mother that they were closing her file due to a lack of contact. I immediately alerted my mother to the seriousness of this letter and advised her that she had to get in touch with her solicitors as soon as possible.
7.	This is why the mail that we received in February 2022 was actioned as opposed to the mail that was received in mid-2021.”
26.	Ms Clarke’s statutory declaration dated 21 April 2022 states:
7.	I confirm that due to personal circumstances I lost contact with my solicitors for a period of approximately 24 months. I have been struggling psychologically, have significant difficulties with memory and have recently sought the assistance of my son to manage and assist with my affairs.
8.	I note that my solicitors made every attempt to contact me to complete the relevant application for damages under common law to allow my matter to be referred to the DRS for assessment of my claim and my entitlement to damages.
9.	It was not until I received a letter from Mr Power advising of the closure of my file on 14 February 2022 which was re-directed to me by the post office as I had recently moved and changed my number that I realised that I had to expedite my claim.
10.	I am now in the process of signing the relevant application and damages claim form to expedite assessment of my claim.
11.	My unforeseen personal circumstances including significant psychological injury, as well as having to move and change my number and being unable to contact my solicitors is the best explanation I can give for the delay with respect to my claim.”
27.	Ms Clarke’s supplementary statement dated 20 May 2022 says:
“12.	Allianz have asked for further explanation as to why I did not contact my solicitors for a period of 24 months. Due to the nature of my injuries, psychologically, I was and still continue to struggle immensely with basic functioning. I recall receiving letters from my solicitors but when I read them I wasn't really reading them. I could not comprehend the words on the page because my mind was elsewhere. As a result I did not understand the serious nature of the letters that I was receiving and the implications they would have on my claim if I did not action them.
3.	Since my accident I have relied heavily on my son for assistance. This includes things like explaining letters to me. However, since the height of the COVID pandemic in 2021, my son has been far too busy to sit and read letters from my solicitors to me. My son is a frontline worker as he works as a cleaner at Concord Hospital. During the period in which my solicitors were sending me letters warning me of my time limits my son was the busiest he has ever been. He was working long hours and when he would come home he would be far too drained to sit with me and go through the letters. My son would just have something to eat and then go to bed.
4.	Before my accident I had no issues with my memory. Since the accident however my day-to-day has become nothing but a blur. It would be impossible for me to read a letter, regardless of whether it was from a solicitor or not, and to completely comprehend what I was reading. 
5. 	I even find it difficult to go to my letterbox to collect my mail. From my letterbox I can see the accident site and whenever I do I go into a panic as scenes of the accident come rushing into my mind.
Response to section b) of letter from Allianz dated 20 May 2022 
6. 	I cannot remember the exact date when my son moved in with me but I recall it was approximately one week after my accident.
7.	Before my accident my son was living with my twin sister in St Marys, NSW
8.	After my accident, to assist me with my recovery he moved in with me at Kingswood NSW.
Response to section c) of letter from Allianz dated 20 May 2022 
9.	For about a period of six months I was without a phone. I lost it and did not really have any means to buy a new one at the time. Due to the issues I have with my memory I cannot recall exactly when this period spanned from but I do believe it was for approximately six months.
10.	During that time I never really thought to ask my son if I could use his phone to contact my solicitors. Again, due to what I was going through it hardly crossed my mind.
Response to section d) of letter from Allianz dated 20 May 2022 
11. 	I believe I returned my Application for Common Law Damages to my solicitors on 21 March 2022.
Response to section e) of letter from Allianz dated 20 May 2022
12.	As I mentioned earlier in this statement, my son did not read me the letters that I received from my solicitors in mid 2021. As I mentioned, my son was mentally drained every day after working on the frontline during the COVID pandemic.
13.	Fortunately, at around the beginning of 2022, the impact of COVID on my son's job seemed to ease. This meant that he was working less overtime and therefore not being as exhausted as he was last year.
14.	When I received the letter from my solicitor's dated 14 February 2022 regarding the closure of my file, again, I did not think much of it because I did not really understand the seriousness of what was happening with my case. My son however read the letter for me and alerted me to the seriousness of the situation. That is why this time I was prompted to act on the letter that I received in February 2022, which I did.
15.	Had my son read any of the letters in May and June of 2021 I have no doubt that I would have acted on this situation much earlier than I have.
Response to section f) of letter from Allianz dated 20 May 2022
16.	My general practitioner is well aware of my situation and the issues I am currently experiencing psychologically.
17.	With regard to the onset of these symptoms I can confirm that they began immediately following my motor vehicle accident.
Response to section g) of letter from Allianz dated 20 May 2022 
18. 	As mentioned throughout this statement, my son acknowledges that numerous pieces of mail was received at my address but as explained he was not in a state of mind to read the mail let alone action it. As a result I and my son are unable to recall exact dates as to when certain pieces of mail was received.”
28.	Ms Clarke provided a further statement dated 8 December 2022. It attempts to deal with the insurer’s objections listed below. She confirmed that she had never moved throughout this period, but her son had moved in with her.
29.	Regarding her failure to mail her claim form to her solicitors as requested in multiple attempts at communications she reiterates that she was reliant on her son to help her manage and prompt her to act. She asserts she was a psychological mess and not coping in this period.
30.	In respect of her being a carer, Ms Clarke now says the person for whom she cared, lived with her prior to the accident and moved out prior to her accident to his own accommodation.
31.	I note the claimant advised Dr Page (Reply p 10) that following her lower back work injury in 2016, she went onto receive a carer’s pension, which she had received for the last four years looking after a friend who lived close by (history given in 2021). The insurer highlights that as another inconsistency, and relevant to credit.
32.	Regarding her treatment Ms Clarke says she relied on what she remembered telling her general practitioner (GP) and did not have control over what the GP noted.
33.	Further evidence was provided when consultant psychiatrist Dr Richa Rastogi provided a report dated 3 August 2022. There are reference to Dr Sr George and Dr George as treating doctors, but I have drawn from the context that Dr Rastogi is referring to 
Dr St George, who practices at St John of God Hospital at Burwood.
34.	Dr Rastogi noted:
“She does have a background of significant historical domestic violence perpetrated by ex- partner whom she was caring for and continues to support. She has been able to set limits on ex-partner which included (an AVO) now lapsed and a current good behhe [sic] was referred to psychiatrist Dr George in 2019 and saw him on two occasions. Referral for Dr Lim for Workers Doctors in 2019 stated a diagnosis of PTSD and she was treated with Celebrex and Lovan.” 
35.	Dr Rastogi referred to Dr St George, psychiatrist who reported on 28 April 2019:
“that since the accident she described deterioration in the mental and physical health. She reported symptoms of arousal, hyper vigilance, sleep disturbances exaggerated startle responses, concentration issues irritability, negativity, avoidance of external internal trauma, intrusive flashbacks nightmares…Her diagnosis is Post traumatic stress disorder secondary to motor vehicle accident. She denied any past psychiatric history and has not seen a psychiatrist or psychologist and had no past exposure to psychometric medication...a background of significant historical domestic violence perpetrated by ex- partner whom she was caring for and continues to support.. also hoping to transfer to an alternative Department of Housing for both avoidance of this side (sic) of the accident and due to her mobility issues. She does not drive but has been increasingly exposing herself regarding crossing the road and going on public transport.”
36.	In early 2020 Ms Clarke was described as suffering post-traumatic stress disorder and taking Valdoxan and Fluoxetine. 
37.	Dr Rastogi agreed with that assessment and noted there was some recovery. Dr Rastogi also noted the following: 
“Over the last four years Ms Clarke has continued to display avoidance behaviours, anxiety, especially as a pedestrian, cautiousness and significant cognitive deficits, poor working memory and increased dependence on her family. 
She displays functional limitations associated with deconditioning and avoidance behaviours stemming from anxiety. Her working memory is poor and is her main concern. She stated she was independent in her functioning prior to the accident. The inability to carry out her inherent tasks has exacerbated her anxiety. 
Her prognosis is guarded in presence of complex cognitive deficits, loss of confidence and residual anxiety as well as physical deconditioning. She is more dependent on her family now and less agile. She is stress intolerant and easily triggered.”
38.	The doctor confirmed Ms Clarke needed assistance with many activities because she has impaired memory and cognition.
39.	This in contrast to Dr Vickery’s report for the insurer dated 5 January 2023.
40.	The claimant submits that since the accident she has become mentally unwell, and has become forgetful, tearful and finds it difficult to follow day to day tasks or long-term plans. She has been so affected by her psychological condition that it has made it very difficult for her to deal with correspondence or to action her claim.
41.	Ms Clarke’s son describes her as “computer illiterate”.
42.	Ms Clarke’s solicitor had made exhaustive efforts to alert her. 
43.	As her son had been a front-line worker during the Covid pandemic he was not always available to help. Mr Clarkes states that he believes that if the accident had not happened, Ms Clarke would have attended to competing the relevant form and provided proper instruction. The accident and its sequalae had rendered Ms Clark incompetent to handle her affairs.
Legal principles
44.	The claimant provided numerous authorities in respect of whether the explanation was full, including Brereton JA’s judgment in Rahman v Al-Maharmeh [2021] NSWCA 31 at [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.”
45.	Ms Clarke’s explanation is sufficient to be considered a “full” explanation because the reasons given by her, her son, and her solicitor are sufficient to be considered a full account of her conduct, actions, knowledge and belief.
46.	The explanation cannot be considered satisfactory unless a reasonable person in Ms Clarke’s position would have been justified in experiencing the same delay. 
47.	The claimant refers to the NSW Court of Appeal’s Buller v Black [2003] NSWCA 45 and Dijakovic v Perez [2015] NSWCA 174. It is submitted that in this case, Ms Clarke’s explanation is satisfactory because a person in her position, as someone who had developed what sounds like a depressive illness would have been justified in delaying bringing her case.
48.	The claimant submits that the “position” was that she was struggling with mental health issues and not capable of properly attending to her own affairs such that important correspondence was not read and ignored and means of communication not utilised.
insurer’s submissions
49.	The insurer submits the explanations provided are not full for the following reasons:
(a)	There was no explanation regarding the references to Ms Clarke’s move being a factor in her delay, in circumstances where the claimant continues to reside at the same residential address at 6/41-43 Great Western Highway, Kingswood 2747, from the date of accident to date.
(b)	There was no explanation as details regarding posting the claim for damages to Turner Freeman.
(c)	There was no explanation by way of chronology addressing the treatment the claimant received since the accident including since the claimant’s examination with Dr Page, which occurred only weeks before the first reminder letter was sent.
(d)	There was no explanation from her general practitioner in relation to the allegation of not being not capable of properly attending to her own affairs.
(e)	There was no explanation as to why the claimant did not seek assistance from another person, including her own lawyer, to action the claim, having read the reminder letters.
50.	The insurer submits that the claimant’s explanation for the delay is neither 'full' nor 'satisfactory' especially having regard to the fact that the explanation needs to cover the entire period from the date of the accident to the date of providing the explanation as provided by the express terms of the sub-section.
51.	The claimant’s explanation consists of statements from Luke Power dated 5 April 2022 (R1 p 19), Phil Clarke dated 21 April 2022 (R1 p 30) and 30 May 2022 (R1 p 33), and Sharon Clarke dated 21 April 2022 (R1 p 31) and 30 May 2022 (R1 p 34).
52.	The insurer rejected these explanations following s 6.14(5) on 20 May 2022 (R1 p 36), 27 June 2022 (R1 p 38) and on 29 July 2022 (R1 p 41).
53.	Unlike Mr Howard in the abovementioned case of Walker v Howard [2009] NSW CA 408 (Walker), the claimant is not under a legal incapacity, as a result of brain damage, or otherwise. The claimant has no legal appointed guardian responsible for her affairs.
54.	Dr Page examined the claimant (R1 p 8) on 26 March 2021 and attended that examination alone. The claimant was able to provide a full account of the accident, her alleged injuries and alleged ongoing disabilities, treatment she received, and details of her health, work and social history.
55.	Contrary to the allegation she cannot manage her affairs, the claimant advised Dr Page in March 2021, that not only was she managing her own affairs, but she has been for the past (currently) five years, receiving a carers’ pension for looking after a close friend who lives nearby.
56.	The evidence of Dr Page does not support the submission that the claimant is “not capable of properly attending to her own affairs” and the explanation is not full or satisfactory.
57.	The claimant’s submission that she was “struggling with mental health issues and was not capable of properly attending to her own affairs” is also not supported by any medical evidence from her GP whom she says, “is well aware of my situation and the issues I am currently experiencing psychologically”, nor is it supported by any psychiatric evidence. The explanation cannot be full or satisfactory.
58.	Relevantly, the explanations provided are not satisfactory in circumstances where it is not denied by the claimant, that her knowledge and belief of the three year limitation period was known to her on the first meeting with Mr Power on 13 September 2018.
59.	That knowledge and belief continued through to 2021, when the claimant was provided with letters dated 10 May 2021, 4 June 2021 and 21 June 2021, advising her of the expiration of the limitation period. The claimant confirmed she recalled seeing the letters, “but when I read them I wasn’t really reading them”.
60.	Per Buller v Black, the claimant has been armed with the knowledge of the limitation period since 2018 and was reminded by way of letters which she read in 2021, and ‘cannot tarry’.
61.	The claimant, armed with the knowledge of the limitation period, did not act as would be expected of a reasonable claimant in her position and the explanation is not satisfactory.
62.	The insurer also relies on the decision of the Court of Appeal in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104, where the Court found that while the respondent's delay in bringing her action for damages caused the appellant no prejudice, the respondent failed to act diligently in the prosecution of her claim. To grant leave to make the claim so long after the expiry of the limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation. 
63.	For this reason, regardless of the explanation not being full for other reasons set out below, it can never be satisfactory.
64.	The insurer submits that a reasonable person in the position of the claimant, and in her subjective circumstances would have not failed to comply with the requirements of s 6.14 of the MAI Act.
65.	The insurer provided further submissions dated 19 January 2023. These put that the claimant’s credit is in issue. The insurer relied on Dr Vickery’s report dated 5 January 2023. Although it referred to Dr Rastogi’s report it states Ms Clarke has no cognitive deficits and has had no treatment.
66.	Dr Vickery found the claimant’s:
“affect range was not restricted with a sense of humour at times. Her behaviour and mood were appropriate to the topic being discussed. Her history and presentation were consistent. She was able to relate a reasonably coherent history. There was no apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent psychiatric impairment”. 
She was assessed at 0% whole person impairment, while Dr Rastogi found 13%.
67.	The insurer relies on the history Ms Clarke gave about being a carer, able in her activities of daily living and being involved in volunteering as evidence that Ms Clarke was not impaired in a way that could have prevented her from acting to avoid delay.
Reasons
Is the explanation full?
68.	On reviewing the statements and notice of claim I am satisfied that it is explained how the accident occurred, the injuries and disabilities suffered, the treatment sought prior to and after the expiration of the limitation period on 22 March 2018, who her treatment providers were, the impact on her economic capacity and why there was delay.
69.	The explanation is full as it addresses each point relevant to what Ms Clarke was doing regarding the motor accident sequelae right up to when she lodged her claim.
70.	Regarding whether the explanation satisfies s 66(2) of the MAI Act Mancini v Thompson [2002] NSWCA 38, says it is necessary to set out in full the conduct, the actions, knowledge and belief of the claimant so the court can evaluate all of the reasons for the delay and decide whether an explanation is full and satisfactory.
71.	The High Court in Russo v Aiello 125 CLR 643 states that a full explanation must provide details of the acts and omissions relating to the delay and must cover the full period of the delay.
72.	In Walker the court held that generally what is required for a full explanation is a "chronology of the events from the date of accident to the date of the giving of the explanation explaining what happened and why. The provision does not call for perfection or prolix or burdensome recounting of every moment that has elapsed."
73.	In Aiello (supra), Gleeson CJ referred to the concept of a “a full and satisfactory explanation” as it pertained to the Motor Accidents Act 1988 NSW (MAC Act) stating at [4] the word full takes its meaning from the context and refers to the conduct bearing upon the delay, and state of mind of the claimant.
74.	Although Drs Hyde-Page and Vickery opined Ms Clarke did not demonstrate impairment in thinking, her son has provided several statement confirming there had been an adverse change in her personality and function. Her state of mind was vague and unable to concentrate enough to complete tasks.
75.	The son’s statements read as if his mother was just able to manage to live her life simply, avoiding dealing with what were for her at the time, detailed and demanding tasks such as form completion and instructions.
76.	I find that the explanation is full in accordance with the ratio in Mancini, Russo v Aiello, Walker, Soo Pin Tan v Lorima Basaga [2010] NSWSC 1143 because the claimant has eventually provided a full account of her conduct after 22 March 2018 up to making her claim.
77.	The ground of prejudice is not relevant to the question of whether an explanation is full and satisfactory (Lyu v Jeon [2012] NSWCA 446), although the introduction of time limits on making claims were originally imposed to avoid prejudice to insurers being able to make early evaluation of liability and damages.
78.	I observe there is no issue raised that would mean the insurer could not have a fair hearing.
Is the explanation satisfactory?
79.	As to whether Ms Clarke's explanation is satisfactory, the test is the same for s 6.14 of the MAI Act as for s 66(2) of the MAC Act. The test is whether a reasonable person in the claimant's position would have been justified in experiencing the delay in making a claim, see Walker 
80.	As McHugh J says at [27] of Russo v Aiello:
“(The question what is a full and satisfactory explanation) is a factual and not a legal issue, the criterion of the full and safe satisfactory explanation for the delay does not involve any perception by the senses of some matter, event or entity in the external world. It does not depend on sight, hearing, feeling or touch. A ‘full satisfactory explanation’ for delay is an intellectual construct involving a value judgement, a judgement in which reasonable persons may have widely differing views. It is therefore properly described as a discretionary judgement.”
81.	Ms Clarke provided a further statement, which was to be an opportunity into obtaining context about remarks she had made to Dr Hyde Page, which showed she may have had a higher level of competence than she expressed in her earlier statement and explanation for delay.
82.	Unfortunately, this statement muddied the explanation because it looks as if her credit was impeached because she gives different versions or reasons for actions in the various statements.
83.	I have decided that her explanation is full though because eventually it does address each aspect of what she and other actors in this matter were doing, but I must consider whether it is a satisfactory explanation.
84.	From the evidence in her and her son’s statements I perceive that Ms Clark has drama in her life that distracts her. Her stories are scattered, inconsistent and mixed. 
85.	I am required to consider whether Ms Clarke is impaired in her recollection, because there is evidence she has a depressive illness and post-traumatic stress disorder, which has left her unable to cope with minutiae like answering mail.
86.	There was medical opinion that the claimant had suffered a mental injury that arose out of the accident. 
87.	It is not clear why the insurer did not consider the possibility that any exaggeration, or lack of reliability in Ms Clarke’s evidence, might have been the product of the mental injury that arose in the course of the accident, and indeed from her life circumstances given before the accident she has suffered domestic violence and cared long term for a person with a brain tumour. 
88.	The domestic violence from the person she had cared for is another factor that could be the source of a mental disorder.
89.	Dr Vickery found Ms Clarke does not have a mental disorder. I prefer Dr Rastogi’s report. This is because it records the treatment history with Dr St George. Dr Vickery says there was no treatment history recorded, despite being briefed with Dr Rastogi’s report and presumably the same material Dr Rastogi saw. 
90.	Ms Clarke’s son’s statements also support Dr Rastogi’s opinion, while Dr Vickery does not refer to them.
91.	There are inconsistencies in Ms Clarke’s accounts of the factors that delayed her making her claim under s 6.14 of the MAI Act. Ms Clarke is an unreliable witness. However, while inconsistencies can count against a witness’ credit, it is not the case that her evidence must be completely discounted.
92.	As Beach JA, Macaulay JA, and Forrest AJA jointly remarked in Stevens v DP World Melbourne Ltd it is a hallmark of cases of the present kind is that the evidence given by a claimant with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health. Allowances need to be made for such a possibility (albeit that, upon proper examination, such an allowance might be discounted in an individual case). Where there is a medical condition which might affect the way in which a witness might give his or her evidence, a court does not merely reject that witness’s evidence because of what is said to be his or her unreliability: a court is duty bound to consider what the balance of the evidence discloses, even if the witness’s evidence cannot be accepted on its own. 
93.	I must consider Ms Clarke’s mental injury (about which there was a disagreement of medical opinion), upon Ms Clarke’s reliability, before concluding that she was a dishonest witness who fabricated critical parts of her evidence.
94.	Ms Clarke’s explanation can be summarised as that although she aware that there was a time limit for making her claim she did not have the mental energy to fulfill that obligation.
95.	The insurer’s case can be summarised as being there was evidence Ms Clarke was performing in other aspects of her life, and she should not be able to claim she was only incompetent in respect of making her claim.
96.	The insurer refers to this case not being like Walker v Howard because Ms Clarke does not have a guardian appointed or suffer traumatic brain injury. However, it appears from Mr Clarke’s statements he fills the role in part as his mother’s guardian and she relies on him to assist with administration.
97.	Dr Rastogi’s report including the history supports Ms Clarke having significant psychological impairment, which would justify delegating administrative demands to a carer. However, as Mr Clarke said in his statement, he was himself unable to assist his mother until his work demands abated.
98.	The inconsistent statements satisfy me that Ms Clarke by herself is an unreliable witness as to times and places. However, she is consistent on the adverse impact the accident had on her cognitive ability including being unable to deal with minutiae like answering correspondence. Her son’s statements and Dr Rastogi’s report corroborates this.
99.	Although there is evidence that Ms Clarke was active in some aspects of her life, rather than indolent, Ms Clarke did not act.
100.	This consistent and corroborated claim is crucial in assessing whether a reasonable person in Ms Clarke’s position would have been justified in delaying her claim. The consistent claim and the circumstances where she needed her son to help her indicates the delay was reasonably justifiable. 
101.	I am satisfied Ms Clarke has provided a satisfactory explanation with s6.2 of the MAI Act. Leave is to be granted to refer her claim for assessment of damages.

Costs and Disbursements

102.	I make no assessment of costs in favour of the claimant, noting that it was reasonable for the insurer to seek more information due to a lack of specificity in the initial material and that it was necessary to direct the claimant to provide additional material to the Commission to assess this application.
103.	My determination of the miscellaneous assessment is as follows:	
(a)	I find that the claimant has provided a full and satisfactory explanation for the delay in lodging her claim form.
(b)	I issue a certificate that Ms Clarke's claim may be made.
(c)	Legal Costs: the amount of the claimant’s costs assessed in accordance with the Motor Accidents Injury Regulation 2017 is nil. 
Legislation
104.	 In making my decision I have considered the following legislation and guidelines:
•	Motor Accidents Injuries Act 2017 (MAI Act);
•	Motor Accident Injuries Regulation 2017;
•	Personal Injury Commission Act 2020, and
•	Personal Injury Commission Rules 2021.