BVV v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BVV v QBE Insurance (Australia) Limited [2025] NSWPIC 158
CLAIMANT:	BVV
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	17 April 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; insurer’s denial of liability for ongoing benefits under sections 3.11 and 3.28; claimant’s application under Schedule 2(3)(d) and (e); claimant experienced hypoglycaemic episode while driving causing accident; insurer alleged claimant demonstrated symptoms before driving and that he knew or ought to have known dangers of driving while having these symptoms; claimant denied previous hypoglycaemic episodes; issues about where the accident happened, what the claimant had eaten, whether he was fasting and how long he had diabetes; Held – claimant not wholly or mostly at fault; claimant knew or ought to have known of relationship between food, blood sugar levels and risks of driving with diabetes; no contributory negligence due to absence of medical evidence about symptoms, disease management, diet, fasting, and warning signs; AAI Limited t/as Evic applied (approach to wholly or mostly dispute); Insurance Australia Limited t/as Richards followed (onus of proof); Australian Broadcasting Tribunal v Bond followed (drawing inferences).
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

[BVV] was involved in a motor accident on 11 March 2024. There is no dispute that [BVV] had a medical episode before colliding with four other cars stationary at traffic lights on the Cumberland Highway.
On or about 15 March 2024, [BVV] made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with QBE, the third-party insurer of his own vehicle. QBE initially accepted liability for the claim but on 31 October 2024 QBE wrote to [BVV] denying any liability to pay ongoing statutory benefits to the claimant on the basis he was “wholly or mostly at fault”.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. The insurer affirmed its decision, and [BVV] then referred the dispute about whether he is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The dispute was allocated to me for assessment.

LEGISLATIVE FRAMEWORK

General background to statutory benefits

[BVV]’s claim for statutory benefits is made under Part 3 of the MAI Act. As [BVV] was an “earner”, working two jobs at the time of the accident, his statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act. [BVV] has also been receiving statutory benefits for treatment and care pursuant to Division 3.4.
Under s 3.1 of the MAI Act statutory benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However, there are some disentitling provisions, for example, if the injured person was charged with or convicted of a serious driving offence then under s 3.37 no statutory benefits are payable at all. [BVV] was not charged after his accident although his license was suspended for medical reasons.
The MAI Act also includes limits on the payment of statutory benefits. Section 3.11 for example says in respect of weekly statutory benefits that:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were threshold 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%.”
Section 3.28 is in similar terms in respect of treatment and care benefits.[1]
[1] Section 3.28(1)(a) adds the words “and the person is over 16 years of age at the time of the motor accident” to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.
There is no dispute in the current claim that [BVV] sustained a non-threshold injury as one of his injuries was a mildly displaced sternal fracture.

Case law and approach to “wholly or mostly at fault”

There is no definition of wholly at fault but s 3.11(2) and s 3.28(2) says that “mostly by the fault” of a person means contributory negligence of more than 61%.
Justice Mitchelmore in AAI Limited t/as GIO v Evic[2] undertook the exercise of interpreting ss 3.11 and 3.28 and the phrase “wholly or mostly at fault” and how those words are to apply in a single vehicle accident. In that case, Mr Evic had mounted his motorcycle, and the foot peg got caught up between his boot and his riding pants as a result of which his motorbike fell to the left side causing injuries to Mr Evic’s left leg. A Member of the Commission determined that Mr Evic was not wholly or mostly at fault and the insurer sought judicial review of that decision.
[2] [2024] NSWSC 1272.
In the course of her reasons, Justice Mitchelmore said the following:
(a)    an injured person’s entitlement to benefits does not require the injured person to prove fault and the phrase ‘wholly or mostly’ is a composite phrase (not two separate concepts) [55];
(b)    the phrase is concerned with the claimant’s contributory negligence [56] relevant to the accident (not the injury) [57];
(c)    s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the Civil Liability Act 2002. The test of contributory negligence is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60];
(d)    where there is more than one motor vehicle involved, or the claimant is a pedestrian, the claimant’s contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[3] at [61];
(e)    in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply and the question to be posed is whether the claimant acted as a reasonable person in their position would have acted citing at [68] Axiak v Ingram[4] and at [69] Davis v Swift[5] two blameless accident cases under the previous compensation scheme, and
(f) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].
[3] [2023] NSWSC 788.
[4] [2012] NSWCA 311 where contributory negligence for a reckless pedestrian in a no-fault (blameless) accident was assessed at 50%.
[5] [2014] NSWCA 458 where contributory negligence for another in a no-fault (blameless) accident was assessed at 80%.
While there were other vehicles involved in the collisions that occurred as a result of [BVV]’s medical episode, there is no suggestion that any person contributed to the cause of the accident other than [BVV]. [BVV]’s accident is therefore akin to a single vehicle accident and the court’s approach in Evic should be applied. Therefore, two things must be determined:
(a) is there any contributory negligence on the part of [BVV] at all, and
(b) if there is some contributory negligence on his part, what is the degree of that contributory negligence?
The onus of proof lies with the insurer.[6] As Richards and the Evic cases suggest, the claimant does not have to prove he was not at fault, it is the insurer which must satisfy me that there should be a finding of contributory negligence.
[6] Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45].

Dispute resolution

The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether [BVV] is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).
If the motor accident was not caused “wholly or mostly” by the fault of the claimant under s 3.38, weekly benefits can be reduced by the degree of any contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant’s contributory negligence.

INSURER’S DECISION MAKING AND SUBMISSIONS

Insurer’s liability decision

The insurer’s original liability notice dated 31 October 2024 denied liability on the basis the claimant failed to control his vehicle which resulted in the accident.

Insurer’s internal review decision

After citing the claim form, the Ambulance report, the police report, the Westmead Hospital records (in relation to his fasting), and the claimant’s various emails, the insurer says that the claimant was a “long-term diabetes sufferer” taking medication. QBE noted the claimant had said he had no previous similar medical episodes and advised:
“On the balance of evidence, you made a conscious choice to drive your vehicle whilst experiencing symptoms of hypoglycaemia. You likely knew or ought to have known given your long-term history of diabetes that it was unsafe to drive when experiencing these symptoms and that there was a likelihood of these symptoms to become progressively worse which may cause a dangerous situation.”
QBE acknowledged the claimant was trying to obtain food to treat his symptoms and that he had never experienced a medical episode to this extent before but says:
“I have determined that by driving a vehicle in your condition you breached your duty of care to yourself and other road users.”

Claimant’s application for assessment

The claimant’s application for assessment says that he is not at fault.
The claimant acknowledges he is a diabetic and says:
“I can confirm that I am very well and healthy and there was no sign of hypoglycaemic feelings before I start driving … There was no evidence that I was unwell before driving, and also no evidence that I was fasting for 20 hrs.”
[BVV] says he has a license and has always abided by the rules.

Insurer’s submissions

The insurer refers at [3.1] to the police report which states the claimant suffered a medical episode resulting in a collision with other vehicles. The claimant was, according to the police the “unit” responsible.
The insurer refers at [3.2] to the claim form where the claimant said he felt dizzy just before the accident and that he thinks he lost consciousness due to a hypoglycaemic episode. The insurer also refers at [3.3] to the ambulance report which documents that the claimant was “witnessed to be driving erratically” before the collision.
The insurer refers at [3.4] to the hospital discharge summary which records that the claimant felt hungry and lightheaded before getting into his car. The insurer refers at [3.5] to other matters recorded in the discharge summary including when the claimant ate, his blood sugar levels and so on. The insurer states at [3.6] that the discharge summary identifies a hypoglycaemic episode as the likely cause of the accident.
The insurer refers at length at [3.7] to a report from Dr Chi of Westmead hospital as to [BVV]’s diabetes and notes at [4] the claimant’s correspondence with the insurer.
The insurer says there is no dispute that the claimant suffered a medical (hypoglycaemic) episode whilst driving [5.2] but what is in dispute is the claimant’s medical history and actions before the episode and his intake of food [5.3].
The insurer submits the claimant’s evidence is contradictory as to what he ate and while he may have been keen to stop the police questioning him, he has not explained away the contemporaneous reports from the hospital and the history recorded by Dr Chi.
The insurer refers to publications from Diabetes Australia and says:
(a)    as a diabetic for up to 30 years, the claimant would be familiar with hypoglycaemic symptoms and of the required actions that should be immediately undertaken when they are felt [5.18];
(b)    the claimant made a conscious decision to drive his vehicle in a state of experiencing hypoglycaemic symptoms where he knew, or ought to have known, that he was not fit to operate the vehicle and that his hypoglycaemic symptoms could become progressively worse [5.19], and
(c)    the claimant has departed from the standard of care expected of a reasonable person in his position [5.20].

Claimant’s submissions

The claimant has filed a copy of the insurer’s submissions with his responses and comments noted upon them. He says:
(a)    he has a driver license and has always adhered to the conditions of it;
(b)    he has never experienced any diabetic issues before the accident;
(c)    he has signed no document indicating that he is aware of diabetic conditions;
(d)    he knows what to do because he understands his diabetic condition – if he does not eat when he feels hungry it could be negligent - but he did not have any hungry feelings or feeling unwell before he got into the car before driving;
(e)    he agrees he had a medical episode as reported by the police and he confirms the accuracy of what he put in the claim form;
(f)    he says the information in the ambulance report, the police reports and what the doctors were told, was given was when he was amnesic and confused and he cannot remember what he told them. He says he was in severe pain and in no state to provide proper answers;
(g)    he does not agree with the hospital discharge summary, he says the description of his new job is false, and the stated history of him not having a meal is false, he said he had a meal at 4.00am. He says he was not hungry when he was driving. He started work at 7.00am and worked until 12.00pm, had breaks and drank water but did not eat anything. He had food in his bag but did not feel hungry and so did not eat it;
(h)    he says he has not received any justification or explanation for his blood sugar level (BSL) of 1.2 increasing to 5.2 and then dropping again to 3.6;
(i)    he takes issue with some of the history in the report of Dr Chi – he says he was not diagnosed with diabetes 30 years ago but was diagnosed at about the age of 45. He says he was not on diet control or metformin for the last 10-15 years. He again asserts he had not missed a meal;
(j)    he had a break after work for 30 minutes and was not exhausted;
(k)    the claimant is certain he became unconscious immediately before the accident and says the statement that he was unsure about falling unconscious is false, and
(l)    the claimant says he felt hungry shortly before the accident not before he got in the car and because he felt hungry, he was looking for somewhere to eat.
[BVV] denies any knowledge of the diabetic management education materials. He says no one has given them to him and so he cannot be negligent. He says his treating doctors “all know I am diabetic, then why I haven’t received any support before the accident.”

Procedural matters

Two preliminary teleconferences have been held. [BVV] appeared for himself on both occasions saying he did not want legal representation. Mr Campbell appeared for the insurer at both conferences.
After the first conference held on 3 February 2025 a summary of the issues was provided to the parties in a report as follows:
(a)    there were issues about what the claimant said and to whom (police, ambulance, hospital) in the immediate aftermath of the accident, the state the claimant was in and therefore the reliability of his evidence;
(b)    there is no issue that the claimant has diabetes;
(c)    there is no issue that the claimant had a medical episode before the accident related to his diabetes and that this is what caused the accident;
(d)    there is an issue about what [BVV] knew or should have known about his diabetic condition. [BVV] said he was uneducated and has never been told anything but is now a member of Diabetes Australia and is more aware;
(e)    there is an issue about whether he had eaten or not and if so when and how much. [BVV] says what Dr Chi has recorded is false information and he had set out what he ate and when. There is no medical evidence about whether what he says he had eaten was adequate or inadequate in terms of his diabetes;
(f)    there is an issue about whether [BVV] would have had a warning before he lost consciousness and if he did have a warning whether he had time to act. [BVV] says he felt dizzy for a second or so before he lost consciousness. There is no evidence about whether this is medically plausible or not, and
(g)    there is an issue about [BVV]’s BSL being so low in the ambulance, recovering when he got to hospital and then deteriorating again afterwards. The claimant says this has not been explained to him and therefore what happened to him was a rare event. There is no medical evidence about this fluctuating BSL.
Mr Campbell confirmed the insurer had not had the claimant examined by an independent medical examiner and the claimant says he has never seen a specialist (such as an endocrinologist) about his diabetes. [BVV] said as part of the process to get a heavy vehicle driver license, he was told he needed to get a specialist’s opinion, but as he could not afford the specialist’s fee, he did not proceed with the license.
At the second conference, on 8 April 2025 [BVV] gave evidence over the phone. Mr Campbell advised the insurer did not seek the opportunity to provide any further documents or evidence.

REVIEW OF THE EVIDENCE

Claim form

[BVV] completed an application for personal injury benefits (claim form) which he signed and dated 15 March 2024. He denied any previous motor accident claims.
He says the accident occurred on 11 March 2024 at about 1.00pm on the Cumberland Highway, between Smithfield and Wentworthville.
His description of the accident is as follows:
“I felt dizzy a second ago before the incident, and I think I lost my conscious due to hypoglycaemia and end up in accident hitting a few vehicles. Don’t know much about it as I was unconscious partly.”
[BVV] said he was taken to the Emergency Department of Westmead Hospital and discharged later that day.
The claimant said he had lost work and that he was a “meter reader” for the Downer Group earning about $1,000 gross per week and that he had worked in the morning from 7.00am to 12.30pm. He also provided details of his other job as an “operator” for Cleanaway Daniels earning about $2,130 gross per week.

First responders – police and ambulance

Emergency call

The insurer requested a direction be issued to NSW Police and a recording of the emergency call was provided. The following are relevant parts of the call:[7]
(a) while there was early acknowledgment that the accident had occurred on the Cumberland Highway, the operator was not clear on the location with the caller suggesting the suburb was Constitution Hill at the intersection of Cumberland Highway and Old Windsor Road;
(b)    there were five vehicles involved with everyone out of the vehicles;
(c)    the report was of a “gentleman having a heart attack”. He was 58 and complaining of chest pain and another driver was walking around holding his neck;
(d)    traffic was obstructed heading towards Parramatta with lanes blocked, and
(e)    the caller was a passer-by and did not see the collision.
[7] The man’s name is known, as are his contact details however they are not relevant for these reasons and therefore, for privacy have been excluded.

It appears the phone was then handed over to another man (as there is a second voice) who said:
(a)    the driver that caused the accident had a medical episode and he was driving erratically for about 1km;
(b)    the driver that caused the accident was in “lah-lah land” and he had been out of the vehicle but was now sitting in his car, and
(c)    “he doesn’t remember a thing.”
The first voice comes back on the line and that person gave his details to the emergency services. At that time sirens can be heard approaching.

NSW Police

The police records provided in answer to a Direction to Produce include the following information:
(a)    five vehicles were involved with the claimant in a Landcruiser Prado and identified as D1 (driver 1);
(b)    the other vehicles were a Mitsubishi Mirage, Mitsubishi Triton, Audi S3 and a Toyota Corolla;
(c)    the claimant collided with the rear of the fifth vehicle “causing a multiple pileup” and damaging five vehicles blocking two of three lanes;
(d)    statements were obtained by way of body worn video from all drivers;[8]
(e)    all drivers said they were stationary;
(f)    the claimant was assessed by ambulance, and it appeared the claimant’s BSL had “dropped to an extreme level” requiring immediate attention and further treatment at Westmead;
(g)    all vehicles were moved with two requiring towing;
(h)    the accident occurred at the intersection of Cumberland Highway with Old Windsor Road which is a “T” intersection, and
(i)    the road is described as a highway, straight, level gradient, weather was fine, the surface was dry, it was daylight and the speed limits was 70kmph.
[8] The body worn camera video statements were not provided.
The following narrative was provided:
“On Monday the 11^th of March 2024, D1 was travelling northbound along the Cumberland Highway Constitution Hill, approaching the intersection of Old Windsor Road. Dl suffers from type 2 diabetes and low blood pressure which Dl takes medication for. Whilst travelling north along the Cumberland Highway at an unknown point in time Dl has had a medical episode and began swerving in between all lanes. At this point in time [vehicles] 2, 3, 4, and 5 were all stationary at the intersection of Cumberland Highway and Old Windsor Road, Constitution Hill waiting for the green light.”
The narrative continues noting that:
“Police spoke to Dl on body worn video where his blood sugar levels returned to a normal and safe level and fit to speak to Police. Dl stated he has type 2 diabetes and stated he did not eat any food for a few hours which may have caused the incident. Ambulance officers are of the belief that the incident occurred due to the drop in blood sugar levels.
Dl has no memory of the incident and can only remember feeling dizzy then colliding with the other vehicles. A question of fitness for Dl has been created due to the risk of repeated medical episodes occurring again.”
At page 32 of the claimant’s bundle of documents [BVV] has annotated the police report noting that although it is said he is the owner of the vehicle he was driving, he is not and his address is incorrect.

NSW Ambulance

The ambulance record suggests the call was received at 13.08, an ambulance was despatched at 1.13pm, it arrived on scene at 1.18pm and at Westmead at 1.51pm. [BVV] was triaged at 2.05pm and had been transferred to a bed at 2.59pm.
The case description says this:[9]
“[History patient] restrained driver of 4wd witnessed to be driving erratically prior to colliding front to rear of traffic stopped at traffic lights seemingly without attempting to brake. [Patient] amnesic to events, self-extricated, ambulant at scene confused, appearing intoxicated. Police Breathalyzer indicates 0 [blood alcohol content]. [On examination patient] well perfused, alert, confused, disorientated, nil injury found to head. [Patient complains of] mild chest pain only, nil seatbelt abrasions or other marks noted to torso. Chest clear L = R, [patient] well saturated RA. Patient normotensive, regular heart rate. Patient monitored in NSW 12 lead ECG [no abnormality detected]. Patient afebrile, hypoglycaemic initial [blood glucose level] 1.2 mmol/L normoglycemic post 10g IV glucose, [patient] administered further 2 sandwiches, apple juice and glucose gel at triage. [Patient] complains of increasing pain in chest post triage, administered 1g paracetamol [provided orally] declining further analgesia.”
[9] Common abbreviations have been written in full and appear in square brackets.
The claimant’s Glasgow Coma Scale (GCS) score was 14 out of 15 on first testing at 1.35pm however on five further occasions starting at 1.50pm to 3.30pm his score was 15 out of 15.

Treatment records and reports

Westmead Hospital

The insurer also issued a direction for production addressed to Westmead Hospital.
The history obtained by the hospital and recorded was as follows:
(a)    the claimant was driving home from work;
(b)    he “felt hungry and lightheaded prior to getting in the car”;
(c)    he had the rapid onset sensation of lethargy but no chest pain, no vertigo, no palpitations;
(d)    he thinks he lost consciousness but “jolted alert on impact”;
(e)    he was travelling at around 60kmph and hit a stationary car but his airbags did not deploy;
(f)    patient has a new job with parking/traffic office – walks for six to seven hours;
(g)    last ate food at 6.00pm the day before, had no breakfast or lunch prior to getting in car to drive home, and
(h)    diabetes is managed by his general practitioner (GP).
Also noted in the records is this history from the paramedics:
“Witnesses state [BVV]’s driving was erratic and swerving prior to impact with the stationary car.
On arrival patient was confused and amnesic.
On scene BSL 1.2mmol/L Gave IV glucose 10g – improved to 5.2mmol/L.
On arriving to hospital BSL had dropped again to 3.6 despite IV glucose and a sandwich Has since had another sandwich and glucose – BSL 7mmol/L.”
A CT scan of the claimant’s head and brain was done to rule out intracranial pathology. Due to the labile (unstable) BSLs further blood testing was suggested. Blood tests revealed the claimant had elevated troponin levels (which can be an indicator of heart trouble). The claimant’s GCS score was noted as 15 out of 15 at several places in the hospital notes (such as page 19). At 4.30pm the claimant was speaking in full sentences (page 20).
Medications administered at the hospital were:
(a)    Metformin 100mg at 6.20pm;
(b)    Endone 2.5mg at 6.26pm;
(c)    Paracetamol 500 mg at 6.27pm;
(d)    Endone 5 mg at 9.03pm, and
(e)    Endone 5mg at 11.37pm.
The discharge summary records the admission at 2pm and discharge at 11.39pm. The discharge plan was stated as follows
“[BVV] is a 58-year-old male that presented with a motor vehicle accident likely secondary to hypoglycaemia. He sustained blunt trauma to chest. His CT chest showed a mildly displaced mid-sternal fracture with associated small to moderate volume retrosternal hematoma. His CT brain did not show any acute intra or extra-axial haemorrhage. He has mildly elevated serial troponins. He was advised to be stay inpatient overnight for monitoring. He is discharging himself against medical advice.”
The claimant was also advised to:
(a)    follow up with his GP;
(b)    follow up with Diabetes Rapid Access Services (a referral had been given);
(c)    no heavy lifting;
(d)    Panadol, Nurofen and Endone up to three times a day, and
(e)    return to the hospital for any further chest pain, reduced conscious ness slurred speech and so on.
A certificate was provided to the claimant stating he was unfit to work from 11 to 19 March 2024.

Diabetes clinic

After seeing the claimant on 15 March 2024, Dr Chi wrote a report to Dr Benedicto of the Seven Hills Medical Centre.
She records the following history:
(a)    diagnosed with diabetes 30 years ago;
(b)    on diet control initially and then metformin for the last 10-15 years;
(c)    he checks his BSLs once or twice a week, and his BSL is between 7 and 10 mmol when he checks. Today in the clinic, 1.5 hours after bread and coffee it was 11.6 mmol;
(d)    on the day of the accident, he had missed his dinner mal and had no food for 20 hours before the accident;
(e)    he finished work around 12.30pm and was feeling unwell before he got in the car;
(f)    he was exhausted from walking;
(g)    after 3-4 km of driving he felt he was losing control and then had an accident;
(h)    he was unsure if he lost consciousness;
(i)    he reports hypo symptoms with feeling sweaty and shaky (monthly) but only felt tired with this current episode;
(j)    he has reduced his weight from 90 to 77kg with diet and increased exercise but no sudden weight loss;
(k)    he works shift work 10.00pm to 6.00am and 7.00am to 12.00-1.00pm with two jobs;
(l)    he usually eats at 2.00-3.00am with a big meal, 10.00-11.00am bread x 2 if at home and fruits (watermelon) and rice at 7.00pm;
(m)     he sleeps from 3.00-8.00pm;
(n)    six months ago, he had been advised he had retinopathy in both eyes, and
(o)    he has regular bloods and HbA1c done at Douglas Hanley Moir – she rang them and found his last test was December 2023 (5.8%) and before that September 2022 (6.3%).
The claimant was advised to not drive or operate heavy machinery and was advised of potentially fatal consequences. He was asked to stop Metformin and start using a Libre continuous glucose monitoring system (CGM) and he would be followed up in two weeks’ time.
The Westmead Hospital notes include the CGM readings from 18 March to 22 March 2024.
[BVV] returned to the diabetes clinic and Dr Girgis wrote to Dr Kathir on 26 March 2024. Dr Girgis refers to the following history:
(a)    a 30 year history of diabetes type 2, previously on metformin therapy;
(b)    during review after a car accident, found to be hypoglycaemic;
(c)    “he admits to restricting his diet excessively at the time and was not aware of hypo symptoms”;
(d)    hypoglycaemic attacks while on Metformin were said to be unusual and so kidney function investigations were warranted;
(e)    the importance of not skipping meals was discussed;
(f)    his self-reported BSLs were erratic on a lower dose of Metformin, and
(g)    he had diabetic retinopathy.
Again, the claimant was advised not to drive or operate heavy machinery, his medications were reviewed and blood tests ordered before his next review. There are no further records from Westmead Hospital or the diabetic clinic in either of the bundles of GP notes.

Seven Hills Family Medical Centre

The claimant attended this Medical Centre before the accident and the notes begin with an entry on 4 October 2018. The claimant could not work for two days due to back pain and required a medical certificate. There is a further unrelated attendance in 2018.
On 23 January 2024 the claimant attended for his diabetes, and it was noted the claimant had high blood pressure and high cholesterol. The claimant was noted to be taking:
(a)    Metformin - medication for diabetes 1000mg;
(b)    Perindopril – for high blood pressure;
(c)    Rosuvastatin – for high cholesterol, and
(d)    Atenolol – for high blood pressure.
[BVV] was given a referral to Dr Manomohan, cardiologist and scripts including for Metformin.
On 19 February 2024 the claimant had jumped a fence to read a gas meter and had sprained his left ankle and was unable to work and a certificate was given.
On 12 March 2024 he saw Dr Kathir after the accident. Dr Kathir records that [BVV] had been advised to stay overnight but says he discharged himself. He was to follow up his diabetes with the Rapid Access Service and was concerned about mildly elevated troponins. On 13 March 2024 the claimant’s troponin levels were less than 2.0 and it was noted “he had a motor vehicle accident secondary to hypoglycaemia.”
On 23 March 2024 the claimant attended on Dr Benedicto with an eye examination report suggesting he had “mild to moderate diabetic retinopathy” and that his driver license was suspended.
The claimant saw Dr Kathir on 11 April 2024 wanting more sleep and requesting a script for Endone. He had been to the Endocrine clinic and was taking 500mg of metformin. On 26 April 2024, the claimant travelled to India for five weeks and was due to see the endocrinologist in June.
There are no further notes from this practice and no further reports from the diabetic clinic.

Wentworthville Medical and Dental

These notes commence with an entry on 8 September 2006. At page 224 of the insurer’s additional bundle is a list of prescriptions. Diabex (a medication to help control blood glucose levels) was prescribed on 23 January 2013, 4 September 2017, 20 June 2019, 25 September 2019, 17 May 2021, 19 February 2022, 22 September 2022, 22 May 2023 and 9 November 2023.
The claimant was noted on 6 February 2008 to have had a 10-year history of sinus problems. On 16 March 2009 the claimant attended with back pain after lawn mowing and on 30 May 2012 the claimant attended for mental health issues.
On 23 October 2012, [BVV] attended Dr Heang following a motor bike accident on 20 October 2012 and there were several further attendances relating to that accident. There is a medical certificate, accident notification form and other documents suggesting a claim was made against Allianz.
The entry on 23 January 2013 records facial pain and sinus headache but it is also noted the claimant has type 2 diabetes and hypertension.
On 21 January 2015 there is an entry by Dr Heang that the claimant requested Panadeine Forte for lower back pain and “had chronic LBP for 15 – 20 years due to discs prolapse and pain anytime he had prolonged sleeping or prolonged standing.” Also noted is a history of Diabetes Mellitus and that the claimant was on tablets.
On 9 February 2016, Dr Paramsothy saw the claimant for the purposes of his driving license because of non-insulin dependent diabetes (NIDDM).[10] The claimant presented for high blood pressure scripts and requesting a referral letter to Dr Manomohan on 16 April 2016. At this point in the records there are no regular scripts for metformin or other diabetic medication.
[10] The medical certificate is not in the file of documents provided but it would appear a five year license was given as the next medical certificate was sought in 2021.
There is a report from Dr Manomohan dated 23 September 2016 (page 334) which includes a history of the claimant’s diabetes and this note, “He claims he is regular with his medication but purchase his medicine from India.” The doctor was uncertain of the effectiveness of this medication and suggested [BVV] purchase his medication in Australia.
There are several attendances for lower back pain in 2016 and 2017. On 23 October 2017 Dr Manomohan noted the claimant’s fasting BSL was elevated, and the claimant was vague about whether he had eaten or not. In a report dated 4 October 2019, Dr Manomohan noted BSLs were still elevated, and he increased the claimant’s Diabex medication.
On 4 September 2017 the claimant saw Dr Paramsothy due to a 6kg weight gain and he was diagnosed with obesity. Prescriptions for Diabex and other medications were given. On 20 September 2017 the claimant’s HbA1C levels were higher, and [BVV] reported stress at work.
On 1 February 2018 the claimant saw Dr Heang and it is described as a long consultation. The claimant had two weeks of feet swelling and said he had been in India for seven weeks, eating a lot, and walking a lot. His normal BSL was said to be 4.7 but his HbA1C level was high at 9.2. The doctor records:
“Poor controlled DM. Need Endocrinologist consult and to adjust DM tab but he declined as he said because he ate too much when was on holiday in India.”
On 25 May 2018 the claimant reported his BSL was 4.6.
On 10 April 2019 the claimant attended Dr Bhowmik with a flare up of epicondylitis. “Patient info offered but he refused as he knows all about it (he has tennis elbow for last 15 yrs with episodic flare up at times).”
In May 2019 the clamant attended with back pain and on 25 September 2019 the claimant attended Dr Bhowmik again for “acute on chronic back pain” and [BVV] wanted a tramadol injection. He had tried “another doctor” who would not give him the injection[11]. A referral to Dr Manomohan was given and Diabex 1,000mg was prescribed as well as other medication. On 28 October 2019, Dr Paramsothy prescribed the tramadol injection which was administered by the practice nurse.
[11] This “other doctor” does not appear to correlate with any attendance at the Seven Hills practice.
On 20 November 2019 Dr Paramsothy had a history of thee months intermittent back pain with bilateral sciatica and “30 years back disc prolapse.” After radiology a referral was provided to Dr Maniam.
On 28 January 2020 the claimant attended having returned from a trip to India.
On 10 July 2020 the claimant saw Dr Paramsothy in respect of his Diabetes but no further details of what was said or addressed at that consultation is provided. Pathology was requested and a referral to Dr Manomohan was provided.
On 14 April 2021 [BVV] attended Dr Paramsothy for the purposes of a medical examination for his “C/R” driver license[12] and again on 9 June 2021 (for his HR/R license).[13] The Medical Certificates are dated 14 April and 9 June 2021 and stated the claimant “meets the medical criteria for an unconditional licence.” There was another attendance on 21 June 2021 for a medical examination for a driver license but the records do not include a corresponding certificate or letter.
[12] The claimant had received a letter dated 5 April 2021 from Transport for NSW. The letter and certificate are at page 360 of the additional documents bundle.
[13] The letter and medical certificate are found at page 364 of the bundle of additional documents.
The claimant saw Dr Das on 19 February 2022 for his regular scripts and it was noted “his last blood test was in October 2020.” Blood tests were requested and a referral to Dr Manomohan was provided.
On 24 February 2022 Dr Paramsothy records that the claimant’s fasting blood sugar level was high at 14.3 and his HbA1c was 6.6 and “?COMPLIANCE” is noted. The pathology results were said to have been explained.
On 30 April 2022 the claimant saw Dr Das because he wanted a referral letter for his heavy license renewal. The reason for contact was said to be diabetes and a referral to Dr Aziz, endocrinologist was provided[14]. The note includes the following actions “avoid triggers, if worsening advised earlier review / attend ED / Hospital.”
[14] The referrals are found at pages 304 and 305 of the bundle of additional documents.
On 25 May 2022 Dr Das saw the claimant again for the purposes of his driver license. The claimant had received a letter dated 5 May 2022 for his LR/R license. [BVV] had seen an optometrist[15] and he was advised about a diabetic follow up. The claimant was unhappy as Dr Das had noted “annual review” as one of the license conditions.
[15] At page 369 of the additional bundle is the fitness to Drive Medical Assessment form completed by Ms Ding on 25 May 2022 which noted no vision or eye disorder, no visual field defects.
On 22 September 2022 the claimant saw Dr Dewan who gave him a referral to Dr Manomohan and scripts for his medication including Diabex and blood tests were requested.
The claimant saw Dr Paramsothy on 22 May 2023 for the purposes of a medical examination for his driver license. Scripts were issued and blood tests requested. The claimant discussed the results with the doctor on 25 May 2023 and all results were said to be normal.
There were other attendances in late 2023.
On 18 January 2024 the claimant saw Dr Paramsothy and the notation is as follows:
“Visit type: Surgery Consultation
Cleans Hospital Equipment Feeling Sick
BSL F very Low CAUTION Claims Fasted 22 Hrs
Reason for contact: Pathology results explained - in person
Certificate Supplied
Hypoglycaemia
Actions: Letter Created - re. 1.1 Medical Certificate Standard”
It is noted that the most recent pathology results in the file from this practice were requested on 9 November and taken on 30 December 2023. The claimant’s HbA1C was 5.8 with his glucose plasma level at 2.0 mmol/l (normal said to be 3.6-6.0) and a note to retest and “symptoms of hypoglycaemia”. It was retested and confirmed.

The claimant attended again on 19 January 2024 as he was still unwell and a further medical certificate was given.
As these notes were printed on 4 March 2025 it would appear there have been no further attendances on Dr Paramsothy or his practice since 19 January 2024.
There are three Transport for NSW letters addressed to [BVV] within the file.[16] These advise [BVV] that he is required to undertake a medical assessment and be certified by his GP as fit to drive. These letters include a form which includes information for health professionals, 15 questions concerning disorders and medical conditions (one of which is diabetes) and there is also information for the driver and the driver is required to sign a declaration.
[16] Page 360 of the additional documents.
The information for health professionals includes that “All commercial drivers require a specialist medical opinion for any serious health conditions.” The information for drivers includes the roles and responsibilities of the driver and states that the driver must advise the department of any long-term illness that may affect their safe driving ability, warns of penalties for a failure to report and that the driver may be liability if they drive knowing that they have a condition that may affect their driving.

Diabetes Australia information

The insurer printed out and attached to its reply form, information from the Diabetes Australia website about “driving with diabetes”. The published material explained amongst other things:
(a)    a medical report is needed to get or keep a licence;
(b)    a person needs to check closely for hypoglycaemia or “hypo” low blood glucose as this can affect the ability to drive. Therefore, a snack needs to be available, and the person may need to pull over and wait until they feel normal;
(c)    monitor blood glucose levels before you drive and during a long drive, and
(d)    be aware and responsible and make enquiries about driving with diabetes.
The published information also gives advice about when not to drive:
(a)    when your BGL is below 5 mmol/L;
(b)    if you cannot feel the early signs of a hypo;
(c)    you have diabetic complications such as neuropathies causing impaired vision;
(d)    numbness and weakness in your limbs, and
(e)    you feel unwell.
The insurer also provided information from the National Diabetes Services Scheme “Diabetes and Driving.” Most of that information is similar to the above with the following additional information about “treating hypoglycaemia while driving”:
(a)    safely steer to the side of the road;
(b)    turn off the engine;
(c)    check your blood glucose level;
(d)    immediately eat or drink at least 15 grams of fast-acting carbohydrates (this is in red print) and examples are given including 6-10 jelly beans, and
(e)    wait and check blood glucose level again until the BSL reaches 5 and wait 30 minutes for brain function to recover.
There is information about what to do if a person has experienced a severe hypoglycaemic attack (wait for six weeks and until you have been medically cleared) before driving again.
Also contained within this information is material about “reduced awareness hypoglycaemia”:
“Some people with diabetes have difficulty recognising or feeling the early symptoms of a hypo. This is called ‘reduced awareness of hypoglycaemia’ or hypo unawareness. This is a serious condition that increases the risk of having a severe hypo. If a mild hypo is not recognised and properly treated, blood glucose levels may drop to the point where brain function is affected, without any warning.
A hypo can develop quickly, but those with normal hypo awareness will get ‘early warning symptoms’ such as trembling, sweating, light headedness, hunger, headache, palpitations and tingling around the lips, which alerts them to the need to eat. If not treated at this stage, blood glucose levels will fall further and may lead to poor concentration, behavioural changes, irritability, changes in vision and a reduced level of consciousness, due to a lack of glucose supply to the brain.
Those with reduced awareness of hypos lose the early warning symptoms of a hypo. They may have few or no symptoms, even when the blood glucose is very low. This means they may become confused and even lose consciousness without ever knowing their blood glucose levels were low and dropping.”
While the information also suggests this is “more likely” to occur in persons treated with insulin for many years there is a recommendation that “your diabetes specialist” check hypo awareness with a questionnaire. There is no evidence of such a questionnaire in the medical records produced by either of the medical practices where the claimant attended.

Claimant’s evidence

Claimant’s statement

As the claimant is self-represented there is no formal signed statement from him. He has however been the author of several emails to the insurer.
On 31 October 2024 in seeking the internal review of the insurer’s original decision, [BVV] said in a letter to QBE:
“[A]ccident was not at fault, I am diabetic for about more than 20 years, I never had this kind of incidents, I was feeling a bit hungry, and I couldn’t had any chance to get food. I don’t have any tiredness or anything while I was walking to my (as in the report) car before driving, just a feeling of hunger …”
On 3 November 2024 the claimant emailed QBE. In respect of what he told police he says:
“I remember police asked me a lot of questions, I can’t remember what I told them while I was suffering from a heavy trauma, I may trying to avoid much discussion due to my pain, so for that I may told them any answers and signed it, I was not in a stage to think about what I have to say, just given some answers just to get rid of questioning”
In respect of his diabetes, he says:
“I am diabetic type 2, for about 15-20 years, and I never had such a kind of incidents like dropping of blood sugar that end up in unconsciousness, even in the absence of food. I am not a type 1 diabetic, I never had any external insulin injection, so in this case body itself might revert stored fat into sugar to maintain body metabolism, so this is very rare and rarest incident, no chance to happen like this, it was happened due to unknown reason according to the specialist doctors treated me. My blood sugar level was checked by gp, as per schedules, but it always show a high hb1Ac, so I don’t have advised by any one that I must eat always. I eat only when I feel hungry, I can fast even more than 48 hours, still I will be ok, just may feel hungry, that’s all, as I mentioned before my stored body fat will convert to sugar to maintain body metabolism and no chance to go to hypoglycaemia according to science and comments from doctors. I am getting clearance from gp when I am renewing my license, so 2 according to that there is no risk for driving, and no condition says that I must eat, before the accident date, but now it was advised by doctors to monitor sugar level and if required need to eat before driving. As I don’t have any of these kind of situation, it happened with an unknown reason, so I believe that I am not at fault, and according to treated doctors it was a rarest incident and no chance to happen like this for a type 2 diabetic person.”
On 7 November 2024 the claimant wrote to QBE again advising that he was, before the accident on night shift and that he had been told to move to a 2.00pm-10.00 pm shift and that he would not be able to do his second job as a meter reader (7.00-3.00pm). The claimant also suggests his pain and “finally became OK just a few weeks ago.” He advised his wife and son had left him because they do not want to support him, he has trauma in his mind and that the accident has had a heavy financial impact on him.
In a second email dated 7 November 2024 the claimant said:
“I know that I am diabetic, and normally when hungry diabetic type 2 patients like me, can eat if I feel it to eat. But if I couldn’t eat anything when I feel hungry there is no chance to get to become unconscious, according to treated doctor’s comments, no chance at all, it was one of the rarest situation. Previously I don’t have any episodes of becoming unconscious when fasting. On the day of accident, I felt hungry when I start to drive, so I was looking for any food resource nearby, and found hungry jacks on the left side of the highway, just after when I moved from a side road to highway, at lights, but very unfortunately I couldn’t have any chance to move to left lane (as it was fully packed ) so I lost my chance to get into food resource, so I just moved ahead looking for another if available or if I can’t, then get back to home immediately. Very unfortunately after moving from lights to about less than a couple of kilometres, that is what I believe, I just lost my consciousness suddenly, before that moment, I just felt dizzy.”

Claimant’s email to the Commission

On 21 March 2025, the claimant wrote to the Commission saying, “the accident location mentioned in the report is entirely different from the actual location.” While he acknowledges it will not likely impact the decision “I cannot stay away from the truth.”
He says:
(a)    he remembers he was on Victoria Street and turned right at the Cumberland Highway at Smithfield;
(b)    he saw the Hungry Jacks restaurant and this “accelerated some hungry feelings”;
(c)    he could not get to it because of traffic, and
(d)    he is sure the accident happened before reaching the junction of the M4 and Cumberland Highway.

Claimant’s oral evidence at the teleconference

The claimant said that he had a good memory of matters that happened before the accident.
He had sent a message to the Commission advising that the police had the wrong location of the accident. He said the suburb was not Constitution Hill. He said the accident happened after he drove from Smithfield towards home and before Wentworthville.
“I am sure before Wentworthville, I came from Victoria Street from the East, when cross the Cumberland Highway I can see Hungry Jacks on my right side.”
The claimant says he felt hungry when he saw Hungry Jacks. When he was asked about this he said, “just a normal feeling of hungriness”. He said normally when he is working both his jobs he eats at 2.00 or 3.00am. He said he had food early in the morning at 4.00 or 5.00am because he was not working his second job on Sunday night. He said he had nothing to eat until about 12.30pm.
He was asked whether he felt dizzy or sick and he said he did not, he just felt hungry. He was asked whether he felt lightheaded he said no he just felt a “hungriness feeling”.
When he was asked whether he had anything to drink he explained he had drunk water and that he had electrolytes in his water bottle “because I am walking continuously to read meters”.
[BVV] was asked about his troponin levels being high at the hospital and whether he knew what that meant and he did not. He was asked whether he had discharged himself from hospital against medical advice. He said the hospital did not ask him if he wanted to stay. He said it is wrong that he discharged himself and did not stay.
He was asked about his allegation that the police and hospital had documented things incorrectly and he said they were only wrong about the details concerning what he ate. When it was pointed out to him that they would have written down things that he said, the said “My mental condition [is] I don’t know what I am saying – I am not in a good conscious mind”.
He was asked about the food he said he had in his bag. He said he always had jellybeans and chips and small snacks. When he was asked why he said he “Like many things, sweet thing. I am a foodie person when I get bored, I eat”.
[BVV] was asked why, if he felt hungry on the journey home, he did not eat the jellybeans or chips from his bag? He said that when he saw Hungry Jacks he had a feeling but that he did not feel the “need to eat deliberately”. He said he likes fast foods. He said he was about 5-6km from home and that he had food at home. When asked why he decided to got to Hungry Jacks when he was not far from home and there was food at home he said “I always like eating outside.”
The claimant said he was only diagnosed with Diabetes after he arrived in Australia. He was asked about seeing Dr Manomohan in September 2016 and telling the doctor that he got his diabetic medications from India. He said, “Yes it could be” and that he would go to India every year or sometimes two or three times a year before the accident. He denied having been diagnosed with Diabetes in India and said he bought Metformin in India because the price is different.
The claimant was asked about the medical certificates he had to obtain in order to get his driver’s license. He said he knew this was to check his eyes and diabetes and blood sugar levels. But he said no doctor had ever told him of why he needed to have the test in terms of the dangers of driving.
He was asked whether, before the accident, he monitored his BSLs. He said he did “sometimes, just for random” but not one or twice a week. He denied having a finger prick blood test kit at home and would only have his blood tested when his doctor asked him to or when it was required which he thought was just a routine procedure. He said he now had a Libre implant which tested his blood sugar levels automatically.
He was asked whether he remembered being referred by Dr Das to Dr Aziz. While there was some initial confusion about who Dr Aziz was, when it was confirmed that Dr Aziz was an endocrinologist, the claimant said he was referred to Dr Aziz because he wanted to obtain a heavy rigid driver license (to enable him to drive large trucks) not just a light rigid license. [BVV] said he had to have a medical report from a specialist to get a heavy vehicle license. He said he could not afford the $300 fee to see Dr Aziz and therefore did not see him. He said he did not need a specialist report for any other type of license.
The claimant was asked about the 18 January 2024 attendance on Dr Paramsothy. When he was read the note in full, the claimant said he was not “cleaning hospital equipment”. He agreed that he “was not taking food for 20 hours” because he had always been told his blood sugar levels were “very, very high” so he deliberately fasted for 20 hours to see what would happen. He said, “I didn’t feel anything.”
He said that before the accident he “had knowledge” not from his doctors about what high blood sugar levels meant and that from his knowledge it can damage your organs. When he was asked where he obtained his knowledge, he said he had a PhD. He went on to explain about the function of the pancreas and how if BSLs decline the body uses up stored fat to produce sugar.
He was then asked about the doctor’s note that he was “hypoglycaemic” and whether he was advised to eat sugar straight away. He said no, he was not told but that, “I like eating sugary things.” He said he saw the doctor because of a headache not because of being hypoglycaemic and that he was given two days off work because of this headache. [BVV] said he told his doctor he had been fasting for 20 hours, but he was told 8 to 10 hours was enough time to fast. [BVV] was adamant his doctor did not explain the risks or dangers of having a hypoglycaemic episode due to fasting for too long.
[BVV] said when these things were put to him:
(a)    before the accident he knew about diabetes;
(b)    he knew it was important to monitor BSLs and keep them regular;
(c)    he had not had a hypoglycaemic episode before, and no doctor had warned him about hypos;
(d)    he had experimented with fasting for 20 hours but was not told by any doctors not to fast or that it was dangerous to fast, and
(e)    when he got in the car did not have hungry feelings, he was not dizzy, he had never had a dizzy spell or feeling of dizziness

CONSIDERATION OF THE ISSUES

Where did the accident happen?

[BVV] says that the police have an incorrect address for the scene of the accident. He says the accident did not occur at the intersection of Cumberland Highway and Old Windsor Road at Constitution Hill but between Smithfield closer to Wentworthville.
[BVV]’s email to the Commission said he had driven down Victoria Street at Smithfield before turning onto the Cumberland Highway.
[BVV] agrees he was travelling north on the Cumberland Highway, and he remembers seeing the Hungry Jacks at Smithfield and thinks that the accident happened closer to that location.
The claimant provided a series of screenshots of maps from his phone. In order to appreciate his screenshots in context of the whole area, I have reviewed Google maps and note:
(a)    the Cumberland Highway (road A28) starts in the south-west of Sydney near Liverpool and heads north through Smithfield before intersecting with the M4 at Wentworthville;
(b)    there is a Hungry Jacks fast food restaurant on the left-hand side of the A28 near Victoria Street, there is also a Hungry Jacks at Wentworthville on the right hand side of the M4 close to the A28;
(c)    the A28 continues north terminating at a T intersection at Wahroonga;
(d) the Cumberland Highway (road A28) is known as Jersey Road in the Greystanes area and Hart Drive at Constitution Hill, and
(e)    at the T intersection of Hart Drive with Old Windsor Road, Old Windsor Road then becomes the Cumberland Highway (A28) heading south-east before it turns to the left and heads north.
The Cumberland Highway then is not a single road (life a Motorway) but a series of roads which are together known as A28. This may explain why the emergency services took time trying to find the precise location.
The police attended the accident, five vehicles were damaged and other emergency services attended. The location is stated as being the intersection of the Cumberland Highway with Old Windsor Road. I do not accept that the police made an error in where they, and emergency services attended.
I am satisfied that the accident did occur closer to Constitution Hill and not between Smithfield and Wentworthville as suggested by [BVV]. Bearing in mind he had a hypoglycaemic attack and has little recall of the accident it may be that the last thing he remembers was seeing the Hungry Jacks at either Smithfield or possibly at Wentworthville but I do not accept his evidence as to the location of the accident.

The accuracy of the ambulance, hospital, police and medical records?

The claimant says he does not remember what he told the ambulance or the police or the doctors. He relies on the ambulance records that say he was amnesic to events and confused and disoriented. He says he was in severe pain and was not in a state to provide proper answers. The hospital records suggest he was given Endone (an opioid) on three occasions between about 6.30 and 11.30pm.
I note the claimant’s original GCS score recorded by ambulance personnel was 14 out of 15 but then it increased to 15 and remained at that level. I understand that the GCS is a score indicating the level of consciousness and that 15 out of 15 suggests the patient is fully conscious.
The police records indicate a statement was taken from the claimant when his BSLs had stabilised and when they considered it was safe to do so. While the ambulance records clearly indicate confusion at the scene, the hospital notes do not indicate any confusion and say he was speaking in full sentences and walking around the department.
The claimant was certain he was not asked to stay overnight at the hospital. The Westmead records suggest the claimant was discharged against medical advice. This might be an error because there is no signed form which, in my experience, is usually placed on the hospital file when someone is discharged against advice. There is also a clear error in the hospital notes about the claimant having a “new job” as a “parking / traffic” officer. The claimant’s evidence is that he is a gas meter reader not a parking meter reader.
The claimant gave evidence over the telephone in English with a good vocabulary and expression but with a heavy Indian accent. I had difficulty understanding him at times and had to read back to him his answers and seek clarification. I accept that there may be language difficulties which could explain the obvious errors in the histories taken in the various reports and records.

When did [BVV] eat in the 24 hours before the accident?

[BVV] took issue, in particular, with the history taken about what he ate in the 24 hours before the accident. The medical personnel in the Emergency Department (on the day of the accident), Dr Chi (four days after the accident) and Dr Girgis (two weeks after the accident) all record a history which are relatively consistent all of which [BVV] says are wrong.
[BVV] had two jobs:
(a) as a gas meter reader in the mornings from 7.00am to around 12.00pm. This requires him to walk around the streets reading gas meters at various houses and establishments, and
(b) his second job was a night shift role with Cleanaway Daniels dealing with medical waste where he works from 10.00pm to 6.00am.
The claimant said he does not work his night shift job on a Sunday and the accident happened on a Monday. His evidence was that because of this he woke up at home and ate a meal between 4.00 and 5.00am which was later than usual. Normally when he is working his two jobs, he would eat a meal at 2.00-3.00am when on a break at his second job.
[BVV] said after his meal at about 4.00 or 5.00am, he ate nothing further before the accident. As the accident occurred at about 1.00pm this suggests the claimant had not eaten for seven to eight hours. On a usual day (when working his two jobs), if he had last eaten at 2.00-3.00am, and did not eat between jobs this suggests the claimant is not eating for 10 to 11 hours.
The claimant told the police he had not eaten any food for a few hours (the police narrative in the records). The Westmead hospital records from the day of the accident say that the claimant last had food at 6.00pm (this would be 19 hours before the accident) and that he had no breakfast or lunch before getting in the car. On 15 March 2024 Dr Chi records the claimant had missed his dinner and his last meal was 20 hours before the accident. Those two histories are relatively consistent.
Dr Girgis on 26 March 2024 has a history that the claimant was restricting his diet excessively before the accident. On 19 January 2024 Dr Paramsothy has a history that the claimant had been fasting for 22 hours. The claimant says in his email to the insurer on 3 November 2024 that he can fast for 48 hours without being affected. These three records indicate a consistent history of fasting practices.
There is no medical or expert evidence that would assist me in determining when it was likely that the claimant last ate before the accident. The history recorded by the police is clearly not correct as last eating a “few hours” before the accident is not consistent with a meal at 4.00 to 5.00am.
I am not satisfied on the claimant’s oral evidence alone that he ate a meal at between 4.00 to 5.00am. I prefer the relatively consistent history from the hospital and Diabetic clinic and the claimant’s own evidence that the claimant was restricting his diet and had not eaten for 19 to 20 hours before the accident.

For how long has the claimant had diabetes?

Dr Chi and Dr Girgis both record a history of diabetes for 30 years (that would suggest diabetes diagnosed in 1994). The claimant says this is wrong. The claimant’s evidence at the telephone hearing was that he was not diagnosed with diabetes until after he arrived in Australia. In his annotations to the insurer’s submissions, the claimant says he arrived in Australia in 1998 and was not diabetic then and only became diabetic 10-12 years after that (2008-2010 that is 14-16 years ago). He says he was about 45 years old at the time (which would be 2010).
The notes from the Wentworthville Medical and Dental practice commence in 2006 but do not mention diabetes until January 2013. There are no records from any other medical practice before 2006 and no other records suggesting a diabetes diagnosis before 2013. There are no scripts for diabetic medication prescribed by Wentworthville Medical and Dental practice until 23 January 2013 (500mg of Diabex) and then none for over four and a half years until 4 September 2017. This may be because the evidence from the claimant is that he was buying his medication in India.
In his email to the insurer dated 31 October 2024 the claimant says he has been diabetic “for about more than 20 years” and in his 3 November 2024 email he says he has been diabetic “for about 15 – 20 years”.
Without all the claimant’s medical records it is difficult to be certain of precisely when he was first diagnosed with diabetes, but on the basis of the claimant’s emails, I am satisfied the claimant has been diagnosed with diabetes since at least 2004.
Dr Chi records a history of the claimant’s diabetes being controlled with diet and exercise and that he had been prescribed with Metformin for the last 10-15 years. The claimant took issue with this in the context of the 30 year history and he also challenged the level of Metformin noted (1000mg) which he says is wrong and that “no doctor will prescribe 100 mg initially than the normal dose is 500 mg” The Wentworthville Medical and Dental records do note medication prescribed in 2013 (500 mg) which is 11 years before the accident and fits within the timeframe recorded by Dr Chi.

Has the claimant had any previous diabetic issues or hypoglycaemic episodes?

Dr Chi records on 15 March 2024 that the claimant checks his blood sugar levels once or twice a week with his normal range 7-10 mmol/L. The claimant did not correct this in his annotated version of the insurer’s submissions.
The claimant’s evidence at the telephone conference was that before the accident he only ever had his blood tested randomly at the request of his doctors. [BVV] said he did not have a home testing kit and did not test his blood sugar levels one to two times a week.
The hospital notes record that the claimant’s diabetes was managed by his GP.
There is no medical evidence as to whether the management of [BVV]’s disease was appropriate or not. There is certainly evidence (from [BVV]) that he did not test his BSL before getting in the car after work as recommended by Diabetes Australia. There is no medical evidence about what his blood sugar may have been, had he tested before he got in the car.
The claimant’s pre-accident blood test results are found in the Wentworthville Medical and Dental practice records. There are various studies and the one immediately preceding the accident was on 30 December 2023 and the one before that 22 May 2023. There are results that suggest the claimant’s evidence of him having high BSLs is accurate but there is no medical evidence interpreting any of the blood test results or to say that the level of testing is adequate or inadequate.
The claimant said in his annotation to the insurer’s submissions that he had “never experienced any diabetic issues before the accident, this was the first time.” He has made similar statements in his emails about no previous hypoglycaemic episodes and Mr Campbell did not challenge him on this.
While there is no evidence of any previous diabetic issue associated with driving, the claimant’s statement that he had no diabetic issues at all does not appear to be correct:
(a)    the claimant was advised about high blood sugar levels in September and October 2017;
(b)    he had been advised his diabetes was poorly controlled in February 2018 and he needed to see an endocrinologist, but he declined to do so;
(c)    concerns were expressed about his very high blood sugar levels and his compliance in February 2022 and he was referred to an endocrinologist in May 2022,
(d)    the claimant reported to Dr Chi that he had been diagnosed with retinopathy in both eyes six months before the accident, and
(e)    he attended Dr Paramsothy on 18 January 2024 with a very low BSL and possibly symptoms of hypoglycaemia.

What did the claimant know about diabetes and driving?

The claimant disclosed in his evidence that he had a PhD in biological sciences from an Indian University. His oral evidence satisfied me that he generally understood about what diabetes is, the function of the pancreas and the possible effects of high BSLs and low BSLs. [BVV] accepted at the end of the telephone conference that he did know about his diabetic condition.
[BVV] said at the teleconference and in his response to the insurer’s submissions that he had never been given education materials about driving with diabetes and that he only became a member of Diabetes Australia at the suggestion of the clinic at Westmead Hospital after the accident.
The claimant also said that his doctors had never given him advice or warnings about driving.
I do not accept [BVV]’s evidence that he was not aware of the risks of driving with a diabetic condition for the following reasons:
(a)    he has had Diabetes for at least 11 years (Wentworthville Medical and Dental practice medical records) or 20 years (oral evidence and emails) and has been on medication to control his diabetes at this time. In my view it is improbable that during this period no doctor explained the risks and dangers of hyper or hypoglycaemia;
(b)    Dr Chi had a history of the claimant’s diabetes having initially been controlled with diet before medication;
(c)    there are letters from Transport for NSW to [BVV] advising him that he requires a certificate in relation to his medical fitness to drive and the form explains the importance of such a certificate. He has taken steps to obtain medical certification and that in 2022 he was upset when Dr Das told him he needed annual reviews. It is improbable that this doctor would not have explained why he was required to have a medical examination and report every year in such a situation;
(d)    he was required to have his blood tested regularly to monitor his BSLs and it is implausible that none of his doctors have explained why he was being tested, the results and the risks and symptoms associated with high and low BSLs;
(e)    his BSLs were constantly high according to the medical records provided and the claimant’s own evidence at the second teleconference. He had been advised his diabetes was poorly controlled in February 2018 and concerns were expressed about his compliance in February 2022, it seems improbable that in these consultations, the claimant was not advised of the risks associated with poor management of his condition;
(f)    he was seeing a cardiothoracic surgeon who was monitoring his progress, his HbA1C levels and warning him about the efficacy of Indian-bought diabetic medication, and
(g)    he was carrying jellybeans and other snacks in his bag which is the precisely the advice given to diabetics by Diabetes Australia and suggestive that the claimant had been advised to have food available if his diabetic condition required it and the reasons for this.
Of particular significance in my view is the 18 January 2024 entry in Dr Paramsothy’s notes that the claimant had a very low BSL and that he had fasted for 22 hours, and he was hypoglycaemic. While the claimant said this was an experiment to see how low his blood sugar levels could go, he admitted at the conference that he had fasted for 20 or 22 hours. [BVV] said that at this consultation all he was told was that he should not fast for 22 hours but that eight or nine hours of fasting was fine. I consider it highly unlikely that Dr Paramsothy would have failed to mention the dangers of low BSL levels and the possible impact of these levels on driving at that time.
Also of significance is that Dr Chi records a history that the claimant “reports hypo symptoms with feeling sweaty and shaky (monthly) but only felt tired with this current episode”. This supports the claimant’s history of no previous serious hypoglycaemic episodes resulting in a loss of consciousness but also suggests there have been previous episodes of a minor nature. I note the material provided by the insurer from Diabetes Australia indicates there can be both “severe” and “minor” diabetic episodes.
If I am wrong to not accept the claimant’s evidence, and that none of the claimant’s treating practitioners at the Wentworthville Medical and Dental Centre or Dr Manomohan had ever warned the claimant of the risks associated with diabetes and driving then in my view the claimant should have made enquiries and informed himself of the risks. He was alerted to the requirement for safe driving by Transport NSW, he has a PhD which indicates a significant level of education, his emails show he can read and write well and his evidence at the teleconference was that he understood about diabetes and the effect it can have on the body. A reasonable person with his condition, in his position in my view would have made enquiries about driving with a diabetic condition at some time in the last 10-15 years as his condition has progressed.

Did [BVV] have any warning of the “hypo”?

Evidence from the emergency services call, and the police records was that the claimant had been driving erratically for a kilometre before the accident.
The witnesses at the scene after the accident recall the claimant being in “lah-lah land” and having no memory of the accident. The police record that the claimant had no memory of the incident, felt dizzy and then collided with the other vehicles.
The claimant said, in his claim form that he felt dizzy just before the accident.
[BVV] maintained at the teleconference that he was not feeling hungry or unwell or dizzy before getting in the car. He said he only started feeling hungry when he saw the Hungry Jacks sign at Smithfield but that he could not get there due to the traffic. His oral evidence was that these feelings of hunger were ordinary hungry feelings.
[BVV] has consistently said that he had no warning before he lost consciousness which led to him losing control of his car. I note he had food with him including jellybeans. The fact that he took no steps to access this food before he got in the car and before he lost control of the car does seem to suggest he had little to no warning of the episode.
Westmead Hospital reports he was feeling hungry and lightheaded before getting in the car and he told Dr Chi he was exhausted from working, feeling unwell before he got in the car before losing control. The claimant appears to say in the annotation to the insurer’s submissions about this that he was tired and exhausted after work which is why he rested for 30 minutes after finishing work before getting in the car and heading home.
Dr Chi also has a report of the claimant having had previous hypoglycaemic episodes associated with feeling sweaty and shaky but not tiredness. The claimant has not given any evidence to health practitioners, to the insurer or to the Commission of feeling shaky or sweaty before he got in the car on the day of the accident.
There is no evidence in the medical records of any previous hypoglycaemic episode while driving. While the claimant attended Dr Paramsothy on 18 January 2024, with low BSLs and possibly hypoglycaemic symptoms, there is no evidence of what those symptoms were.
The claimant says in his annotations to the insurer’s submissions that he had never had an episode of a loss of consciousness when fasting. There are no complaints of dizziness or light-headedness or loss of consciousness in the GP records.
The insurer has put material from the diabetic website into evidence. While this includes information about the signs and symptoms of a hypoglycaemic episode, the website also indicates that there is such a thing as “reduced hypo awareness” where diabetics “lose the early warning symptoms.”
The insurer has not put any medical evidence before the Commission that would address whether the claimant would have had any warning of the hypoglycaemic episode that he experienced on 11 March 2024 and if so, what warning the claimant might have had. There is no medical evidence about whether a feeling of light-headedness and tiredness (as recorded at Westmead) was a sign of an impending hypoglycaemic episode and there is no evidence of what witnesses observed about [BVV] driving erratically supports a finding that he did have a warning and whether he could have done anything about it and if so what. More importantly in the light of the Diabetes Australia website material provided to the commission, there is no medical evidence as to whether the claimant had “reduced hypo awareness”.

FACTUAL FINDINGS

On the basis of the evidence presented to me by the claimant and the insurer I make the following factual findings:
(a)    the accident occurred at the intersection of the Cumberland Highway Old Windsor Road (police records);
(b)    the accident occurred at about 1.00pm (based on the timing of the call made to emergency services;
(c)    the claimant had diabetes for at least 10 to 15 years and likely 20 years (based on his oral evidence and his 31 October and 3 November 2024 emails to QBE);
(d)    the claimant had a medical episode namely a hypoglycaemic episode (ambulance report and BSL levels on scene) which caused the accident (admitted by the claimant);
(e)    the claimant was aware of the risks associated with having diabetes and driving (see paragraphs 146 to 157 above);
(f)    the claimant had previous issues with diabetes including glycaemic symptoms after fasting in January 2024 but had no previous glycaemic episodes while driving and no loss of consciousness after fasting, and
(g)    the claimant had food in his bag namely jellybeans and snacks (his oral evidence).
In the report after the first preliminary conference, the absence of relevant medical evidence was noted. The insurer has not obtained a report from the claimant’s treating GP about the claimant’s diabetic condition or history. It was also noted that the insurer had not had the claimant examined by an independent medical expert on endocrinology or Diabetes.
The High Court decision of Australian Broadcasting Tribunal v Bond[17] made it clear that actual findings must be supported by logically probative evidence. Inferences can be drawn but only if they are inferences reasonably open on the facts. The insurer has denied liability in this case because of a medical issue but has put no expert medical reports into evidence.
[17] (1990) 170 CLR 321.
While it is not disputed that the claimant’s accident was caused by a medical episode, the factual findings that I would need to make to support a finding of contributory negligence are, in my view a matter for expert, medical evidence and I cannot draw any reasonable inferences without such evidence. There is, for example, no expert evidence as to whether the claimant was managing his diabetes well, testing appropriately or whether what the claimant said he ate and drank was sufficient to prevent a hypoglycaemic episode. There is also no medical evidence about whether the BSLs reported by Ambulance and Westmead were consistent with the claimant’s evidence, what the warning signs are of a hypoglycaemic episode and whether the claimant was experiencing any of these. There is no evidence of whether the claimant had “reduced hypo awareness” and whether he would have been aware of whether he was having a minor episode or a major episode and whether he had time to do anything about it once he was in the car.

CONCLUSION

As indicated earlier, the two questions to be answered are:
(a) whether there is any contributory negligence on the part of [BVV], and if so
(b) what is the degree of the claimant’s contributory negligence?
The insurer submits that [BVV] is contributorily negligent because he has departed from the standard of care expected of a reasonable person in his position because:
(a) as a diabetic the claimant would be familiar with hypoglycaemic symptoms and of the required actions that need to be taken immediately when they are felt, and
(b) the claimant decided to drive in a state of experiencing hypoglycaemic symptoms when he knew or ought to have known he was not fit to do so and that his symptoms could become worse.
I have formed the view that [BVV] did know or ought to have known about the relationship between food and BSLs, and of the dangers of high and low blood sugar levels and the possibility of hypoglycaemic episodes. However:
(a)    there is no evidence of [BVV] having a previous similar hypoglycaemic episode or of his familiarity with the hypoglycaemic symptoms the insurer alleges he experienced before he got in the car;
(b)    there is no expert medical evidence to support a finding that he was actually experiencing hypoglycaemic symptoms at the time he got in the car and whether he ought to have been aware that he was unfit to drive at that point in time and whether he was in fact unfit to drive at that time;
(c)    there is no expert medical evidence about the progression of the episode and the onset of the loss of consciousness and whether a reasonable person would have been able to prevent it, and
(d)    there is no expert medical evidence about whether the claimant has “reduced hypo awareness” and whether he had any warning about the impending severe episode.

The insurer bears the onus of proof but has not satisfied me, on the information currently before the Commission, that the claimant was wholly or mostly at fault within the meaning of ss 3.11(1) and 3.28(1).

[2025] NSWPIC 158

17 April 2025