ACV v The Nominal Defendant

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ACV v The Nominal Defendant [2022] NSWPIC 64
CLAIMANT:	ACV
INSURER:	The Nominal Defendant
MEMBER:	Belinda Cassidy
DATE OF DECISION:	14 February 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; denial of liability for any statutory benefits by Nominal Defendant under section 3.36 of the MAI Act on the basis the claimant was the owner and driver of an uninsured vehicle and his injuries were caused wholly or mostly by his fault; single vehicle accident occurred when claimant drove deliberately at speed into a pole with the stated intention of committing suicide; Held - the claimant was not wholly or mostly at fault; medical evidence supported a finding that the claimant had long standing mental health issues and that the accident occurred when the claimant was in the midst of a medical (psychotic) episode; the blameless accident provisions in the Motor Accidents Compensation Act 1999, the no-fault provisions of the MAI Act and the cases of Davis v Swift, AAI Limited t/as GIO and Whitfield v Melenewycz considered.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. For the purposes of section 3.36 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. The amount of the claimant’s costs is assessed at $3,762.00 inclusive of GST. A statement setting out the Commission’s reasons for the assessment are included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 12 August 2019, in the early hours of the morning, the claimant[1] was at the wheel of his Commodore sedan when it left the road and collided with a pole.
[1] Due to the sensitive nature of some of the evidence in this matter steps have been taken to protect the claimant’s identity by not revealing his name or for example where he lives.
The claimant was seriously hurt sustaining amongst other injuries, multiple fractures to his ribs, right ankle and left foot fractures, fractures to both legs and a fractured left index finger.
The claimant made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act). He made his claim against NRMA as he thought that his long-term insurer was the insurer of his vehicle, but in time a claim was made against the Nominal Defendant.
The Nominal Defendant denied the claim and the claimant, who at that time did not have legal representation referred a dispute to the Personal Injury Commission (the Commission).
The matter was allocated to me and there have been four teleconferences held in the matter. At the last teleconference it was determined that the matter would be decided ‘on the papers’, that is on the evidence and submissions filed by the parties.

ISSUES IN DISPUTE

When the claimant first referred his matter to the Commission, there was a dispute about whether the claimant’s car was insured or uninsured and therefore whether his previous insurer NRMA or the Nominal Defendant was to be the “relevant insurer” for the purposes of paying the claimant any statutory benefits to which he may be entitled. The dispute about the status of the claimant’s third-party insurance is not specifically provided for in Schedule 2(3) and appears to be a dispute which would come within Schedule 2(3)(n) as a general issue of liability in a claim not otherwise provided.
The claimant argued that he was entitled to the benefit of the “period of grace” provided for in section 2.7 of the MAI Act. He argued this essentially extended the life of his third-party insurance policy from 29 July 2019 to the day of his accident.
After the first teleconference on 1 September 2021, I expressed the preliminary view that the ‘period of grace’ did not operate to provide an extra 14 days of cover to all vehicles in circumstances where the insurance had expired, but that it provided cover for a 14-day period only if the vehicle was subsequently insured. As the claimant’s vehicle was written off in the accident and never reinsured, the claimant conceded that, at the time of the accident, his vehicle was unregistered and therefore uninsured. The claimant further conceded that the Nominal Defendant was therefore the proper respondent to this application and the relevant insurer in respect of his statutory benefits claim.
An issue also arose as to whether the claimant was charged with or convicted of a serious driving offence sufficient to disentitle him to statutory benefits under section 3.37 of the MAI Act. The claimant’s solicitor advised, and the claimant’s police record confirms, that in May 2019, before this accident, the claimant had been charged with a drink driving offence which was heard with a charge of “drive whilst disqualified”, the only charge levelled against the claimant arising out of this accident.
Therefore, the claimant was sentenced after the accident for two offences one of which concerned an event before the accident and was entirely unrelated to it. The insurer agreed that the offence for which the claimant was charged related to this accident was a charge of driving whilst disqualified which is not a serious driving offence within the meaning of section 3.37 of the MAI Act[2].
[2] Submissions dated 1 February 2022 paragraph 3(a).
The only dispute remaining for me to determine is whether the claimant is wholly or mostly at fault. If I find he is wholly or mostly at fault then pursuant to section 3.36(1) no statutory benefits are payable at all, because the vehicle he was driving at the time, which he owned, was uninsured. This dispute is provided for (in part) by Schedule 2(3)(e) and the remainder would also be caught by the catch-all (n) provision.
In answer to the question of whether he is wholly or mostly at fault, the claimant says that he was in the middle of a psychotic episode at the time of the accident and as a result did not know what he was doing and therefore could not be considered to be at fault for what he did whilst in that state.

STATUTORY FRAMEWORK

Section 3.1 of the MAI Act provides
“(1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.
(2) Statutory benefits are payable (except as otherwise provided by this Part)—
(a)whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b)even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.”
Section 3.1 therefore provides the foundation for a scheme of statutory benefits which are paid on a no-fault basis.
Section 3.2 provides that these benefits are paid by the “relevant insurer” and sets out how the relevant insurer is to be determined. Where there is no actual NSW based third-party insurer, the relevant insurer is the Nominal Defendant[3].
[3] Section 2.27 provides that the State Insurance Regulatory Authority is the Nominal Defendant and that all proceedings against the Nominal Defendant are to be brought in its name.
There are certain limitations and restrictions so that not everyone involved in a motor accident is entitled to recover benefits. For example, when considering section 3.1 a person must have sustained an injury within the definition in the MAI Act, the injury must have resulted from a motor accident within the definition in the Act and the accident must have occurred in New South Wales.
There are other provisions which prevent a person injured in a motor accident in New South Wales from recovering any benefits at all. These include persons who have workers compensation benefits payable (section 3.35) and persons who are charged with and convicted of a serious driving offence related to the accident (section 3.37).
The Nominal Defendant relies on section 3.36 in this claim which says:
“(1) Statutory benefits are not payable under this Part in respect of the death of or injury to a person resulting wholly or mostly from the fault of the person as the owner or driver of a motor vehicle in the use or operation of the vehicle if the vehicle was an uninsured vehicle at the time of the motor accident….
(4) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
The claimant was the owner and driver of the only motor vehicle involved in this accident. He concedes his vehicle was uninsured at the time of the motor accident. If his accident resulted wholly or mostly from his own fault, then the parties agree that in accordance with section 2.30, the claimant would have no entitlement to any statutory benefits at all.

REVIEW OF THE EVIDENCE

Claim form and first responders

The claimant completed a claim form on 20 December 2019[4]. He notes the date and time and location of the accident (Mid-Western Highway in country New South Wales[5]) and says he was the driver and that his “vehicle left road and collided with electricity post”. He provides the-details of his car, his injuries and says he was admitted to the Canberra Hospital and Griffith Base Hospital. He identified a previous relevant shoulder condition and details potential employment which was due to start on 18 September 2019.
[4] This document is identified as document AD11 in the portal.
[5] While the precise location off the accident is known to the parties, it is not disclosed due to the sensitive nature of the evidence in this matter and the opportunity the location might afford to identify the claimant.
The police report is dated 26 March 2020[6]. The attending officer reports the accident occurred at between 6.50 and 6.56am on a straight stretch of road on the Mid-Western Highway where the speed limit was 100km.
[6] This document is identified as document AD3 in the portal.
The vehicle is identified as a 2008 model Holden Commodore Sedan owned and driven by ACV. The lights of the vehicle were recorded as being on and the pre-crash speed said to be 160km and the claimant was said to have been wearing a seat belt. A blood sample was taken which returned a negative result.
The description of the accident was provided as follows:
“About 6.30am on 12^th August 2019 a 41-year old male driving a Holden Commodore in a SE direction at approx speed of 160 km/h has left the Mid-Western Hwy and struck a power pole at the intersection of … and Mid-Western Hwy … causing the vehicle to roll. Driver injured as a result of the collision, Driver Conveyed to hospital”.
The police records concerning the accident were also provided and they indicate:
(a)    a blood sample was taken from the claimant, which returned a negative result,
(b)    a passing motorist stopped to provide assistance and several other motorists and emergency services attended shortly after the accident,
(c)    the claimant spoke to witnesses and emergency personnel about his intention to kill himself but there are no records of the precise conversations,
(d)    the claimant was scheduled because of his admissions as to suicide but they do not provide any additional detail about the claimant’s mental state,
(e)    the witnesses or the passing motorists who rendered assistance are not identified, and
(f)    the charge sheet and the full fact sheet submitted to the Griffith Court mention the claimant’s pre-accident driving history but not his mental health issues.
The ambulance report provides a case description as follows[7]:
“Called to 41-year old male involved in high speed rollover at approx 180km into power pole. On attendance patient trapped by confinement with extensive damage to vehicle. Patient is wearing seatbelt and front airbags activated. Patient is GCS[8] 15 and states intentions of suicide. On examination patient has extensive bruising to left flank and right hip areas, as well as bruising to right shoulder, fractured left ankle and possible left femur. Pain to left ribs but equal air entry. Patient has bloodshot left eye and laceration to the occipital skull. Patient initially hypotensive but increased with fluids …Spinal precautions taken due to mechanism. Patient extracted on spine board at approximately 08.30. Patient responded well to analgesia and remained stable en route … Patient had repeated questioning post ketamine but pain free extraction at approximately 08.30”.
[7] The report is quoted but the common abbreviations have been ‘translated’ to assist in the understanding of this description.
[8] Glasgow Coma Scale (GCS) which is a measure of a person’s consciousness usually after a head injury. The scale is measured from 3 (completely unresponsive) up to 15 out of 15 (fully responsive).
The ambulance report (page 4) has a series of protocol codes relevant to the case. The chief protocol was said to be limb injuries and fractures, and one of the others said to be MH1 – Mental Health Emergency.
There are no records from Griffith Base Hospital relevant to the car accident.
There is a short letter from Canberra Hospital dated 16 August 2019 noting the claimant had been admitted to intensive care unit (ICU) on 12 August 2019 with a resolved small pericardial effusion, fractures to the 8th, 9th and 11th rib on the right and the first left rib and lung issues along with bilateral tibial and fibula lower limb fractures.
Of more significance is the Canberra Hospital progress note dated 13 August 2019 and some of the relevant entries include:
(a)    “Difficult to obtain history due to thought disorder. ED staff reports loading of diazepam given in Griffith Hospital … has also received multiple doses of ketamine due to agitation and removing IVC, neck brace etc.”
(b)    “On review states he tried to kill himself by crashing his car. States the police have charged him with killing his mother even thought his mother is still alive. States he has been ‘shooting people with his leg’”.
(c)    “Ongoing suicidal thoughts”.
(d)    “Initially denied past mental health history then stated he had a psychologist and psychiatrist. Denies any mental health diagnosis.”
(e)    “Appears to be responding to internal stimuli at times.”
(f)    Under the heading ‘Impression’ the note continues “suicide attempt in the context of possible intoxication, possible alcohol withdrawal. Appears psychotic on review tonight. Not yet medically cleared.”
(g)    “Coherent and reasonably co-operative but remains thought disordered and difficult to adequately assess mental state.”
(h)    “Aware of injuries ‘they might have to fix my leg’ but ongoing impaired judgment nursing staff reports has tried to self-mobilise despite lower leg fractures”.
(i)    “History given to ambulance from patient was suggestive of a psychotic state / delirium tremens e.g. said he had killed his mother but she is not dead.”
(j)    “Past history of depression anxiety and alcohol use but no suggestion of recent misuse”.
The mental health team concluded “given seriousness of injury and the fact that patient is lacking capacity (delirium) and underling psychiatric illness not yet clear, needs ongoing detention for assessment, treatment and support”.

Pre-accident records

Hospital records have been produced by the Griffith Base Hospital. These records concern attendances as follows:
(a)    6 September 2014 at about 1.00am having been brought in by ambulance following consumption of two bromazepam experiencing “both auditory and visual hallucinations” and with him reporting seeing multiple people talking to him but not instructing him to perform activities. He denied previous episodes, had no thoughts of self-harm or suicide and was not delusional. The notes include this comment “seems more personality disorder than acute psychosis”. The claimant is said to have “absconded” before a formal assessment could be undertaken.
(b)    7 September 2014 at about 1.30pm – the triage presenting information was “states was arrested by police does not know why … states was charged with criminal insane himself and other patient in waiting room. Denies hearing voices. States heard his ex-partner’s voice several days ago in a dream.” He is also reported to have said “they are coming to take me upstairs to the fight. I am a soldier”. He thought the light in the cubical was a camera and he was being recorded. After speaking with a friend and his mother, the hospital conducted an urgent psychiatric assessment. The hospital records a pre-history of:
·   anti-personality disorder,
·   borderline schizophrenic (20 years ago),
·   Dr Hussein is his general practitioner (GP) and tried to refer him to a psychiatrist, but he does not go.
The hospital staff spoke with the claimant’s sister who said her brother had been talking about aliens and had been drinking and was aggressive.
The claimant was scheduled at 7.00pm and transferred to the mental health unit under the care of Dr N, psychiatrist.
(c)    3 November 2014 – the presenting problem was “alcohol withdrawal while on alcohol detoxification with Valium – unable to sleep for four days”. Further information says: “On arrival, [claimant] was noted to have pressure of speech with tangential thoughts and persecutory delusions.’” He denied suicidal or homicidal thoughts but had auditory hallucinations as well as paranoid and persecutory delusions. The mental health team thought he was likely to be suffering from acute psychosis secondary to alcohol withdrawal. He was discharged the next day with a request for follow-up with his doctor and formal psychological assessment.
(d)    23 May 2016 – the claimant was admitted and discharged on the same day due to alcohol withdrawal syndrome. There is a letter from the hospital to Dr Ranatunga noting the claimant presented with “mental health – hallucinations”. The history was of binge drinking for nine days after losing his job 10 days ago. He reported “hearing voices for three days, anxiety”. This was noted to be the third similar attendance. The plan post discharge was to follow up with the drug and alcohol team as out-patient and to follow up with his treating doctor.
(e)    27 May 2016 – admitted and discharged 30 May 2016. The claimant presented with paranoid delusions and hallucinations following binge drinking and social stress – discharged home with advice to follow up with a psychiatrist.
(f)    15 July 2018 – admitted and discharged the same day. The claimant was reported as attending with “hallucinations – brought in by ambulance seeing and hearing four people on his property who wanted to kill his animals and his mother”. The claimant also reported having “chased them to stop them doing it and they made fun of him”. The claimant then took some medication and was able to sleep but not well. He was assessed as “not psychotic”. He refused a blood test and said he was fine to go home and was discharged.
The claimant has provided a report from Doctor Q[9] which appears to have been written in answer to a request from solicitors in Griffiths concerning the claimant’s history of being a victim of sexual assaults whilst at school and in the context of a claim for personal injury. I do not propose to recite all of the matters contained in this report as they are matters not strictly relevant to the matters I have to determine, but they provide background to the claimant’s history of long-term mental health issues.
[9] Document AD15 in the portal. The document was originally provided in the claimant’s bundle but only up to page 12. A full copy of the report was provided at my request. For ease of reference I have referred to this practitioner as Doctor Q.
Doctor Q had before her a statutory declaration from the claimant detailing his history, the experience of his abuse as a child and details of his treatment. She also had reports from treating psychologists and psychiatrists diagnosing the claimant with depression, post-traumatic stress disorder, complex post-traumatic stress disorder and cannabis dependence which appear to be related to the chronic enduring impact of the childhood assaults upon him.

Doctor Q considered the claimant had paranoid thought processes. She took a history that in 2006 the claimant was suicidal “driving at 190k’s and thinking of driving into a tree”. He said he did not do it because he wanted to live to see the perpetrator of his abuse sent to prison.
This doctor diagnosed a “Chronic Post Traumatic Stress Disorder” and “Personality Disorder of the post traumatic cluster B type”. She said he “expresses an embittered cynicism that borders on paranoid and sometimes his thought processes are disturbed”.
Doctor Q says:
“[The claimant] became symptomatic with Chronic Post Traumatic Stress disorder (PTSD) from primary school, he suffered from insomnia, nightmares, reliving experiences, hypervigilance and dissociative phenomena such as out of body experiences. This led to alcohol and cannabis abuse from age 13, which compounded his problems. The persistence of these symptoms over the crucial developmental years of personality development resulted further in disorganisation of personality development so that ultimately it was manifest as Personality Disorder.”
Doctor Q provided her opinion as to whether he was capable of managing his affairs and when asked about when the claimant became aware of the extent of the mental health injury he had sustained she said:
“[The claimant] was always aware that the abuse had occurred but during primary school years he was not aware of its significance or even that it was a markedly abnormal experience. During high school he developed some understanding that his adjustment was disturbed but had no understanding that he was suffering from a post traumatic disturbance that was directly related to the abuse. Currently [the claimant] has some limited understanding that he suffers from such a disturbance and that it is causally related to the abuse but he does not appreciate that the impact on his personality development has been such as to cause a Personality Disorder and that this may be an irreversible disturbance.”
She recommended treatment including regular consultations with a psychiatrist, counsellor and medication.

Medico-legal evidence

There is a report dated 15 May 2020 from Doctor C, a psychiatrist, to the claimant’s solicitor relating to the driving matters before the courts (that is both the pre-accident charge and the charge relating to the accident). Doctor C had before him the Canberra Hospital medical records and the report from Doctor Q.
The claimant said to Doctor C he had mental health difficulties since childhood due to sexual abuse and from then he has had a life-long battle with “mood instability, anxiety and depression”. In 2006 Doctor C notes the claimant was diagnosed with complex post-traumatic stress disorder due to his childhood abuse. The claimant described to him “brief episodic psychotic experiences with paranoid delusions and auditory hallucinations”. The claimant said these episodes were usually associated with sleep disturbance and severe stress. “He recollected being in a psychotic state prior to the alleged offending”.
Doctor C did not feel these symptoms were suggestive of bipolar disorder or schizophrenia. The claimant reported alcohol addiction with binge drinking, occasional cannabis use, and misuse of sedatives. At this examination he denied depressive cognition or suicidal thoughts and there was no evidence of delusions or hallucinations. He was said to recognise the impact of alcohol use on his mental health and wanted to “make amends and was seeing a psychologist”.
Doctor C diagnosed post-traumatic stress disorder relevant to the claimant’s childhood trauma and a brief psychotic disorder where the predominate cause was stress. He says at point 9 on page 7 of his report:
“In terms of the recent offending, it appears that [the claimant] was in the midst of a psychotic episode during the alleged offending. He was paranoid and felt that persecutors were going to harm him and that he was going to die. It appears that he had visual hallucinations and in sheer panic, drove the car and had the accident.”
Doctor C recommended ongoing monitoring and support for his mental health issues and specialist care to ensure abstinence from substance misuse. He also considered medication to assist with ongoing post-traumatic stress disorder and psychosis. He recommended against a custodial sentence but suggested conditions including continuing treatment, mandatory attendance and drug and alcohol counselling and monitoring[10].
[10] The claimant’s police record was produced in answer to a direction from the Commission and is document AD9 in the portal. It appears from my reading of these documents that the claimant’s offence relating to driving whilst disqualified on the day of this accident was punished, after an appeal by a nine-month disqualification from driving and that in relation to the unrelated pre-accident offence, he was disqualified for driving for nine months and with a mandatory interlock order for 48 months.

The claimant’s statements

The claimant’s first statement is dated 19 January 2021[11]. The claimant is currently 43 years of age and lives in a cottage on his family’s rural property. He documents his sexual abuse whilst at school, his treatment, his education (and he has two university degrees) and work life.
[11] It is found in the claimant’s bundle identified as document AD8.
He says he first experienced “audio, visual and audio-visual hallucinations” in August 2014 when he was not sleeping well and suffering from anxiety. He could hear music coming from the toaster and called an ambulance because he did not feel able to drive, went to hospital but absconded because he thought the doctors there were part of the plot against him. He says he spent three days in hospital after that and believed the police were going to shoot him.
He says his second episode in May 2016 again involved a “severe bout of insomnia”. He believed he saw two armed illegal hunters threatening him with a gun but later went outside and heard voices and saw a mysterious robed figure “demanding I surrender body parts”. He then saw 35 robed figures and he drove to the police station to report the incident. He was taken from there to Griffith Hospital and stayed overnight.
A third incident occurred during “extreme anxiety and insomnia” and he reports seeing three figures who started verbally abusing him. He chased them around (on foot) and thought he had one cornered and called the police. The police arrived, handcuffed him for a time but took no action and the claimant says he spent a further three or four hours chasing the figures in his vehicles. He was eventually taken to Griffith Hospital.
He says in the five days leading up to his accident he was unable to sleep and took a temazepam which enabled him to sleep “from 1 to 2.00pm”. He had nightmares which continued after he woke up. He began to experience auditory and visual hallucinations. He saw a robed figure outside his house “I was communicating with him without speaking both inside and outside my house”. He did not ring his mother because he was frightened she would call the police.
He says, “later in the evening when almost asleep in and out of a hypnagogic state” he heard voices including a “chorus of prison guards” and the voices referred to his childhood sexual abuse and that he was a “worthless individual” because of it.
The claimant says a robed man identified himself as an “Ancient” or “Archon” and that if he took more sleeping pills and slept they would come to him and dismember him. “I remember having feelings of not being able to cope and telling them I would end it my way”.
The claimant says he then went to his car and the shadowy figures were all around him. He said he did not know what was going on and “I thought I’d rather die with my eyes wide open, in my car than be butchered as I slept”.
The claimant said that he had chained the gate shut earlier in the davening so that when he saw it he would know his thoughts were not real but he said that did not work and he unchained the gate and drove away. He thought of going to the hospital but heard the Archons telling him that were everywhere. “I drove faster and faster in my attempt to get away from the Archons reaching the near to top speed of about 180 km/hr”.
He said he lost control on some gravel and struck a post rolling several times.
He then says he believes a police officer shone a torch in his face but then left. He then heard a man and a woman discussing how they would poke his eyes out. He said “I was told that they had killed my mother and I would be blamed for it. That I was going to gaol for life”.
He recalls being cut out of the wreck and being treated by ambulance with medication that “intensified the reality distortion” and he experienced “ongoing nightmare and conversations with what I would characterise as disincarnate, non corporeal entities”.
The claimant’s second statement is dated 23 December 2021[12] and explains why he did not provide the Nominal Defendant with details of his psychosis at the time he made his claim or during the early stages of the dispute about whether he was wholly or mostly at fault. He says NRMA had paid his claim for the loss of his car and he was ashamed to talk about his mental health issues. He said he did not want to talk about his psychosis because if he did he would then have to explain about his childhood sexual trauma and he did not want to do that because of the further distress this would cause. He explained the process related to his claim for compensation and how retelling his story during that period caused his condition to worsen.
[12] Document AD20 in the portal.
The claimant said his current solicitor represented him in his earlier action and that he felt comfortable talking to him. He did say that he felt distress completing his statement so much so that he needed to talk to his psychologist about it.

SUBMISSIONS

Claimant’s submissions

The claimant’s original submissions[13] were provided at a point in time when the claimant was self-represented and they deal with many matters I do not need to determine in my decision (for example the insurer’s decision-making) or which have been agreed (the insurance status of the claimant’s car).
[13] Dated 1 June 2021 and contained within the application.
The claimant alleged at page 2 of his submissions that his accident was a ‘faultless accident’ on the basis that there was ‘debris on the road’ and that his tyres lost traction and he felt like his car had driven into loose gravel. He says his tyres were new and there was no alcohol or drug involvement.
The claimant’s solicitor’s submissions dated 11 February 2022 do not repeat the claimant’s original submission that the accident was a faultless accident due to the loose gravel allegation.
The submissions summarise the claimant’s history of sexual abuse and the development of his mental health issues and say:
(a)    the claimant had a five-day period of insomnia following which he developed hallucinations which caused the claimant to fear for his life. He heard voices and thought he would be “butchered”;
(b)    he entered his car and drove at speed due to his delusions and he formed the delusional view that the only means of escape was to kill himself and “he apparently lost control of his vehicle and hit a post”;
(c)    the claimant did try to kill himself but only because of his delusional belief that there were “Archons” intent on killing him and dismembering his body;
(d)    it was the claimant’s delusional state that caused the accident, and
(e)    the claimant says this is supported by the Canberra Hospital notes and the specific opinion of Doctor C.
The claimant’s solicitor explains that the claimant did not divulge his psychiatric history or the suggestion the accident was caused by his delusional state because he was reluctant to disclose his previous history and its cause and he did not appreciate its significance.
The claimant refers to the definition of a no-fault accident which he compares to the ‘blameless accident’ provisions of the Motor Accidents Compensation Act 1999 (the MAC Act). He cites a passage from Davis v Swift[14] and says that the statements indicate that the claimant was suffering from a medical condition that incapacitated him to such a degree he was unable to control his car. In addition, the medical evidence suggests that he lacked capacity and therefore there was no fault on his part in relation to this accident.
[14] [2014] NSWCA 458 at 33.

Insurer’s submissions

The insurer’s original submissions[15] deal with the claimant’s original submissions. Most of these submissions concern whether the claimant’s vehicle was insured or uninsured and were written at a time when the claimant (then self-represented) was alleging that the accident occurred when he lost control of his vehicle in “loose gravel”.
[15] The submissions are identified as document R1 and are dated 3 August 2021.
Of the matters relevant to the matter in dispute, the insurer relies on section 3.36 and says the claimant is the at-fault driver and cannot recover statutory benefits. The insurer is critical of the claimant’s submissions which do not refer to the speed his vehicle was driving or his stated intention of committing suicide. The insurer refers to the claimant’s submissions regarding loose gravel but says there is no evidence of loose gravel.
In submissions dated 1 February 2022 the insurer deals with the claimant’s argument that his accident was a no-fault accident because of days without sleep and his suicidal intentions. The insurer summarises the claimant’s submissions that there was no fault on the part of the claimant because a medical condition had incapacitated him to such a degree that he was unable to control his vehicle.
The insurer relies on the decision of AAI Limited t/as GIO v Singh[16] and says that if the evidence establishes that someone was at fault, the no-fault provisions of the MAI Act do not apply.
[16] [2019] NSWSC 1300 and which I will refer to as Singh’s case.
The insurer submits the accident is not a blameless (no-fault) accident because the claimant was wholly or mostly at fault because:
(a)    it was his act or omission that caused the accident – he drove at speed and into a pole;
(b)    the ‘medical episode’ was not caused by a physical illness but by longstanding mental health issues;
(c)    this was not a freak accident involving one car – the claimant was suicidal and drove at speed into a pole, and
(d)    the insurer relies cites Hossain v Mirda[17] where the driver of a car drove away from a dog on the road colliding with a truck. This was found not to be a blameless accident as there was an act or omission of the driver (swerving to avoid a dog) which caused the collision.

CONSIDERATION OF THE ISSUES

[17] [2015] NSWCA 108.

Findings of Fact

The insurer has relied on the documentary evidence that has been filed. The insurer does not, in its most recent submissions, challenge the reliability of the claimant’s evidence. I note the insurer has obtained no medical evidence of its own to counter that of the claimant’s evidence.
I accept the claimant’s evidence in his statement as to his pre-accident history and his state of mind at the time of the events he has described in his statement. His history of sexual abuse as a child and long-term mental health issues has not been challenged by the insurer. His description of the previous psychotic episodes provides more detail but otherwise accords generally with what is contained in the medical records.
I am therefore satisfied that the cause of this accident was the claimant driving at speed, losing control of his car in loose gravel and colliding with a power pole.
I accept the medical evidence that, at the time of this accident, the claimant was having a medical episode more specifically a psychotic episode due to insomnia and stress or anxiety. I make this finding based on the Canberra Hospital notes, the report of Doctor C and the statement of the claimant.
I find that the claimant’s psychotic state manifested itself in hallucinations including visual hallucinations and that the claimant was delusional. I accept that he took to the wheel of his car in an attempt to escape the “incarnate, non-corporeal” beings his delusions led him to believe were about to attack him and cause him harm including dismemberment. I accept his evidence that he drove at reckless speed and crashed due to a desire to kill himself as a result of his delusional beliefs that he was being persecuted and pursued.

Historical context and legislative provisions concerning ‘no-fault’ accidents

Between 1942 and 2017, the motor accident compensation schemes operating in New South Wales have been primarily based on fault. An injured person had to satisfy the tribunal that the defendant owner or driver was at fault in causing the accident. To do that a plaintiff had to prove that the defendant driver was negligent. The tort of negligence required there to be a duty of care owed, breach of that duty of care and injury, loss and damage caused by that breach.
A defence became available to insurers of what came to be known as “inevitable accident”. If a plaintiff sustained injury as the result of an accident that was inevitable, the claim was defeated. The case of Layton Smith by his tutor Troy Smith v NRMA Insurance Limited[18] is one of the last examples of this. In that case an infant was catastrophically injured in September 2004 when the driver of an oncoming car had a heart attack at the wheel and his car moved to the incorrect side of the road and collided with the car driven by Layton’s father. Justice Button determined that the driver had lost consciousness and was not in control of his vehicle at the time of the collision. He therefore found there was no negligence on the part of the defendant and as one element of the tort of negligence was not established, the plaintiff’s claim failed.
[18] [2014] NSWSC 1518.
In 2006, the “blameless accident provisions” were introduced into the MAC Act to provide a form of no-fault compensation to those who were injured in an accident “not caused by the fault of the owner or driver of any motor vehicle involved in the accident and not caused by the fault of any other person”[19]. Section 7E provided that the driver of the motor vehicle could not recover damages under these provisions if it was their act or omission that caused the accident. Had Layton Smith been injured in identical circumstances a few years later, he would likely have been entitled to common law damages under these “blameless accident” provisions.
[19] Section 7A of the MAC Act.
The provisions of Division 1 of the MAC Act were brought through into the MAI Act in Chapter 5. Other than renaming blameless accidents “no-fault accident”, the definition is the same[20], any many of the provisions are the same. Section 7E(1) of the MAC Act is replicated in section 5.4(2) of the MAI Act and prevents the driver’s recovery of damages for his injuries “if the motor accident concerned was caused by an act or omission of that driver”.
[20] Section 5.1 of the MAI Act.
Section 5.4(2) provides that the driver’s injuries are taken to have been caused by the driver’s act or omission even if any of the following circumstances apply:
“(a)    the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or
(b)     the act or omission was involuntary, or
(c)     the act or omission was not the sole or primary cause of the death or injury.”
While some sections in Chapter 5 refer to claims for statutory benefits, others refer to both however section 5.4 relates only to a claim for damages and is therefore not relevant to the claimant’s matter.
Section 5.3(2) states that if an injured person declares their accident to be a ‘no-fault’ accident then in the absence of any evidence to the contrary that declaration is evidence. Section 5.5 provides for the reduction of statutory benefits (or damages) for the contributory negligence of the injured person.

The no-fault provisions were considered by Justice Fagan in Singh’s case. That case dealt with a truck driver, whose vehicle tipped over after the load shifted in the container that he was towing. The load inside the container had not been placed or secured by him. The case revolved around the interpretation of section 3.2(5) which deemed fault on the part of the driver and whether that ‘deemed’ fault operated to prevent the payment of benefits beyond the first 26 weeks after the accident in accordance with sections 3.11 and 3.28. The case is not of great relevance to me other than Justice Fagan’s observations at [24] that the limitation of statutory benefits to the first 26 weeks after the accident depends upon fault in the causation of the accident and that the point of Chapter 5 is to “make provision with respect to motor accidents that are no one’s fault.” Justice Fagan concludes his judgment with the suggestion that because of the wording of sections 3.1 and 3.2 of the MAI Act, “there is no need for the provisions of Pt 5 to deal with statutory benefits at all.”
In section 3.36 (unlike sections 3.11(1)(a) and 3.28(1)(a) I am required to look at whether the claimant’s injury (and not the accident) was caused wholly or mostly by his own fault. In my view nothing turns on the distinction between injury and accident other than, by focussing on causation of injury this enables the consideration of contributory negligence that does not cause the accident, such as the failure to wear a seat belt or helmet. The claimant’s physical injuries sustained in his accident were clearly caused in his motor accident.
In my view, in a statutory benefits claim, I need look no further that section 3.36. That section provides that if I am satisfied the claimant’s injuries (and accident) were caused wholly or mostly by the fault of the claimant then the claimant is prevented from obtaining any statutory benefits at all. The blameless accident or no-fault provisions and the inevitable accident cases are of limited assistance.

Is the claimant wholly at fault?

In a two-vehicle collision it would be appropriate in my view, when determining fault, to consider whether the owner or driver of the vehicle the subject of the claim, owed a duty of care to the claimant and breached that duty of care. If there was a breach of duty of care by that owner or driver then the claimant could not be wholly at fault.
In an accident involving a collision between a motor vehicle and a pedestrian or bicycle, a similar approach could be taken. So too in a single vehicle accident involving a claim by an injured passenger against the driver of the vehicle.
But in a single vehicle collision involving a claim by the driver, an analysis of whether there was fault in terms of negligence or a breach of duty of care is irrelevant because the tort of negligence concerns one person’s obligation to look out for or prevent harm to another person. The claimant owes a duty of care to prevent accident and injury to other road users but not to himself. And, as the court noted in Whitfield v Melenewycz[21] you cannot sue yourself in negligence.
[21] [2016] NSWCA 325, Meagher JA at [31].
How then does one approach the consideration of whether a claimant is wholly or mostly at fault in a single vehicle collision where there is no other vehicle, no other person and no other external input into the cause of the crash. In my view the approach should be taken by considering whether the claimant was solely responsible or solely to blame for the accident that caused his injuries.
In my view the claimant was not solely responsible or solely to blame and therefore not wholly at fault because he was in a psychotic state, having hallucinations and delusional thoughts in the lead up to his accident. In my view having read the whole of the evidence, the claimant was not operating in any sphere of reality and therefore was not aware of what he was really doing or why he was doing it. He thought he was being chased by “Ancients” or “Archons”, when he was not. He thought he was able to communicate with these imaginary robed figures without speaking and that he was going to be killed or dismembered by them, but he was not. He wanted to go to the hospital but thought the “Ancients” or “Archons” would be there, but they were not. He thought the police discovered him soon after the accident and then left him but they did not. He thought his mother had been killed, and she had not. He attempted to stand up on his two broken legs while in hospital, but could not.
Whatever choices the claimant made in the hours leading up to his accident, they were not, on the evidence, rational choices made by someone in full possession of their faculties. The claimant’s actions before this accident were not voluntary or as a result of his own will appreciating the nature of what he was doing and the likely impact or consequences of it but were a result of his psychotic and delusional state. I make this finding, in particular noting the Canberra Hospital staff found the claimant had no legal capacity to make decisions for his own treatment and as a result had him scheduled presumably under the mental health legislation of that jurisdiction.
The evidence before me as to the cause of his psychotic state comes from Doctor C who diagnosed the claimant’s long-term mental health issues as post-traumatic stress disorder as a victim of childhood sexual abuse and a brief psychotic disorder where the predominate cause was stress.
There is no medical evidence before me to suggest that anything the claimant did or did not do caused his decline into this psychotic state.
In Davis v Swift[22], another no-fault damages case, Meagher JA said at [33]:
“The circumstances in which an incident or accident may be a ‘blameless accident’ are varied. They include (as the Second Reading Speech makes clear) where the driver has been incapacitated from continuing in careful control of the vehicle because of some unforeseen and immediately debilitating illness or medical condition.”
[22] [2014] NSWCA 458.
If the claimant had, without any warning a heart attack or stroke causing him to lose control of his car in the gravel and crash into an electric pole resulting in injury, presumably the insurer would not argue the claimant was wholly at fault in terms of wholly responsible or wholly to blame for the accident and deprive him of statutory benefits. If the claimant’s medical episode was of a psychiatric nature rather than a physical one, I believe the same result should follow.

Is the claimant mostly at fault?

To determine whether the claimant was mostly at fault in causing his injuries requires a consideration of whether there was any contributory negligence on the part of the claimant and if so whether it should be assessed at more than 61%. If it is, then the claimant would be mostly at fault by operation of section 3.36(4).
In the decision of Axiak v Ingram[23] the court found in a “blameless accident” that the reduction of damages for contributory negligence under section 7F of the MAC Act should be determined by assessing the extent to which the plaintiff departed from the standard of care she was required to observe in the interests of her own safety. The usual evaluation of relative culpability between plaintiff and defendant[24] could not occur in a blameless accident where there was no primary negligence to consider or measure against.
[23] [2012] NSWCA 311 (Axiak).
[24] As per Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34.
The important point to consider in Axiak was that the standard of care the claimant was required to observe was the interests of her own (and not someone else’s) safety.
This was the fourth episode of psychosis experienced by the claimant according to his statement and the Griffith Hospital records. The claimant had been having treatment and appears to recognise that his psychotic episodes are related to periods of heightened anxiety and no sleep. In terms of what steps he had taken to avoid this, I do not have the claimant’s treating doctor’s records. But the claimant had attended a doctor and had sleeping medication as it is referred to in his statement and the Griffith Hospital records). On the day before his accident, he appears to have recognised a deterioration in his mental state and had the wherewithal to take a sleeping pill to get some rest but was unable to sleep for long. Part of his auditory and visual hallucinations was said to be his belief that the “Archons” would come to dismember him if he took any more tablets and went to sleep.
I note the claimant has earlier taken steps to prevent his behaviour causing this accident. He says in his statement that he chained the gate to the property as a physical prompt for him to hopefully recognise a delusional state of mind.
The claimant was wearing his seatbelt at the time of the accident and while there are past episodes of hospital admissions due to alcohol withdrawal and a history of alcohol abuse, there is no evidence before me that alcohol had anything to do with this accident. A blood test for example returned a negative result.
I am therefore satisfied, on the evidence relied on by the parties, that the claimant had taken steps in the interests of his own safety but was not responsible, due to his psychotic state, for any conduct that might ordinarily accord with ‘contributory negligence’.

CONCLUSION AND COSTS

Determination of the matters in dispute

It therefore follows from the above that I am satisfied, on the information that is before me, that the claimant is not wholly or mostly at fault for causing his injuries.
Under section 3.36(1), the claimant is not therefore prevented from obtaining statutory benefits.

Costs

The claimant seeks costs of the application. Costs in a statutory benefits claim governed by provisions in sections 8.3 and 8.10 of the MAI Act. In essence these provisions allow for the awarding of costs on two bases:
where costs are permitted in the Motor Accident Injuries Regulation (the Regulation), in which case only the costs allowed in the Regulation can be awarded, and
where the Commission permits costs beyond those provided in the Regulation and that can only be done in circumstances were the claimant is lacking in legal capacity or where “exceptional circumstances” exist which justify the awarding of costs on that basis.
The claimant’s solicitor concedes he only came into the matter after the insurer’s internal review decision was made and that substantial work has been done including obtaining documents and reports and providing submissions. The claimant’s solicitor argues there were complex issues of law particularly surrounding the insurance issue which required investigation and consideration. Due to the complexity of the issues, the claimant’s solicitor says it was necessary to obtain counsel’s advice. He refers to the teleconferences held in the matter. The claimant seeks costs on the “exceptional circumstances” basis in the sum of $5,500 plus counsel’s fees.
The insurer notes that the claimant was self-represented when the application was made to the Commission and that he drafted his own submissions. The insurer also refers to the teleconferences but that the matter was determined on the papers without a hearing.
The insurer says there are no “exceptional circumstances” in this claim and that evidence was gathered as usual, the amount of documentation was not extensive and that the matter does not involve unusually complex issues.
I agree with the insurer. In my view this claim does not involve any great complexity and to some extent any issue of complexity that exists in relation to insurance was caused by the claimant albeit a claimant with longstanding mental health issues. The claimant’s failure to renew his greenslip insurance led to his vehicle being uninsured at the time of the accident and the dispute that arose about the insurance status of his car. There is no evidence before me that at the time the insurance lapsed the claimant was incapacitated by his mental health issues.
The issue of whether the claimant was “wholly or mostly at fault” sufficient to disentitle him to any statutory benefits was not an unusual or out of the ordinary matter, it involved the provision of medical evidence, submissions as to the facts and the argument concerning a limited number of cases referred to in the submissions.
I am not satisfied that there are exceptional circumstances in this claim that justify the awarding of costs on a basis other than those costs permitted in the Regulation.
Schedule 1, Part 1 clause 3(1) of the Regulation provides the maximum costs for legal services in connection with a regulated miscellaneous claims assessment matter is 16 monetary units (currently the sum of $1,710). Clause 3(2) then provides a list of the regulated miscellaneous claims assessment matters. The following appear to be relevant:
“(e) whether for the purposes of … section 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) of the Act the motor accident was caused mostly by the fault of the injured person.
(g1) any issue of liability for a claim, or part of a claim, for statutory benefits referred to in clause 3(n) of Schedule 2 to the Act.”
Schedule 2 clause 3 to the MAI Act provides a list of miscellaneous claims assessment matters upon which the list in the Regulation is based. It is noteworthy that in the Schedule to the Act there is listed a dispute about which insurer is the relevant insurer (3(c)) but this is not in the list in the Regulation and therefore relevant insurer disputes are not regulated miscellaneous claims assessment matters. There is no dispute in either list in terms such as whether a vehicle is uninsured or not. Also perplexing is the wording of the provision in both lists (clause 3(2)(e) above and Schedule 2, clause 3(e) of the Act) which refer only to “mostly at fault” and not “wholly at fault”.
Clause 3(n) of Schedule 2 to the MAI Act and clause 3(2)(g1) of Schedule 1, Part 1 of the Regulation appear to be ‘catch-all’ type provisions. The former gives jurisdiction to the Commission to determine any issue of liability in a statutory benefits claim while the latter designates any such dispute as a regulated matter attracting costs.
The matter referred to the Commission involved two distinct disputes or issues about the Nominal Defendant’s liability for a claim:
(a) whether the claimant’s vehicle was insured or uninsured at the time of the accident, and
(b) whether the claimant was wholly or mostly fault for causing his accident.
Noting the difficulties that presented in dealing with both these disputes and the work done in resolving the first dispute and assisting the Commission to determine the second, I am of the view that the maximum regulated fee of $1,710 should be awarded in respect of each of the above disputes that is the sum of $3,420. The Regulation allows GST is to be added to the sums for costs awarded but does not permit the inclusion of counsel’s fees as a disbursement.

[2022] NSWPIC 64

14 February 2022