(3) 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.
(4) A late claim may not
be made more than 12 months after the relevant date for the claim under
section 43 unless, in addition to the provision of
a full and satisfactory explanation, the total damages of all kinds likely to
be awarded to the claimant if the claim succeeds are not less than 10 per cent
of the maximum amount that may be awarded for non-economic loss under
section 79 or 79A as at the date of the relevant motor accident.
(5)
Subsection (4) does not apply to a claimant who is legally incapacitated
because of the claimant's age or mental capacity.
(a) If, within 2 months after
receiving a late claim for which no explanation for delay is provided, the
insurer does not reject the claim or ask the claimant to provide
a full and satisfactory explanation for the delay in making the claim, the
insurer (and the person against whom the claim is made) lose the right to
challenge the claim on the ground of delay.
(b) If, within 2 months after
receiving an explanation for delay in the making of a late claim, the insurer
does not reject the explanation, the insurer (and the person against whom the
claim is made) lose the right to challenge the claim on the ground of delay.
(c) If court proceedings are commenced in respect of a late claim, an insurer
(or the person against whom the claim is made) may apply to have the
proceedings dismissed on:
(i) the ground of delay, or
(ii) in the case of
a late claim that is made more than 12 months after the relevant date for the
claim under section 43, the ground of the amount of damages,
or both, only
within 2 months after the statement of claim is served on the defendant and
received by the insurer. The insurer (or the person against whom the claim is
made) may only apply to have the proceedings dismissed on the ground of delay
if the insurer (or the person) has not lost the right to challenge the claim
on the ground of delay.
(7) A court must dismiss proceedings commenced in
respect of a late claim if the court is satisfied that the claimant does not
have a full and satisfactory explanation for the delay in making the claim
and, alternatively or in addition in the case of a late claim that is made
more than 12 months after the relevant date for the claim under section 43,
that the total damages of all kinds likely to be awarded to the claimant if
the claim succeeds are less than 10 per cent of the maximum amount that may be
awarded for non-economic loss under section 79 or 79A as at the date of the
relevant motor accident.
The combined effect of sections 43 and 43A is as
follows:
A claim generally must be made within 6 months after the date of the
accident or the date of death.
A claim cannot be made after 12 months unless
a full and satisfactory explanation for the delay is provided AND the damages
of all kinds that would be awarded were the claim to succeed are at least 10%
of the maximum damages that could be awarded for non-economic loss (see
sections 79 and 79A) as at the date of the accident.