Michael v Allianz Australia Insurance Limited
[2024] NSWPIC 387
•23 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Michael v Allianz Australia Insurance Limited [2024] NSWPIC 387 |
| CLAIMANT: | Nadia Michael |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 23 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether claimant is wholly or mostly at fault; miscellaneous claims assessment; elderly claimant getting into taxi with hand on door when she fell; dispute as to whether claimant injured during the “driving” of the insured vehicle or simply due to a fall; if incident is an accident the insurer conceded claimant not wholly or mostly at fault; section 3.28; Held –evidence of claimant’s husband not accepted where he had early dementia and provided conflicting versions of event; evidence of claimant preferred where corroborated by evidence of independent witness over evidence of insured driver; insured vehicle moved when claimant attempting to enter vehicle; constitutes a motor accident within section 1.4; claimant not wholly or mostly at fault; claimant entitled to regulated costs. |
| DETERMINATIONS MADE: | REPLACEMENT CERTIFICATE Issued under s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act) The findings of the assessment of this dispute are as follows: 1. The claimant sustained injury in a motor accident in accordance with section 1.4 of the MAI Act. 2. For the purposes of s 3.28 the motor accident was not wholly or mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s expenses incurred in connection with the claim pursuant to section 8.10(1) of the MAI Act in the sum of $1,919 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
This is a miscellaneous claims dispute pursuant to s 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
On 1 May 2023 a taxi T2020 driven by Daljit Nissar (insured driver) attended the Ingleburn Community Health Centre to pick up Mrs Nadia Michael (the claimant) and her husband Magdy Greiss. Mrs Michael commenced to enter the taxi from the rear passenger side. She alleges she placed her bag and walking stick inside the vehicle, placed her left hand on top of the door and as she commenced placing her right leg into the taxi, the taxi moved forward causing her to fall to the ground. Mr Nissar alleges the vehicle was in park and not in motion at any time during the incident.
On 2 June 2023 Mrs Michael lodged an Application for personal injury benefits alleging she sustained injury, namely a comminuted trochanteric fracture of the left femur, in the motor vehicle accident.
Allianz Australia Insurance Limited (the insurer) is the relevant third-party insurer of taxi T2020.
The insurer issued a liability notice dated 12 September 2023 denying liability on the basis the circumstances of the accident do not meet the definition of a “motor accident” in accordance with the MAI Act.
On 1 May 2024 the claimant lodged a miscellaneous claims assessment with the Personal Injury Commission (Commission). That dispute was referred to me.
The parties agree I am required to determine whether the circumstances of the incident meet the definition of a motor accident.
If I find the incident does meet the definition of a motor accident the insurer concedes the claimant was not wholly or mostly at fault and will be entitled to statutory benefits for the purposes of s 3.28 of the MAI Act.
Where the insured driver is not available to attend an assessment conference for questioning both parties agreed the dispute could be determined on the papers. In accordance with s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC 2, I consider that it is appropriate to determine this dispute on the papers. I am satisfied the evidence and submissions provided by the parties is sufficient to determine the dispute without an assessment conference.
DOCUMENTS CONSIDERED
I have had regard to the following evidence:
(a) the claimant’s indexed bundle of documents paginated from pages 1 to 86;
(b) the insurer’s indexed bundle of documents paginated from pages 1 to 9, and
(c) claimant’s final submissions dated 28 June 2024.
THE RELEVANT LAW
The definition of motor accident found in s 1.4 is as follows:
“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the … injury to a person where the … 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.”
The definition of use or operation in s1.4 is as follows:
“use or operation of a motor vehicle includes—
(a) the maintenance or parking of the vehicle, or
(b) in the case of a motor vehicle that is not a trailer—the use or operation of a trailer attached to the motor vehicle and a trailer running out of control having become detached from the motor vehicle towing it, or
(c) in the case of a motor vehicle that is a tow truck—the use or operation of an uninsured motor vehicle that is being towed or carried by the tow truck.”
Section 3.28(1) and (2) of the MAI Act states:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred 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 and the person was over 16 years of age at the time of the motor accident, 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%.”
There is no dispute that Mrs Michael sustained non-threshold injuries.
Schedule 2, cl 3(e) provides the Commission with jurisdiction to determine whether Mrs Michael is wholly or mostly at fault in respect of her entitlement to benefits for treatment and care.
THE EVIDENCE
Mrs Michael was 77 years of age at the date of the accident and she is now 78 years of age.
Since the accident the claimant’s husband Magdy Greiss has sadly died.
Application for personal injury benefits
In the Application for personal injury benefits dated 2 June 2023 Mrs Michael described the accident as follows:
“My husband had an appointment at Ingleburn Community Health Centre, once the appointment finished I called the same cab that took us to the health centre to take us back home. My husband got into the front seat of the cab and as I was getting into the cab I put my bag and walking stick into the back seat, I then put my right leg into the car trying to get in and the cab driver started driving off fast so I fell down on the left side of my body”.
Accident Report– Compulsory Third Party (CTP) Personal Injury Claims
Mr Nissar completed an Accident Report dated 22 May 2023. He provided the following description of how the accident happened:
“Driver was parked on 59 Cumberland Rd on the driveway waiting for the passengers. Passenger A got in the front seat and buckled in. Passenger B put her bag in the left side passenger seat when she suddenly screamed. I got out of the car to see what happened and saw her on the floor. I then called the ambulance.”
The police report
An incident report bearing Event Ref No. E93857858 reported the incident occurred around 9.10am on 1 May 2023. The report states:
“DRIVER1 parked the taxi in the car park … DRIVER 1 remained in the drivers seat of VEH1. The VEH1 was in park and not in motion at any time during the incident.
The VIC and the WIT have approached VEH1. The VIC opened one of the rear doors of VEH1 and attempted to step into VEH1. However, as the VIC was trying to sit in the VEH1 she was holding onto the door. The VIC has lost balance of her feet and as such this has resulted in the VIC falling over and injuring herself. The VIC is elderly and as such often trips or loses balance.
The DRIVER1 has immediately gotten out of the VEH1 and rendered aid to the VIC. The ambulance was called to the location to assess the VIC due to suspected injuries and possible left leg fracture. Police attended the location a short time later and were advised that the incident was a ambulance job and police were not required. Police were given information that the VIC fell over, there was no mention of any vehicle involvement at the time as and such police left the scene a short time later.
The VIC was treated at the location and transported to Liverpool Hospital for further assessment.
A few hours later police received a call from the WIT wanting to report the incident. Police attended the WIT address… in Minto to obtain all relevant details and the above version.
The WIT was unable to confirm the VIC injuries and stated that she needed possible surgery.
Police have contacted DRIVER1 who confirmed the above version.”
Call recorded in 000 call log
A call made by the claimant’s Apple watch to 000 was recorded in the 000 call log at 9.29am as follows:
“Can hear inft also on phone to ambulance, 79 FM, fell over C & B [conscious and breathing] – not responding to TZ questions - NFI”.
Ambulance report
The Ambulance Report case description states:
“OA pt lying supine outside medical clinic. C + B Medical centre staff present. Pt NESB. Staff translating. [Hx] Pt reports attempting to get into taxi when she tripped + fell backwards into her L)leg on concrete. Denies LOC. Denies headsrike….”
Liverpool Health Service
The Discharge Referral describes the presenting problem as “left hip pain secondary to mechanical fall”.
The reason given for examination on an X-ray of the chest was “77 year old female presenting following a fall from a taxi”.
Statement of Nadia Michael
Mrs Michael provided a statement dated 16 August 2023.
Adopting the numbering in her statement Mrs Michael relevantly stated:
“11. Prior to 1 May 2023 I was in relatively good health. I did use a walking stick to assist with mobility (which I commenced using around 5 years ago). I also treated elevated blood pressure with medication.
12. Otherwise, I helped look after my husband Magdy who is in the early stages of dementia diagnosis.
13. On the morning of 1 May 2023 my husband and I travelled to Ingleburn Community Health Centre located at 59A Cumberland Rd, Ingleburn …for an 8.30am dental appointment for Magdy.
14. We took a taxi from our home at Ingleburn to the medical practice in a 13CAB taxi.
15. The taxi driver was familiar to us as he had picked us up on previous occasions.
17. After dropping us off at the Community Health Centre he indicated that I could call when we were finished, and he would come back and take us home….
18. After my husband’s medical appointment was completed, I contacted the taxi driver using my husband’s phone …
19. After placing the phone call, we waited outside the Community Health Centre for approximately 5-10 minutes standing adjacent to the driveway.
20. When the taxi arrived, the driver remained seated in the vehicle. I believe the vehicle was running and not turned off.
21. I accompanied my husband to the front left passenger seat of the vehicle and once he was inside and seated, I closed the door.
22. I identified that it was the same driver that picked us up that morning.
23. I then opened the left rear passenger door and placed my bag and walking stick inside the vehicle. I then placed my left hand on the top of the door and my right leg I commenced placing into the taxi. Just as my right leg commenced sitting on the rear seat, I felt the taxi suddenly move forward.
24. This caused me to fall onto the ground and I started to scream in agony.
26. I understand that the taxi driver called the ambulance service.
29. I recall Magdy’s dentist coming outside to my assistance amongst other persons.
30. I speak very limited English and spoke in Arabic.
31. I told Dr Hazar Al-Rabadi what had happened. That I had one hand on the car door when the car started to move forward resulting in my fall.”
Statement of Magdy Greiss
Mr Griess provided a statement dated 16 August 2023.
Adopting the numbering in his statement Mr Greiss relevantly stated:
“6. I use a walking stick to assist with mobility.
9. We travelled by taxi from our home to the medical centre in a 13CABS taxi. I recognised the taxi driver as a person who had driven us previously.
12. The driver parked in the driveway of the medical centre.
13. My wife assisted me by opening the taxi door and I sat in the front passenger seat. She then closed the front passenger door.
14. My wife then opened the rear passenger door and commenced entering the taxi.
15. At this point the taxi driver began to drive way before my wife was seated and had closed the passenger door.
16 We both heard her scream.
17. The driver stopped the vehicle and got out of the taxi and came to my wife’s assistance.
18. The taxi driver also opened the front passenger door and escorted me out of the taxi.”
Statement of Daljit Nissar
Mr Nissar was the taxi driver. He provided a statement dated 8 June 2023.
Mr Nissar is a self-employed taxi driver who sub contracts for Australia Pacific Fleet. On the day of the accident, he was driving a Toyota Camry owned by Australia Pacific Fleet. Mr Nissar has been licensed for 20 years and has never had his licence disqualified, cancelled or suspended. He wears glasses when he drives including on the day of the incident.
He stated prior to the accident he had not consumed any alcohol, or drugs, prescription or otherwise. He was not fatigued.
Adopting the numbering in his statement Mr Nissar relevantly stated:
“33. At approximately 9.20am, I received a job at Ingleburn Community Centre at 59 Cumberland Road, Ingleburn. … There were no cars in the car park. I drove straight into a car space on the left hand side. This car park was parallel to the dentist. I parked within the lines of the car space and right next to a yellow walk rail. I could see a male and female standing in front of the dentist.
34. I parked the car and put the gear into park. I put the hand brake on. As I stopped, the male I saw approached the car and opened the front driver’s seat. The male sat in the vehicle and put his seatbelt on and closed the door. I could see the female walking toward the vehicle. She was elderly and walking very slowly. I said hello to the male and I waited for about one minute for the female. I did not know the male or female’s name.
35. After waiting for about one minute the female opened the rear passenger side door. She leant in and put her handbag on the back seat of the car. I started looking forward. I heard the female scream. I got out of the vehicle straight away. I ran to the female who was on the ground next to the vehicle with the door open. The female was laying flat on the ground with her head toward the dentist and her feet facing the vehicle. At no time did the vehicle move. The handbrake was still on and the vehicle was still in park. I did not see how the female had fallen.
36. I was trying to help the female. The male got out of the car and came to help the female as well. The male or the female did not say anything to me. I called an Ambulance because she looked in pain….
37. At no stage did the male question me about the accident. He made no suggestions that I drove the car when the female was trying to get in it. I’m not sure what happened, as I was in the front seat. I am certain I did not drive the vehicle while she was getting in.
48. The taxi is fitted with a number of cameras inside and outside. I asked my boss to check the cameras the same day the investigator called me. He advised me that the cameras tape over themselves after every five days. As a result, there is no footage from the taxi cameras.”
Statement of Melad Greiss
Mr Melad Greiss provided a statement dated 16 August 2023.
He is the son of the claimant. Adopting the numbering in his statement Mr Greiss relevantly stated:
“4. My mother Nadia Michael suffered a significant injury on 1 May 2023 whilst boarding a taxi at the Ingleburn Community Health Centre at 59A Cumberland Rd, Ingleburn.
5. Following her injury, I made contact with whom I believed was the taxi driver on 3 May 2023 at around 9.20am. I contacted Tarsem Kalhlon on 412 688 340. This was the number my parents gave me as the contact for the taxi.
6. When I called that number and introduced myself, Mr Kalhlon informed me that he was the owner of the taxi but not the driver of the taxi on 1 May 2023.
7. He then provided me with the registration plates of the taxi and game me the name and phone number of the taxi driver. I obtained this information as it was required to determine the CTP insurance details of the driver.”
Statement of Hazar Al-Rabadi
Dr Al-Rabadi was the dentist who treated the claimant’s husband on the day of her injury. He provides the following statement:
“After Mrs and Mr Michael left our practice on the 01/05/2023, it was brought to my attention by our reception staff that Mrs Michael had a fall in the carpark, and she is on the floor screaming of pain and unable to get up. I went out and found her lying on the floor surrounded by few other people and she was in agony. She told me in Arabic that she was trying to get into the Taxi with one hand on the car door when the car started moving forward so she fell. She was in excruciating pain and unable to move her leg or her side at all.
The taxi driver was calling the ambulance at the time, I stayed with her with few other people until the paramedics arrived, and she was taken to the hospital.”
Primary and Community Health
In response to a GIPA Application, Primary and Community Health advised no CCTV footage was available for Ingleburn Community Health Centre from mid-April 2023 due to malfunctioning of the device caused by power outages in the area.
SUBMISSIONS
The insurer’s submissions
The insurer submits the dispute is whether the claimant was injured during the “driving” of the insured vehicle or simply due to a fall. If the claimant was injured during the “driving” of the vehicle the insurer concedes it will be liable for statutory benefits, as the insured vehicle was wholly at fault and there are no allegations of contributory negligence.
The insurer submits if the vehicle was stationary, parked and not driving when the claimant fell, the accident is a fall that did not occur as a result of a motor accident.
The insurer submits the claimant simply fell over having regard to the following evidence:
(a) the 000 call log which states the claimant “fell over”;
(b) the insured driver’s statement to police that the vehicle was in park and not in motion at any time during the incident;
(c) the description of the incident provided by the insured driver in the Accident Report;
(d) the insured driver’s statement as to the circumstances of the accident;
(e) the narrative in the police report, and
(f) the contemporaneous history purportedly provided by the claimant and translated by staff which is recorded in the Ambulance Report as, “patient reports attempting to get into taxi when she tripped and fell backwards into her left leg on concrete”.
The insurer disputes the statement of Mr Greiss who it is noted was suffering from dementia and whose statement is bereft of any details regarding the driving of the vehicle in terms of timing, distance, speed and so on.
The insurer submits the most likely movement perceived by the claimant was the car door moving as she leant on it while attempting to get into the vehicle, causing her to lose balance and fall.
The insurer submits the claimant was not injured as a result of the driving of the vehicle, but as a result of the fall, which is not a motor accident.
The claimant’s submissions
The claimant submits the insurer bears the onus of establishing the basis for the denial of liability including that the circumstances did not involve a motor vehicle accident having regard to the decision of Schmidt J in Insurance Australia Ltd v Richards [2023] NSWSC 909.
The claimant submits the weight of the evidence having regard to the statements of Mrs Michael, Mr Griess and the contemporaneous report of Dr Al-Rabadi, supports the conclusion that the taxi had started moving.
The claimant suggests the history recorded by the NSW Ambulance Service is unreliable having regard to the inherent dangers in relying upon notes prepared by busy medical practitioners as highlighted in Davis v Wagga Wagga City Council [2004] NSWCA 34.
The claimant also refers to the notation NESB (non-English speaking background) which appears in the ambulance report.
The claimant had initially asked for the matter to be listed an assessment conference so that the evidence of the insured driver could be tested. However, it was agreed it was appropriate to determine the matter on the papers where Mr Nissar refused to attend for questioning and where the Commission does not have the power to compel the attendance of witnesses. However, in supplementary submissions dated 28 June 2024 the claimant submits given the obvious factual dispute between the parties, the Commission can reasonably draw the inference that any evidence given by Mr Nissar in cross examination would not have assisted the insurer.
The claimant submits in the absence of any further exculpation of Mr Nissar that the weight of the evidence supports the conclusion that the taxi started moving while the claimant was attempting to enter it.
FINDINGS
In accordance with the decision of the High Court in Vines v Djordjevitch [1955] HCA 19 the claimant must first establish that the accident was a motor vehicle accident in accordance with s 1.4 of the MAI Act. Thereafter, the onus shifts to the insurer to establish that the claimant was wholly or mostly at fault (see Insurance Australia Ltd v Richards [2023] NSWSC 909).
Here, the real issue in dispute is whether the insured vehicle was moving at the time of the accident. If the vehicle was in motion the insurer concedes the accident would meet the definition of a motor accident set out in s 1.4 of the MAI Act where the accident involved the use of a vehicle (the taxi) that caused injury to the claimant as a result of and caused by the driving of the vehicle. If I find the accident meets the definition of a motor accident the insurer concedes it will be liable for statutory benefits on the basis the claimant was not wholly or mostly at fault.
Factual findings must be supported by logically probative evidence and any inferences drawn must be reasonably open on the facts.[1]
[1] Australian Broadcasting Tribunal v Bond (1990) CLR 321; [1990] HCA 33 at [367].
I am not persuaded by the notation in the 000 call log or the history recorded in the Ambulance Report that the insured vehicle was not moving at the time of the accident when a version of events which states that the claimant “fell over” or “tripped and fell backwards” is not inconsistent with falling or tripping because the vehicle on which Mrs Michael was leaning moved.
I am also not persuaded by the version of the accident reported in the Police Report where it was apparently based on a version of events provided by Mr Griess and the insured driver. Whilst Mr Griess apparently informed police that Mrs Michael often trips and loses balance, this is not inconsistent with her need for a walking stick due to her poor mobility.
Furthermore, whilst there is no suggestion in the police account that the taxi was moving at the time of the fall I am cognisant of the need to treat any statement of Mr Greiss with caution, given his diagnosis of early stage dementia. Arguably there is inconsistency between the version allegedly provided by Mr Greiss to the Police and his statement dated 16 August 2023. In the absence of further evidence, it is difficult to be convinced of the reliability of his evidence and I do not propose to rely upon it.
Otherwise, the version of the incident contained in the police report was confirmed by the insured driver but there is no evidence of any attempt to obtain from him an independent statement. He was simply asked to verify the accuracy of the version already recorded. In concluding the version of events contained in the Police Report is not persuasive I am also mindful of the failure of the police to question or obtain a version of events from Mrs Michael.
Whilst I note the competing versions of the accident provided by Mrs Michael and the insured driver I find the evidence of Dr Al-Rabadi to be persuasive. Whilst he did not witness the accident his clear recollection is that Mrs Michael informed him in Arabic whilst she was lying on the ground that she was trying to get into the taxi with one hand on the car door when the car started moving forward causing her to fall. I am prepared to accept the statement of Mrs Michael having regard to the corroborative evidence of Dr Al-Rabadi.
I make the following findings of fact:
(a) the accident occurred outside the Ingleburn Community Health centre, 59 Cumberland Road, Ingleburn;
(b) the accident occurred on 1 May 2023 sometime between 9.10 and 9.25am;
(c) the insured driver Mr Nissar remained in his seat whilst Mr Greiss was assisted by Mrs Michael to take a seat in the front passenger seat before closing the front passenger door;
(d) Mrs Michael then opened the rear passenger door and placed her bag and walking stick on the back seat;
(e) after seeing Mrs Michael place her bag on the back seat of the car Mr Nissan started looking forward;
(f) Mr Nissan was not aware Mrs Michael had not entered the vehicle when he caused the vehicle to start moving;
(g) the vehicle started moving after Mrs Michael placed her left hand on the top of the door and commenced to place her right leg into the vehicle;
(h) the vehicle moved whilst Mrs Michael was holding the top of the door and attempting to place her right leg into the vehicle caused her to fall;
(i) Mr Nissar got out of his vehicle and came to the aid of Mrs Michael when he heard her scream;
(j) a number of people came to Mrs Michael’s assistance including the dentist
Dr Al-Rabadi;(k) Mrs Michael communicated with Dr Al-Rabadi in Arabic, and
(l) as a result of the fall Mrs Michael sustained a comminuted trochanteric fracture of the left femur.
I find the insured vehicle driven by Mr Nissar moved whilst the claimant was attempting to enter the vehicle causing her to fall and sustain injury. I find this constitutes a motor accident within the meaning of s1.4 of the MAI Act.
Given this conclusion and the concession by the insurer I find the claimant was not wholly or mostly at fault for the accident.
CONCLUSION
The claimant sustained injury in a motor accident in accordance with section 1.4 of the MAI Act.
For the purposes of s 3.28 of the MAI Act the claimant was not mostly at fault for the accident.
COSTS
The claimant abandoned the application for an exceptional costs order where the matter did not proceed to an assessment conference.
The insurer conceded the maximum regulated fee should be allowed.
Accordingly, I allow regulated costs in the sum of $1,919 plus GST.
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