Aae v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAE v QBE Insurance (Australia) Limited [2021] NSWPIC 46
APPLICANT:	AAE
RESPONDENT:	QBE Insurance (Australia) Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	25 March 2021
CATCHWORDS:	MOTOR ACCIDENTS; Miscellaneous Claims Assessment; dispute about whether under section 3.1 of the Motor Accident Injuries Act 2017, the applicant’s injuries are the result of a motor accident; insurer determined the applicant had not suffered injury in the motor accident; whether injuries to the sternum and ribs caused cardiac arrest, or whether cardiac arrest caused motor accident; rib fractures caused by administration of CPR at the accident scene; experienced cardiac episodes in the weeks preceding the motor accident; ambulance report; COPS report; medical evidence; applicant still conscious when assisted from vehicle and then went into cardiac arrest; Held- no close causal connection between the use of the applicant’s motor vehicle and the cardiac event; no evidence that the impact of the applicant’s vehicle caused the sternal haematoma and the rib fractures; payment of legal costs at the regulated maximum in the dispute.
DETERMINATIONS MADE:	1. For the purposes of section 3.1 of the Motor Accident Injuries Act 2017, injury to the Claimant has not resulted from a motor accident in this State. 2. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

BACKGROUND

The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, Clause 3(b) of the Motor Accident Injuries Act 2017 (the MAI Act), about whether for the purposes of section 3.1 of the Act, the Claimant’s injuries resulted from the motor accident on 13 November 2019 (the motor accident) in this State. There is no dispute that the motor accident occurred in New South Wales.
There is a dispute between the Claimant and the Insurer in respect of the Insurer’s decision to decline payment of statutory benefits because the Claimant’s injuries did not result from the motor accident on 13 November 2019.
At about 4:00 pm on 13 November 2019, the vehicle the Claimant was driving veered off to the left of the roadway on which it was travelling until it collided with two parked motor vehicles.
On 25 November 2019, the Claimant lodged an application for personal injury benefits.
On 16 December 2019, the Insurer notified the Claimant of its decision that the Claimant had not suffered injury in the motor accident; that the accident was a blameless accident; and that it denied the claim for statutory benefits up to and after 26 weeks from the date of the motor accident.
The Claimant made an application for an internal review of the Insurer’s decision.
On 13 March 2020, the Insurer conducted an internal review and issued a certificate of determination confirming its decision.
On 13 April 2020, the Claimant lodged the application currently before me with the Dispute Resolution Service (as it was then known), now the Personal Injury Commission (the Commission).
At the teleconference on 11 May 2020, the Claimant requested an adjournment to enable him to take legal advice in relation to this application prior to proceeding any further. There was no objection by the Insurer.
On 13 May 2020, I received an email from Ms Melinda Griffiths of Melinda Griffiths Lawyers advising that she had received instructions to act for the Claimant and she participated in teleconferences thereafter, as did Ms Rebecca Gracie of Moray & Agnew Lawyers for the Insurer. At subsequent teleconferences directions were issued for the lodgment of further documentary evidence and written submissions.

DOCUMENTS CONSIDERED

I have considered the documents provided in the application dated 13 April 2020 and the reply dated 27 April 2020 and the following further documentation provided by the parties:
(a)    The Claimant’s written submissions dated 18 May 2020.
(b)    NSW Police Force documents produced under the Government Information (Public Access) Act 2009 (the GIPA Act).
(c)    The Claimant’s Wollongong Hospital clinical records produced on 5 August 2020.
(d)    The Claimant’s updated written submissions dated 22 August 2020.
(e)    The Insurer’s supplementary written submissions dated 5 November 2020.
(f)    Dr Stephen Etheredge’s clincal records in respect of the Claimant produced on 6 November 2020.
(g)    The Claimant’s St George Hospital clinical records produced on 6 November 2020.

SUBMISSIONS

The Claimant provided written submissions on the substantive issue dated 18 May 2020 and 22 August 2020.
The Claimant’s principal submissions may be summarised as follows:
(a) The Claimant referred to section 1.9 (1) of the MAI Act.
(b)    The Claimant referred to Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 (GSF) and submitted that the use of the words “is caused during” conveys that the injury must be sustained during the driving of the vehicle, or a collision with the vehicle or the vehicle running out of control. The use of the words “a result of” conveys that the injury must be sustained as a consequence of those events.
(c)    Statutory benefits are payable on a no-fault basis for at least 26 weeks.
(d)    The Insurer disputes that the motor vehicle accident caused injuries. The ambulance report noted that the Claimant was found lying on the ground outside his vehicle. Cardiopulmonary resuscitation (CPR) was performed by an off-duty police officer. The Claimant was found conscious by bystanders, who stated that the Claimant’s vehicle ran into a parked car. When the witnesses initially found the Claimant, he was conscious and arrested seconds later. Effective CPR was in progress when the ambulance first arrived at the scene. There were contusions to the Claimant’s sternum and crepitus found to the right rib cage.
(e)    Based on the above history, the Claimant’s vehicle ran out of control before colliding with a parked vehicle. The Claimant sustained injuries to his sternum and ribs and subsequently went into cardiac arrest. The cardiac arrest occurred as a consequence of the motor vehicle accident not before the motor vehicle accident.
(f)    The clinical notes from Wollongong Hospital (at page 9 of 41), recorded that it was presumed that the Claimant had a cardiac arrest leading to the motor accident. On page 33 of the clinical notes, it was confirmed the Claimant had anterior rib fractures which may have been caused by recent resuscitation.
(g)    The police notes confirmed that the Claimant was conscious when he was assisted out of his vehicle and he did not arrest until standing up.
(h)    The Insurer disputed that the fractures to the ribs were caused by the motor accident, submitting that the fractures were caused by the administration of CPR at the accident scene. It should be noted that the fractures were on the right side of the Claimant’s rib cage, which would be inconsistent with the ribs being fractured due to the CPR as the heart is located on the left hand side of the body.
The Insurer provided written submissions on the substantive issue dated 22 April 2020 and 5 November 2020.
The Insurer’s principal submissions may be summarised as follows:
(a)    The Claimant had experienced cardiac episodes in the weeks preceding the motor accident. He was referred back to Dr Stephen Etheredge, Consultant Vascular Physician, complaining of intermittent dizzy spells and weakness with no other cardiac symptoms.
(b)    The police documents noted that the Claimant told the police that he had no memory of driving home from work after the motor accident. When interviewed on 12 January 2020, the Claimant stated that he had suffered a cardiac arrest and that it caused the collision to occur. The circumstances of the motor accident were consistent with the Claimant’s loss of consciousness from the cardiac event, leading to loss of control of his vehicle and then impacting the parked vehicles.
(c)    The Claimant’s submission that the cardiac arrest occurred as a consequence of the motor accident and not before the motor accident leads to the assumption that only the rib fractures were a consequence of the motor vehicle accident and that those injuries induced the cardiac arrest. There is simply no evidence of a motor vehicle collision/impact induced cardiac arrest. All the material referred to a loss of consciousness and loss of control of the motor vehicle by the Claimant consistent with ventricular fibrillation arrest prior to the impact with the parked vehicles.
(d)    The Claimant’s rib fractures were caused by the CPR performed on him at the motor accident scene. This submission is supported by the contents of the ambulance report and in the Wollongong Hospital and St George Hospital clinical records. The fact that the rib fractures were caused by the CPR was also supported by Dr Dwarankuntte in the certificate of capacity he issued on 29 November 2019.
(e)    The cardiac arrest cannot be said to result from the use or operation of the Claimant’s motor vehicle. Rather, it was a coincidental manifestation of the prior cardiac problem, which had deteriorated in the months and weeks leading up to the accident.
(f) There is no evidence on which one could be satisfied that the cardiac arrest was a result of and was caused by the requisite elements of section 3.1(1)(a) – (d) of the MAI Act.
(g)    GSF emphasised that use of the definition of the emphatic and intensive phrase “if, and only if” directs attention to notions of predominance and immediacy, rather than to remote circumstances. It requires an examination as to the use or operation of the vehicle as the harm causing instrument and required connection between the vehicle as the harm causing instrument and the injury. The accident circumstances in this case fail the tests proposed in GSF.
(h)    The Claimant is not entitled to statutory benefits, as his injuries were a result of his cardiac arrest episode and so, it was not a no-fault motor accident.

LEGISLATION

In making my decision, I have considered the following legislation and guidelines:
(a) The MAI Act.
(b) Motor Accident Injuries Regulation 2017 (the Regulation).
(c) Motor Accident Guidelines 2017 (the Guidelines).

REASONS

The relevant legislation and legal principles

Section 1.9 of the MAI Act relevantly provides:
“(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during-
(a)the driving of the vehicle, or
(b)a collision, or action taken to avoid a collision, with the vehicle, or
(c)the vehicle’s running out of control, or
(d)a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”
Section 3.1 of the MAI Act relevantly provides:
“(1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.
(2) Statutory benefits are payable (except as otherwise provided by this Part)-
(a)whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b)even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.”
The Claimant bears the onus of proving, on the balance of probabilities, that he suffered injuries resulting from the use or operation of a motor vehicle in the motor vehicle accident on 13 November 2019 within the meaning of section 1.9(1) of the MAI Act.
In written submissions, both parties referred to GSF. In GSF the relevant provision was section 3(1) of the Motor Accidents Act 1988 , which defined injury as personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during the driving of the vehicle, or; a collision, or action taken to avoid a collision, with the vehicle, or; the vehicle’s running out of control, or; such use or operation by a defect in the vehicle. McHugh, J held that what was needed to bring the claim within the definition in the Motor Accidents Act 1988 was a close causal connection between the use of the motor vehicle and the injury. A mere connection in some way to the use of a motor vehicle was not enough.
In practical terms the implication of GSF is to focus attention on the real cause of the injury involving a motor vehicle.
I will now review the relevant evidence in this matter and apply the legislation and legal principles referred to above.

The Claimant’s evidence

In evidence, is the Claimant’s application for personal injury benefits dated 25 November 2019 (R2). In the application at page 3, the Claimant described the motor accident in the following terms:
“Had cardiac arrest & lost consciousness. I have no recollection of the accident. Please refer to police & medical reports.”
In the application at page 3, the Claimant described the injuries he alleged he sustained in the motor accident in the following terms:
“Cardiac arrest CPR for approx. 20 minutes, broken ribs. Induced coma, amnesia.”
On 12 January 2020, the Claimant attended Lake Illawarra Police Station to provide a formal version of the events relating to the motor accident. The NSW Police Force COPS document dated 24 July 2020 (the COPS report) at page 5 recorded the Claimant’s version of events as follows:
“… During this version Driver 1 [the Claimant] told police he had no memory of the collision and he also had no memory of driving home from work that afternoon nor did he remember being flown by helicopter to St George Hospital. Driver 1 [the Claimant] told police that he had suffered a cardiac arrest and that this is what caused the collision to occur. As a result Driver 1 [the Claimant] had a difibrulator [sic] placed into his chest to assist in keeping his heart be [sic] regular and his treating Dr has stopped him from driving for 6mths at this time. As a result of this no further action will be taken by police and no ‘Question of fitness’ is required as this has already been done.”
In the online portal application before me dated 13 April 2020 under the heading “Dispute Information”, the Claimant recorded the following:
“I had a cardiac arrest which resulted in my hospitalisation and damage to my vehicle in two parked cars.
I have had ongoing medical costs including pharmacy and ambulance.
My claim has been rejected on the grounds that my injuries resulted from the cardiac arrest and not the motor vehicle accident.
I believe this to be a cynical and heartless measure taken by QBE to avoid liability. Since fault has not been levelled at me and my costs are genuine I feel QBE should accept liability. I have been making ctp contributions for 40 years and am denied for an accident beyond my control. Cardiac arrest victims surely should be covered in the same manner as other faultless victims in an accident.”
There were no other statements by the Claimant in respect of the motor accident.

The ambulance report

In evidence, there is an NSW Ambulance report dated 11 December 2019 (R3). The report provided, amongst other things, a case description.
The case description in the report may be summarised as follows:
(a)    The Claimant was in cardiac arrest on arrival and was laying on the ground outside his vehicle.
(b)    Effective CPR was in progress by an off-duty police officer when the ambulance arrived on the scene. On examination the Claimant was unconscious.
(c)    The Claimant was found in a ventricular fibrillation rhythm but no other injuries were noted.
(d)    Bystanders stated that the Claimant’s vehicle ran into a parked car. When they assisted him, they found him conscious and he arrested seconds later.
(e)    The Claimant was loaded when the helicopter crew arrived and assessed him briefly before accepting immediate transport to Wollongong Hospital.
(f)    On secondary assessment, there was no acute ST-elevation myocardial infarction (STEMI); no obvious head trauma; movement in all limbs; clear and equal chest sounds; right rib cage crepitus; contusions to the sternum; soft and non-tender abdomen; no pelvic abnormality; and a contusion on the left forearm.
(g)    Analgesia were administered for suspected CPR rib fractures.
(h)    The Claimant became combative on route to hospital but was calm on arrival at destination.

The police documents

The COPS report at pages 3-4 provided a narrative of information obtained by police in respect of the motor accident, which may be summarised as follows:
(a)    At about 4:00 pm on 13 November 2019, the Claimant’s vehicle was travelling in a northerly direction along Moore Street, Oak Flats.
(b)    At this time, CW and MW (the W’s) were travelling in a vehicle behind the Claimant’s vehicle.
(c)    As the Claimant approached 00 Moore Street, the W’s observed the Claimant’s vehicle commence to veer onto the left side of the road for no apparent reason. The vehicle was observed to continue veering off to the left until it collided with the rear of a parked vehicle. The impact of the collision pushed the parked vehicle forward, at least, four car lengths before it collided with the rear of another parked vehicle.
(d)    The W’s immediately pulled over and rendered assistance to the Claimant. They assisted the Claimant out of his vehicle. Once the Claimant was out of his vehicle, he collapsed onto the road. The W’s called 000 and an off-duty police officer, Senior Constable Tonkin, for assistance. Shortly afterwards, Senior Constable Tonkin attended the scene, where she rendered first-aid prior to commencing CPR on the Claimant.
(e)    Soon after Senior Constable Tonkin attended the scene, an ambulance arrived and the paramedics took over CPR on the Claimant. The ambulance paramedics set up a defibrillator and applied shocks on four occasions before they were able to get the Claimant’s heart to beat in a regular rhythm.
(f)    The Claimant was conveyed to Wollongong Hospital. En route to the hospital the Claimant became combative and was administered pain relief and a sedative.
(g)    On arrival at Wollongong Hospital, the Claimant was rushed into the Emergency Department. Once stabilised, he was taken for x-rays and other investigations which revealed no internal injuries to the chest or abdomen. The Claimant required further sedation and was then taken to the Intensive Care Unit (ICU) for further observation.
(h)    On 14 November 2019, police contacted St George Hospital, by which time, the Claimant was in that hospital’s ICU. Police spoke to ICU nursing staff and were informed that the Claimant was currently intubated but in a stable condition.
I have already referred to the version of events provided by the Claimant to the police that was also recorded in the COPS report.

The medical evidence

In evidence, there are the Claimant’s clinical records produced by Dr Etheredge.
Included in the clinical records is a referral letter from the Claimant’s general practitioner, Dr Mahantesh Dwarankuntte, to Dr Etheredge dated 4 October 2019 for an opinion and management of the Claimant’s intermittent dizzy spells without other cardiac symptoms. The letter noted that an ECG performed on 4 October 2019 demonstrated a couple of “extra ventricular ectopics” (page 11 of 45).

In evidence, there are the Claimant’s Wollongong Hospital clinical records.
The Wollongong Hospital clinical records referred to the following:
(a)    “? Cardiac event leading to MVA … pulled from car by bystanders -> CPR commenced, ambulance called – CPR for 10 minutes … -VF arrest – x4 shocks delivered” (page 2 of 41).
(b)    “It is presumed that he [the Claimant] had cardiac arrest leading to MVA …” (page 8 of 41).
(c)    “MVA- - slow speed into stationary car. Likely cardiac event precitating [sic – precipitating] the collision. Cardiac arrest on being assisted out of car” (page 9 of 41).
(d)    “? Likely primary arrhythmia resulting in MVA” (page 17 and 19 of 41).
(e)    “MVA secondary to likely cardiac arrest” (page 33 of 41).
The Wollongong Hospital CT scan of the Claimant’s chest, abdomen and pelvis performed on 13 November 2019 reported “multiple recent anterior rib fractures bilaterally, query effect of resuscitation”; liver, spleen, kidneys, pancreas and adrenals within normal limits; no free intra-peritoneal fluid or gas; normal bladder contour; no small or large bowel abnormality; and no other abnormalities. The report concluded that the retrosternal haematoma and anterior rib fractures may have been reflective of recent resuscitation (page 33 of 41).
The Wollongong Hospital CT scan of the Claimant’s cervical spine performed on 13 November 2019 demonstrated no abnormality (page 34 of 41).
The Wollongong Hospital CT scan of the Claimant’s brain performed on 13 November 2019 demonstrated no intracranial sequelae of trauma (page 32 of 41).
The Wollongong Hospital x-ray of the Claimant’s left forearm demonstrated soft tissue swelling close to the mid shaft ulnar without fracture (page 32 of 41).
In evidence, there are the Claimant’s St George Hospital clinical records.
The St George Hospital clinical records referred to the following:
(a)    The Claimant was admitted to St George Hospital on 14 November 2019.
(b)    As part of the Claimant’s history, the clinical records recorded that, in the weeks leading up to the motor accident, the Claimant had experienced dizziness/weakness but no dyspnoea, chest pain or palpitations (page 25 of 220).
(c)    The progress notes of Drs Ilsar, Kepreotis and Brazel relevantly reported that the Claimant was the driver in a low speed motor accident on 14 November 2019 (incorrect date); the motor accident was likely secondary to primary arrhythmia from previous infarcted left ventricular – ventricular fibrillation; there were bilateral rib fractures with retrosternal haematoma – CPR related (page 30 of 220).
In evidence, there is a certificate of capacity issued by Dr Dwarankuntte dated 29 November 2019. In the certificate, Dr Dwarankuntte provided a diagnosis of “Cardiac arrest – VF, Rib Fractures due to resuscitation.” The stated date of injury was 13 November 2019. In response to the question as to how the injury was work-related, Dr Dwarankuntte recorded as follows: “VF and cardiac arrest while Driving car”. The certificate stated that the Claimant first consulted the medical practice for the subject injury on 29 November 2019. The certificate also recorded that the Claimant sustained a cardiac arrest whilst driving his car; was resuscitated; transferred to Wollongong Hospital; and subsequently, St George Hospital. The certificate recorded that the Claimant had sustained multiple rib fractures and was slowly recovering from brain injury following cardiac arrest.
The certificate of capacity pre-dated the Insurer’s liability notice issued on 16 December 2019.
In evidence, there is a report by Dr Dwarankuntte dated 10 January 2020 addressed “to whom it may concern” certifying that the Claimant had sustained rib fractures when he experienced cardiac arrest whilst driving a car. Dr Dwarankuntte stated:
“From the available information it is unclear, if the fracture of ribs due to MVA or as a result of CPR.”
In the report, Dr Dwarankuntte shifted from the opinion he provided in the certificate of capacity, where he provided a diagnosis of cardiac arrest and rib fractures due to resuscitation, in that, he now opined that it was unclear if the rib fractures were due to the motor vehicle accident or as a result of CPR.
The Insurer’s liability notice was issued some four weeks prior to Dr Dwarankuntte’s report dated 10 January 2020.

Consideration and findings

The uncontested evidence is that, in the weeks leading up to the motor accident, the Claimant suffered intermittent dizzy spells/weakness without other cardiac symptoms; consulted Dr Dwarankuntte; underwent an ECG performed on 4 October 2019 that demonstrated a couple of “extra ventricular ectopics”; and was referred to Dr Etheredge. Dr Etheredge had treated the Claimant following a myocardial infarct in 2007. The Claimant had further consultations with Dr Etheredge in 2014 and 2018.
The uncontested evidence is that at about 4:00 pm on 13 November 2019, the vehicle the Claimant was driving veered off to the left of the roadway on which it was travelling until it collided with two parked motor vehicles. This evidence was provided to the police by the W’s, who were travelling in a vehicle behind the Claimant.
The Claimant informed police that he had no independent recollection of the motor accident, the lead up to it or its immediate aftermath. However, on 20 January 2020, he informed police that his cardiac arrest caused the motor accident.
The Claimant described the injuries he sustained in the motor accident as cardiac arrest; CPR for about 20 minutes; broken ribs; an induced coma; and amnesia.
Firstly, I will deal with the Claimant’s cardiac arrest.
The Claimant submitted that his vehicle ran out of control prior to colliding with the parked vehicles and that he sustained injuries to his sternum and ribs and then went into cardiac arrest after he was assisted from his vehicle. Therefore, the cardiac arrest occurred as a consequence of the motor vehicle accident and not before the motor vehicle accident. However, there was no evidence to support the Claimant’s submissions in this regard. In his submissions, the Claimant did not explain how or why his vehicle ran out of control prior to veering to the left and colliding with the parked vehicles.
The evidence is that the Claimant was still conscious when he was assisted from his vehicle and fell onto the roadway shortly afterwards and went into cardiac arrest.
The Wollongong Hospital Registrar, Dr Ataur Rahman’s, progress notes recorded a slow speed motor vehicle accident into a stationary car. He opined that it was likely that a cardiac event precipitated the collision and that the Claimant suffered cardiac arrest on being assisted out of his vehicle.
The St George Hospital progress notes of Drs Kepreotis and Brazel relevantly reported that the Claimant was the driver in a low speed motor accident. Further, they opined that the motor accident was likely secondary to a primary arrhythmia from a previous infarcted left ventricular.
Dr Dwarankuntte certified that the Claimant sustained a cardiac arrest whilst driving his car on 13 November 2019. In his report dated 10 January 2020, he confirmed that the Claimant suffered a cardiac arrest whilst driving a car.
There is no evidence that the impact of the Claimant’s vehicle with the parked vehicles or any alleged injuries suffered as a result thereof caused the Claimant to suffer cardiac arrest. The preponderance of the evidence referred to a loss of consciousness and loss of control of the motor vehicle driven by the Claimant, consistent with a cardiac event (ventricular fibrillation) prior to the impact with the parked vehicles followed by a cardiac arrest once he was assisted from his vehicle.
There is no evidence on which I can be satisfied that the cardiac arrest resulted from the use or operation of a motor vehicle where those injuries were caused during one of the requisite elements of section 1.9(1)(a) - (d) and within the meaning of section 3.1 of the MAI Act. What is required is a close causal connection between the use of the motor vehicle and the injury (the cardiac arrest). A mere connection in some way to the use of a motor vehicle is not enough (GSF). There was no close causal connection between the use of the Claimant’s motor vehicle and the cardiac event. The Claimant happened to be in his motor vehicle when he experienced the cardiac event. Accordingly, I am not satisfied that the Claimant has discharged the onus he bears in proving that the cardiac arrest occurred as a result of the motor vehicle accident.
I will now deal with the Claimant’s retrosternal haematoma and anterior bilateral rib fractures.
The Wollongong Hospital CT scan of the Claimant’s chest reported a retrosternal haematoma and anterior bilateral rib fractures. The CT scan report concluded that the retrosternal haematoma and anterior rib fractures may have been reflective of recent resuscitation. The Wollongong Hospital x-ray of the Claimant’s left forearm demonstrated soft tissue swelling close to the mid shaft ulnar without fracture. The Claimant did not refer to his left forearm in this application or in his application for personal injury benefits. Nor was reference made to his left forearm in submissions.
The St George Hospital progress notes of Drs Kepreotis and Brazel relevantly reported that there were CPR related bilateral rib fractures with a retrosternal haematoma.
Dr Dwarankuntte initially certified that the Claimant had suffered rib fractures due to resuscitation. He subsequently reported that it was unclear if the rib fractures were due to the motor vehicle accident or as a result of CPR. The latter opinion was the high point of the Claimant’s case in relation to the bilateral rib fractures having been caused by the collision/impact in the motor accident.
There is no evidence that the impact of the Claimant’s vehicle with the parked vehicles caused the retrosternal haematoma and anterior bilateral rib fractures.
The Claimant submitted that the rib fractures were right sided and therefore, inconsistent with the fractures being caused by CPR because the heart is located on the left side of the body. The submission is misconceived as the evidence on the CT scan performed at Wollongong Hospital concluded that the Claimant had suffered a retrosternal haematoma and anterior bilateral rib fractures and not just right sided rib fractures as incorrectly submitted. Further, the submission is unsupported by any expert evidence. Accordingly, I reject the submission.
There is no evidence on which I can be satisfied that the anterior bilateral rib fractures with a retrosternal haematoma resulted from the use or operation of a motor vehicle where those injuries were caused during one of the requisite elements of section 1.9(1)(a) - (d) and within the meaning of section 3.1 of the MAI Act.
The evidence is that the Claimant underwent a total of about 20 minutes of CPR. Senior Constable Tonkin provided about 10 minutes of CPR until the arrival of the ambulance paramedics. An ambulance paramedic then performed another 10 minutes of CPR. Drs Kepreotis’ and Brazel’s opinion that the bilateral rib fractures with a retrosternal haematoma were CPR related was unequivocal and consistent with the description of the CPR administered. I accept the opinions of Drs Kepreotis and Brazel that the bilateral rib fractures with a retrosternal haematoma were CPR related. Accordingly, consistent with the finding I have made in relation to the Claimant’s cardiac arrest above, they were not injuries within the meaning of sections 1.9(1)(a) - (d) and 3.1 of the MAI Act.
I make the following findings on the balance of probabilities in relation to the motor accident:
(a)    On 13 November 2019, the Claimant was driving a motor vehicle on a public road when he suffered a cardiac event (ventricular fibrillation) causing the vehicle to veer off to the left of the roadway until it collided with two parked motor vehicles.
(b)    Shortly after being assisted from his vehicle, the Claimant fell to the roadway unconscious and suffered cardiac arrest.
(c)    The Claimant sustained CPR related anterior bilateral rib fractures with a retrosternal haematoma.
(d) The Claimant did not suffer a cardiac arrest and anterior bilateral rib fractures with a retrosternal haematoma resulting from the use or operation of a motor vehicle where those injuries were caused during one of the requisite elements of section 1.9(1)(a) - (d) and within the meaning of section 3.1 of the MAI Act.
(e) For the purposes of section 3.1, injury to the Claimant has not resulted from a motor accident in this State.

COSTS AND DISBURSEMENTS

Section 8.10 of the MAI Act relevantly provides:
“8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(1)    A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)    The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)    A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Dispute Resolution Service.
(4)     The Dispute Resolution Service can permit payment of legal costs incurred by a claimant but only if satisfied that –
(a)the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.”
Section 8.10 of the MAI Act confers a costs power on Members of the Commission not previously held by CARS assessors under the Motor Accidents Compensation Act 1999 (the MAC Act).
Schedule 1 Part 1, Clause 3(2)(a) - (m) of the Regulation sets the maximum costs recoverable for legal services in various miscellaneous claims assessment matters. Schedule 1 Part 1, Clause 3(1) of the Regulation provides that the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim).
The Claimant sought to claim regulated costs for this application. The Insurer made no submissions on the issue of legal costs.
The Claimant’s application has been unsuccessful. Given the circumstances of the accident and the nature of his injuries, I find that it was not unreasonable for the Claimant to refer this dispute to the Commission for determination. I have had regard to section 8.10 of the Act and Schedule 1, Part 1, Clause 3 of the Regulation. Section 8.10 (2) of the MAI Act enables the Regulation to specify when costs and expenses are not recoverable. There is nothing in the Regulation that states that claimants are not able to recover costs if they are unsuccessful in Miscellaneous Claims proceedings. Further, Wright J in AAI Limited trading as GIO v Moon [2020] NSWSC 714 (Moon) at [82] determined:
“… There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS. …”
Accordingly, I am satisfied that the Claimant is entitled to the payment of legal costs at the regulated maximum in the dispute. In accordance with section 8.3(4) and section 8.10(3) of the MAI Act, I permit the Claimant to recover from the Insurer the reasonable and necessary costs associated with the statutory benefits claim as allowed under the Regulation on the dispute under Schedule 1, Part 1, Clause 3(2)(c) of the Regulation: 16 monetary units or $1,660 plus GST.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of section 3.1 of the MAI Act, injury to the Claimant has not resulted from a motor accident in this State.
(b) Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Regulation is $1,826 inclusive of GST.

Anthony Scarcella

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 46

25 March 2021