If the NOAC does not provide enough information for its liking, the insurer can deem the Notice non-compliant.  It will then provide a suitable period of time during which the claimant must provide more information.  If no response is forthcoming within that period, the insurer is then obliged to give the claimant the heads up that the insurer has heard nothing. This is required to occur within 14 days of the period expiring.  Sometimes, even insurers miss deadlines and things slip through the cracks.

In the recent Supreme Court judgment of Sanders v Nominal Defendant, the insurer did just that.  This led to the Court finding that by “forgetting” to give the claimant a friendly little reminder, the Nominal Defendant was assumed to have deemed the Notice compliant.

The claimant had been injured in a motor vehicle accident on 26 May 2010.  He had been struck by an unidentified vehicle and hence, the Nominal Defendant was in the crosshairs for the claim. The claimant’s NOAC was provided to the Nominal Defendant by letter dated 25 June 2010.  The Nominal Defendant responded within the required 14 days by letter dated 1 July 2010, deeming the Notice non-compliant because the medical certificate did not contain a Medicare Provider Number (“the number”) for the doctor who signed it.

The Nominal Defendant rightly provided the claimant with one month to provide the number.

The parties continued to share information until eight months later when the Nominal Defendant realised its oversight.  It was then the Nominal Defendant advised the claimant, by letter dated 28 February 2011, that because the number was not provided, the claim was statute barred.

The Court held that once the deadline of 1 August 2010 had passed (being 1 month from the letter dated 1 July 2010), under Section 39(1)(a)(iii) of the Motor Accident Insurance Act (the “Act”), the Nominal Defendant was required to write once again (“the second notice”) to the claimant, within 14 days, notifying that the Notice was now compliant or that the claimant had failed to take reasonable action to remedy the non-compliance.

The Court found that because the Nominal Defendant had failed to provide the second notice and continued to exchange information with the claimant,  “it was statutorily estopped from denying that the notice has been given” to the Nominal Defendant by the claimant as required by the Act.

Because the Nominal Defendant did not provide the second notice, it was presumed that it was satisfied that the Notice had been provided as required by the Act.  Given the possible statute barring of the claim, the Court found in the claimant’s favour.

This case is a friendly reminder to CTP insurers that they must be able to go into such matters with clean hands, having complied with all of their statutory obligations.

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