Douglas v AAI Limited t/as AAMI
[2022] NSWPIC 246
•24 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Douglas v AAI Limited t/as AAMI [2022] NSWPIC 246 |
| CLAIMANT: | Kelly Ruth Douglas |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 24 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Section 3.11, section 7.36(3) and section 7.36(4) of the Motor Accident Injuries Act 2017 (MAI Act); accident caused mostly by the fault of the Claimant; section 3.28 MAI Act; vehicle loses traction and control; collision with tree; multiple and serious injuries; cessation of statutory benefits; Anchor Products Ltd v Hedges; inference of negligence; averment of “no-fault accident”; section 5E of the Civil Liability Act 2022; Claimant alleged slippery substance on the road; QBE (Insurance) Australia Limited v Abberton; Piening v Wanless; section 5.3 MAI Act; averment that the accident was a no-fault evidence; evidence of that fact; AAI Limited v Singh; Alliance Aust v GSF Aust; Sdrolias v Allianz Australia Insurance Ltd referenced; Held– on the balance of probabilities for the purpose of section 3.28 of the MAI Act accident caused wholly by the fault of the Claimant. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the Act), the motor accident was caused mostly by the fault of the Claimant. 2. For the purposes of section 3.28 of the Act, the motor accident was caused mostly by the fault of the Injured Person. 3. This determination takes effect on 23 May 2022. 4. The amount of the Claimant’s legal costs assessed in accordance with the Motor Accident Injuries Regulation 2017 (the Regulation) is $1,881.00 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act 2017
BACKGROUND
The Claimant was born on 10 April 1982 and resides at Potts Point NSW 2011.
THE ACCIDENT
On 16 February 2021, at about 1.45pm, when the Claimant, who was travelling South on George Downs Road, Kulnura, alleges that as she was approaching a right-hand curve in the road, experienced what felt like the rear of her vehicle lose traction with the road and begin to slide causing the vehicle to veer off the left-hand side of the road and collide with a tree.
As a result of the accident, the Claimant suffered multiple and serious injuries.
The Factual Dispute
On 10 June 2021, the Insurer informed the Claimant that it had determined that she was wholly or mostly at fault for the accident in accordance with ss 3.11(1)(a) and (2) and 3.28(1)(a) and (2) of the Act.
The Scope of the Dispute
The Insurer alleges the Claimant is not entitled to the continuing payments of statutory benefits past 26 weeks on the basis that the accident was caused wholly or mostly by her own fault.
The Claimant submits that there is no evidence tending to prove that the Claimant was wholly or mostly at fault and submits that the Insurer’s determination to that effect does not rise above the level of conjecture and is not sufficient to discharge its burden of proof.
EVIDENCE
Claimant’s Statement, 4 August 2021
I briefly summarise the Claimant’s Statement by reference to paragraph numbers:-
[1] Born 10 April 1982.
[2] Was injured in the accident of 16 February 2021.
[5] Was driving a Mazda “2”.
[6] The vehicle was serviced a week before the accident. The Claimant was not aware of any mechanical defect.
[8]On the day of the accident, woke at about 10.00am, having had about 11 hours sleep.
[9]Left her friends’ property at about 1.15pm. Had been driving for about 20 minutes.
[10]Had been raining, but not at the time of the accident. It was clear.
[11]The accident occurred on George Downs Road, Kulnura. Not familiar with that stretch of road. Had only travelled on that particular stretch on one prior occasion.
[12]Two lane asphalt surface road with a double white dividing line. The road surface undulated frequently.
[13]Semi-rural with light traffic conditions. Recollection of the accident itself is fragmentary. Difficulty piecing it together.
[14]Difficulty trying to recall exactly what happened. Struck her head during the accident and suffered fractures and other injuries. The vehicle flipped onto the driver’s side and spun back onto the road.
[15]Believes the accident happened at about 1.45pm. Travelling South at or below 100km. Was in no rush.
[16]After about 20-25 minutes of driving approached a right-hand curve in the road. Experienced what felt like the rear of the vehicle lose traction and begin to slide to the left-hand side of the road.
[17]Recalls applying pressure to the brakes before feeling a very heavy impact which she believes was her car colliding with a tree, tipping onto the driver’s side before sliding across the surface of the road towards the middle.
[19]Recalls climbing out of the front passenger side with the help of a woman who had stopped.
[20]Recalls police and emergency services attending the scene. Since made enquiries with the police and found that no event or report was created, nor did the police appear to have recorded any observations.
[21]Vehicle was towed and written off.
[22]Took a number of photographs of the accident site, but her vehicle was then already back on its wheels and had been pushed to the side of the road.
[23]Sustained fracture to C7, disc bulges at C5/6 and C6/7, annular tear/fissure at L4/5, as well as a laceration to her head and soft tissue injuries.
Claimant’s Submissions, 5 August 2021
I briefly summarise the Submissions:
[1]-[3] Outlines the accident and the Claimant’s injuries.
[4-9]Briefly summarises the accident, the attendance but non-reporting of the police, the taking of photographs after the vehicle had been moved, the Claimant not being aware of any witnesses and that the Insurer’s investigator was unable to uncover anything further.
[10-12]Refers to the claims history.
[13]On 9 July 2021, in the Application for Internal Review, the Claimant’s solicitor averred that the Claimant considered her accident to be a “no fault” accident within the meaning of Part 5 of the Act.
[14]The Internal Review Decision and Certificate confirmed the determination that the Claimant was wholly at fault.
[15]The Insurer conceded that it bore the evidentiary burden to establish fault on the part of the Claimant and that there was no direct evidence presented that the Claimant was negligent.
[16]The Insurer in the Internal Review Determination noted that:
“… there may be many factors which may play a part in a vehicle losing traction with a road which would involve no fault on the part of the driver. Those include the condition of the road, a substance on the road or mechanical failure … It may also result from a combination of any of these factors.”
[17]The Insurer confirmed its position on liability was “based on inference”. Further, the Insurer’s Internal Review Decision was premised on the proposition that:
“… a vehicle leaving the road is not an event that ordinarily occurs without negligence.”
[18]The Claimant disputes the proposition and submits it should be given no evidentiary weight. It is no more than the opinion of an employee of the Insurer.
[19]The Insurer referred to the decision in Anchor Products Ltd v Hedges [1996] HCA 70:
“In my view, given the various factors which may have played a part in your vehicle losing traction with the road, it may be doubtful that an inference of negligence is so compelling that any other conclusion would be perverse.”
[20]Submitted that the fundamental driver of the Insurer’s Internal Review Decision of 27 July 2021 is not based on a consideration of the available evidence, the legislation, the adoption of the appropriate legal test and thresholds, or reference to the guiding principles of the Motor Accident Scheme, but rather, explicitly, on the Insurer’s concern that accepting liability of the claim:
“… leaves the Act open for potential misuse.”
[21]The Claimant rejects this proposition. Considerations of this kind are not a proper basis for the Insurer to determine the claim.
[23]Refers to s 3.1 of the Act. The Claimant is entitled to statutory benefits if she has an injury that results from a motor accident.
[24]The Insurer is entitled to deny statutory benefits past 26 weeks on the basis that the accident was caused wholly or mostly by the fault of the Claimant.
[25]The Claimant submits that the Insurer bears the onus of factually establishing on the balance of probabilities that the Claimant was wholly or mostly at fault for the accident.
[26]The Claimant does not have to prove anything beyond that she was injured in a motor vehicle accident which the Insurer conceded.
[27]By way of email of 9 July 2021, the Claimant averred that this was a “no fault accident”.
[28]Once such an averment is made, it is evidence of that fact in the absence of evidence to the contrary. If the matter is determined to be a “no fault accident”, then the Claimant’s entitlements to statutory benefits will continue after 26 weeks.
[29]The Insurer bears the onus of establishing that the accident was “caused by the fault of any other person”. It must identify the person responsible even if only in a general way and say how they are at fault.
[30]Submits that there is no evidence to suggest the Claimant is wholly or mostly at fault.
[31]In her APIB (Application for Personal Injury Benefits) and in her response to the Insurer’s investigator, the Claimant speculated on why her vehicle may have lost traction.
[32]The Claimant submits that any one of these “environmental factors” was a cause of the accident and does not require any negligence or fault.
[33]All the Insurer is able to do is speculate as to the cause of the accident and put forward an unqualified “lay opinion” that can be given no evidentiary weight.
Insurer’s Submissions, 26 August 2021
I briefly summarise the Submissions:
[1]Sets out the Claimant’s brief description of the accident in the Application for Personal Injury Benefits of 15 March 2021, including the Claimant’s Statement:
“I believe that my vehicle lost traction due to coming into contact with oil on the roadway.”
[2]On 12 April 2021, the Insurer admitted liability conceding that the Claimant had suffered injury in the use of her motor vehicle entitling her to Statutory Benefits.
[3]On 10 June 2021, the Insurer informed the Claimant that she had received the maximum 26 weeks benefits and determined that she was wholly or mostly at fault in accordance with ss 3.11(1)(a) and (2) and 3.28(1)(a) and (2) of the Act.
[4]Refers to s 5E of the Civil Liability Act 2002 (CLA):
“In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
[5]To be eligible for Statutory Benefits there must be a causal connection between the use of a vehicle and the injury, with the former causing the latter.
[6]In her PIC Application, the Claimant alleges that a slippery substance on the roadway, the roadway being wet following rain earlier in the day, or the nature of the road surface, i.e., undulating and occasional potholes, was the cause of the accident.
[7]Submitted that if environmental factors caused the injured person’s injuries, CTP Scheme does not provide benefits so caused.
[8]To ensure the Injured Person is entitled to 26 weeks benefits, the Insurer accepts that it was the use or operation of the vehicle that caused and resulted in injury. The onus is then shifted to the Insurer under ss 3.11 and 3.28 to establish that the injured person was either wholly or mostly at fault.
[9]In ss 3.11 and 3.28, “fault” of an injured person must mean “contributory or non-tortious negligence”.
[10]The assessment of “fault” of an injured person is different to the assessment of the Common Law liability of the driver.
[11]The standard of care required of the injured person is that of a reasonable person in the position of that person.
[12]Refers to the decision in QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588 [at 68 and 69] where the injured person is the only person using or operating a motor vehicle and that person is injured, results in the injured person being wholly at fault.
[13]Submitted further that any finding that the injured person was not wholly at fault is a finding that the injured person was injured by environmental factors and not by a motor accident and therefore not eligible for any benefits under the CTP Scheme.
[14]The Submission refers to the Claimant’s account of how the accident occurred and to the fact that the police attended the scene but did not create an event or report.
[15]The Submission continues that the evidence of the Claimant supports the finding that she lost control of the vehicle causing it to leave the roadway and collide with a tree. In her Application for Personal Injury Benefits, the Claimant speculated that there must have been oil on the road. The Claimant conceded that she did not observe any particular substance on the road. Further, there is no evidence to support the Claimant’s speculation that a range of factors could have caused the accident which did not require any fault on her part.
[16]Refers to Piening v Wanless [1968] HCA 7 where Windeyer J held:
“If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent.”
[17]The Submission refers to the Claimant’s argument that the accident should be considered a no-fault accident. The Submission refers to ss 5.1 and 5.3 of the Act.
[18]Section 5.3 of the Act provides that an averment that the accident was a no-fault accident is evidence of that fact in the absence of evidence to the contrary.
[19]Refers to AAI Limited v Singh [2019] NSWSC 1300, where Fagan J held that the no-fault accident provisions in Part 5 had no bearing on the entitlement to Statutory Benefits in Part 3.
[20]Submitted that the Insurer had discharged its onus and that the evidence supported the finding that the accident was not caused by the fault of another person using or operating a motor vehicle.
[21]The Submission refers to Allianz Aust v GSF Aust 221 CLR 568 [at 49]:
“In pursuit of the Act's objects, Parliament has limited the scope of the Act by means of the concept of causation. The amendment requires a close causal connection between the use of the vehicle and the injury. Mere connection "in some way to the use of a motor vehicle" is not enough to bring an injury within the scope of the Act.”
[22]The submission refers to what Minister Dominello said in his Second Reading Speech and argues that it was Parliament’s intention that the Statutory Benefits Scheme was to provide limited support for drivers who lost control of a motor vehicle and does not support an interpretation of the Act that drivers injured in single motor vehicle accidents should be entitled to benefits after 26 weeks.
[23]The Submission concludes that the Claimant was the only person involved in the accident and, therefore, absent anyone capable of causing the accident, it was the injured person’s use or operation of his vehicle that caused and resulted in the injury
[24]A finding that the injured person was injured as a consequence of some other cause, such as environmental factors, so as to permit the injured person to receive statutory benefits would apply an interpretation of the Act contrary to s 1.3(1) which sets out that the object of the Act is to provide benefits relating to injury to persons as a consequence of motor accidents.
[25]The Submission continues that this construction was adopted in ALQ v GIO Insurance (Claims Assessment) 2020 NSWSIRADRS 100 (28 May 2020).
LEGISLATION
Section 3.11 of the Act relevantly provides:
(1) An injured person is not entitled to weekly payments of statutory benefits … for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if--
(a) the motor accident was caused wholly or mostly by the fault of the person, or
---
(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 of the Act contains a similar cut-off for statutory benefits in respect of treatment and care expenses.
Section 5.1 of the Act defines a “no-fault motor accident” as being:
“… not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”
Section 5.2 of the Act provides that in a no-fault accident, fault is deemed on the part of the owner or driver of the motor vehicle in the use or operation of the vehicle.
Section 5.3 of the Act provides:
(1) In proceedings on a claim for damages in respect of the … injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary.
(2) In connection with an application for statutory benefits in respect of the death of or injury to a person resulting from a motor accident, a declaration by the applicant that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary.
Section 5.4 of the Act provides:
(1) There is no entitlement to recover damages … in respect of the … injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.
(2) The … injury to a person is taken to have been caused by an act or omission of the driver … even if--
(a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or
(b) the act or omission was involuntary, or
(c) the act or omission was not the sole or primary cause of the death or injury.
Section 5.5 of the Act provides that Part 5 does not preclude the reduction of damages or statutory benefits due to the contributory negligence of the injured person.
Section 5E of the CLA confirms that in proceedings for liability for negligence, the onus of proof lies with the plaintiff to establish, on the balance of probabilities, any fact on the issue of causation.
Section 5R of the CLA defines the standard of contributory negligence:
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose—
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
CASE LAW
In Kriske v QBE (Insurance) Australia Limited [2021] NSPIC 247, Member O’Riain (16 July 2021), a motorcyclist argued that her injury when riding her motorcycle was caused by a slippery substance on the road leading to the bike to slip. The member determined that the claimant had not discharged her onus of proof of establishing a slippery substance on the road, held that it was not a no-fault accident and found the claimant mostly at fault.
The Member said [134]:
“In order for a claimant to succeed in a no fault … accident the accident must be no one’s fault as confirmed in Singh.”
The Member determined [136] that he was comfortably satisfied that the insurer had rebutted the s 5.3(2) declaration because he had found that it was the claimant’s action that was the sole cause of the accident.
CONSIDERATION
There is no dispute that the Claimant was injured in a motor vehicle accident.
As submitted by the Insurer, s 5E of the CLA has the effect that the plaintiff:
“… always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
The Insurer accepted that the Claimant had established the injury and causation to the extent that it was caused by a motor vehicle accident.
The Insurer accepted injury and causation limited, however, to the entitlement to the payment of statutory benefits for the first 26 weeks.
The Claimant averred that she considered that her accident was a no-fault accident within the meaning of Part 5 of the Act.
That averment results in a presumption pursuant to s 5.3(1) of the Act that the accident was a no-fault accident as the section states the averment:
“… is evidence of that fact in the absence of evidence to the contrary.”
The Claimant’s solicitor submits that the Insurer’s position on liability is “based on inference” and, further, on the unqualified statement that:
“… a vehicle leaving the road is not an event that ordinarily occurs without negligence.”
This is not evidence and is, as submitted, no more than an unqualified statement by one of the Insurer’s staff.
The Claimant’s solicitor continues [20] that the fundamental driver of the Insurer’s position is not a consideration of the available evidence, the legislation, or the appropriate legal test, or reference to the guiding principles, but rather, the concern that accepting liability would:
“… leave[s] the Act open for potential misuse.”
The Claimant’s solicitor is correct that this argument does not assist the Insurer.
What is the evidence “evidence to the contrary” [s5.3(1) of the Act]?
The Claimant in her Statement of 4 August 2021 says at
[10]:
“… it was clear and sunny at the time of the accident.”
[11]:
“I was not familiar with that stretch of road …”
[12]:
“The road surface undulated frequently, and had occasional potholes.”
[I note that there is no statement by the Claimant that the road surface was undulating in the area of the accident or that there was a pothole(s) involved in this accident.]
[13]:
“My recollection of the accident itself is fragmentary and I have difficulty piecing it together.”
[14]:
“I have difficulty trying to recall exactly what happened. I struck my head during the accident. … I was in shock immediately after the accident.”
[15]:
“I was in no rush …”
[16]:
“I approached the right-hand curve in the road. … at about this point … I experienced what felt like the rear of my vehicle lose traction with the surface of the road, and begin to slide to the left-side of the road.
[17]:
“I next recall applying pressure to the brakes before feeling a very heavy impact …”
That is some of the relevant evidence. It is the case that there were no witnesses, no report by the police, no photographs of the vehicle in its impact position or immediately after and no photographs of the roadway in that area which might have indicated why the Claimant lost control of her vehicle.
The evidence, in its totality, does not support the proposition that the cause of the accident was by a fact or event beyond the Claimant’s control.
A decision on the issues in this case is required to be made on the balance of probabilities.
What was the cause of the accident on the balance of probabilities?
The Court of Appeal has recently considered the concept of “balance of probabilities” in Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20 (24 February 2022) (“Sdrolias”).
McCallum JA at [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
… two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
If I am to be satisfied on the balance of probabilities that there was an external cause absent any fault on the part of the Claimant, such as something on the roadway sufficient to cause the rear of the Claimant’s vehicle to lose traction with the surface [Statement, 16], then I must feel:
“… an actual persuasion of the existence of that fact.”
The Claimant made it quite clear in her Statement that she had difficulty recalling what happened, that she had struck her head, that her recollection of the accident itself was fragmentary and she had difficulty piecing it together.
On this recount of the facts, on the balance of probabilities, they together constitute evidence to the contrary, that is, to say, there was not an external cause absent of fault which led to the Claimant losing control of her motor vehicle.
In Piening v Wanless, Barwick CJ held that [5]:
“If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent.” (cited by Gaudron J in Schellenberg v Tunnel Holdings [2000] HCA 18).
Here, the Claimant was driving the motor vehicle. There was no other vehicle involved. She lost traction, applied the brakes and the vehicle left the road and collided with a tree.
On the balance of probabilities, for the purposes of s 3.28 of the Act, the accident was caused wholly by the fault of the Claimant.
LEGAL COSTS
Schedule 1(2)(e) of the Motor Accident Injuries Regulation 2017 designates a dispute about the cessation of statutory benefits under s 3.28 of the Act as a regulated Miscellaneous Claims Assessment matter which attracts a regulated fee of up to 16 monetary units (currently $1,710.00).
I assess regulated costs at $1,710.00 plus GST, giving $1,881.00.
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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