ABW v Allianz Insurance Ltd - [2021] NSWPIC 222

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABW v Allianz Insurance Ltd [2021] NSWPIC 222
APPLICANT:	ABW
RESPONDENT:	Allianz Insurance Ltd
MEMBER:	Terence Stern
DATE OF DECISION:	29 June 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; whether statutory benefits are payable in respect of whether an injury resulted from the motor accident under section 3.1 of the Motor Accident Injuries Act 2017; psychiatric injury; involvement of NSW Police; backseat passenger; safety of her baby and husband; extremely fearful experience; Ute stolen; pursuit; guns drawn; Post Traumatic Stress Disorder; language barrier; complexity; five telephone conferences; substantial amount of documentation; chain of causation; whole series of stressors; Held- one closely connected event; both a temporal and causal connection; the injury has resulted from a motor accident in this State; 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 29 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 (the 2017 Act), about whether for the purposes of section 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) of the 2017 Act the death of or injury to ABW (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 section 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 she 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 her 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 section1.9 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 backseat passenger of a vehicle ABC123 travelling along Harbour Street, Haymarket. Her husband was the driver.
6)     On arriving at the intersection with Goulburn Street the vehicle was stationary when it was suddenly hit in the rear by vehicle XYZ456.
7)     The force of the collision moved the Claimant forward…

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 222
Decision Date: 29 June 2021

CaseChat Overview and Summary

The plaintiff, ABW, brought a claim against Allianz Insurance Ltd in respect of injuries sustained following a motor accident. The case was heard and determined in the District Court of New South Wales. The central issue was whether the statutory benefits were payable for a psychiatric injury, specifically Post Traumatic Stress Disorder, which the plaintiff claimed resulted from the motor accident.

The court was required to determine whether the psychiatric injury was a result of the motor accident and whether it was covered under the statutory regime. The plaintiff alleged that the incident, where her Ute was stolen, leading to a high-speed pursuit with guns drawn, was the direct cause of her psychiatric injury. The complexity of the case was amplified by the involvement of the NSW Police, the plaintiff's backseat passenger status, and her extreme fear for the safety of her baby and husband during the event. Additionally, the court had to consider the language barrier faced by the plaintiff and the extensive documentation and five telephone conferences that were part of the case.

The court found that the injury was indeed closely connected to the motor accident, both temporally and causally. It held that the incident was one closely connected event with the series of stressors that led to the psychiatric injury. The court ruled that the injury had resulted from a motor accident in the State, and therefore, the statutory benefits were payable. The court also considered the exceptional circumstances and the substantial costs incurred during the proceedings, ultimately awarding costs in favour of the plaintiff.

Orders