BDN v Allianz Australia Insurance Limited

[2023] NSWPIC 57

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

BDN v Allianz Australia Insurance Limited [2023] NSWPIC 57

Claimant:

BDN

insurer:

Allianz Australia Insurance Limited

Member:

Gary Patterson

DATE OF DECISION:

16 January 2023

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; self-represented claimant; motor accident not caused by the fault of another person; motor accident caused wholly by the fault of the injured person (claimant); Held – no statutory benefits payable from six months after motor accident; no order as to costs.

determinations made:

CERTIFICATE OF DETERMINATION

My determination of the miscellaneous claims assessment matter is as follows:

1.     The motor accident was not caused by the fault of another person.

2.     The motor accident was caused wholly by the fault of the injured person (“claimant”).

3.     No statutory benefits are payable to the claimant after 8 December 2022.

4.     This determination takes effect on 16 January 2023.

5.     No order as to costs.

STATEMENT OF REASONS –
MISCELLANEOUS CLAIMS ASSESSMENT DETERMINATION

Issued in accordance with s 7.42 of the Motor Accident Injuries Act 2017

BACKGROUND

This determination relates to a miscellaneous claim under paragraphs 3(d) and (e) of Schedule 2 to the Motor Accident Injuries Act 2017 (“the Act”).

1. This assessment relates to a dispute about a miscellaneous claims assessment matter.

2. Miscellaneous claims assessment matters are defined in s 7.1 of the Act as a matter declared by Schedule 2 of the Act to be a miscellaneous claims assessment matter.

3. Miscellaneous claims assessment matters arise for determination under Part 7, Subdivision 3 s 7.42 of the Act.

4. Statutory benefits are defined by s 1.4 of the Act to mean statutory benefits payable under Part 3 of the Act.

5. Part 10, Division 10.2, paragraph 96 of the Personal Injury Commission Rules governs miscellaneous claims assessments.

ON THE PAPERS

1. Section 52(3) of the 2020 Act provides:

   “(3)If the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Having regard to Procedural Direction PIC2, the documents that are before me and the parties’ acceptance that the dispute can be determined on the basis of those documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing. It follows this is the appropriate course in the circumstances.

INTRODUCTION

1. BDN (“the claimant”) is a 53 years old female who suffered injuries on 9 June 2022 when she was travelling in a bus at Castle Hill. The claimant was standing behind the driver near the luggage compartment and an empty seat. The claimant was thrown to the floor when the bus came to a sudden halt. The claimant chose to stand, instead of using the vacant seat, for social distancing reasons.

2. The insurer says that the claimant was wholly, or mostly, at fault and that any injuries relevantly were threshold injuries within the meaning of the Act.

3. The insurer’s decisions that the claimant was wholly at fault for the motor accident, and that her injuries relevantly are minor injuries, as then defined in the Act, were affirmed on 21 October 2022 upon internal review.

4. The insurer says that the closed circuit television footage (“CCTV”) taken in the bus sufficiently establishes that the claimant was wholly and/or mostly at fault.

5. Neither party wish to provide any further material for my consideration. The parties agreed that I should determine the miscellaneous claim assessment matter on the papers.

6. I have considered the claimant’s application for personal injury benefits dated 15 June 2022, the insurer’s Reply for Threshold Injury and Most at Fault disputes, the insurer’s submissions and the insurer’s Certificate of Determination – Internal Review, both dated 21 October last.

7. The claimant has made no submissions and provided minimal medical evidence in support of the claim.

LEGISLATION

1. In making my decision, I have considered the following legislation and statutory instruments:

   (a) Part 7, Division 7.4 of the Act.

   (b) Schedule 2 of the Act.

   (c) Part 10, Division 10.2 of the Personal Injury Commission Rules.

   (d)   Procedural Direction PIC2 – Determination on the papers.

   (e)   Procedural Direction MA7 – Claims Disputes.

DETERMINATION

1. I accept the insurer’s submission that the claimant has not provided any medical evidence to establish that any physical or psychological injury is a non-threshold injury for the purposes of the Act. I also accept there is no evidence of a physical injury satisfying the diagnosis for a non-minor injury as required by the Act and the Motor Accident Guidelines.

2. In accepting the insurer’s submissions, I adopt the reasons stated at length by the insurer’s decision-maker, to which the claimant has chosen not to respond. There is no need for me to repeat those reasons. It is sufficient for me to observe that nothing in the medical material provided by the claimant establishes that her physical injuries were not pre-existing and/or of a soft tissue nature.

3. There is a report dated 6 November 2022 by the treating psychologist, Alfred De Rodillard, which refers to “depressive mood” and “some post-traumatic stress disorder symptoms, including pain in her left shoulder, right thigh and hip”. I accept the insurer’s submission that this does not constitute a diagnosis and that psychological injuries were not listed in the Application for personal injury benefits.

4. Having reviewed the information provided by the bus driver as to the circumstances of the accident, the CCTV footage and the information provided by the claimant, I am satisfied that the claimant was wholly at fault for the accident. That is because the CCTV footage, immediately prior to the accident, depicts the claimant’s standing next to an empty seat while looking down and using her mobile phone. The claimant was not holding onto any of the available handrails or other supports.

5. While I accept that it may have been reasonable for the claimant not to occupy the vacant seat, for social distancing reasons, that does not excuse her failure to keep a firm hold.

6. I accept that a reasonable person, in the position of the claimant, would have taken the available seat and/or would have held the handrail, or other support, for her own safety.

7. As there is no evidence, nor any submission, that the bus driver was negligent in applying the brake, when he observed an approaching vehicle, I am satisfied that he was not in any way responsible for the motor accident.

8. That being the case, I am satisfied that the claimant relevantly was wholly responsible for the accident. It follows that the claimant has no entitlement to statutory benefits beyond 8 December 2022.

9. As the claimant was self-represented, there will be no order for costs.