Hamilton v Cic Allianz Insurance Limited
[2023] NSWPIC 580
•3 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hamilton v CIC Allianz Insurance Limited [2023] NSWPIC 580 |
| CLAIMANT: | Andrew Robert Hamilton |
| INSURER: | CIC Allianz |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 3 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether the claimant had sustained an injury in a motor accident within the meaning of section 3.1(1); claimant was travelling on a bus; he was walking down the aisle of the bus and slipped on a wet substance; insurer denied liability on basis that the circumstances of the incident did not satisfy the definition of motor accident contained within section 1.4, and the MAI Act does not apply in accordance with section 1.9; CCTV footage of the incident considered; claimant submitted the injury resulted from the use or operation of a motor vehicle caused during the driving of the vehicle, alternatively caused during a dangerous situation created by the driving of the vehicle’ submitted the liquid amounted to a defect in the vehicle; insurer submitted defect has to be in the vehicle and not on the vehicle; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, Nominal Defendant v GLG Australia Pty Ltd, Leach v The Nominal Defendant, AMP General Insurance Limited v Mayne Nickless Limited, and Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness considered; Held – liquid does not amount to a defect for the purposes of section 1.9; in addition, the injury did not result from the use of operation of the vehicle and caused during the four circumstances listed in section 1.9(1)(a)-(d); regulated costs awarded in favour of claimant. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the Act), the Commission’s assessment is: 1. Mr Andrew Robert Hamilton did not sustain an injury in a motor accident within the meaning of s 3.1(1) of the Act. 2. The amount of the claimant’s costs in the matter is $1,919 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Mr Andrew Robert Hamilton (the claimant) is a 42-year-old male who sustained an injury when travelling on the insured vehicle (a bus) on 30 December 2022.
A dispute has arisen between the parties as to whether the injury was sustained as a result of a motor accident, as defined under the Motor Accident Injuries Act 2017 (MAI Act). Specifically, the matter is to be determined as a miscellaneous claims dispute matter under Schedule 2 cl 3 (b) of the MAI Act – “whether for the purposes of section 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this State.”
The claimant lodged an Application for Personal Injury Benefits (claim form) with the insurer of the bus the claimant was travelling on when he sustained the injury.
It is apparent that liability was initially accepted by the insurer for payment of statutory benefits. However, in a subsequent notice dated 2 May 2023 the insurer denied liability on the basis that the claimant was wholly or mostly at fault.
An internal review was requested, and in a determination dated 5 June 2023, the insurer varied its liability decision and determined that the injuries sustained did not result from a motor accident for the purposes of the MAI Act.
The claimant, through his legal representatives, subsequently lodged an application with the Personal Injury Commission (Commission). The matter has been allocated to me as a Member of the Commission to determine the dispute.
I have held one teleconference between the parties on 6 September 2023. Both parties confirmed that no further evidence would be relied upon. It was also agreed that it was appropriate for me to determine this matter on the papers.
I initially had issues opening a copy of closed circuit television (CCTV) footage of the subject incident. A further copy of the footage has been provided to me on 21 September 2023.
DOCUMENTATION
I have reviewed and considered all documentation/footage included in the Application and reply and all additional information provided by the parties.
LEGISLATIVE FRAMEWORK
Section 1.4 of the MAI Act defines “motor accident” as:
“Motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during –
(a)the driving of the vehicle, or
(b)a collision, or action taken to avoid a collision, with the vehicle, or
(c)the vehicle’s running out of control, or
(d)a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
Section 1.9 of the MAI Act provides, relevantly:
“1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during –
a.the driving of the vehicle, or
b.a collision, or action taken to avoid a collision, with the vehicle, or
c.the vehicle’s running out of control, or
d.a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
Pursuant to Schedule 2, cl (3)(b) of the MAI Act a dispute relating to whether for the purposes of s 3.1 (Statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this state, is declared a miscellaneous claims assessment matter for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
SUMMARY OF EVIDENCE
Claim form dated 20 January 2023
The claimant described the accident as follows:
“I was a passenger on a Premier Illawarra bus. As I was walking down the aisle to exit the bus, I slipped on a wet floor causing me to fall. The bus driver stopped the bus and attended on me…”
Insured incident report
The insured owner, Premier Illawarra caused for an accident report to be filled out. It is not clear when the form was completed, however, a notation seems to indicate it was entered into a system on 4 January 2023. The incident is described as: “male slipped on floor & injured right arm. Stood up before bus stopped.”
Statement of claimant dated 15 March 2023
The was provided to investigators, Quantumcorp, who were commissioned by the insurer. A copy of any investigation report is not before me.
The claimant states on the day of the accident the claimant was wearing black sneakers and business attire. He was carrying a backpack which he had over his right shoulder at the time of the accident.
The bus was the claimant’s regular 5.23am Premier Illawarra bus service on ‘Bus Route 75’.
He does not recall any other passengers when he entered the bus. He entered from the front of the bus and approached the three seats reserved for wheelchairs that face inwards to the aisle. He took a seat on these seats.
The claimant describes the interior of the bus as being well lit. From paragraph 22 of his statement, the claimant states:
“On this particular morning I think he didn’t have to stop, I’m just not sure, but when we were about to reach my destination, maybe 100 metres or 200 metres from the bus stop, I pressed the stop button near me and I got up in preparation to get off the bus whilst the bus was still moving at a normal speed.
Then as I stood up and turned to walk towards the front of the bus whilst I’m looking forward, I had only taken four, maybe five steps when my feet suddenly went out from underneath me and I landed on the floor.
There are actually upright rails down each side of the aisle, so I was holding onto the rails on my right side as I was walking towards the front of the bus, and just before I slipped I had probably held onto one of the rails near where you put your bags, but I can’t remember if I was still actually holding onto this rail when I slipped, and I also couldn’t tell you which of my feet gave way.
I just remember that I put my hands out to prevent my fall, but I think that was just a complete reflex, and then I’ve pretty much landed on either side my backside or my back and immediately realised I had done something to my right hand when I landed on the floor.
Then after the pain in my right hand had subsided, it was then that I realised the floor I was sitting on had a wet patch that was probably just a bit less than the width of the aisle in size, but I don’t recall what the liquid substance was, whether it was water or perhaps a spilt drink, I just can’t say for sure, but I can confirm that I was not carrying or holding any drinks or liquids of any type, so I definitely hadn’t spilt anything on the floor after I slipped over.
I can also say the aisle floor is a hard and level surface, but I couldn’t say what material the floor is constructed of, but it definitely wasn’t carpet.”
The claimant goes on to state from paragraph 40:
“As to the cause of my slip/fall accident, there was nothing unusual about the manner in which the bus driver was driving the bus.
He was driving normally towards the bus stop as I stood to my feet in preparation to get off, so I didn’t feel any sudden or harsh acceleration, any bumps in the road or any braking, so I don’t believe that was a cause.
I believe that whatever liquid substance was on the floor in the aisle has caused me to slip and fall over which has resulted in the injury to my wrist.”
CCTV footage
I have carefully viewed the surveillance footage a number of times. The footage has four windows with footage presumably from four different cameras on the bus. Two of the windows depicts the claimant falling.
The footage suggests that the claimant’s recollection that he was the only passenger on the bus is correct. He is seated on the three seats that face inwards to the aisle, near the front of the bus. As the bus is in motion, the claimant gets up from his seat and perhaps takes one step and he falls, clearly in a ‘slipping’ fashion, and lands heavily on his backside.
SUBMISSIONS
Claimant’s submissions dated 14 August 2023
It is submitted that the gateway provision is satisfied in that the definition of motor accident contained in s 1.9 is satisfied. Firstly, that the injury resulted from the use or operation of a motor vehicle and is caused during the driving of the vehicle. Alternatively, it is argued that the injury resulted from the use or operation of the motor vehicle and was caused during a dangerous situation created by the driving of the vehicle.
The submissions state at paragraph 21: “…the injury must be sustained during the use or operation of the vehicle and must be caused during the driving of the vehicle. The claimant says that clearly, both temporal criterions are satisfied.”
The claimant notes that the purpose of the MAI Act is to provide benefits and support to persons injured as a consequence of motor accidents. It is then submitted that it would defeat such purpose if the definition in s 1.4 of the MAI Act was given meaning which worked “to negate the evident policy or purpose of a substantive enactment” (Federal Commissioner of Taxation v Douglas [2020] FCAFC 220 at [94]-[95]).
The submissions aptly refer to the leading cases on the issue to hand. Firstly, the case of Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 (GSF) is referred to. Also noted is the case of Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11 (GLG) which discussed GSF.
These cases refer to the definition of motor accident under previous third party legislation, however, the definitions are for essentially identical to the definition contained within the MAI Act. Accordingly, the cases referred to provide appropriate guidance to the issues to be considered.
The claimant refers to the case of Leach v The Nominal Defendant [2014] NSWCA 257 (Leach), which involved the shooting of Mr Leach, who had been in an initial motor collision, with shots fired from the other vehicle after the collision. The Court of Appeal in that matter found that the injury was not caused by the fault of the driver in the use or operation of the vehicle. The claimant submits that the facts in Leach can clearly be distinguished to the present facts. In this regard, it is submitted that the fall occurred whilst the vehicle was still in motion, and the process of egressing from the vehicle, a necessary element of travelling on the vehicle. It is noted that there was no intervening act which caused the injury and no break in the causal nexus.
Also referred to is the case of Adlawan v Recochem Inc [2021] NSWSC 223 (Adlawan), where Cavanagh J found that whilst a set of circumstances may be based on a system of work, which would not fall under the relevant third party legislation, it was found that a dual characterisation can be applied that does not preclude the operation of the third party scheme.
The submissions contend that the presence of the liquid amounts to a defect in the vehicle and that such defect was so closely connected with the use and operation of the vehicle that its presence cannot be ignored. It is submitted:
“…the presence of the liquid, in circumstances where there was no natural light, require the owner/driver of the vehicle to have regard to the safety of passengers traversing the aisle at all times during the operation of the bus whilst it continued to carry this defect.”
It is further submitted that the risk to the claimant would have been to insist on the claimant not moving whilst the bus was in motion to minimise the risk of his feet slipping forward in the liquid. It is then stated:
“…It is evident that the claimant’s foot slipped forward whilst the bus was slowing to a stop and his shoes could not keep traction with the floor. This is an ordinary concept in physics and entitles an inference be drawn in respect of causation based on the primary facts (see Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29 at [87]-[88]) (Seltsam)”
The claimant refers to the relevant bus route, as evidenced in the timetable and material before me, demonstrates that the insured driver had commenced the bus run less than 15 minutes prior to the accident, and as such ought to have known that there was liquid on the floor. It is submitted that the relevant fault is failing to eliminate the risk prior to the bus moving.
The submissions note the insurer refers to the claimant’s statement in the internal review wherein he essentially states that there was nothing unusual about the driving at the relevant time in alleging that there was not a “dangerous situation”. It is submitted that this is a narrow interpretation. Instead, it is submitted that whilst there was no speeding or driving in an unusual fashion, the dangerous situation is the presence of the liquid on the floor of the vehicle.
Insurer’s submissions dated 25 August 2023
The submissions identify that the claimant’s submissions appear twofold. Firstly, that the liquid on the floor constitutes a defect for the purpose of the s 1.9 definition. Secondly, that the presence of the liquid whilst the vehicle was being driven creates the necessary temporal connection between “driving” and the claimant’s injury.
The insurer disputes that there was a defect. It is further submitted that even if it is found that the owner of the vehicle was negligent in allowing a substance to remain on the floor, and it is found to occur in the context of “use or operation of the vehicle” if the claimant slipped because of the liquid the claim does not fall within the MAI Act.
The insurer submits that the case law, including GSF and subsequent cases since, there is no dispute as to the requirement to establish the causal nexus between the relevant activity and the claimant’s injury.
Furthermore, GSF establishes that the question of causation has to be considered having regard to the scope and objects of the Act and in particular the legislative ‘narrowing’ of the definition of injury.
The insurer further refers to the concept of “proximate cause” in the context of insurance law and that GSF requires a construction consistent with such concept.
In respect of defect, the insurer submits that the authorities establish that the defect has to be in the vehicle. The insurer refers to AMP General Insurance Limited v Mayne Nickless Limited [2000] NSWCA 213 (Mayne Nickless) wherein it was found that substances on the floor of a truck, rendering it slippery, was held to not amount to a ‘defect in the floor’ and hence did not qualify as a ‘defect in the vehicle.’
It is further submitted that even if it is found that there is a defect in the vehicle, it still needs to be established that the person was injured during one of the circumstances provided in s 1.9.
It is noted by the insurer that the claimant states in his statement that there was nothing unusual about the driving of the vehicle at the time of the accident.
In response to the claimant’s argument that the fault is the failure to eliminate the substance, this omission falls outside the ‘driving’ of the vehicle. It is suggested that such argument may be available under alternative legislation, because it is outside of the ‘driving’ of the vehicle and consequently, supports the argument that the incident falls outside of the MAI Act.
FINDINGS AND REASONS
It is noted that both parties have made reference to findings of fault. There is no requirement contained within s 1.9 that the accident be caused by the fault of the owner or driver.
The claimant asserts that the liquid on the floor of the bus amounts to a defect for the purposes of s 1.9. I do not accept this submission and find that the liquid on the floor of the bus is not a defect in the vehicle. If the substance were a defect, it is one that is not in the vehicle and is instead on the vehicle. I accept the insurer’s submissions in this regard, and note and follow the reference to Mayne Nickless.
Eliminating the question of defect, in the subject matter, what is required by s 1.9 of the MAI Act for the claimant to succeed in his argument is that the injury results from the use or operation of the vehicle, and only if the injury is a result of and is caused during one of the four circumstances listed at (a)-(d).
There is no collision involved in the subject factual scenario. Therefore s 1.9(1)(b), does not apply. There is no suggestion that the vehicle was running out of control, therefore s 1.9(1)(c) does not apply. The claimant’s argument is limited to the circumstances prescribed by s 1.9(1)(a) and (d).
The claimant’s submissions (paragraph 21) assert that the accident is a motor accident if the injury is sustained during the use and operation of the vehicle and is caused during the driving of the vehicle. However, this leaves out an important element of the requirements of s 1.9. Namely, it must also be established that the injury arises as a result of one of the circumstances (a)-(d) in s 1.9(1).
In respect of s 1.9(1)(a), it cannot be denied that the injury has occurred during the driving of the vehicle. The CCTV footage clearly demonstrates this is the case, and indeed the insurer does not deny this fact.
What is in contention, is whether the injury has arisen as a result of the driving. The insurer submits that it has not and, the claimant appears to submit that it is. It would appear that in distinguishing the facts from the matter of Leach, the claimant submits that the injury is a result of the driving as egressing from the vehicle is a necessary element of the travelling on the vehicle. Whilst that may be the case, in my view, this submission still does not get over the hurdle of the injury being a result of the driving. It is not the act of travelling on the vehicle, but the injury must be caused by the driving itself.
The claimant has stated that an inference can be drawn from the primary facts on the issue of causation and refers to Seltsam in this regard. Whilst not explicitly stated it would appear that it is submitted that the act of driving materially contributed to the claimant’s falling and/or his injury.
This may be a valid argument, however, I am not satisfied on the viewing of the surveillance and the description of the driving by the claimant in his statement, that the driving of the vehicle contributed to the fall “as an ordinary concept of physics”. I do not consider on the evidence before me that I can make that inference. There is no expert evidence that supports the argument that the driving materially contributed to the fall or the injury itself. On viewing of the footage, the claimant immediately loses traction upon stepping on what appears to be liquid. It is the presence of the liquid that is the proximate cause of the injury and the evidence does not establish that the driving contributed to the injury, even on a “dual” basis.
The above findings on the injury not being caused as a result of the driving, similarly applies to the requirement of s 1.9(1)(d) which specifically refers to “caused by” the driving.
The findings above mean that I find that the injury to the claimant has not resulted from a motor vehicle in this state.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1 cl (3)(b) of the Motor Accident Injuries Regulation (the Regulation), legal costs may be awarded.
Schedule 1 cl (3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The value of a monetary unit is currently $119.96.
I am not precluded from awarding costs in favour of the claimant merely on the basis that I have found against him.
The submissions lodged on behalf of the claimant refer to a claim for costs under s 8.10 of the MAI Act. I am not satisfied that this matter is one where “exceptional circumstances” apply.
I do not consider the dispute involved steps that are outside the realm of what could reasonably be expected in respect of a dispute under Schedule 2(3)(b) of the MAI Act. There was one teleconference held, and no assessment conference. The case preparation involved the collation of material, including a statement of the claimant that was obtained by the insurer’s investigators and a set of written submissions. I do not consider same to amount to exceptional circumstances.
However, I am satisfied that there was reasonable basis to make the application. As such I award the maximum regulated amount, which amounts to $1,919.
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