Abu v Allianz Insurance - [2021] NSWPIC 221

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABU v Allianz Insurance [2021] NSWPIC 221
APPLICANT:	ABU
RESPONDENT:	Allianz Insurance
MEMBER:	Terence Stern
DATE OF DECISION:	28 June 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; whether for the purpose of section 3.1 of the Motor Accident Injuries Act 2017 the injury has resulted from a motor accident; psychiatric injury; fear surrounding the involvement of NSW Police; suddenly hit in the rear; was in immediate fear for the safety of himself and his family; collided and rampaged through several vehicles; police had their guns out; stolen vehicle; involved in a pursuit; Post Traumatic Stress Disorder; language barrier; five telephone conferences; substantial amount of documentation; complex; chain of causation; Held- closely connected event; both temporal and causal connection; injury is a result of a dangerous situation by the driving of a motor vehicle; legal costs; exceptional circumstances.
DETERMINATIONS MADE:	1. For the purpose of section 3.1 the death of or injury to the person has resulted from a motor accident in this State. 2. Effective Date: This determination takes effect on 28 June 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020 is $2,282.50 inclusive of GST.

Reasons for Decision

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

DETERMINATION OF THE DISPUTE

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act2017 (‘2017 Act’), about whether for the purposes of s 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) of the Act the death of or injury to the Claimant resulted from a motor accident.

NATURE OF DISPUTE

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the 2017 Act, about whether pursuant to s 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) of the 2017 Act the Claimant was injured in a motor accident.

BACKGROUND

The Claimant alleges that he sustained psychiatric injury as a result of a motor accident on 24 November 2018.
The Insurer argues that the Claimant’s psychological injury arises exclusively as a result of his fear surrounding the involvement of NSW Police in the apprehension of a person involved in the accident and that therefore the cause of the injury was not a motor accident as contemplated by s 1.9 of the 2017 Act.

THE EVIDENCE

I briefly summarise the evidence.

Statement of the Claimant made 12 April 2021

I refer to the Statement briefly by paragraph number to the extent relevant to the issue in dispute:
“5)     On 24 November 2018 at about 7:20pm the Claimant was the driver of a vehicle ABC123 travelling along Harbour Street, Haymarket.
6)     On arriving at the intersection with Goulburn Street the Claimant’s vehicle was stationary when it was suddenly hit in the rear by vehicle XYZ456.
7)     Felt strangled by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 221
Decision Date: 28 June 2021

CaseChat Overview and Summary

In the matter of Abu v Allianz Insurance, the Federal Court was tasked with determining whether the claimant's injury, which manifested as Post Traumatic Stress Disorder (PTSD), arose from a motor accident for the purposes of section 3.1 of the Motor Accident Injuries Act 2017. The claimant was involved in a motor accident when a stolen vehicle collided with the rear of his car, causing him to crash into several other vehicles. Following the accident, the claimant experienced immediate fear for his safety and that of his family, particularly due to the involvement of police officers who had their guns drawn. The claimant's PTSD was diagnosed after the incident, and he sought compensation from Allianz Insurance.

The legal issues before the court were whether the injury suffered by the claimant was a result of a motor accident and whether there was a close connection between the accident and the injury. The court had to consider the chain of causation and determine if the injury was closely connected to the event in both temporal and causal terms. The claimant argued that the accident directly caused his PTSD, while Allianz Insurance contended that the injury was not a result of the motor accident. The court also had to consider the exceptional circumstances surrounding the case, including the language barrier faced by the claimant and the complexity of the case, which necessitated five telephone conferences and a substantial amount of documentation.

The court found that the injury was a result of a motor accident, as the claimant's PTSD was a direct consequence of the dangerous situation caused by the driving of a motor vehicle. The court held that there was a close connection between the accident and the injury, both in terms of temporal and causal proximity. The court found that the claimant's immediate fear for his safety and that of his family was a result of the accident, which in turn led to the development of PTSD. The court also found that the exceptional circumstances of the case warranted an award of legal costs. The claimant was thus successful in his claim against Allianz Insurance.

Orders