BIJ v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	BIJ v QBE Insurance (Australia) Limited [2022] NSWPICMR 75
ClaimanT:	BIJ
Insurer:	QBE Insurance (Australia) Limited
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	16 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017 (2017 Act); whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (2002 Act) (as applied by section 3.39 of the 2017 Act; Limitation on statutory benefits in relation to certain mental harm); section 30 of the 2002 Act; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
Determinations made:	Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by s 3.39 of the Motor Accident Injuries Act 2017 (the MAI Act) (Limitation on statutory benefits in relation to certain mental harm)) and is therefore a merit review matter under Schedule 2(1)(t) of the MAI Act. 1. The reviewable decision is affirmed. The claimant is entitled to regulated costs up to a maximum of 16 monetary units.

STATEMENT OF REASONS

INTRODUCTION

A dispute has arisen between BIJ (the claimant) and the insurer about the claimant’s entitlement to payment of weekly benefits under Division 3.3 of the MAI Act.
The claimant’s grandson, BKE (the victim), was injured in a motor accident at approximately 7.50pm on 1 February 2020.
The claimant made a claim for statutory benefits under the MAI Act arising from pure mental harm suffered by the claimant in connection with the victim’s motor accident.
On 10 June 2022 the insurer determined the claimant was not entitled to statutory benefits as she was not a person who is eligible to bring a claim for pure mental harm under s 30 of the Civil Liability Act2002 (the CLA).
On 8 July 2022 the claimant requested an internal review of the insurer’s decision dated

10 June 2022.
According to the claimant, the insurer has failed to conduct an internal review in relation to their 10 June 2022 decision within the required time. Accordingly, the claimant now seeks a merit review of the insurer’s decision dated 10 June 2022.

SUBMISSIONS

The claimant submits:
(a) she is an eligible person under s 30 of the CLA on the basis she is either a close member of the family of the victim and/or she witnessed, at the scene, the victim being put in peril;
(b) she meets the definition of “close member of the family” of the victim under s 30 on the basis she is the grandmother and has “parental responsibility” for the victim, and
(c) she witnessed the victim being put in peril on the basis she arrived at the scene at a point in time when her grandson had been loaded into an ambulance but had not yet been taken to a place of safety, being a hospital.
The insurer submits:
(a) the claimant does not fall within the definition of “close member of the family” of the victim, as grandparent is excluded under s 30 of the CLA and the circumstances in which the claimant provided care to the victim do not amount to “parental responsibility” for the purpose of s 30, and
(b) the claimant did not witness the victim being put in peril, as the harm had already occurred and by the time the claimant arrived at the scene the victim had already been taken to a place of safety (the ambulance) and was under medical care.

REASONS

Facts

The claim arises out of incredibly tragic circumstances for the claimant and her family in which, among other young persons, the victim was seriously injured in a motor accident.
The claimant did not live with the victim. The victim lived with his biological parents. The victim’s mother is the claimant’s daughter. From time to time in the period from 2012 until the date of the motor accident the victim’s parents would drop the victim off at the claimant’s home to be cared for whilst the parents worked. As at the date of the accident the victim was primary school aged. Accordingly, it can be inferred that such care was likely limited to before and/or after school care and/or school holiday care.
Whilst the victim was in her care the claimant allegedly cooked for the victim, cleaned up after him, paid for ad-hoc necessities and took him to and from school. However, the claimant is the wife of BHD, who also makes a claim under s 30 of the CLA. The claimant’s submissions are identical to submissions lodged on behalf of BHD. Accordingly, it is unclear the extent to which the claimant carried out any of these duties or the extent to which they were carried out by her husband. There is no evidence from the claimant.
At approximately 7.50pm the victim along with six other children (all of whom were siblings or cousins) were struck on a footpath by a driver under the influence of alcohol who lost control of his vehicle and mounted the footpath.
Four of the children died at the scene.
The victim sustained a serious head injury upon impact with the vehicle.
The subject vehicle came to a stop approximately 80 to 100 m away from the scene of the accident[1].
[1] Police report.
The police arrived on scene within minutes of the accident and the driver was arrested and taken into police custody[2].
[2] Police report.
An ambulance was dispatched at 7.54pm and arrived on scene by 8.00pm. The victim commenced receiving primary care from paramedics at 8.00pm[3].
[3] Ambulance report.
By 8.16pm the victim had been loaded into the ambulance and paramedics had arranged to depart the scene of the accident at 8.16pm for transit to Westmead Hospital. However, paramedics were alerted that “aero med” (that is, an emergency medical doctor flown to the scene) was due to arrive within a few minutes. Accordingly, a decision was made to remain on scene for the aero-medical doctor to arrive.[4]
[4] Ambulance report.
The aero-medical doctor arrived, and paramedics handed care of the victim over to the doctor. The victim was then transported by road ambulance to Westmead Hospital at

8.55 pm and was in triage at Westmead Hospital at 9.00pm.[5]
[5] Ambulance report.
The claimant’s son-in-law received a call shortly after the accident occurred, left his nearby home and ran 1.9 km to the accident scene. Assuming the call was received as early as 7.54pm (based on the apparent time of arrival of police on scene and the time the ambulance was dispatched) and a running speed of 12 kph this would place the claimant’s son-in-law at the scene at approximately 8.05pm, although it was likely later as it is unlikely police would have been able to obtain the phone number of the claimant’s son-in-law and make that call upon the first moment they arrived on scene.
The claimant’s husband received a telephone call some time thereafter advising of the accident, including that four of the children were deceased. The claimant was with her husband in the Sydney CBD when her husband received this telephone call.
Google maps shows the distance from Sydney CBD to the accident scene, taking the shortest route, as approximately 30km and driving time in non-peak hour traffic as approximately 35 minutes. Assuming the claimant was already in a vehicle or able to immediately get into their vehicle or into a taxi, Uber or other ride share and travel immediately to the accident scene she would have arrived at the scene not before 8.40pm, assuming her son-in-law called the claimant’s husband immediately upon arriving at the scene without taking time to first assess the scene and speak with police before calling. However, the claimant was attending a birthday party in the Sydney CBD and accordingly, she would have also needed time to leave the function with her husband, exit onto the street and either hail a taxi or arrange an Uber or similar pickup or alternatively, travel on foot to the location of their parked vehicle before being able to commence their journey by car to the accident scene. Even if exit onto the street and access to a vehicle (whether the claimant’s or her husband’s vehicle or a taxi or Uber) was relatively quick, this would likely take at least three to five minutes. Accordingly, realistically the claimant could not have arrived at the accident scene prior to 8.43pm to 8.45pm.
Accordingly, by the time the claimant arrived at the scene, the victim had already been loaded into the ambulance, was ready for transport to hospital and was under the care of a medical doctor, assisted by paramedics based on the evidence that the victim was loaded into the ambulance by 8.16pm and the aero-medical doctor arrived within minutes of that time that is, by around 8.20pm.[6]
[6] The ambulance report records that as at 8.16pm the aero-medical doctor was due to arrive “in a few minutes” which puts the arrival time as being between 8.16pm and 8.20pm.

Legislation

The claimant’s injury is limited to pure mental harm.
Pursuant to s 3.39 of the MAI Act Part 3 (Mental harm) of the CLA applies to payment of statutory benefits under Part 3 of the MAI Act in connection with an injury in the same way as it applies to the award of damages in connection with an injury.
Under Part 3, s 30(2) of the CLA the claimant is not entitled to statutory benefits for pure mental harm unless:
(a) she witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) she is a close member of the family of the victim.
Pursuant to s 30(5) of the CLA "close member of the family" of a victim for the purpose of subsection 2 means:
(a)    a parent of the victim or other person with parental responsibility for the victim, or
(b)    the spouse or partner of the victim, or
(c)    a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d)    a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.
Grandparent is not listed in s 30(5) and accordingly, the claimant is prima facie excluded as a close member of the family for the purpose of s 30 of the CLA. The claimant contends, however, that she falls into the category of “other person with parental responsibility” for the victim in s 30(5)(a).
In the alternative, the claimant contends she witnessed, at the scene, the victim being put in peril.
There does not appear to be any dispute that the claimant only needs to meet one of the two criteria under s 30(2) of the CLA and not both.
However, for completeness, the wording of s 30(2) is clearly disjunctive using the word “or” and accordingly, the claimant only needs to fall under one of s 30(2)(a) or (b) and does not need to satisfy both.
There does not seem to be any dispute that the claimant did not witness, at the scene of the accident, the victim being killed or injured.
Accordingly, the issue for determination is:
(a) whether the claimant has parental responsibility for the victim and therefore is a close member of the family for the purpose of s 30 of the CLA, or
(b) whether the claimant witnessed, at the scene of the accident, the victim being put in peril.

Is the claimant a close member of the family under s 30?

The claimant relies on s 4 of the Law Reform (Miscellaneous) Provisions Act 1944 (the LRMP Act) which previously provided an extension of liability to a “member of the family of [the victim] killed, injured or put in peril within the sight or hearing of such member of the family”. “Member of the family” was defined to include a grandparent.
However, that provision has been repealed. As it is no longer in force it has no application to this matter.
The claimant also relies on the common law decision of Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 (Gifford) in which McHugh J said:
“Those who have a close and loving relationship with a person who is killed or injured often suffer a psychiatric injury on learning of that injury or death, or on observing the suffering of that person… They are among the persons who are likely to be so closely and are directly affected by the wrongdoer’s conduct that the person ought reasonably to have taken them in mind when considering if it is exposing the victim to a risk of harm” and that “it is the closeness and affection of the relationship – rather than the legal status of the relationship – which is relevant in determining whether a duty is owed to the person suffering physical harm…”
However, Gifford was determined in circumstances where at the time to which the Gifford appeal relates, s 4 of the LRMP Act was in force. It was noted in the decision that s 4 of the LRMP Act has subsequently been “overtaken” by the CLA. As the Gifford matter was determined under s 4 of the LRMP Act, which has since been overtaken by the CLA, and the observations in Gifford pertain to a statutory interpretation of s 4 of the LRMP Act, Gifford has little application to this merit review, which is to be determined under the CLA and not the repealed provisions of the LRMP Act.
Further, in so far as the claimant relies on common law principles, I am of the view that in respect of claims under the MAI Act the CLA displaces the common law because:
(a) section 3.39 of the MAI Act provides:
“That in respect of statutory benefits payable in relation to mental harm, Part 3 (Mental Harm) of the CLA applies to the payment of statutory benefits ... in connection with an injury in the same way it applies to the award of damages in connection with an injury subject to any necessary modifications prescribed by the Regulations.”
(b) the CLA displaces the common law in respect of payment of statutory motor accidents by operation of s 3.39 and Part 3 of the CLA.
The above conclusion is supported by decisions dealing with the provisions of the CLA such as the decision of the New South Wales Court of Appeal in Harrison v Melhem NSW Law Reports [2008] 380 (Harrison). Although the Court was dealing with s 15 of the CLA, the principles adopted in that decision are equally applicable to the operation of s 3.39 of the MAI Act and Part 3 of the CLA.
Reference is made in Harrison to a passage in Gifford where McHugh J said at [36]:
“Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend ‘ordinary’ common law rights, the presumption of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.”
At [11] in Harrison, Spigelman J said:
“For these reasons I do not find the presumptions against abrogation of common law doctrines or of common law rights to be of any assistance in resolving the proper interpretation of s15(3) of the CLA.”
The CLA is clear and unambiguous in its application. Section 30 establishes a clear limitation on those persons who can bring a claim for pure mental harm. Accordingly, if the claimant does not fall within one of the specified categories of persons under s 30 of the CLA she is not entitled to payment of statutory benefits under Part 3 of the MAI Act.
The claimant submits grandparent is defined as a parent and as such falls within the scope of a close family member as required by s 30. The claimant does not provide any reference in support of the submission that “grandparent is defined as a parent” for the purpose of s 30. The submission is erroneous, as s 30 does not define grandparent as a parent.
Grandparent is not expressly included in the categories of persons defined in s 30 to be close members of the family of a victim. Accordingly, the only basis upon which the claimant is a close member of the family for the purpose of s 30 is if she is a person who has “parental responsibility” for the victim.
Relevant to this question is the fact the victim lives with his parents who have parental responsibility for him. It is understood there is no order of the Family Court giving parental responsibility to the claimant in respect of the victim.
“Parental responsibility” is not defined in the CLA. The term “parental responsibility” in the case of a child is, however, defined in s 61B of the Family Law Act 1975 (Cth) (the FLA) to mean:
“… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”
[emphasis added]
Australia’s family law system presumes that the parents of a child have equal shared parental responsibility. Australia’s family law system does not presume grandparents or any other family member or other person living with the child and/or providing childcare from time to time have parental responsibility.
It is well documented and understood in family law that parental responsibility means that a person has the responsibility to make both daily decisions such as what the child eats or wears and decisions about major long term issues such as:
(a)    cultural matters;
(b)    medical treatment;
(c)    the child’s name;
(d)    religious upbringing;
(e)    cultural upbringing;
(f)    health matters;
(g)    where the child will live, and
(h)    education issues.
It is inherent in the wording of the meaning of the phrase “parental responsibility” in the FLA that it means “all” the duties and not just some of the duties. If you do not have “all” of the duties, both day to day and long term, you do not have parental responsibility under the FLA.
Having responsibility for “all” decisions made for the child until they reach 18 years of age also necessarily implies a permanent or continuing situation, where the person with parental responsibility is responsible for both daily and long term decisions on an ongoing basis and not on a transient basis such as whilst a person is caring for a child on behalf of the parent. If parental responsibility included transient situations where decisions are made during a transient care period then the law would need to recognise persons such as nannies, au pairs, babysitters and other childcare providers as having parental responsibility, which is clearly not the case.
Further, when a person who is not the parent or a person with parental responsibility under a Family Court order has responsibility for a child whilst the child is in their care they do not have “all the duties, powers, responsibilities and authority which, by law” the parents have in relation to the child. The parents remain responsible, by law, for the child to make all decisions, including daily decisions such as whether the child is to be cared for by the other person and for how long, what the child is to eat whilst being cared for by the other person, whether the child is to be taken to school by the other person and so on.
Accordingly, when the victim is in the claimant’s care the claimant is not the ultimate decision maker in relation to the needs of the child during that time. Rather, the parents decide when they will place the child in her care and for how long, whether the claimant is to transport the child to and/or from school, whether the claimant may choose what and when to feed the child or whether the child is to be given food specified by the parents and/or is to be given food at a time or times specified by the parents. The parents always retain parental responsibility, and the claimant is simply implementing the decisions made by the parents as the persons with parental responsibility. The claimant is of course responsible for the child whilst the child is in her care, but she does not have “parental responsibility”. Responsibility can be temporarily delegated to the claimant, but parental responsibility cannot.

Under Australian family law it is the parents that have parental responsibility until and unless there is an order of the Family Court, which gives parental responsibility to another person.
In the circumstances of the claimant, where the parents have parental responsibility in the eyes of the law, the claimant remains under the direction of the parents in relation to the decisions she may make for the victim.
Whilst “parental responsibility” is not defined in the CLA the phrase is contained within that legislation and therefore should be given its legal definition, where one exits.
Independent of the FLA, the legal definition of “parental responsibility” is generally accepted as meaning all (not some) of the duties, powers responsibility and authority that parents have in relation to their child. The ordinary legal definition is consistent with the definition of parental responsibility in the FLA.
Given the phrase “parental responsibility” is contained in statute (the CLA) it must be assumed that Parliament intended the phrase to have its ordinary legal meaning, which is one that is consistent with the Commonwealth position under the FLA.
The legal definition of “parental responsibility” is also consistent with the ordinary meaning of the phrase “parental responsibility”, as follows:
(a)    the ordinary meaning of “parent” is a person’s father or mother;
(b)    the adjective “parental” is used to describe something that relates to a parent or parents (that is, a child’s father or mother) in general regarding a particular child, and
(c)    the ordinary meaning of having “responsibility” for someone is that it is your job or duty to deal with them and to take decisions relating to them[7].
[7] See for example Collins English dictionary for the ordinary meaning of these words.
Accordingly, in the context of a child the ordinary meaning of the phrase “parental responsibility” is having the job or duty of the parent of the child to deal with the child and take decisions relating to the child. This implies a permanent, continuing state and not a temporary one and implies that the person with parental responsibility does not need permission or authorisation from any other person in taking long term decisions. That is, the person with parental responsibility has a permanent duty to take decisions relating to the child on a continuing basis, until they reach 18 years of age and is authorised at law to do so.
The claimant does not have a permanent duty to take decisions relating to the victim on a continuing basis until the victim is 18 years of age and as a matter of law, she requires the parents’ permission and/or authority in relation to many matters of parental responsibility. For example, the claimant cannot apply for a passport on behalf of the victim. She cannot give consent to medical treatment on behalf of the victim or enrol the victim in school. She cannot take the victim overseas without the parents’ permission. These are all things that the person with parental responsibility is authorised to do. In this case, the victim’s parents have this authority. As the claimant does not have an ongoing authority to do any of these things, she does not have parental responsibility.
A person may have responsibility for a child on a temporary basis such as a grandparent, nanny or babysitter, whilst the child is temporarily in their care, but that responsibility is transient and only persists for the closed period in which the child is in their care. Having responsibility for a child during times of care is not the same as “parental” responsibility.
Accordingly, the ordinary meaning of the phrase “parental responsibility” for a child as distinct from simply having responsibility for a child at certain times, is that the person has taken over all responsibility from the parents to be legally responsible for dealing with the child and is legally able, and required by law, to take decisions (both daily and long term) for the child on a permanent, continuing basis, until such time as the child reaches the age of 18. Accordingly, the ordinary meaning of “parental responsibility” accords with the accepted legal definition and the definition under the FLA.
If a person who is not the child’s parent has parental responsibility, it follows that the parents no longer have parental responsibility as their parental responsibility has been displaced by the other person. Under Australian Law a parent of a child can only be displaced as the person with parental responsibility if there is an order of the Family Court recognising another person, who is not the parent, as having parental responsibility for the child.
Under Australian Law a grandparent does not have parental responsibility unless by order of the Family Court. Even if the FLA does not apply to this matter, if the claimant were recognised as a person with parental responsibility under s 30 of the CLA then the claimant is being legally recognised as a person with parental responsibility. This would cause tension between the CLA and the FLA, as if a person who is not the parent is recognised as having parental responsibility in the eyes of the law it follows that the parents no longer have parental responsibility as they have been displaced by the claimant.
That tension is resolved by deferring to the FLA, which is Commonwealth legislation. The CLA is State legislation. Where there is an inconsistency between Commonwealth and State legislation the Commonwealth legislation prevails.
In any event, I do not consider there is any inconsistency between the ordinary meaning of “parental responsibility” as outlined above and the definition of the phrase in the FLA or the legal definition independent of the FLA.
There is no evidence that the parents of the victim do not have parental responsibility. It can be inferred from the known facts that the claimant only provided care to the victim from time to time at the request of the parents. This arrangement does not transfer parental responsibility from the parents to the claimant. Under Australian law the parents continue to have parental responsibility even when they place their child into the care of another. The decision to place the victim into the care of the claimant is simply one of the decisions the parents make as part of their parental responsibility.
The provision of childcare from time to time by the claimant, including all the usual duties of same such as cooking, cleaning, driving to or from school, purchasing incidental items for the child and the like does not give the claimant parental responsibility under the ordinary meaning of the phrase or the legal definition. While the claimant is responsible for the victim whenever the parents put him into the claimant’s care, having transient responsibility until the child is collected by the parents is not the same as having “parental responsibility” which requires the claimant to assume legal responsibility for all the duties of a parent and to be legally able to carry out those duties. As noted, the claimant is not legally able to carry out many of the duties of a parent, regardless of caring for the victim when requested to do so by the parents.
In so far as the claimant’s responsibility arising from taking care of the victim might be considered taking over from the parents, it is transient. It persists only for the discreet period in which the child is in the care of the claimant. There is no continuing duty, and the responsibility is limited to daily care during the discreet care period. The claimant cannot make long term decisions. She cannot legally exercise all the functions of a parent. The moment the child is collected by their parent at the end of the day or at the end of the care period arranged, the claimant’s responsibility for the child’s safety and wellbeing ceases. There is no further responsibility unless and until the parents decide to place the child into her temporary care again.
If persons who provided childcare on the basis contended by the claimant were also considered to have “parental responsibility” then s 30 of the CLA would need to recognise that nannies, au pairs, babysitters and the like also fall within the meaning of “close members of the family”. I doubt this is the intention of legislation that is intended to be more restrictive than the common law. Further, the wording in s 30 is “a parent of the victim or other person with parental responsibility for the victim”. The construction of this sentence suggests an intention that the person who is a “close member of the family” under this subsection is either the parent, or where a parent is displaced by another person having parental responsibility, that other person. The wording of the subclause is not “parent and any other person…” it is “or”, which suggests it is either the parent or the person, in place of the parent, that has parental responsibility at law rather than any other person who may be involved in a child’s life through the provision of care, love, guidance and/or nurturing of the child.
The claimant submits that by providing care for her grandchild during times the parents are working that the claimant is “in loco parentis”. In loco parentis is Latin for “in the place of a parent” and is a legal doctrine referring to the legal responsibility of a person or organization to take on some (not all) of the functions and responsibilities of a parent. The claimant does not have a legal responsibility to provide care for the victim. She is free to decline any request of the parents of the victim to provide childcare assistance at any time. The claimant may consider she has a cultural responsibility to offer, or agree with any request for, assistance, but that is not the same as having a legal responsibility. In any event, s 30 of the CLA does not use the term “in loco parentis” but instead, uses the term “parental responsibility” which requires the claimant to have “all” of the duties of the parents on a continuing basis and not just some of those duties on a transient basis. “In loco parentis” is not a relevant term under s 30 of the CLA.
In so far as the claimant relies on submissions referencing an article from the SBS Cultural Atlas, I accept it is likely the case that the claimant plays “a major role in raising grandchildren” as part of her cultural background. However, the claimant is not under a legal responsibility to raise her grandchildren and under Australian law she does not have a legal right to make decisions for the child. Whilst she may be involved in decision making with the consent of the parents, as part of her cultural background, at law the parents are the decision makers in relation to the victim, including when the victim is in the claimant’s care.
If the claimant disagrees with a decision of the parents, for example, she has no legal recourse. The parents’ decision prevails. Further, cultural background is not a matter that informs interpretation of Australian statute.
For the reasons set out above, I do not consider the claimant is a person who has “parental responsibility” for the victim. Accordingly, she is not a “close member of the family” of the victim for the purpose of s 30 of the CLA.
Under the heading “witness to peril” the claimant’s submissions make statements relevant to the question of whether the claimant is a “close member of the family” for the purpose of s 30 of the CLA including that “to suggest a grandparent of multiple deceased, and a significantly injured nephews and nieces, would not be considered amongst the person directly effected by the tortfeasor is frankly, ludicrous” [sic]. A conclusion that the claimant is not a “close member of the family” for the purpose of s 30 is not a conclusion that the claimant has not been so affected. It is simply the consequence of legislation intended to be more restrictive than the previous common law position.

Did the claimant witness, at the scene, the victim being put in peril?

In the alternative to being a close member of the family under s 30 of the CLA the claimant contends she is a person eligible to bring a claim for pure mental harm under the MAI Act because she witnessed, at the scene, the victim being put in peril.
According to the facts outlined above, by the time the claimant arrived at the scene:
(a)    the offending vehicle was stationary and located 80 to 100 m away from the scene;
(b)    the driver had exited or been removed from the vehicle and was in police custody;
(c)    there was therefore no risk of the vehicle returning to the scene to put the victim in further peril;
(d)    emergency personnel were in attendance and the accident scene cordoned off. There was therefore no risk of another vehicle encroaching the accident area and impacting with the victim;
(e)    the claimant’s grandson was already loaded in an ambulance and had received primary care from paramedics for approximately 15 minutes and had received medical treatment from a medical officer (doctor) for a further 20 minutes at least;
(f)    having been loaded into the ambulance and under medical care prior to the claimant’s arrival at the scene, the victim was no longer in danger of the offending driver/vehicle causing him further injury, and
(g)    it can be inferred from the paramedics’ decision to depart the scene at 8.16pm that the victim was considered sufficiently stable by 8.16pm for road transport to hospital, 24 to 29 minutes prior to the earliest possible arrival of the claimant at the scene.
The claimant relies on the High Court decision in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 (Wicks), where a broader interpretation of the phrase “put in peril” was preferred. In Wicks, the Court held that a person is “put in peril when put at risk and they remain in peril until they cease to be at risk”. In Wicks, several survivors of the derailment were considered by the Court to have remained in peril until they had been rescued and taken to a place of safety. Thus, the plaintiffs witnessed, at the scene, the victims of the accident being put in peril.
In relation to this matter, the claimant submits the victim did not cease to be at risk once paramedics were at the scene because of the severe nature of his condition. The claimant submits that the victim “was not even diagnosed at the scene with the litany of injuries he had sustained and as such the cessation of peril from an injury perspective could not have ceased and could not have reasonably been perceived as ceasing by the claimant”.
The claimant contends she “witnessed …. a grandchild of hers, being placed into an ambulance ...” However, based on the timeline this appears to be impossible. The ambulance report records the victim was loaded into the ambulance by 8.16pm. Based on the distance from the Sydney CBD to the accident scene it does not appear possible for the claimant to have arrived on scene before 8.16pm.
On balance, the evidence establishes the claimant did not arrive on scene until after the victim had been loaded into the ambulance and considered sufficiently stable for road transport and until after he had been receiving medical treatment for at least 20 to 25 minutes from a doctor flown into the scene. On balance, it appears the claimant arrived at the scene shortly before the ambulance commenced travel by road to hospital at 8.55pm.
To have witnessed the victim, at the scene, being put in peril it is necessary for the victim to have been in peril as a result of an event occurring in the period in which the claimant was at the scene that is, in the period from around 8.45pm to 8.55pm.
The phrase “being put in peril” refers to a state that is present and immediate. This necessarily involves identification of the event happening between 8.45pm and 8.55pm, which put the victim in peril during that period. As the High Court said in Wicks “it must be read as directing attention to an event that was happening while the plaintiff ‘witnessed’ it”.
A person is not put in peril after being injured, because their injuries have not been fully diagnosed, as submitted by the claimant. It is inherent in a diagnosis that the injuries have already been sustained at some earlier point in time. Indeed, there may be cases of injury where a person is never given a formal diagnosis. That does not mean they continue to be put in peril.
The Court’s determination and reasons in Wicks must be put into context, as the facts that lead to the broader interpretation of being put in peril are distinguishable from this matter.
Relevantly, in Wicks, the plaintiffs were among the first to arrive at the scene. They were confronted not only by death and injury that had already occurred, but they were also confronted by survivors trapped in the wreckage of the train. Because the overhead electrical cables had been torn down, and were lying across the wreckage, it was anything but clear whether it was safe to go close to the wreckage. This also meant that many survivors who remained in the wreckage were at risk of sustaining further injury whilst they remained in the wreckage, which was witnessed by the plaintiffs.
The consequences of the train derailment in Wicks took time to play out and not all the injuries sustained by those on the train were suffered during the process of derailment. The perils to which surviving passengers were subjected did not end when the carriages came to rest. The High Court readily inferred from the specific facts in Wicks that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages. This is a matter clearly relevant to the conclusion in Wicks that the plaintiffs witnessed, at the scene, passengers being put in peril. The peril the passengers were in was the risk of further injury whilst being removed from the wreckage. The High Court stated it would be very surprising if each surviving passenger was extricated without further harm. The High Court concluded that as they were removed from the train, at least some of the passengers were still being injured. It was based on this inference that the High Court concluded the plaintiffs witnessed, at the scene, victims of the accident being injured.
Even if these inferences should not be drawn, the High Court said the fact remains that when the plaintiffs arrived at the scene, those who had been on the train, and had survived, remained in peril citing the observation of fallen electrical cables draped over the carriages as an illustration of one kind of peril to which those who remained alive in the carriages were subject before they were taken to a place of safety.
It was this reasoning that led to the conclusion that the expression “being put in peril” should be given the meaning which the words ordinarily convey such that “a person is put in peril when put at risk; the person remains in peril (is ‘being put in peril’) until the person ceases to be at risk”.
Whilst the High Court said the survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety the decision cannot be read as authority for a general proposition that a person remains at risk until they are taken to a “place of safety” or that a place of safety is a hospital or medical facility away from the scene. The High Court did not conclude that a person remains at risk until they receive adequate medical treatment, or their injuries are stabilised. It is clear from a reading of the decision that the conclusion that the survivors remained at risk until taken to a “place of safety” was based on the specific facts in Wicks, namely that victims remained in peril until they were cleared from the wreckage. A place of safety in those circumstances is a place away from the wreckage and away from the fallen electricity cables. Independent of those specific facts, the High Court clearly stated that the ordinary meaning is that “a person is put in peril when put at risk; the person remains in peril (is ‘being put in peril’) until the person ceases to be at risk”.

Accordingly, once the person is no longer at risk of sustaining further injury, even if their injury has not yet been diagnosed or may deteriorate until they get adequate treatment, the person is no longer being put in peril.
This matter is distinguishable from Wicks in that:
(a) the victim did not require rescue from any wreckage. He was not trapped in the wreckage of the vehicle. He was not in harm’s way, or at risk of being in harm’s way of the vehicle (or another vehicle) after impact and therefore no longer at risk of further injury, and
(b) there is no evidence to suggest the offending vehicle dislodged or caused any structure to become unstable such as a building wall or a power pole, which might have put the victim at risk of further injury if the wall or power pole collapsed. By the time the claimant arrived at the scene the victim was out of harm’s way and safely in the hands of qualified medical personnel, ready for transport to hospital. The victim may not have been “out of the woods” in the sense that further diagnosis and medical treatment was required but he was out of harm’s way in so far as events which might put a person in peril were concerned, unlike the survivors in Wicks who remained in harm’s way so long as they remained in the wreckage with fallen electricity cables draped over the carriage.
The ordinary meaning of “peril” is serious and immediate danger exposing a person to a risk of being injured.
The victim had already been injured by the time the claimant arrived at the scene. The victim was no longer in serious or immediate danger, as he was safe in an ambulance under the care of medical professionals. The serious and immediate danger had already played out. Even if Wicks could be taken as authority for the proposition that a person continues to be in peril until they are taken to a place of safety (which is not the meaning given by the High Court to the words “being put in peril” but a finding specific to the facts in Wicks), I am of the view that the victim was in a place of safety by the time he came under the care of paramedics, which was prior to the claimant’s arrival at the scene.
Whilst the claimant witnessed the aftermath of the accident, she did not witness the victim being put in peril for the reasons outlined above.
As noted above, the High Court in Wicks said “being put in peril” must be read as directing attention to an event that was happening while the plaintiff "witnessed" it. The submissions of the claimant as to what the claimant witnessed are not convincing and no evidence has been provided in support. Accordingly, it is unclear what, if anything the claimant witnessed in relation to the victim at the scene. There are several probabilities, including that the ambulance may have been in the process of departing the scene when the claimant arrived, and the claimant did not see anything of what occurred inside the ambulance.
In any event, the claimant’s submissions, at their highest, put the claimant arriving at the scene at around 8.16pm to witness her grandson being loaded into the ambulance. This event occurred after the victim had been under the care of paramedics for approximately 15 minutes. Accordingly, the event that was happening while the claimant “witnessed” it was the victim being loaded into an ambulance after being made sufficiently stable for loading. This is not an event that could be described as one in which a person is being put in peril that is, that they are being put in serious and immediate danger, which exposes them to a risk of injury.
Whilst there is the potential for the victim’s injuries to worsen at the scene after vehicle impact and whilst under care of medical professionals at the scene, the High Court makes clear that “being put in peril” focusses on an event happening at the time the claimant is a witness, which puts the person in peril as distinct from the question of causation. Causation that is, the extent to which the victim’s injuries, including consequential or secondary injuries sustained after impact are attributable to negligence of the offending driver is a separate consideration and distinct from the question as to what was the event that the claimant witnessed, which put the victim in peril.
The High Court does not suggest in Wicks that the survivors of the derailment continued to be put in peril until such time as they were receiving medical treatment or until they arrived at a hospital or until their condition was stable. Rather, the High Court concluded they continued to be put in peril because they remained at risk of sustaining further injury because of their position of being caught in the wreckage with electricity cables draped over the carriages and no doubt other precarious debris from the wreckage in which they were trapped. The survivors ceased being put in peril once they were removed from the wreckage, a place of safety being a place away from the risk posed by the electricity cables and other precarious aspects of the wreckage and its debris.
In this matter, after the vehicle had impacted and had come to a rest 80 to 100 m away, the victim was no longer at risk of further injury at the hands of the offending driver or from the offending vehicle. The events that occurred thereafter, namely attendance by paramedics, loading into an ambulance and attendance by an aero-medical doctor, all of which on balance on the evidence occurred before the claimant’s arrival at the scene, are not events which put the victim in peril (even if witnessed by the claimant). They are events which saw the victim in a place of safety that is, away from the risk of further impact by the vehicle.
Accordingly, the claimant did not witness, at the scene of the accident the victim being put in peril for the purpose of s 30 of the CLA.

Conclusion

The claimant is the grandmother of the victim. Grandparent is excluded from the definition of “close member of the family” for the purpose of s 30 of the CLA.
Neither the claimant’s position as grandparent or caregiver gives the claimant parental responsibility for the victim under the ordinary meaning of the words or the legal definition of “parental responsibility”. The claimant is not a person who has parental responsibility for the victim for the reasons set out above. Accordingly, she is not a close member of the family of the victim for the purpose of s 30 of the CLA.
The claimant arrived at the scene of the accident after the victim had earlier, at 8.16pm, been loaded into an ambulance. It is unclear what the claimant witnessed at the scene but in any event, the events she could have witnessed, including loading into the ambulance which is contended in one part of the claimant’s submissions, are not events which of themselves could be reasonably perceived as putting the victim in serious and immediate danger. The event, which put the victim in serious and immediate danger, had passed once the offending vehicle had impacted with the victim and the other young persons and had come to a rest 80 to 100 m away. The events of and surrounding impact were not witnessed by the claimant.
Accordingly, whilst the claimant witnessed the aftermath of the accident, she did not witness, at the scene, the victim being put in peril.
As the claimant is neither a close member of the family of the victim for the purpose of s 30 of the CLA and did not witness, at the scene, the victim being put in peril, pursuant to s 3.39 of the MAI Act the claimant is not eligible for payment of statutory benefits under the MAI Act.
Accordingly, the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the CLA and s 3.39 of the MAI Act.
The reviewable decision is therefore affirmed.

Costs

Pursuant to Schedule 1, cl 1(2)(d) of the Motor Accident Injuries Regulation (the Regulation) this merit review is a regulated merit review matter and accordingly, the claimant is entitled to costs. Contrary to the claimant’s submission it is not a regulated merit review matter that “attracts 16 monetary units”. The amount of costs allowed is not fixed. Rather, costs are capped at a maximum of 16 monetary units. If the claimant’s costs are less than this maximum, then the lessor amount is payable.
Accordingly, the claimant is entitled to regulated costs up to a maximum of 16 monetary units.

LEGISLATION AND GUIDELINES

In making this decision, I have considered the following
·        the application, reply and supporting documentation;
·        MAI Act;
·        the Regulation; and
·        the Motor Accident Guidelines.

[2022] NSWPICMR 75

16 December 2022