Al-Khameesi v Allianz Australia Insurance Limited
[2022] NSWPIC 750
•15 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Al-Khameesi v Allianz Australia Insurance Limited [2022] NSWPIC 750 |
| CLAIMANT: | Sam Al-Khameesi |
| INSURER: | Allianz |
| MEMBER: | Stephen Boyd-Boland |
DATE OF DECISION: | 15 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute; was the claimant wholly at fault for the accident; section 3.28; claimant involved in single vehicle accident, claimant asserted sneezing caused accident, Ahadizah v Emerton considered; Held – claimant wholly at fault for accident. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 and clause 7.497 of the Motor Accident Guidelines. The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person. 2. Effective Date: This determination takes effect on 15 August 2022. 3. Legal Costs: The amount of the Claimant’s costs has not been assessed. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) and potentially Schedule 2(3)(g) of the Motor Accident Injuries Act 2017, about whether the Insurer may cease statutory benefits for treatment and care expenses as the motor accident concerned was caused wholly or mostly by the fault of the injured person and/or whether the Insurer is entitled to reduce statutory benefits payable for contributory negligence.
There is a dispute between Sam Al-Khameesi and the Insurer in respect of whether;
a. for the purpose of 3.28 of the Act, the Insurer may cease statutory benefits for treatment and care expenses as the motor accident concerned was caused wholly or mostly by the fault of the injured person with the provisions of Schedule 2 clause (3)(e) of the Act; and/or
b. for the purpose of 3.38 of the Act, the Insurer is entitled to reduce statutory benefits payable for contributory negligence with the provisions of Schedule 2 clause (3)(g) of the Act.
The Claimant was involved in a motor vehicle accident on 28 June 2020.
On 3 November 2020 the Insurer made a determination that the Claimant was wholly at fault for the motor accident. The issues relate to the specific circumstances of the motor accident.
The Claimant then sought an internal review of the decision.
On 1 December 2020 the Insurer confirmed its earlier determination.
On or about 26 October 2021 the Claimant lodged a Dispute Resolution Service Application form.
On or about 1 December 2021 the Insurer lodged a Dispute Resolution Service Reply.
A Teleconferences was conducted on 9 June 2022 directions were made that the Claimant serve on the Insurer and upload to the portal an updated Statement from the Claimant and updated submissions by 23 June 2022 and for the Insurer is to serve on the Claimant and upload to the portal any documents in response by 7 July 2022.
That timetable was not complied with.
10. On 30 June 2022 the Claimant provided further material.
11. On 22 July 2022 the Insurer provided further submissions.
12. On 25 July 2022 the Claimant raised an issue and then enquired as to whether the Insurer needed to amend their submissions. The Insurer noted that they would seek to amend their submissions and I allowed the Insurer up to 10 August 2022 to do so. On 10 August 2022 the Insurer noted that they did not need to amend their submissions.
13. It was agreed that a determination would be made on the papers.
Documents considered
14. I have considered the documents provided in the application and the reply and any further information provided by the parties.
15. The documents to be relied upon consisted of an Application, A1 to A4 inclusive, AD1 to AD7 inclusive and a Reply and R1.
Submissions
16. The Claimant's submissions were set out in the written submissions contained in A1 that were undated but lodged on the portal with a date of 4 November 2021 and further submission dated 30 June 2022.
17. The Claimant asserts that he arrived in Australia in approximately August 2016 on the basis of a humanitarian visa. He did not know English at the time of his arrival and he requires the assistance of an interpreter. He has had a limited education. The claimant contends that insurer’s contentions are largely predicated on a strict reading of statements made by the claimant and others to establish that the claimant was wholly or mostly at fault. The claimant submits that the Personal Injury Commission would read his prior statement having in mind the context set out above.
18. The claimant’s evidence is that he was travelling at less than 50km/h. He asserts his medical condition removed his ability to control the vehicle. Whilst the claimant paid a fine for negligent driving the claimant was not accustomed to the law in Australia, did not consult a lawyer and was not aware of his rights.
19. The insurer has incorrectly placed reliance on Ahadizah because in that matter, the key evidence on which that case was decided was that the driver proceeded 100 metres whilst sneezing. There was no evidence that the driver had a medical condition or became totally unable to control the vehicle. The claimant submits that Hossain has no relevance because he lost control of his bodily functions due to a medical episode and therefore could not control the vehicle. It is the medical episode that is causative, and not any act or omission by the claimant
20. The Insurer's submissions were set out in the written submissions dated 13 December 2021 and further submissions that were undated but lodged on 22 July 2022.
21. The Insurer took issue with the version of events provided by the Claimant.
22. The Insurer referred to Hossain v Mirdha, that the act of steering the vehicle away from the dog was an act of the driver and it was an act that was a cause of the injury to him. It was not the sole or primary cause but nevertheless was an act which caused his vehicle to collide with the truck.
23. The Insurer referred to the ACT Supreme Court authority of Ahadizah v Emerton [2002] ACTSC 20 noting:
“ …the effect of a sneezing attack is not absolute. In the present case, the degree of sneezing was such that it was open to the magistrate to find that the appellant could and should have applied the footbrake.
it is sufficient for the offence of driving in a manner dangerous if there is driving in a manner dangerous that is not involuntary, for example, failing to apply the brake while undergoing a sneezing attack.
the Magistrate’s finding that to continue to drive when undergoing a sneezing attack constituted driving in a manner dangerous…
Therefore, it was held that the plaintiff maintained a ‘modicum of control’ and was capable of taking steps to counteract the danger, including applying the brakes, which he failed to do. As such, the driver was culpable for the accident.
24. The Insurer then contends that Claimant acted negligently by failing to maintain proper control of the vehicle, as his eyes were closed, and he only had one hand on the wheel. His behaviour was therefore in direct contravention of Rule 297(1) of the Road Rules 2014 (NSW), which provides that a driver must not drive a vehicle unless he has proper control of said vehicle.
REASONS
The Assessment
25. An Assessment was undertaken on the papers.
26. The parties agreed that the dispute relates to section 3.28 and potentially 3.38. I accept that pursuant to Schedule 2(3)(e) and (g) there are disputes in respect of sections 3.28 and potentially s3.38.
27. It is not disputed that on 28 June 2020 the claimant drove a motor vehicle along Leacocks Lane, Casula when he left the road and collided with a pole.
28. The Claimant’s contentions was this was entirely due to a sneezing attack.
29. The Application for Personal Injury Benefits dated 20 July 2020 provides;
“I was driving my car then I sneezing a couple of times then I lose control then I hit the power pole. I was with my one relative and on friend then we go to the hospital”.
30. The Claimant provided an additional statement, dated 15 October 2020 (Statement of 15 October 2020);
“The road was curving. As I was driving I had a sneezing fit. I am not allergic but when there are very strong smells I started to sneeze. As I started to sneeze, I brought my left arm up to sneeze into the elbow. I had my right hand on the steering wheel. My eyes were closing from the sneezing. I heard Samer say “Watch Out!” The next thing I know I felt like it was slow motion”.
31. The Statement of 15 October 2020 includes at paragraph 16 “I was going less than 50 km/h”.
32. The Statement of 15 October 2020 noted he required an interpreter, and an interpreter was provided.
33. Constable Tyler Woodland was also interviewed by the Insurer’s investigators on 18 December 2020;
“So, he said he was driving along Leacocks Lane and as he was driving he sneezed a couple of times, which caused him to close his eyes very quickly. And, next minute he knew, his friend was yelling and he smashed into the pole.”
34. The witnesses, Dayla Alazheeri and Samer Alkuheli, refused to cooperate in interviews and investigations undertaken by Constable Woodland.
35. Dayla Alazheeri and Samer Alkuheli did provide limited statements to the Insurer’s investigators.
36. The Claimant provided a supplementary statement, dated 28 June 2022 (Statement of 28 June 2022) it includes:
a. At paragraph 13 “as soon as I smelt the grass … I started to sneeze uncontrollably”;
b. At paragraph 14 “I remember sneezing a couple of times, followed by a number of small rapid sneezing fits. The sneezing made my body jerk forward and to the left and caused my eyes to close … I had no opportunity to brake because of the uncontrollable sneezing fit …”;
c. At paragraph 15 “I had almost no control over my body …”;
d. At paragraph 16 “I did not have control of my body’s reaction …”;
e. At paragraph 17 “The Accident occurred solely because I had a sneezing fit while driving … I could not control the sneezing or how my body was reacting to it”.
37. The claimant submits that the Personal Injury Commission should place no weight on Constable Woodland’s opinion evidence relating to her perception that the claimant as speeding because of the impact and damage to the vehicle, describing it as “speculative at best”.
38. The Claimant’s solicitors noted the claimant’s evidence is that he was at all material times travelling at less than 50km/h.
39. Issues arise in relation to the evidence of both Constable Woodland and the Claimant.
40. The Claimant does not include any specific reference to having checked the speedometer of the vehicle and it would appear that the basis of the Claimant’s statement was the claimant’s own opinion as to the likely speed.
41. In any event, I do not accept that there is any evidence that the Claimant was speeding.
42. I accept the evidence of Constable Tyler Woodland in relation to her account of the version of events provided to her by the Claimant.
43. The evidence of Constable Tyler Woodland on this aspect is generally consistent with the version of events set out by the Claimant in the Application for Personal Injury Benefits dated 20 July 2020.
44. The description of “sneezing a couple of time” (Application for Personal Injury Benefits), and “sneezed a couple of times” (evidence of Constable Tyler Woodland) are fairly similar and consistent.
45. The Claimant raises issues in relation to his education and English abilities and it should be noted that this evidence is based on the account at the time and in the Application for Personal Injury Benefits, times when the Claimant may not have access to an interpreter.
46. The Statement of 15 October 2020 makes reference to “a sneezing fit”, for this account set out in the statement the Claimant did have the benefit of an interpreter.
47. The Claimant raises issues in relation to his education and English abilities, in my view these could explain the difference between the description of “sneezing a couple of time” (Application for Personal Injury Benefits), “a sneezing fit” (Statement of 15 October 2020) and “sneezed a couple of times” (evidence of Constable Tyler Woodland).
48. The Statement of 28 June 2022 provides “sneezing a couple of times, followed by a number of small rapid sneezing fits”.
49. In my view Statement of 28 June 2022 sets out a materially different version of events to the accounts provided in the other documents.
50. In my view this description of the sneezing is different to the versions contained in the other documents.
51. As the Claimant did have the benefit of an interpreter for the Statement of 15 October 2020 it is difficult to explain the difference between the description of sneezing set out in that statement and the account contained in the Statement of 28 June 2022.
52. Specifically, the Statement of 15 October 2020 provides “As I started to sneeze, I brought my left arm up to sneeze into the elbow”.
53. This is not included in the Statement of 28 June 2022.
54. It is not apparent from the Statement of 28 June 2022 whether the Claimant specifically denies that this occurred or not.
55. The Statement of 28 June 2022 is to the effect that from the beginning of the sneezing the Claimant had little if any control over his body.
56. Whilst the Claimant raises issues in relation to his education and English abilities, in my view these would not explain the inclusion of this very specific activity asserted to have occurred after the start of the sneezing in one statement prepared with the benefit of an interpreter but excluded from the second statement again prepared with the benefit of an interpreter.
57. To the extent to which there is any conflict between the evidence of the Claimant as set out in the Statement of 15 October 2020 and the evidence of the Claimant as set out in the Statement of 28 June 2022, I prefer the evidence of the Claimant as set out in the Statement of 15 October 2020.
58. I have preferred the evidence of the Claimant as set out in the Statement of 15 October 2020 because:
a. it is more consistent with the version of events set out in Application for Personal Injury Benefits;
b. it is more consistent with the version of events set out in the evidence from Constable Tyler Woodland; and
c. it was prepared closer to the time of the accident and with the benefit of an interpreter.
59. I accept that at some time before the accident, the Claimant was sneezing in a manner that could be described as “sneezing a couple of time”, “sneezed a couple of times” and “a sneezing fit”.
60. I do not accept that the Claimant was sneezing in a manner that could be described as “sneezing a couple of times, followed by a number of small rapid sneezing fits”.
61. I accept the evidence set out in the Statement of 15 October 2020 to the effect that “As I started to sneeze, I brought my left arm up to sneeze into the elbow”.
62. This fact is not expressly dealt with in the Statement of 28 June 2022, however, to the extent that it could be asserted that on this issue the Statement of 28 June 2022 is inconsistent with the Statement of 15 October 2020, I have preferred the Statement of 15 October 2020.
63. I do not accept that the Claimant “started to sneeze uncontrollably” from the beginning or that at the time the sneezing commenced the Claimant “had almost no control over my body”. I do not accept that because it is inconsistent with the Claimant having the ability to bring “..my left arm up to sneeze into the elbow”.
64. Having accepted that after he started to sneeze, he was able to raise his left arm up to sneeze into his elbow, I accept that for some period after the Claimant started to sneeze that he did continue to have control of his body and was able to take independent action.
65. The evidence from the Claimant was that this was not the first time the Claimant had experienced such a sneezing attack and that having experienced this before the Claimant should have been well aware of the need to take timely action, whist he remained in control, to avoid a collision.
66. As a result of the other inconsistencies between the various versions of events given by the Claimant it is difficult to and not necessary to make findings beyond that.
67. As noted in Ahadizah v Emerton [2002] ACTSC 20 the effect of a sneezing attack is not absolute.
68. On the material available to me there is no reason why during the same time it took the claimant to raise his left arm up to sneeze into his elbow that he could not have taken other action to slow or otherwise control the vehicle so as to avoid an accident.
69. In my view the Claimant was negligent in failing to take action to slow or otherwise control the vehicle so as to avoid an accident at the onset of the sneezing attack, at the time when the Claimant remain in control of his body.
70. In my view the Claimant was negligent in continuing to drive when undergoing a sneezing attack.
Legislative framework and approach
71. Section 3.28 provides:
3.28 Cessation of statutory benefits after 26 weeks to injured adult persons with minor injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person's only injuries resulting from the motor accident were minor injuries.
(2) 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%.
72. Section 3.28(1)(a) contemplate two circumstances, where "the motor accident was caused wholly … by the fault of the person” or where "the motor accident was caused … mostly by the fault of the person”.
73. In the circumstances of “mostly at fault” within the terms of Section 3.28(1)(a) then consideration of contributory negligence is required within the terms of Section 3.38.
74. It is the Insurer who is seeking to assert the application of Section 3.28 and the onus rests on the Insurer.
75. Section 1.4 of the Act includes definitions, specifically "fault" means negligence or any other tort.
76. The reference in sections 3.11, 3.28 and 3.38 to “motor accidents” then enlivens Section 3B(2)(a) of the CLA which expressly provides that Divisions 1 to 4 and 8 of Part 1A of the CLA apply.
77. In a single vehicle accident, the question to be asked is whether the Claimant’s injuries were the result, either in whole or in part, of the Claimant’s own fault.
78. Having found above that after he started to sneeze he was able to raise his left arm up to sneeze into his elbow, I accepted that for some period after the Claimant started to sneeze that he did continue to have control of his body and was able to take independent action.
79. On the material available to me there is no reason why during the same time it took the claimant to raise his left arm up to sneeze into his elbow that he could not have taken other action to slow or otherwise control the vehicle so as to avoid an accident.
80. I accept that during the same time it took the claimant to raise his left arm up to sneeze into his elbow that he could not have taken other action to slow or otherwise control the vehicle so as to avoid an accident.
81. In that context the motor accident was caused wholly by the fault of the Claimant.
82. I find that within the terms of s 3.28 the motor accident was caused wholly by the fault of the person, the Claimant.
83. Having reached that conclusion there is no need to consider s 3.38.
Costs
84. I will allow the parties the opportunity to address the costs issues following the determination.
85. At this time, I make no order as to costs.
Legislation
86. In making my decision I have considered the following legislation and guidelines:
• the Act;
• Motor Accident Injuries Regulation 2017;
• Motor Accident Guidelines,
• the Road Rules 2014, and
• the Civil Liability Act 2002
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