Abu v Allianz Insurance
[2021] NSWPIC 221
•28 June 2021
| 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 the seatbelt. Looked to the backseat to check on his wife and baby.
9) The vehicle at fault was still moving and was charging side to side trying to escape the traffic.
10) Was in immediate fear for the safety of himself and his family.
12) The driver at fault was going crazy. It had collided and rampaged through several vehicles.
13) Claimant and his wife were both panicking for their safety. The baby was crying. Did not know he could do and most importantly did not know what going on.
16) Did not want to move his vehicle in fear that if the vehicle at fault escaped, he would be in an open area and be the first scapegoat.
17) An extremely fearful experience. Was in fear of his life and that of his wife and child.
18) Was ducking down in fear of something bad was going to happen.
20) Recalls still feeling his vehicle vibrating.
21) Baby continued to cry.
22) Heard police sirens.
24) Did not know what was the safest thing to do and was in fear that doing something might trigger something more catastrophic.
25) When the Police came, he heard them shouting.
27) Continued to panic. Saw a Police Officer holding what he believed to be a gun.”
Statement of the Claimant made 2 February 2019
The Claimant gave a statement to the Insurance Investigator Amanda Noble, and I briefly extract relevant parts by reference to the numbering:
“[31] …was completely stopped… heard the alarm from the police… could see a white Toyota truck driving in and out of the traffic… was struck by a vehicle in front and couldn’t move. felt an impact from the behind…
[32] felt pain but was more panicked about his wife and baby in the backseat.
[33] …saw about 3 or 4 police running at the truck which was behind the blue Subaru which has hit me… saw the police had their guns out and were around the truck…
[34] …stayed in the vehicle until he saw the police catch the guy… he pulled his vehicle over and… got out to talk to the police.
[36] once he got home… started to feel pain in my back, neck and shoulder. My wife was also in pain, she was worse than him. Were worried about the baby…”
Statement of MM made 31 January 2019
Ms Miyamukai gave a statement to Amanda Noble an investigator on behalf of the Insurer. I briefly summarise parts of the statement (to avoid repetition) adopting its numbering:
“10. Was a rear seat passenger behind the driver, the Claimant.
15. The other vehicles involved were a blue Subaru driven by Mr G and a Toyota Ute which she was informed was stolen.
16. She took photographs of the scene.
22. Was stopped in traffic, heard a police siren, thought it would go past but then heard banging from behind and then felt an impact from behind.
23. The impact was big and the vehicle was pushed forward. Saw Police out of the vehicle with guns and did not know what happened and so was very afraid. Thought someone else had a gun and stayed in the vehicle. Claimant and MM both spoke to the police. They said the Toyota was stolen.
30. Thinks the cause of the accident was the stolen vehicle hit the vehicles behind and pushed them into our vehicle.”
COPS Event Reference No: E67934410 (the Police Report)
The Police report sets out the circumstances in which the Driver of the Subject stolen Toyota Land Cruiser had been involved in a pursuit commencing in Tenterfield on the 23 November 2018. The pursuit had been terminated as a result of the Driver displaying dangerous manoeuvres and the manner in which he was driving was a danger to members of the public.
The Police Report continues on 7:00pm on 24 November 2018 the vehicle of interest was stopped in Sydney CBD after another pursuit and the Driver was arrested.
The Report continues at about 20:17 hours the vehicle being the Toyota vehicle was being pursued. The Toyota vehicle reached the accident scene, the driver turned it into a vehicle on its left, striking the vehicle on the driver’s side. The Toyota vehicle then rammed its way past that vehicle but then came to a stop due to the traffic. The driver of the Toyota attempted to reverse but could not, due to the vehicle still being connected to the struck vehicle.
According to the Police Report the driver had shown a total disregard of the safety and wellbeing of other road users as he attempted to ram through three rows of vehicles when he came to them. When the Toyota came to a stop the Driver remained in the vehicle with the doors locked. The Police used their batons to smash both the driver and passenger sides and arrested the Driver.
History Recorded by Dr Angela Lam on 17 December 2018
The Claimant consulted Dr Lam on 17 December 2018. Dr Lam took the following history:
“Occurred on 24 November 2018.
- Was restrained driver of vehicle, wife MM seated at the front, and baby L at the back
- Sustained hard impact from a vehicle which was rear ended at high speed by an AWD, which was pursued by police,
suspected of being a stolen vehicle
….. V shocked, terrified for baby at the back, esp as police had drawn guns at suspect
- Sleep difficulties, feeling anxious.”
Assessment for the Medical Assessment Service (MAS)
Dr Doron Samuel assessed the Claimant for MAS on 25 November 2019.
Dr Samuel stated at [20]:
“There are two aspects….The motor vehicle accident itself did not cause any significant distress or disorder. It was the involvement by Police who drew their weapons at an alleged offender that caused the Post Traumatic Stress Disorder.”
Dr Samuel had in the previous paragraph [19] concluded that the Claimant satisfied the diagnostic criteria for a Post Traumatic Stress Disorder diagnosis, the symptoms of which had been of sufficient duration and severity to be of clinical significance.
SUBMISSIONS BY THE PARTIES
I briefly summarise the effect of the submissions made on behalf of the parties, respectively. Where arguments are repeated, I will not necessarily reproduce an argument if it is sufficiently articulated in the previous submission.
Mr Young’s explanation submission for Application DRS “13-3b” - 2 November 2020
I summarise as follows:
“18. the chain of causation was not broken.
19. but for the accident the Police would not have been involved…”
Claimant’s further DRS submission
Mr Young made a further submission for the Claimant on 29 January 2021.
Without referring to matters which have already been argued, I summarise the further submission:
“[8] Mr Young refers to the decision of the Court of Appeal in AAI Limited v State Insurance Regulatory Authority NSW [2016] NSWCA 368 where the court found the assessor was incorrect in dissecting the events of what constituted a motor vehicle accident “in determining causation”.
[9] If it is accepted that the MAS assessment of Dr Samuel was wrong, the Insurer has not provided any medical information to support their submission that the Claimant’s injury was caused by the “police presences/response” and not by the use or operation of a motor vehicle.
[12] The entirety of the events should be determined as a motor accident.
[15] The interpretation of the first element is clear. The Section states “results from” the use or operation. The definition is clearly past tense, so long as the motor vehicle was used or operated the first element does suffice.
[17] Resulted from the amendment to s 3A of the Motor Accidents Compensation Amendment Act 2010. The amendment was necessary to prevent inconsistencies which arose from the decision in Zotti (see below).
[19] The purpose of the amendment was to protect claimants whose injuries did not fall within subparagraph (a)-(c). The amendment after Zotti was to give protection to claimants who were in similar circumstances.
[21] The Insurer’s submission seeks to separate the motor accident from the actions of the police and is not the correct application of section 1.9(1)(d) of MAIA.
[22] Unreasonable to describe the entire motor vehicle accident without reference to the aftermath.
[26] The motor accident took place, the Claimant remained in his vehicle and while remaining in his vehicle a “dangerous situation” occurred which resulted in the Claimant sustaining the Post Traumatic Stress Disorder.”
THE INSURER’S SUBMISSIONS
The Insurer’s initial submissions are at R1, and I briefly summarise the argument:
“3. The event surrounding the accident involved a police pursuit which resulted in police officers drawing their guns on the offender.
4. Refers to the definition in the Act of ‘motor accident’. For an injury to be compensable one of the sub-sections of section 1.9 must be satisfied.
5. There are two elements of section 1.9 that must be satisfied:
(i)injury must be sustained during the use or operation of a motor vehicle;
(ii) causation must be satisfied whereby the injury is sustained as a consequence of one of the situations listed in subsections 1.9(1)(a) – (d) (‘only if the…injury is a result of and is caused… during: (a) – (d)).
6. The symptoms resulting in the diagnosis by Dr Samuel of post-traumatic stress disorder, were not sustained as a consequence of or by reason of the use or operation of the vehicle but rather by the involvement of police, and in particular the presence of their weapons while apprehending the offender.
7. The second element requires a causal connection between the driving of the vehicle and the injury.
8. The Insurer accepts that the Claimant was the driver of his vehicle at the time of the incident. It does not accept that there was a causal connection between the driving of the vehicle and his psychological injury.
10. The Insurer states that the chain of causation was broken. It is clear that the police were present before the Accident not as a result of the accident.
11. The Claimant’s vehicle was not the only vehicle involved. Whether or not the Claimant’s vehicle was struck by that of the offender, the presence of police and the use of their weapons would still have taken place.
12. The Insurer maintains reliance of the decision of Dr Samuel.
14 The injury was not caused during the driving of a motor vehicle.”
Insurer’s Further Submissions of 17 December 2020
I briefly summarise, without repeating arguments already made:
“4. The medical evidence confirms that the Claimant’s Post Traumatic Stress Disorder arises as a result of the fear invoked by the police bearing guns following the accident and not as result of the rear-end collision or of any physical injuries associated with the accident.
The submission then refers to the Claimant’s statement of 2 February 2019 containing the version of the events.
5. Refers to the referral letter of Dr Lam to Ms Truong of 1 June 2019 which describes the Claimant feeling terrified:
“as the police had their guns drawn at the suspect. He remembered that he was extremely fearful for his baby…”
6. Refers to the opinion of MAS Assessor Dr Samuell [sic].
7. Refers to the report of Ms Truong of 1 August 2019. She recorded the Claimant’s symptoms including exaggerated startled response without looking with loud noise and freezing with Police sirens, fear of driving and distressing dreams of the events 4-5 days of the week.
8. Refers to the definition of the Act of “motor accident” and reproduces that definition.
9. Refers to s 1.9 of the Act.
10. Submitted that a consideration of whether or not a dangerous situation had been caused is redundant where the first criterion of section 1.9 was not satisfied.
11. The Insurer submits that there are two elements:
(i)injury sustained during the operation of the vehicle and
(ii) sustained a consequence of one of the situations in subsection (a)-(d) arose.
The PTSD was not caused by the operation of a motor vehicle. The psychological injury was caused by the Police presence and the subsequent fear reaction.
12. Although the Police involvement was a source of the PTSD symptoms this was not due to the use or operation of a motor vehicle.
15. The Insurer refutes the proposition that a consideration of the presence of a dangerous situation is relevant but if it is considered relevant makes the following alternative submissions.
16. The dangerous situation was not caused by the Nominal Defendant’s driving of a motor vehicle.
17. The Police were required to adopt the use of guns and smashing windows after the driver being pursued had stopped driving and or using or operating the vehicle.
18. Smashing of the windows and forceful manoeuvring of the Nominal Defendant would no doubt have contributed to the fear and trauma giving rise to the Claimant’s PTSD in addition to the display of guns.
19. Drawing guns, smashing windows, and placing the Nominal Defendant in hand cuffs on the ground had no relationship to his driving. Argues that these actions resulted from the culprit resisting arrest and not because he had been driving negligently prior to the same. The causal chain linking the Police response (dangerous situation) to use, and operation of a vehicle was broken when the culprit stopped driving and locked himself in the vehicle posing a greater threat to the general public.
20. The Police would have been at the scene irrespective of the subject accident. They were not there because of the accident. The Police and their subsequent intervention were in no way impacted by the rear-end collision.
21. The post-Zotti amendments by the insertion of section 1.9(1)(d) of section 3A of MACA and the insertion of section 1.9(1)(d) of MAIA could not have been intended to be so liberal so as to extend the definition of “motor accident” to encompass the circumstances of the subject claim. The Insurer relies on the overall objectives underpinning MAIA. The Act does not provide a comprehensive scheme to award damages to every person who sustained an injury in some way connected to a motor vehicle accident.
22. Refers to the decision of the High Court of Australia in Allianz Australia Insurance Limited v GIS Australia Pty Limited (citation omitted).
23. Refers to AAI Limited v State Insurance Regulatory Authority (infra) where McColl JA expressed the view that it could hardly be gainsaid that the governing provisions of MACA were not intended to enlarge the ambit of same beyond that of which section 3A provided. McColl JA held that section 3A was inserted to clarify that MACA applied to death or injury that occurred in an accident occurring during the driving of the vehicle, collision of the vehicle or the vehicle running out of control and not to an injury that arises gradually from a series of incidents. It necessitated consideration of the definition of “motor accident” which required a sufficient connection between the injuries and the driving fault.”
Further submissions of the Insurer of 6 June 2021
The Insurer seeks to rely on the decision of the Court of Appeal of Leach v The Nominal Defendant [2014] NSCWA 257 at paragraph [1], [13], [15], [21], [24], [26] and [73].
The Insurer sets out at paragraph [73] per McColl JA.
Having referred to [73] the Insurer submitted that the Claimant’s psychiatric injuries are a direct consequence of the Police intervention following the accident which:
“in a substantial way distinct from or independent from the driving fault. Further, the Police’s bearing of guns is submitted to be, clearly, at least according to the Claimant’s original statements “the real effective” or “dominant” cause of his injuries.”
THE LEGISLATION
In making my decision I have considered the following legislation, regulations, and guidelines:
·the 2017 Act
·Motor Accident Injuries Regulation 2017
·Motor Accident Guidelines 2017
Section 1.4 of the Act provides:
‘Injury means personal or bodily injury and includes--
(b) psychological or psychiatric injury…’
Motor accident is defined as:-
“an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused …. 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.”
CASE LAW
In Zotti v Australian Associated Motor Insurance Limited [2009] NSWCA 323 (Zotti) the Court of Appeal considered the meaning of the words “collision, injury” and the phrases “as a result of”, “caused during” “collision” and “injury” in the Motor Accidents Compensation Act 1999 (‘MACA’) as amended.
Spigelman CJ at [3] set out the two definitions at section 3 of MACA (as at 19 December 2005).
He noted [4] that the 2017 Act was in the same form as considered by the High Court of Australia in Allianz Insurance Ltd v GSF Australia Pty Ltd (citation omitted) (Allianz).
He then referred to [10] to a passage from the join t judgement in Allianz of Gummow, Hayne an Heydon JJ at [93] and [94]:
“[35] The exercise of reasonable care requires, as the majority observed in Manley v. Alexander …. reasonable attention to all that is happening on or near the roadway that may present a source of danger. That in turn requires ‘simultaneous attention to, and consideration, of a number of different features of what is already or may later come to be, ahead of the vehicles’ path.
[36] The driver is not required……to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such event……the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
‘[93] In argument, some suggestion was conveyed that the terms ‘result’ and ‘cause’ have different meanings and, in particular, that ‘cause’ narrows ‘result’. That is not so. The drafting in this second part of para (a) of the definition seeks to accommodate two cumulative criteria and does so by telescoping them into a grammatical contortion.
[94] One criterion is that the injury be sustained during certain events, including the driving of the vehicle or a collision with the vehicle or its running out of control. The other criterion is that the injury be sustained as a consequence of those events. The phrase ‘as a result of’ is linked to the first or temporal criterion; the phrase ‘is caused’ is linked to the second criterion. For sub-para(iv), the temporal criterion is that the injury be a result of the use or operation of the vehicle because it was sustained during that activity. The other criterion is that the injury be caused by a defect in the vehicle.”
Spigelman CJ [11] then referred to the reasoning of McHugh JA in Allianz:
“[18] ... The ... conditions in sub-pars (i)-(iii) require that the injury:
be a result of the driving of the vehicle or a collision (or action taken to avoid a collision) or the vehicle running out of control,
be caused during the driving, the collision (or action taken to avoid a collision) or the vehicle running out of control (the temporal requirement).
...
[23] The second aspect of causation relates to the four conditions that limit the general class of injuries to which the Act applies. Where there is a defect in the vehicle, the injury must be ‘a result of and is caused during ... such use or operation by a defect in the vehicle’.
[24] The expression ‘caused during such use or operation’ imposes a temporal causal requirement. Where there is a defect in the vehicle, the defect must be operative when the injury is sustained and the vehicle must be in ‘such use or operation’ to which the fault of the owner attaches when the injury is sustained. Allianz conceded that Mr Oliver's injury occurred during the use or operation of the vehicle [Allianz [2003] NSWCA 174; (2003) 57 NSWLR 321 at 336 [64] per Davies AJA].” [Emphasis added]
His Honour then said at [13]:
“as the first sentence of [94] in the judgement makes clear the relevant first criterion is: “that the injury be sustained during ... a collision with the vehicle ... .”
His Honour then [19] Handley JA identified a requisite “temporal element”. The first sentence of para [101] in which his Honour states that there is no such “temporal requirement” turns on the word “such”. There is a reference to the particular kind of temporal requirement to which Counsel for the nominal defendant contended. That is not the contention in the present case.
His Honour [21] said:
“I do not understand Handley JA to doubt the significance of the temporal element identified in Allianz…”
He continued at [22]:
“The present case turns on when a “collision” ends. It can be accepted that the word “collision” does not refer only to the point of impact. It may well be the case that, for as long as the vehicles which had collided remained in their post-collision positions, the “collision” would still be in existence. Accordingly, any further incident that occurred by another vehicle running in to either car would fall within the meaning of “injury” and ‘motor accident’.”
His Honour said [29]:
“...it is pertinent to note the composite phrase in the definition: ‘the injury is a result of and is caused during ...’ the event.”
He said that Counsel for the Applicant submission:-
“would, in my opinion, have the effect that the words “caused during” would add nothing to the words “as a result of”. These were “cumulative criteria” …
The law of statutory interpretation creates a presumption – albeit not always a strong presumption – against surplusage.”
He continued [31] that Counsel’s submission was:-
“…not consistent with the High Court’s identification of the purpose of the legislation to narrow the concept of the ‘injury’.”
At [32] the Chief Justice noted that in the joint judgement of Allianz expressed the “temporal criterion”:-
“the injury be sustained during certain events including ... a collision.”
His Honour concluded at [33] that:
“The injury in this case was not “sustained during” a collision.”
He also concluded at [33] that it was not open to the Court of Appeal to hold that:-
“even if the collision could, for some purposes, be the “proximate cause” of the injury, that the injury was “caused during” the collision, within the meaning of the Act.”
In AAI Limited v State Insurance Regulatory Authority of New South Wales [2016] NSWCA 368 (21 December 2016) McColl JA said at [48]:-
“…the concept of causation at common law in the setting of the law of negligence can be very broadly understood as being founded upon material contribution. The certificate of the medical assessor is (almost) conclusive evidence that a motor accident or accidents materially contributed to whole person impairment greater than 10%. But to my mind that (almost) conclusive determination does not prohibit a trial judge from determining that other precipitants (such as acts that were not motor accidents causing psychiatric injury) were not only additional material contributors, but also were by far the more important material contributors. Again, the practical result could be that damages for non-economic loss could be very small, if not negligible.”
She continued at [49]:
“In that case (Gonzalez) there were two easily severable events and its aftermath. Here, the sub-events said to be motor accidents as defined and the sub-events said not to be motor accidents were thoroughly intertwined.”
She continued [123] after a consideration of Project Blue Sky (citation and full name not included) that:
“the MAC Act did not require a medical assessor to make a determination as to what elements of an incident involving a motor vehicle during which a person was injured was a “motor accident” within the meaning of s 3 of the MAC Act.”
Further at [124] she said:-
“The MAC Act does not provide “a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle…
…Rather, the MAC Act establishes a system whereby claims for compensation arising from motor accidents are not determined solely in the courts, and the quantum of compensation is not ascertained (whether in court or out of court) solely in accordance with common law principles.”
In Leach v The Nominal Defendant (QBE Insurance (Australia)) [2014] NSWCA 257 (Leach) the Appellant was a passenger in Vehicle 1 rear-ended by another Vehicle 2 causing the rear of Vehicle 1 to move slightly to the left. Gunshots were fired from V2 into V1. The Appellant was shot and suffered serious injuries.
The driver of V2, a stolen car was never identified. It was uninsured. The Issue at trial was whether the appellants injuries was caused by the fault of the driver of V2 in the use or operation of the vehicle during the driving of the vehicle or during a collision within the meaning of section 3A of the 2017 Act. The question was answered in the negative with a verdict for the respondent.
McColl JA said [40]:-
“Both parties accepted that Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ("Allianz") was the seminal authority for determining the question whether the appellant's injuries were caused in a manner which fell within s 3A of the MAC Act.”
McColl JA continued at [52]:
“The effect of Allianz is…. First, to fall within s 3A, the appellant has to establish that his injury was caused by the fault of the driver in the use or operation of the Commodore… Secondly, the appellant must satisfy the temporal criterion that his injury was sustained during either the ‘driving of the [Commodore]" or "a collision with the [Commodore]’.”
Her Honour continued:
“… s 3A(1)(c) looks to the at fault vehicle losing control). Thirdly, the appellant has to satisfy the causation criterion, that his injury was sustained as a consequence of those events…This means that he had to establish that those events were the proximate cause of his injuries…”
At [57] McColl JA referred to Zotti.
At [58] she referred to what the majority accepted at [22] that the word 'collision' does not refer only to the point of impact, and it may well be the case that, for as long as the vehicles which had collided remained in their post-collision positions, the 'collision' would still be in existence". But after the cars had been removed it cannot be said that the collision was still extant
She noted [66] what Sackville AJA had said in Coley v Nominal Defendant (citation omitted) that the court must make a judgement that as to whether fault in the use of operation or a vehicle is a sufficiently predominant and immediate cause of the injury to satisfy the statutory definition.
At [73] McColl JA concluded that the Appellant’s injuries were not caused by the fault of the driver in the use or operation of the Commodore… the gun fire was the “dominant cause”.
CONSIDERATION
The starting point is the amended definition of motor accident in the 2017 Act referred to above. The key words are:
“ accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused …. 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
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.”
MAS Assessor Dr Doron Samuel assessed the Claimant on 25 November 2019.
Dr Samuel took a history from the Claimant who is stated to have said:
“he then looked to the right to see what was happening and said he wasn’t thinking about “anything in particular” until he saw the Police with guns. He said that he saw them pull the guns on an alleged offender. He said this made him feel scared, ‘I felt afraid when I saw the police and I ducked’”.
At [19] Dr Samuel accepted that the Claimant had met the diagnostic criteria for a Post Traumatic Stress Disorder of sufficient duration and severity to be of clinical significance.
On causation he said:
“there are two aspects to this claim. The motor vehicle accident itself did not cause any significant distress or disorder. It was the involvement of police who drew their weapons at an alleged offender that was the stressor of significance that caused the Post Traumatic Stress Disorder.”
The reasoning on causation and the determination of Dr Samuel is not binding. Further, in any event the analysis is simplistic. He takes a very brief history but does not go in depth into the surrounding circumstances or consider the totality of the factual situation.
I note and agree with the submission by the Claimant’s solicitor of 21 January 2021 at [8] in which he refers to what the Court of Appeal said in AAI Limited v State Insurance Regulatory Authority NSW (op cit) that the MAS Assessor was incorrect to have dissected the events as to what constituted a “motor accident” in determining causation of the injury.
I note also and accept as correct that the Insurer had not provided any medical evidence to support that the Claimant’s injury was caused by the “police presences/response” and not by “the use or operation of a motor vehicle” with the exception of the assessment of Dr Samuel.
I distinguish Leach on the facts where the injury was caused by a deliberate act of, in effect, a drive by shooting and the accident itself was tangential in relevance.
It is a matter of notoriety that vehicles are from time to time stolen and chases occur. It is an infrequent but well known occurrence in which drivers such as the Claimant could become involved and as a result of which could be at risk of injury.
Once again it is a well-known, albeit infrequent occurrence that when police chase a vehicle, the driver of the vehicle being chased causes a dangerous situation to arise. This was the case here, especially because of the manner in which the stolen vehicle was being driven.
The temporal requirement is satisfied because on the evidence everything happened virtually together.
(a) the actual physical collision;
(b) the stolen vehicle coming to a halt;
(c) the police arresting the driver; and
(d) the dangerous driving situation.
At paragraph [31] of his statement, the Claimant says that he was waiting for the signal to change and was completely stopped when he heard the police siren. He says [33] that he saw the police had their guns out and were around the truck trying to get the driver out.
The Claimant does not place any special emphasis on the police presence and the drawing of the guns.
While Dr Samuel focused on one aspect of the history, see [13] above:
“it was the involvement by police who drew their weapons…that caused...”
and the Insurer emphasised that aspect as the focal cause of development of the Post Traumatic Stress Disorder which was unrelated to the motor accident in their submission, the Claimant in fact in his statement made 12 April 2021 extracted at [4] above, referred to a number of aspects of the incident as stressors:-
“[6)] ‘…suddenly hit in the rear…’
[7)] ‘…felt strangled by the seat belt…’
[9)] ‘The vehicle at fault was still moving and was charging side to side trying to escape the traffic.’
[10)] ‘…was in immediate fear for the safety my family and myself.’
[11)] ‘…wife and I were both panicking for our safety. Our baby was crying… and I did not know I could do and what going on.’
[13)] ‘The driver at fault was going crazy…. and had rampaged through several vehicles…’
[16)] ‘…did not want to move my vehicle in fear that if the vehicle at fault escaped, I would be in an open area and be the first scapegoat.’
[17)] ‘…an extremely fearful experience. …was in fear of my life… and my loved ones in the vehicle…’
[18)] ‘…was peeping over the back window… at the same time ducking down in fear… something bad was going to happen.’
[19)] ‘…continued to notice the vehicle at fault still colliding with vehicles within its vicinity.’
[20)] ‘…recall feeling my vehicle vibrating as a result of the collisions…’
[21)] ‘…baby crying…’
[22)] ‘…heard police sirens…’
[23)] ‘…at odds as to choosing to view what was happening or hiding out of sight.’
[25)] ‘When the police came…heard shouting.’
[27)] ‘saw a Police officer holding… what I believed to be a gun.’”
The whole point of this recapitulation of the event is that there was a whole series of stressors and only at the very end was there a reference to a police officer, holding a gun.
If Dr Samuel had taken a proper history, it is doubtful he would have referred only to the gun but rather would have referred to the whole sequence of distressing events referred to in [68].
At [8] of the Insurer’s initial submissions, the Insurer submits that there was no causal connection between the driving of the vehicle and the psychological injury. The point it makes is that the psychological trauma was caused by the Claimant seeing the Police with weapons drawn.
I have concluded that the whole situation was one closely connected event and that there was a whole series of stressors and that the drawn weapon was only one aspect of it, noting that I had accepted the Claimant’s statement of 12 April 2021 as being truthful. I do not accept the proposition that the chain of causation was broken.
Finally, it follows that I accept the proposition that there was both a temporal and causal connection which brings the Claimant’s injury within the definition of injury caused during the driving of a motor vehicle and as a result of a dangerous situation caused by the driving of a motor vehicle.
In Zotti (op cit) the Court concluded that the Court of Appeal must follow the dicta of the High Court in Allianz that the injury be sustained during a collision and that during created a temporal criterion for the definition of injury.
In Zotti again the Court emphasised that the definition of injury in section 3 as the 2017 Act then was involved a composite phrase namely that the injury was the result of and was caused during forming cumulative criteria or conjunctive requirements.
In this case the injury was caused by a dangerous situation caused by the driver of the stolen vehicle. The dangerous situation including the chase, the collision, and the arrest of the driver all of which happened within such a short span of time form one interconnected series of events all part of the dangerous situation caused by the driving of the motor vehicle.
CONCLUSION
The injury namely the Post Traumatic Stress Disorder was caused within the meaning of section 1.4 by a motor accident involving the use or operation of a motor vehicle causing injury to the Claimant where the injury was the result of and was caused by (d) a dangerous situation caused by the driving of the vehicle.
I conclude that the drawing of guns was only one element being part of the total which combined together caused a distressing set of symptoms, including shock, which resulted in the diagnosis of Post Traumatic Stress Disorder.
SUBMISSIONS AS TO COSTS
Claimant’s submission as to costs of 11 June 2021
The Claimant’s solicitor submits that in addition to the regulated costs under clause 3(2)(d) & (e) Part 1 Schedule 1 of the Motor Accident Injuries Regulation 2017 the Claimant seeks:
“…exceptional costs orders for legal costs to be applied.”
The Application is set out in a submission of 11 June 2021.
I briefly summarise the submission:
“2. significant time in explaining to the Claimant [given the language barrier] the liability notice issued by the Insurer on 27 March 2020;
3. considerable amount of instructions required from the Claimant;
4. Instructions for the Internal Review;
5. time taken explaining the Internal Review Certificate of Determination;
6. taking further instructions and considering further material in preparation for application for determination of a miscellaneous dispute;
7. on 2 November 2020 lodging the application for Determination of a Miscellaneous Dispute;
8. on 16 November 2020 considering and explaining the reply;
9. on 27 November 2020 time taken in participating in the first telephone conference with Assessor Watson;
10. considering the decision in Zotti;
11. further submission in relation to Zotti;
12. considering further submissions of the Insurer of 17 December 2020 and explaining the further submissions to the Claimant;
13. on 29 January 2021, the Claimant served a Further Submission considering AAI Limited v State Insurance Regulatory Authority of NSW and Zotti;
14. on 4 February 2021 participation in the second telephone conference where a direction was made as to further police records;
15. on 12 March 2021 participation in the third telephone conference;
16. on 26 April 2021 participation in the fourth telephone conference;
17. on 10 May 2021 considering the GIPA documents of 51 pages;
18. on 4 June 2021 participation in the fifth telephone conference;
19. submitted that the legal work exceeds the amount of regulated costs and that exceptional costs are justified;
20. Claimant’s legal representative has had to update during the period of over a year;
21. it has taken five telephone conferences to reach a Determination;
22. the Insurer should be penalised for the continuing legal work;
23. I should apply section 8.10(4) to permit payment of legal costs other than as prescribed by the Regulations as exceptional circumstances exist;
24. even though the two cases are of the same nature no less than 10 hours of additional legal work was required for each individual case. Further as ABU who speaks Mandarin and MM both having English as a second language this has resulted in additional time being required for the giving of advice and obtaining instructions; and
25. the Claimant’s solicitor is an Accredited Specialist and his charge out rate is at $600 per hour. He submitted that I should allow for the hourly rate of $600 per hour, however, if that amount is too high on the basis of paragraph [93] of AFH v AAI Limited trading as GIO [2019] NSWDRS CA 134 I should allow no less than $306.00 per hour and/or a reasonable rate applicable in 2021.”
Insurer’s submission as to costs 17 June 2021
I briefly summarise the Insurer’s submissions on costs:
“8-10.The Insurer refers to sections 8.3(3), (4) and 8.10(3);
11. Submits that sections 8.3(3) and 8.3(4) are to be read as a restriction on the recovery of costs from the Insurer (submission says recovery of costs from the “Claimant” but obviously means Insurer). The submission continues that the Claimant cannot “incur” costs for the work performed by his representatives and section 8.10 (which operates to allow the recovery of special costs by the Claimant directly) is therefore inoperable.
12. Further 8.3(3) has the effect that first ought to be determined not whether the Regulation “permits” payment of legal costs, but rather whether the Regulation specifically declares that no costs are payable.
The submission continues that clause 23 of the Regulation explicitly declares that:
‘no costs are payable for legal services provided to a Claimant or to an Insurer in connection with an application for internal review…’
The argument proceeds that operating together s 8.3(3) and clause 23 exclude payment and recovery of legal costs where the work performed “in connection” with an application for internal review. In this circumstance there is no “permission” or discretion afforded to the Decision Maker.
13. As outlined in the Claimant’s submissions the initial work was in relation to the Internal Review.
14. Sets out section 8.10(4).
15. Whether “exceptional circumstances” exist is irrelevant by virtue of sections 8.3(3), 8.3(4) and 8.10(3).
16. “Exceptional circumstances” pursuant to section 8.10(4) relates to the complexity of legal work performed rather than to the personal circumstances of the Claimant which require them to engage a lawyer.
17. If the threshold test for “exceptional circumstances” were simply that a Claimant required a lawyer to explain the circumstances then every case would be exceptional.
18. Refers to the Objectives of the Act, relevantly, to reduce legal costs by allowing the regulation of legal fees and fixing maximum legal costs.
19. Although section 8.10 provides for situations where legal costs may be recoverable those circumstances ought to be rare taking into account the intention of the Act.
20. “Exceptional circumstances” must amount to truly extra ordinary.
23. Disputes “exceptional circumstances”.
24. A global claim for costs is not permitted.”
Consideration
The 2017 Act states:
“8.3 Regulations fixing maximum costs etc recoverable by Australian legal practitioners
(3) An Australian legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.’
‘8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(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 Commission.
(4) The Commission 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.’”
The Application for legal costs has been made on the basis that there have been “exceptional circumstances” and an award of additional legal costs is justified in the circumstances.
In Masters & Cheyne [2016] FamCFC 255 at [42] Murphy J said:
“Exceptional circumstances has… been interpreted… in… different contexts [citation omitted] in ordinary usage… “exceptional” means “unusual or out of the ordinary” [citation omitted] or “unusual or extraordinary” [citation omitted]…
We must construe “exceptional” as an ordinary English adjective and not as a term of art. It describes the circumstance which is such is to form an exception, which is out of the ordinary course, or is unusual, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that it is regularly, or routinely, or normally encountered [citation omitted].
As Watts J pointed out the Full Court…applied that statement.”
The Family Court of Australia more recently followed the articulation of the meaning of the phrase “exceptional circumstances” in Martyn & Martyn [2020] FamCA 526.
In a more recent discussion in the High Court of Australia in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 Gageler, Keane and Nettle JJ considered the phrase “exceptional circumstances” in section 473DC of the Migration Act. At 229 [30] their honours said:
“Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
In another case BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 White J discussed considerations that the Authority had to take into account when determining whether it was satisfied that “exceptional circumstances” exist at [41]:
“Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen(1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295[2007] FCA 388 at [23]‑[26] (Rares J); Hasim v Attorney‑General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).”
It is clear, as the Insurer submits, that the Claimant’s Solicitor’s work in relation to the Internal Review cannot be taken into account.
The Insurer’s solicitor submits that the subjective factors of the Claimant’s language difficulties are irrelevant. However, on the case law to which I have referred I consider it to be relevant, not as an exceptional factor by itself but as one of the matters going into the mix when I come to consider whether there are “exceptional circumstances”.
THE CIRCUMSTANCES
I list the circumstances in no particular order of priority:
(a) There is a statutory exclusion denying legal costs to the Claimant in respect of Internal Review section 8.3(3) of the Act and clause 23 of the Regulation.
(b) There is a language barrier of some significance. See [12] of the Claimant’s Solicitors further submissions of 17 June 2021.
(c) An added layer of complexity arose by reason of the MAS determination of Dr Doron Samuel as to causation.
(d) There were five telephone conferences, an unusually large number for a Miscellaneous Dispute:
(i)27 November 2020 conducted by DRS Assessor Watson;
(ii)4 February 2021 conducted by DRS Assessor Watson;
(iii)12 March 2021 conducted by Member Stern;
(iv)26 April 2021 conducted by Member Stern; and
(v)4 June 2021 conducted by Member Stern.
(e) Normally there will be one, two or at most three preliminary conferences.
(f) There was a substantial amount of documentation to consider. The GIPA documents alone were 51 pages.
(g) Both the law and the facts were somewhat complex. i.e., not of great complexity but more than what it is usually encountered.
(h) It is necessary to take in to account the overlap between the case of the Claimant and MM and this to some extent should be accounted for to offset any additional costs.
The authorities are clear that it is the totality of the circumstances which must be taken into account. While one or more individual circumstances may not be exceptional the totality of the circumstances may produce an exceptional result.
On the authorities referred to this case is exceptional and justifies additional costs by reason that, and as stated in Masters & Cheyne [citation omitted]:
“To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that it is regularly, or routinely, or normally encountered [citation omitted].”
DETERMINATION ON COSTS
Taking into account the matters to which I have referred I consider the circumstances are exceptional and justify additional costs.
Legal costs are not to be awarded for that much of the work as involved or arose in relation to the Internal Review.
Much of the submission particularly as to the legal authorities and the application of facts to this case involved an overlap between the two cases.
I consider it appropriate, fair, and reasonable to increase the costs from $1,660 plus GST by 25% giving $2,075 plus GST for a total of $2,282.50.
In arriving at this figure I have taken into account an assessment of the additional work done, excluding the work done in relation to the Internal Review, and offsetting for the fact that there was an overlap between the work required in the two cases.
For clarity, the starting point is 16 units and the provision for adjustment of costs for inflation is set out in Schedule 3 of Motor Accident Injuries Regulation 2017.
It follows that the total amount that I allow for legal costs for the Claimant is $2,282.50 including GST.
Dated: 28 June 2021
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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