BBK v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 537
•22 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
| Citation: | BBK v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 537 | |
| APPLICANT: | BBK | |
| RESPONDENT: | Insurance Australia Limited t/as NRMA Insurance | |
| Member: | Belinda Cassidy | |
| DATE OF DECISION: | 22 July 2022 | |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act) – statutory benefits claim; denial of liability for ongoing benefits under sections 3.11 and 3.28 of the 2017 Act on basis that accident caused wholly or mostly by his fault; accident occurred on a straight stretch of country road when claimant drove off the road at speed and the car rolled multiple times; claimant told police and insurer and member at the first teleconference that the accident occurred when he swerved to avoid a dog like animal on the road; claimant later resiled from that evidence and said the accident occurred because he had the intention of committing suicide; hospital notes obtained by the insurer confirmed this version of events; Held – the claimant was wholly at fault; while the claimant had been depressed; there was no evidence that he was delusional at the time and that he made the conscious if not impulsive decision to take his own life. | |
| determinations made: | 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. | |
STATEMENT OF REASONS
INTRODUCTION
1.Mr BBK was involved in a single vehicle motor accident on 15 July 2021.
2.The accident occurred after 11.00pm on a straight stretch of road about 10 kilometres outside of Dubbo on the Golden Highway.
3.The claimant’s vehicle left the road, rolled several times and the claimant was found 15 to 20 metres away from the car.
4.The claimant sustained serious injuries including a number of fractured ribs, a left pneumothorax, comminuted fracture of the left scapula, comminuted fracture of the tibial plateau, fractures of the L1/2 vertebra.
STATUTORY FRAMEWORK
5.BBK made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 against his own insurer, NRMA.
6.Statutory benefits (lost wages and treatment expenses) are paid regardless of whether anyone was at fault and even if the injured person is the person at fault (see section 3.1). However statutory benefits cease at the 26 week mark pursuant to sections 3.11 and 3.28 if:
(a) the injured person has minor injuries (not an issue here BBK injuries are serious injuries) or
(b) the accident was caused wholly or mostly by the fault of the injured person.
Claim Summary
7.BBK’s claim was made on 30 July 2021[1].
[1] The application for personal injury benefits is document R1 in the insurer’s bundle.
8.At first, NRMA accepted liability for the claim and has paid BBK some statutory benefits[2] however in a letter dated 3 March 2022, NRMA denied liability to pay BBK any statutory benefits after the first 26 weeks on the basis that the accident was caused wholly or mostly by his fault[3].
[2] The first liability notice is dated 4 October 2021 and is document R5 in the insurer’s bundle.
[3] The second liability notice is dated 3 March 2022 and is R6 in the insurer’s bundle.
9.BBK applied for an internal review of that decision and on 30 March 2022, NRMA affirmed their decision to deny liability for any ongoing benefits on the basis that the accident was caused by BBK speeding, swerving and ultimately losing control of the vehicle.
10.Dissatisfied with that decision, on 18 May 2022, BBK lodged with the Personal Injury Commission (the Commission) an application for miscellaneous claims assessment. The proceedings have been referred to me and I have conducted two tele-conferences in the matter.
REVIEW of the evidence
11.The claim form completed by BBK on 30 July 2021[4] declared by him to be true and correct says simply in answer to the question about how the accident occurred “I lost control [of] the vehicle and it went to the side of the road”.
[4] Document R2 in the insurer’s bundle of documents.
12.The Ambulance record suggests the accident occurred 10 kilometres outside of Dubbo and has this case description:
“[Called to] MVA high mechanism ejection. [On attendance patient] was located in the field ejected from car. [Patient] ?going 100 rolled 10 times? [Patient] was alert, combative …”
13.The police report dated 22 September 2021[5] created by Constable Brendon Austin of the Dubbo Police Station records:
[5] Document R3 in the insurer’s bundle of documents.
(a) the accident occurred on the Golden Highway (which runs between Dubbo and the Hunter Valley);
(b) the location of the accident was 2000 metres east of Dubbo;
(c) the road was a main road, straight and level;
(d) the weather was fine and the road was sealed and dry;
(e) the time of the accident was about 11.30pm and it was dark;
(f) the speed limit was 100 kms per hour;
(g) only one vehicle was involved, the claimant’s 2016, Mazda CX3;
(h) the vehicle was heading east at a pre-crash speed of 100 kms per hour;
(i) the car left the roadway and rolled several times;
(j) the car was written off;
(k) BBK was the driver with 1 year and 4 months driving experience, and
(l) the driver was ejected from the vehicle, his seat belt was worn and airbags deployed.
14.NRMA instructed Quantumcorp Investigators to make enquiries about the accident[6] which they did by visiting the scene, interviewing the claimant and interviewing the investigating police officer.
[6] Their report is dated 31 January 2022 and is document R7 in the insurer’s bundle.
15.The claimant’s statement to the investigators is dated 18 October 2021[7] and the relevant facts from that statement are as follows:
(a) the claimant had his Mazda vehicle for 5 years and it was a 2016 model.
(b) he was driving to Newcastle to visit a friend for 3 or 4 days;
(c) he left home at 11:00 pm because “I like travelling at night, this is just my preference”;
(d) he had his lights on low beam because “I do not use high beam lights when driving at night … I only use high beam when the road is curved”;
(e) he saw an animal on the left crossing the road. He did not know what sort of animal but it was the “size of a big dog or something”;
(f) he steered left a little remaining in his lane then steered back into the middle of the lane but suddenly the car became unstable. His car continued to travel right so he applied the brakes “a little bit hard” and the vehicle moved left then went off the road completely, and
(g) he has no memory of what happened next although he woke up in ambulance and then in Dubbo Base a few hours later.
[7] Page 39 of the insurer’s bundle
16.The police interviewed BBK on 9 November 2021 (after NRMA’s investigator interviewed him) and that interview is contained within the statement taken from now Senior Constable Brendon Austin by NRMA’s investigator[8]. The police had to wait until BBK was well enough to be interviewed. The interview appears to have been conducted in person and recorded on the audio and film recording equipment worn by the attending police officer (who was apparently no officer Austin). Senior Constable Austin says:
“So he was very vague – because I’ve watched – I obviously watched the recording because I – I wasn’t involved in that particular part. Very vague in his answers. In summary he states he lost control of the vehicle due to [attempting] a swerve to miss an obstacle which he believed may have been a log. However, he couldn’t confirm this. He stated he was travelling at around 100 kilometres per hour and wearing a seatbelt at the time of the crash.”
[8] Page 56 of the insurer’s bundle.
17.There is clearly some confusion over the word “log” or “dog” but at the first teleconference, NRMA’s representative conceded this was likely to have been a language issue as English is not BBK’ first language.
18.During the teleconference I asked BBK to tell me about the accident and a summary of the evidence is set out below:
(a) he said he was driving along the Golden Highway when he saw an object crossing the road. He could not say what it was, but it was crossing quickly and it happened in seconds and he tried not to crash;
(b) he said he was travelling at the speed limit and drove to go around the animal then the car swung suddenly and shifted from side to side and then he did not remember anything. He said he knew the car had flipped because people have told him, but he does not remember it;
(c) BBK said he was born in Egypt but has been in Australia for 14 years. He had been in Dubbo for two years and before that he was in Melbourne and before that Sydney;
(d) he said he told the police that he lost control of the car. When asked whether he told the police there was a log on the road he asked, “what is a log”? He said the police were not with him very long and he did tell them about an animal the size of a dog. He knows what a kangaroo is but said it was not a kangaroo and it was not as big as a sheep or a horse. He said it could have been the size of a sheep but it was not a sheep. He does not know what it was because it was running quickly;
(e) BBK said he had his lights on low beam because he thought it was against the law to have his lights on high beam because of how it affects other drivers. He said unless he is going around curves he usually has his high beam off;
(f) he said he had not had a lot of driving experience in the country. He said he had driven to Cessnock once before to see his friends and he drove during the day;
(g) he said he had the Mazda 3 for five years, and that he had been driving in Australia since 2008.
(h) BBK said he has a clear driving history and that visibility was not a problem. He said he could clearly see the road in front of him with the low beam lights on;
(i) BBK agreed that there was a difference between low and high beam and that “you get more vision with high beam” but he did not know the difference in terms of distance and could not say whether, if he had his lights on high beam he would have seen the animal crossing the road sooner, and
(j) BBK said he was driving at the speed limit and had control of the car and was not going too fast and could not say whether, if he had not been driving as fast, with his lights on low beam he could have avoided the accident.
Procedural matters
First teleconference
19.The first teleconference took place on 15 June 2022 and was facilitated by the Commission’s Streamlined teleconference service. BBK was asked whether he wanted to consult with a lawyer and he said he did not. At the end of the teleconference, I indicated I would decide the matter on the documentary evidence provided to me and the oral evidence from BBK and I would issue a decision on or before 24 June 2022. I also indicated to the parties that I wanted some additional information about stopping distances of motor vehicles and the visibility of high beam versus low beam.
20.On 20 June 2022 the Commission received a number of messages from the insurer:
(a) 10.49 am - a response from the insurer to my two queries about stopping distances and the visibility distance of high versus low beam;
(b) 14.32 pm – an urgent message attaching document AD1 – an email exchange between BBK and NRMA;
(c) 14.52 pm – copies of the notes from Dubbo hospital document AD2, and
(d) 15.35 pm – further message NRMA has spoken with claimant who wants to seek legal advice.
21.In his email to NRMA’s representative dated 20 June 2022[9], BBK says this:
“Alas I would like to add another information it might help in assenting the cause of the accident. I was in fault and the cause of the accident. Sorry I didn’t say the truth. The reason for the accident was my medical condition. I was very depressed, and I took the decision to end my life (suicide attempt). I apologise to Australia for all the trouble I caused. Please assess and add this reason for the claim and let me know with the outcome.”
[9] Contained within document AD1.
22.The Dubbo Hospital discharge summary dated 21 July 2021[10] says:
“Mr BBK, a 39 year old male who was admitted to Dubbo Base Hospital following an MVA (attempted suicide) resulting in multiple injuries and admission to ICU … Reviewed by the psychiatry CL at Dubbo Base Hospital – still suicidal, recommending linking in with Psychiatry at RNSH.”
[10] Within the bundle of hospital documents that are AD2.
23.There is further detail about the state of BBK’ mental health before the accident including his pre-accident history contained within the hospital discharge summary. There is additional evidence about the accident the hospital notes suggest BBK may have been driving at more than 100 kms per hour.
24.BBK reported having felt depressed for over two years, that the depression had got worse and that he decided to take his own life 30 minutes before he drove off the road. He did not leave a note or take other steps to get his affairs in order.
25.There is a note that he had been living with a housemate who was a GP had who advised the treatment team the claimant had been “acutely psychotic” for the last few days although there were no hints before the accident about what was to happen, and BBK had not expressed thoughts of self-harm or suicide. The records note the claimant denied hallucinations.
26.Apparently, BBK was a doctor in Egypt and had lost hope of becoming reaccredited as a doctor since migrating to Australia.
Second preliminary conference
27.Because BBK wished to obtain legal advice, and in the light of the additional material provided by NRMA, the proceedings were listed for a further preliminary conference on 6 July 2022.
28.BBK was advised that if he had a solicitor acting for him that solicitor should be in attendance. BBK was invited to discuss with his solicitor and consider withdrawing the application that he lodged with the Commission.
29.A message was sent to BBK containing a link to the decision ACV v The Nominal Defendant [2022] NSWPIC 64 with the recommendation that BBK consider that decision and provide it to his solicitor if he engaged one.
30.The second teleconference was scheduled for 9.00am on 6 July 2022. The teleconference took place by a Microsoft teams booking made by an officer of the Commission. That officer assured me that my report following the first preliminary conference was shared with the claimant, that the teleconference details were sent to him by email and that an attempt was made to contact BBK by telephone, but he did not answer.
31.At 9.00am NRMA’s representative was available but there was no attendance by BBK or anyone acting for him.
32.At 9.10am after conducting a brief discussion with NRMA’s representative the teleconference concluded. NRMA’s representative advised that there was no record on her file of NRMA having received any further communication from BBK or anyone else on his behalf. I was advised by an officer of the Commission that no contact has been received from BBK or anyone else on his behalf since the last teleconference.
33.In the absence of BBK and at the request of the insurer, I determined I will proceed with the assessment and I drafted these reasons.
34.On 7 July 2022, the Commission received a message from BBK apologising for his non-attendance and advising that he had been in hospital and he wished to have a further teleconference. I asked an officer of the Commission to forward to BBK and the insurer my draft reasons and ask BBK if he wished to proceed with the application or discontinue the proceedings. If he wished to proceed with the application I requested he consider the draft reasons and the evidence he would need to address the issue of whether he was wholly or mostly at fault.
Third preliminary conference
35.On 22 July 2022 I held a third teleconference.
36.BBK confirmed he had received my draft reasons and had read them. He said he wanted to maintain the application. He said he did not have a lawyer. He asked me whether, based on his condition and the hospital notes, he was mostly at fault. I said that if he had no additional evidence to put before me then I had no reason to change the views expressed in my draft reasons. I asked him if he had anything extra that he wished to say or anything he wished to say about my reasons that might change my mind and he said he did not.
37.I then indicated I would decide the matter and issue my reasons with minor adjustments to reflect the recent events.
is BBK wholly or mostly at fault?
38.Sections 3.11(1) and 3.28(1) provide that if BBK’ motor accident was caused wholly or mostly by his fault then his statutory benefits must cease 26 weeks after the accident.
39.BBK resiles from the statements he made to the police and NRMA’s investigator that the accident occurred because he swerved to avoid a dog-like animal on the road and therefore lost control of his vehicle.
40.BBK now says the accident occurred because, due to his mental state, he wanted to end his life and so he drove at speed and deliberately drove off the road.
41.While I have the discharge summary from Dubbo Hospital, there is no other treating medical evidence before me to detail the precise nature of the claimant’s mental illness or to explain the action taken by the claimant. There is, in particular, no evidence from the claimant’s treating doctors and no medico-legal evidence like there was before me in the case of ACV v The Nominal Defendant. In that case there was significant evidence that ACV was in an acute and severe delusional state at the time of the accident due in part to longstanding psychiatric issues stemming from childhood abuse. The finding in that case was that ACV was not wholly at fault because he was having significant delusional hallucinations of being chased by non-human beings and he thought that crashing the car was a means of escape.
42.While it is clear BBK was depressed, the evidence from the hospital notes and from BBK was that he had made the decision to end his own life most likely on on an impulse. The facts of BBK’ case are very different from those of ACV.
CONLUSION
43.I am not satisfied there was an animal or object on the road which caused BBK to swerve and lose control. There was no other driver and there is no evidence of any other person or thing which caused his accident.
44.In my view, on the information currently before me, BBK’ accident was caused wholly by his fault, that is his decision to drive at speed and off the road in an attempt take his own life.
45.Therefore, in my view, the legislation operates to terminate BBK’ statutory benefits 26 weeks after the car accident.
46.BBK has been (eventually) honest with NRMA and now with me. He has had the benefit of 26 weeks of statutory benefits under the NSW scheme of motor accident compensation and he can now access Commonwealth benefits for treatment and income support. I hope BBK seeks out that assistance and recovers both his physical and psychological health in time.
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