When a failure to provide particulars leads to a deemed withdrawal of a claim

In the recent case of Wahhab v Insurance Australia Ltd [2021] NSWSC 521, a Claims Assessor refused to refer a matter for Claims Assessment on the grounds the claimant had been deemed to have withdrawn their claim. The NSW Supreme Court upheld this decision. 

Key Points:

  • If after 2.5 years a claimant has not provided particulars, a direction can be issued which gives the claimant 3 months to provide them.
  • A failure to provide particulars within 3 months leads to a deemed withdrawal of the claim.
  • The claimant must then make an application to reinstate their claim. In this instance, the claim was not reinstated.

On 26 March 2016, the claimant was injured in a motor vehicle accident.

He lodged a Claim Form on 8 September 2016, within the prescribed period of 6 months.

The insurer requested particulars on 13 September 2016.

On 28 September 2018, within 2 years 6 months to 3 years after the accident, the insurer issued a Section 85B direction. This direction noted that all relevant particulars were required to be provided within 3 months. The consequence of not doing so was that the claim would be deemed to have been withdrawn.

The claimant failed to provide the particulars, and the claim was deemed to have been withdrawn.

On 21 March 2019, the claimant made an application to reinstate the claim. This application was rejected.

On 12 November 2019, the claimant applied for general assessment. This was also rejected.

On 4 December 2020, proceedings were commenced seeking an order quashing the decision of the Principal Claims Assessor to reject the application for general assessment.

Basten J determined there was no claim that could be referred for assessment. As such, the decision not to refer the claim for general assessment was correct.

Whilst this claim deals with Section 85B of the Motor Accidents Compensation Act 1999, the same principles apply to both Sections 6.25 and 6.26 of the Motor Accidents Injuries Act 2017.

The takeaway being, Section 6.26 Directions should be issued wherever possible. The window they can be issued is 2 years 6 months to 3 years post-accident. We recommend making note of this date at the outset of the claim.

Post by Hicksons Partner, Naomi Tancred, and Special Counsel, Laura D’Alessandri.

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