ABW v Allianz Insurance Ltd
[2021] NSWPIC 222
•29 June 2021
| 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 and the first thing she did was to check on the safety of her baby and husband.
9) The vehicle at fault was still moving and was charging side to side trying to escape the accident scene.
11) The events after the accident happened so quickly. There was nothing the Claimant could do apart from staying inside for the safety of her family and herself.
12) The Claimant was peeping over the back window but at the same time ducking down in fear of something bad was going to happen.
13) The baby was crying continuously. It was not possible to escape safely as the at fault driver was still moving through different vehicles to escape the scene.
14) Was panicking and debating with herself whether it was safer to leave or to continue hiding in the vehicle.
15) An extremely fearful experience she had never encountered. Was in fear of her life and that of her loved ones in the vehicle.
16) Heard sirens and saw police vehicles come to the scene as she was peeping out the back window.
17) Heard the police shouting
18) Was shaking and continued to keep her head down.
19) A police officer was holding what she believed to be a gun.
27) Told Dr Samuell (sic) all the details of the accident but he only focused on the aftermath.’
Statement of the Claimant made 31 January 2019
The Claimant 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 Mr ABW 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.’
Statement of the Mr ABW made 12 April 2021
Mr ABW, the Claimant’s husband was the driver of the vehicle in which the Claimant was a rear seat passenger. 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, what was 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 Mr ABW made 2 February 2019
Mr ABW also 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…’
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 Police 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.
Clinical Notes of Dr Angela Lam taken on 17 December 2018.
The Claimant consulted Dr Lam on 17 December 2018. Dr Lam took the following history:
“Surgery Consultation recorded on 17 December 2018.
Occurred on 24 November 2018.
- Was restrained front seat passenger of vehicle, husband Mr ABW was drivin (sic) and baby L at the back
- Sustained hard impact from a vehicle which was rear ended at high speeds (sic) by an AWD, which was pursued by police, suspected of being a stolen vehicle
….. Fearful, terrified - baby L cried non-stop, noted police had drawn guns at suspect
- Anxiety, sleep difficulties.”
Assessment for the Medical Assessment Service (MAS)
Dr Doron Samuel assessed the Claimant for MAS on 25 November 2019.
Dr Samuel took a history of the accident that she was a rear seat passenger with her son who was in a capsule and that at about 6:00 pm near Chinatown the vehicle was stationary:
“She heard a police siren from behind. The car behind hit their vehicle. Physically, she felt sick. She saw the Police straight away felt panicking after seeing the guns…She had heard a crash behind them, and police surrounded one car with guns. She said: “I was worried that someone would shoot us…”’
At [19] Dr Samuel opined that the Claimant was in a distressing motor vehicle accident. He continued:
“at interview and at my acceptance of the contemporaneous records ABW suffered a Post Traumatic Stress Disorder response.”
Dr Samuel concluded that there were two significant elements:
“the subject motor vehicle accident was not of sufficient moment to cause a Post Traumatic Stress Disorder. The involvement of the Police and particularly drawing their weapons at an alleged offender made ABW fearful and was a cause of her Post Traumatic Stress Disorder.”
In summary he said that the Post Traumatic Stress Disorder was not caused by the motor accident.
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.
The Claimants “Explanation Submissions” - 2 November 2020
I briefly summarise the submissions by paragraph number:
‘7. All psychological injuries were caused by the accident.
11. The proper officer on 18 February 2020 was satisfied that there was a reasonable cause to suspect that the medical assessment (of Dr Samuel) was incorrect in a material respect.
12. The Post Traumatic Stress Disorder was related to and caused by the accident.
19. the “chain of causation” was not broken. The event Dr Samuel described was in fact related to the entirety of the motor vehicle accident.’
Claimant’s further submissions of 21 January 2021
I briefly summarise the Claimant’s further submissions by paragraph number 29 (avoiding repetition):
‘[5] All medical evidence supports the diagnosis of Post Traumatic Stress Disorder being the result of and caused by the “motor accident”.
[6] The certificate of Dr Samuel is incorrect and cannot be relied upon.
[7] The Insurer initially accepted causation, only after Dr Samuel’s certificate was issued did it dispute causation.
[8] 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] Absent the opinion of Dr Samuel, the Insurer has not put on any medical evidence to support their submissions as to causation.
[12] The chain of causation was not broken. The entirety of the events should be determined as a motor accident.
[14] Two elements arise from section 1.9. The injury “results from” the use or operation of the vehicle and the injury is a result of and is caused during a dangerous situation caused by the driving of the vehicle.
[15] Section 1.9 refers to “results from” the use or operation. The definition is past tense. So long as the vehicle was used or operated the first element is satisfied.
[16] Section 1.9 of MAIA was adopted from section 3A of the MACA. MACA was amended in 2010 for s 3A to include (d).
[18] The amendment was necessary to prevent inconsistencies which arose from the decision in Zotti.
[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 seeks to separate the motor accident from the police’s actions. This not the correct interpretation of section 1.9(1)(d) of MAIA.
[22] Unreasonable to describe the accident without reference to the aftermath.
[24] The GIPA documents report the accident as one event.
[26] The Claimant was a passenger in her vehicle, the driver of the stolen vehicle collided with the rear. Both parties remained in their vehicles at the scene of the accident. A “dangerous situation” event occurred which has resulted in the Claimant sustaining Post Traumatic Stress Disorder.’
The Insurer’s submissions of 11 November 2020
I briefly summarise:
‘1. Psychological injury not caused during the use or operation of a motor vehicle.
4. Refers to the section 1.9 of the Act.
5. There are two criteria of section 1.9 that must be satisfied for causation to be found:
(i)injury must be sustained during the use or operation of a motor vehicle;
(ii) 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)).
6-7. Neither condition met.
8. The Insurer accepts that the Claimant was a passenger at the time of the incident but does not accept there was a causal connection between the driving of the vehicle and the psychological injury.
9-10. It is clear that the police were present before the Accident not as a result of the accident. (In answer to the submission that but for the accident the Police would not have been involved)
11. The Claimant’s vehicle was not the only vehicle involved regardless of whether or not the Claimant’s vehicle was struck the Police still would have been present and the use of their weapons would still have taken place.
12. Maintains reliance of the decision of Dr Samuel.
13. The Post Traumatic Stress Disorder was a direct result of the involvement of the Police and in particular the presence of their weapons in apprehending the offender.
24.The injury was not caused by the driving of a vehicle.’
Insurer’s further submissions of 17 December 2020
I briefly summarise by reference to paragraph numbers:
‘4. The Post Traumatic Stress Disorder arose as a result of the fear invoked by the police bearing guns following the accident and not as result of the circumstances of the rear-end collision or of any physical injuries associated with the same.
Refers to the Claimant’s statement of 31 January 2019 containing the version of the events.
“we were stopped in traffic and waiting…heard…a police siren… then felt an impact from behind…
a big (impact)… pushed forward…saw police out of the vehicle with guns out… did not know what had happened and so I was very afraid…thought maybe someone else had a gun so I just grabbed my son and stayed in the vehicle. We were very afraid.’
5. Refers to the referral letter of Dr Lam to Ms Truong of 17 December 2018 which describes the Claimant feeling:
“fearful…terrified – baby L cried non-stop,
Noted that Police had drawn guns at suspect.”6. Refers to the determination of MAS Assessor Dr Samuel.
7-8. Refers to the definition of a “motor accident” and to section 1.9 of the Act setting out general restrictions on the application of the Act.
9. (d) “dangerous situation” does not apply if there is no temporal connection
15. Section 1.9(d) relates to a dangerous situation, but it still has to be caused by the driving of the vehicle. The Insurer denies the temporal connection.
16. The drawing of the guns resulting from the refusal of the offender to surrender. This happened after he had stopped driving.
17. The driver of the Toyota remained in his vehicle with the doors locked. Smashing of the windows and forceful manoeuvring of the driver of the Toyota would have contributed to the fear and trauma giving rise to the Claimant’s PTSD in addition to the display of guns.
18. The need to draw guns, smash windows, and place the offender in hand cuffs on the ground had no relationship to his driving. The causal chain was broken.
19. The Police would have been at the scene irrespective of the subject accident.
20. “During” has been interpreted to create a temporal connection for the definition of injury so that the injury had to have been sustained during the relevant event and not sometime later.
21. The Act does not create a universal comprehensive scheme to award damages to every person who sustained an injury in some way connected to a motor vehicle accident.
22. The provisions of MACA were not intended to enlarge the ambit beyond that for which section 3A provides.
23-4. The Claimant’s injury was caused by the police presence/response and not as a result of anyone’s “use or operation” of a motor vehicle. Alternatively the dangerous situation had ceased when the offender stopped driving his vehicle and from that point the danger exclusively related to the offender resisting arrest.’
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 (Leach) at [1], [13], [15], [21], [24], [26] and [73].
The Insurer sets out at [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, and
· 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 at [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] a passage from the joint 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 at [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 at [19] Handley JA identified a requisite “temporal element”. The first sentence of [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 at [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 at [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’s 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 at [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 at [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 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 vehicle 2 into vehicle 1. The appellant was shot and suffered serious injuries.
The driver of vehicle 2, a stolen car was never identified. It was uninsured. The Issue at trial was whether the appellant’s injuries were caused by the fault of the driver of vehicle 2 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 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 at [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 MAIA 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
(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.’
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:
“She heard a police siren from behind. The car behind hit their vehicle. Physically, she felt sick. She saw the Police straight away felt panicking after seeing the guns…”
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:
“the subject motor vehicle accident was not of sufficient moment to cause a Post Traumatic Stress Disorder. The involvement of the Police and particularly drawing their weapons at an alleged offender made Ms Miyamukai fearful and was a cause of her 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 [6] of her statement, the Claimant says that they were waiting for the signal to change and was completely stopped when she heard the police siren. She states at [17] and [19] that she 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 Post Traumatic Stress Disorder which was unrelated to the motor accident in their submission, the Claimant, in fact in her Statement made 12 April 2021 extracted at [5] above, referred to a number of aspects of the incident as stressors:
[6)] ‘…suddenly hit in the rear…’
[7)] ‘…force of the collision moved me forward…’
[9)] ‘the vehicle at fault was still moving and was charging side to side trying to escape the traffic.’
[10)] ‘The at fault driver seemed to have committed dangerous driving with no consideration for…safety...’
[11)] ‘…the events after the accident happened so quickly…nothing I could do apart from staying inside the vehicle...’
[16)] ‘…later heard police sirens and saw police vehicles....’
[18)] ‘…was shaking…continued to keep my head down...’
[19)] ‘…came up to peep…police officer was holding what I believe to be a gun...’
[20)] ‘…Police had detained the driver…’
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 at [70].
At [23-[24] 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 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 MAIR 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 Mr ABW who speaks Mandarin and ABW 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.'
I note, section 8.10(4) of the 2017 Act provides:
‘The Commission can permit payment of legal costs incurred by a Claimant but only if satisfied that:
(b) exceptional circumstances exist which justify payment of legal costs incurred by the Claimant’
Insurer’s submission as to costs of 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 1958. At [229]-[230] 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 ethnicity and language difficulties is 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 2017 Act and clause 23 of the Regulation.
(b) (There is a language barrier of some significance.) See [12] of the Claimant’s Solicitor’s further submissions of 17 June 2021.
(c) An added layer of complexity arose by reason of the MAS’s determination of Dr Doron Samuel as to causation.
(d) There were five telephone conferences in the Claimant’s matter, 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 ABW 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 and exceptional result.
On the authority referred to this case is exceptional and justifies in 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 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 $1,660plus 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 MAI Regulation 2017.
It follows that the total amount that I allow for legal costs for the Claimant is $2,282.50 including GST.
Dated 29 June 2021
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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