Njaim v Allianz Australia Insurance Limited on behalf of the Nominal Defendant

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Njaim v Allianz Australia Insurance Limited on behalf of the Nominal Defendant [2022] NSWPIC 151
CLAIMANT:	Bakhos Njaim
INSURER:	Allianz Australia Insurance Limited on behalf of the Nominal Defendant
MEMBER:	Brett Williams
DATE OF DECISION:	8 April 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; claimant fell at shopping centre; claimed that he was struck by a motor scooter in a shopping centre and suffered injury; whether, for the purposes of section 3.1 of the Motor Accident Injuries Act 2017 (MAI Act), the claimant suffered injury as a result of a motor accident; Held- claimant carries the onus of establishing, on the balance of probabilities, facts said to demonstrate that he satisfies section 3.1 of the MAI Act and that he suffered injury that resulted from a motor accident; the claimant was struck twice by the scooter, once from behind and again after he had fallen; the claimant has suffered injury as a result of a motor accident.
DETERMINATIONS MADE:	1. For the purposes of section 3.1 of the Motor Accident Injuries Act 2017 the claimant suffered injury to his left shoulder and back as a result of a motor accident in this State on 22 December 2020. 2. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 plus GST.

Reasons for Decision

Issued under Rule 78 of the Personal Injury Commission Rules 2021

Background

Mr Bakhos Njaim made a claim for statutory benefits following an incident that occurred at Bankstown Central shopping centre. Mr Njaim’s application for benefits records that he suffered injury to his left shoulder, neck and back as a result of an electric power scooter colliding with him from behind.
Although his application for personal injury benefits records that the incident occurred on 23 December 2020, other material submitted in relation to Mr Njaim’s claim confirms that the incident occurred on 22 December 2020. The parties agree that the correct date is 22 December 2020.
The scooter involved in the incident was not the subject of a third-party policy under the Motor Accident Injuries Act2017 (MAI Act). Accordingly, the application for benefits was submitted to the Nominal Defendant. Allianz Australia Insurance Limited (Allianz), acts on behalf of the Nominal Defendant.
By notice dated 18 February 2021 Allianz accepted liability to pay statutory benefits to Mr Njaim for the first 26 weeks after the accident. A second notice was issued on 21 April 2021 denying liability for statutory benefits on the basis that Mr Njaim was not injured as a result of a “motor accident” as defined in the MAI Act. Mr Njaim sought an internal review by Allianz in relation to that decision. On 7 May 2021 the internal reviewer issued a certificate confirming Allianz’s earlier decision to deny liability for the claim. The internal reviewer determined that the injuries with respect to which
Mr Njaim sought statutory benefits had not resulted from a motor accident. The internal reviewer found that Mr Njaim’s injuries were caused by him tripping over.
Mr Njaim subsequently commenced these proceedings. He disputes Allianz’s decision that his left shoulder, neck and back injuries had not resulted from a motor accident. He asserts that he is entitled to statutory benefits. The dispute is a miscellaneous claims assessment matter: Sch 2 cl 3(b) MAI Act.

On the papers

The parties agree that the dispute can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the dispute without holding a formal hearing.

Statutory framework

Section 3.1 of the MAI Act is the gateway to entitlements to statutory benefits payable under Part 3 of the MAI Act. The provision is in the following terms:
“3.1   Statutory benefits payable in respect of death or injury resulting from   motor accident
(1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.
(2) Statutory benefits are payable (except as otherwise provided by this Part)—
(a)  whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b)  even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.”
Section 1.4 defines the term “motor accident” as follows:
“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 contains general restrictions on the application of the Act as follows:
“1.9   General restrictions on application of Act
(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.
(2)     This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”
Statutory benefits are payable by the relevant insurer as follows:
“3.2   Statutory benefits payable by relevant insurer
(1)     The statutory benefits payable under this Part are payable by the relevant insurer.
(2)     The relevant insurer is (subject to this section and section 3.3)—
(a)if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover—the insurer of the motor vehicle, or
(b)if the motor accident concerned involved more than 1 motor vehicle—the insurer of the at-fault motor vehicle, or
(c)in any other case—the Nominal Defendant.
Note—
The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.
(3)     …
(4)     The insurer of the at-fault motor vehicle is the insurer who provides motor accident insurance cover to—
(a)  the owner or driver of the motor vehicle whose fault in the use or operation of the vehicle caused the death or injury in respect of which the statutory benefits are payable, or
(b)  if there is more than one such motor vehicle—the owner or driver of the motor vehicle who was most at fault.
(5)     …
(6)     If the insurer of the at-fault motor vehicle is not a licensed insurer under this Act, statutory benefits payable under this Part are payable by the Nominal Defendant on behalf of the insurer.
(7)     …”
The term “motor vehicle” is defined in s 1.4(1) of the MAI Act as a motor vehicle within the meaning of the Road Transport Act 2013 (RT Act). Section 4 of the RT Act defines “motor vehicle” as a vehicle that is built to be propelled by a motor that forms part of the vehicle.

Evidence

In accordance with directions made on 8 December 2021[1] the parties have lodged an agreed bundle of documents. The bundle contains the evidence and submissions relied on by the parties, including CCTV footage together with documents produced in response to directions for production by NSW Police and Bankstown Central shopping centre.
[1] As subsequently modified on 16 February 2022.

Mr Njaim’s statements

Mr Njaim has provided statements dated 11 February 2021 and 26 April 2021. The February 2021 statement confirms that when providing the statement Mr Njaim had the benefit of an Arabic interpreter. Mr Njaim states that the vehicle involved in the incident was a red and black motorised scooter that was driven by a female whom he did not know. He states that the incident occurred at 12pm on 23 December 2020 in the Bankstown Central shopping centre, on the ground level between the Emporium Coffee Shop and The Coffee Club. He states at [16] – [19]:
“16.   I was walking as a pedestrian and there were a lot of other pedestrians there. I suddenly felt something hit the back of my legs. I felt pressure on the back of my legs for a couple of seconds and then it stopped. The pressure forced me forward and I thought I am going to fall. I fell forward and I don’t remember exactly how I fell, and the next thing I remember was that I was on the ground on my hands and knees and my hands slid out from underneath me and I ended up lying on the ground.
17     I pushed up onto my knees to get my wallet and my phone that had come out of my pockets and were on the ground. While I was doing this I looked behind me and I saw the scooter on my right hand side coming towards me, the front of the scooter hit my right leg between the knee and the ankle. I yelled at the lady, “What happened to you!” The lady said sorry and then she rode off in front of me.
18     After that I tried to get up and I realised I had a pain in my shoulder.
I managed to stand up and walk about two to three metres to the coffee shop and I sat down. That’s when I realised that my leg was bleeding from where she had hit me with the scooter the second time.
19     Someone had dropped a drink on the floor when the accident happened and the lady working at the Chinese store called a cleaner…”
Mr Njaim states that the day after the accident pain started in his neck, back, legs and arms.
In his 26 April 2021 statement, Mr Njaim states that the accident occurred on 22 December 2020 and that the scooter collided into his rear and he fell to the ground face first. He states that he did not trip or fall before the scooter collided into the back of his left foot.

Account provided by the driver of the motorised scooter

16. There is no statement from the scooter driver in evidence before me. Allianz relies on a conversation log that records a conversation between an investigator and the driver of the motor scooter on 8 March 2021. The log contains the following exchange:

“I said, “Do you recall an incident in Bankstown Central Shopping Centre on the 22 December 2020 where you may have hit a man with the motorised scooter you were driving?”
She said, “I can’t remember that far back.”
I said, “Do you recall renting a scooter on that day?”
She said, “I rent scooters all the time.”
I said, “Do you remember hitting a man in the shopping centre at all?”
She said, “I remember a man falling down, I am not sure if I hit him or he fell over next to my scooter. Is he ok?”
I said, “Yes the man is ok. He has lodged an insurance claim for his injuries stating that he was hit by the scooter that you were driving.”
She said, “I don’t remember hitting him. I remember a man fell down but there was no blood or anything…”

Medical records

Mr Njaim attended Bankstown Hospital on the day of the incident. An admission summary from Bankstown Hospital dated 22 December 2020 inclueds the following history:
“…
Progress
At BNK palaza [sic]
Was pushed from behind by a motorised Wheelchar [sic]
Wheelchair subsequently ran over lower limbs
Nil headstrike of [sic] LOC
Reports of mild L shoulder pain
Able to ambulate post fall
Nil other injuries…”
The hospital summary records that there was “Nil midline CSpine tenderness”. With respect to the upper limbs, the summary records:
“L Midline clavicular tenderness on palpation, full shoulder ROM, tone normal, p[o]wer 5/5 bilat, reflexes ++ throughout, sensations intact bilat”.
As to the back, the summary records “Nil midline tendenress [sic]”.
X-rays of the left shoulder, right wrist and right knee were performed. The hospital records state that Mr Njaim was discharged on 22 December 2020.
Mr Njaim attended the hospital again on 24 December 2020. X-rays of both knees and his lumbar spine were performed on that occasion. The lumbar spine x-ray report records a history of a fall the previous day. I infer these investigations were carried out because Mr Njaim complained of symptoms in his knees and lumbar spine.
A certificate of capacity completed by Dr Assaad on 14 January 2021 records a diagnosis of left shoulder strain, cervical strain and lumbar back strain. The certificate also refers to pre-existing cervical and lumbar spondylosis.

The claim form

Mr Njaim completed an application for personal injury benefits dated 1 January 2021 (the claim form). In response to the question “Where did the accident occur?” the claim form records as follows:
“Bankstown Shopping Centre inside the centre on electric power scooter/wheelchair collided into me from the back.”
The claim form records that Mr Njaim was a pedestrian and that he suffered injury to his left shoulder, neck and back.

NSW Police

The police report dated 8 February 2021 contains a narrative of the incident that includes the following:
“…As the VIC passed the Coffee Club, the VIC has tripped over and fell on the ground. At this time, the POI was closely following behind the VIC on an electric scooter. As the VIC has fallen to the ground, the POI was unable to stop quickly and as a result run into the VIC’s right leg. This has caused a minor abrasion to the VIC’s right shin…
…Police attended Bankstown Centro Security office to view the footage. Police observed the VIC walking past the Coffee Club and the POI closely behind. The VIC is then shown falling to the ground and the POI bumping into him…”
There is a transcript of an interview with Probationary Constable Brittany Stoker on 4 March 2021. Constable Stoker states that she attended the Bankstown Centro shopping centre as a result of a report that a man believed he had been assaulted by someone in a motorised scooter. Constable Stoker says that she and her partner did not get to speak to the “victim”. They were told by shopping centre security that “the man had tripped over”. She was told that the incident had occurred outside The Coffee Club at about 12pm. She and her partner viewed CCTV footage. The transcript records the following exchange between Constable Stoker and the investigator:
“Q21 Can you tell me what you saw on that footage?
A21 So, that footage wasn’t exactly very – like, very good quality but in the top – I remember in the top corner of the footage we observed the victim, like, trip and then we saw the motorised scooter swerve around him. And then – yeah. That’s what I remember seeing”
Constable Stoker states that she could not see any impact between the scooter and the “the gentleman in the footage”. She confirmed that a statement was not taken from
Mr Njaim, who attended the station to report the incident. She said that “…he didn’t know if the person has done it on purpose…”. The only injury she was aware of was to Mr Njaim’s right shin.
The transcript of interview records that Constable Stoker spoke to the driver of the motor scooter, who stated that:
“…it was an accident and she saw - she saw him trip over but she didn’t have enough time to sort of slow down so she had to swerve around him”.
The following exchange is recorded in the transcript:
“Q38 Okay. All right. And so, at any stage has any – either of the parties or anything that you have seen indicated to you that the scooter is the reason he fell in the first place?
A38 No. Not from what I saw in the footage. It – to me it looked like – just like an accident. Like, he tripped over. From my – like, from when I was viewing the footage. Yeah.
Q39 Okay. And so, is there a suggestion that when she states that she couldn’t avoid him that she’s hit him when he’s on the ground?
A39 I – that could be a possibility but, yeah, I’d believe, like, from viewing the footage it didn’t look like it was intentional – yeah.
Q40 Okay.
A40 I couldn’t – like, I couldn’t really see in the footage.
Q41 Yeah. If there’s any impact ---
A41 Yeah.
Q42 --- between the scooter and the gentleman.
A42 Yeah.
Q43 Okay. All right. And so, where does she come from in relation to him? Does he fall to the ground?
A43 Yes.
Q44 Okay. Which way does he fall, forward?
A44 He falls forward and she was coming from behind him and has sort of gone around and just continued.”
Constable Stoker states that police didn’t take any action because they believed, as a result of viewing the CCTV footage, that there did not appear to be any intent on the part of the motor scooter driver to be following Mr Njaim or to hit him. From what could be seen on the footage there was not enough to take any action.
NSW Police produced documents in response to a direction for production. The documents contain a COPS report that includes the same narrative contained in the 8 February 2021 report addressed earlier in these reasons at [25]. The COPS report records that police will not be taking any action due to investigations showing “that the POI did not have the intent to assault the VIC”.
The documents produced by NSW Police include hand-written notebook entries. The notebook entries do not include any statements.

Documents produced by Bankstown Central shopping centre

The documents produced by the shopping centre include an incident report. The report records that the incident involving Mr Njaim occurred at 12.26pm on 22 December 2020. The report contains an account said to have been provided by Mr Njaim that:
“…he was walking past Michel’s Patisserie when a lady in a mobility scooter ran into him from behind causing a small laceration to the back of his left ankle.”
The report states that Mr Njaim suffered a minor abrasion to his left ankle and that the “small abrasion and laceration were cleaned up”. The report records that Mr Njaim was wearing black shorts, a black Adidas short sleeve t-shirt and open toe sandals. The report states that Mr Njaim was “angry and abusive towards the female [who] struck him with the mobility scooter”. It is also recorded that the driver of the scooter stated “…that it was a complete accident and did not mean to hit [Mr Njaim]…”.
The shopping centre documents include photographs of the location of the accident.
The documents also include an email from Securecorp, the security provider at the shopping centre, dated 17 February 2021. The email states that the footage viewed by police on the day of the accident was backed up and saved onto an external hard drive which was “no longer working”. It is recorded that the only footage available is from a camera that has distant coverage.

The CCTV footage

Included in the material produced under direction by the shopping centre is CCTV footage from two cameras. To be clear, this footage is not the footage that the police and shopping centre security personnel viewed on the day of the incident. For the reasons addressed at [36] that footage is not in evidence before me.
I am mindful of the authorities that make it clear care must be taken when interpreting photographs.[2] I consider that this extends to evaluating CCTV footage.
[2] See for instance Blacktown City Council v Hocking [2008] NSWCA 144 at [167] – [172].
The footage in evidence before me does not depict Mr Njaim falling. It does, however, depict both Mr Njaim and the scooter prior to the incident in dispute occurring.

View 1 of the footage is said to depict an area outside Michel’s Patisserie. The footage is time stamped. The times referred to below are those recorded in the footage. The parties agree, and I find, that:
a.    view 1 of the footage shows Mr Njaim coming into view at or about 12:05:03.769;
b.    when shown in the footage in view 1, Mr Njaim is wearing a black Adidas
t-shirt and black shorts[3];
c.     the driver of the scooter involved in the incident first comes into view in view 1 of the footage at or about 12:05:05.288;
d.    for the entire time that she can be seen in view 1 of the footage the driver of the motorised scooter is holding a mobile telephone up to the left side of her face with her left hand;
e.    Mr Njaim is last seen in view 1 at or about 12:05:11.208, and
f.     the incident occurred shortly after 12:05:12.447, when Mr Njaim and the scooter move out of view at the bottom left of the footage.
[3] This is consistent with the description of Mr Njaim’s clothing contained in the shopping centre incident report.
From my observation of the view 1 footage, it appears that as the scooter and Mr Njaim move out of view the scooter appears to be travelling close behind Mr Njaim to his right. The driver of the scooter is wearing sunglasses. For the entire time she is seen in view 1 of the footage she is holding a mobile phone up to her ear with her left hand.
View 2 of the footage is said to depict “L1 towards G.Market”. The scooter is seen at the top right of the footage at or about 12:05:54.289. The scooter is seen to turn right and travel through the shopping centre towards the camera, disappearing at 12:06.22.623. This footage does not appear to depict Mr Njaim at any time.

Mr Njaim’s submissions

Mr Njaim relies on submissions dated 18 March 2022. It is submitted that his evidence confirms that his injuries were caused by the impact of a motorised scooter. It is noted that the scooter driver has not provided a statement to the police or the insurer. It is argued that the evidence of Constable Stoker[4] is confusing and doubtful. It is also submitted that the version of the incident in the police report is confusing as it is not clear whether it reflects Constable Stoker’s[5] version or Mr Njaim’s. It is also asserted that there was no interpreter present when Mr Njaim was interviewed at the police station.
[4] The submissions refer to Constable Proctor. I have assumed that this is an error, and that it is Constable Stoker’s evidence that is being referred to.
[5] The submissions refer to Constable Proctor.
It is submitted that the statement of Constable Stoker[6] should not be accepted as, while she recalls seeing the accident on the footage, the footage does not reveal an accident. It is also submitted that the CCTV footage does not depict any tripping and that the scooter driver is seen speaking on her mobile phone throughout the footage. It is argued that the accident arose out of the use of a motor vehicle on a road related area.
[6] The submissions refer to Constable Proctor.
It is submitted that as a result of the accident Mr Njaim injured his left shoulder, neck and back and that the injuries are supported by the hospital notes. It is observed that in the early part of the CCTV footage the scooter driver is seen to be involved in another collision due to her talking on her mobile phone. I was unable to identify this incident when I viewed the footage.

Allianz’ submissions

Allianz relies on submissions dated 18 June 2021. The submissions state that there is no dispute that the incident occurred in New South Wales. Allianz concedes that as the vehicle alleged to have been involved in the incident was an unregistered mobility scooter, a vehicle propelled by a motor, if statutory benefits are payable under s 3.1, they are to be paid by the Nominal Defendant.
Allianz disputes that a motor vehicle accident caused Mr Njaim’s alleged injuries. It is noted that the date of incident alleged by Mr Njaim, 23 December 2020, is incorrect and that the incident occurred on 22 December 2020. Allianz disputes that the alleged injuries to Mr Njaim’s left shoulder, neck and back were caused during a motor vehicle accident and disputes that he suffered a clavicular fracture.
Allianz relies on Constable Stoker’s evidence in relation to what she saw in the CCTV footage that is no longer available. In particular, Allianz relies on her evidence that she saw Mr Njaim trip and the scooter swerve around him and that she could not see any impact between the scooter and Mr Njaim in the CCTV footage.
Reference is made in Allianz’s submissions to Mr Njaim’s attendance at the hospital on 24 December 2020 and the x-rays of his knees and lumbar spine performed at that time. Allianz disputes that Mr Njaim’s left knee and lumbar spine were injured in the fall at the shopping centre as those body parts were not mentioned to the hospital when Mr Njaim attended the hospital on the day of the incident.
Allianz disputes that the scooter collided with Mr Njaim before he fell. This submission is said to be supported by his evidence that he saw the scooter approach him when he was already on the ground.
Allianz concedes that the abrasion on Mr Njaim’s right shin may have occurred during a collision with the scooter. However, Allianz notes that this is not the injury for which statutory benefits are claimed. Allianz disputes the injuries claimed arise as a result of a collision with an uninsured mobility scooter. If it is accepted the injuries exist, then those injuries were caused by Mr Njaim falling forward onto the ground without any collision with scooter.
In further submissions dated 4 March 2022 Allianz argues that the CCTV footage does not assist as the fall is not seen. The history recorded in the shopping centre incident report is relied on. It is submitted that whether the injury sustained as a result of the scooter colliding with Mr Njaim’s leg was an abrasion or laceration to his right shin as recorded in the police report; or right leg between his knee and ankle, as recorded in his statement of 11 February 2021; or the back of his left lower foot, as recorded in his statement of 26 April 2021; or his left ankle, as recorded in the incident report, those are not the injuries being claimed. Allianz disputes that all injuries claimed occurred as a result of a motor vehicle accident and disputes the injuries alleged were sustained as a result of a fall, which was not as a result of a collision with the motor scooter.
Allianz relies on second further submissions dated 22 March 2022. Allianz refers to the version of the accident provided by the motor scooter driver to its investigator and the police. The driver said she saw Mr Njaim trip but didn’t have time to slow down and had to swerve around him. Allianz notes that Constable Stoker viewed the CCTV footage that is no longer available and relies on Constable Stoker’s account that she saw Mr Njaim “trip and then we sort of saw the motorised scooter swerve around him”.
Allianz disputes that there was no interpreter at the police station and notes that the police report records that Mr Njaim’s daughter was present with him at the police station. Accordingly, Allianz submits that it can be assumed she could have interpreted if required. Allianz argues that there is nothing confusing or doubtful about the police report. It is submitted that the report is supported by the interview with Constable Stoker. It is argued that Mr Njaim’s view of the CCTV footage showing “no tripping” is irrelevant in circumstances where the footage of the incident was not viewable by reason of the external hard drive not working. Allianz disputes that the incident occurred on a road related area, disputes the alleged injuries arose as a result of a motor accident, disputes the alleged injuries and disputes that the alleged injuries are supported by the hospital notes. Allianz also disputes that the CCTV footage shows the scooter driver was involved in another collision.

Determination

If injury to a person results from a motor accident in New South Wales, statutory benefits are payable in respect of the injury as provided by Part 3 of the MAI Act: s 3.1.
Section 3.1 establishes the primary grounds from which Mr Njaim’s right to payment of statutory benefits in accordance with Part 3 arises. I consider that satisfying s 3.1 is a condition precedent to establishing an entitlement to receive statutory benefits under Part 3 of the MAI Act. Consequently, the onus of establishing, on the balance of probabilities, facts said to demonstrate that he satisfies s 3.1 rests with Mr Njaim: Vines v Djordjevitch (1955) 91 CLR 521. Likewise, the onus of establishing, on the balance of probabilities, that he satisfies the test contained in s 3.1 rests with Mr Njaim.
Mr Njaim’s claim form records that he suffered injuries to his left shoulder, neck and back as a result of being struck by a motorised scooter while he was a pedestrian at the shopping centre. No other injuries are referred to in the claim form. Mr Njaim’s submissions of 18 March 2022 confirm that his case is that he suffered injury to his left shoulder, neck and back as a result of the incident involving the motor scooter. This is consistent with the position taken on Mr Njaim’s behalf by his solicitor at the teleconference conducted on 10 September 2021, at which time it was confirmed that Mr Njaim alleged that he suffered injury to his left shoulder, neck and back. It was also confirmed that no other injuries are alleged to have been caused by the incident. Accordingly, the injuries relevant to determining whether Mr Njaim satisfies s 3.1 are the alleged injuries to his left shoulder, neck and back.
Although he initially alleged that the incident occurred on 23 December 2020, Mr Njaim now agrees that it occurred on 22 December 2020. There is, accordingly, no dispute about when the incident occurred.
Allianz’s case, put simply, is that Mr Njaim tripped and that there was no motor accident.
As observed at [38], caution must be exercised when evaluating CCTV footage. I consider that even greater caution must be exercised when considering the weight that should be given to accounts provided by witnesses as to their impression of CCTV footage they have viewed, particularly, as in this case, where that footage is not available for me to evaluate.
Allianz relies on Constable Stoker’s assessment of the CCTV footage that depicted Mr Njaim falling. With respect to this footage, Constable Stoker stated, in her record of interview, that it wasn’t very good quality. She thought Mr Njaim had tripped. She said that she couldn’t really see in the footage whether the scooter had hit him after he had fallen to the ground. If that was the case, it is not clear why Constable Stoker recorded in the narrative contained in the police report and the COPS report, that:
“…As the VIC has fallen to the ground, the POI was unable to stop quickly and as a result run into the VIC’s right leg…”
If Constable Stoker was not sure whether the scooter had come into contact with Mr Njaim, I would have expected her narrative in the police reports to have been in less definitive terms with respect to the scooter running into him.
I consider it probable that Constable Stoker’s focus when reviewing the CCTV footage was on whether the scooter driver deliberately collided with Mr Njaim.
I find that the footage viewed by Constable Stoker was not clear. I have concluded that Constable Stoker’s evidence as to her impressions of the footage are of limited value. They do not, in my view, exclude the possibility that the scooter came into contact with Mr Njaim either before or after he fell, or both.
Given my finding that the CCTV footage viewed by Constable Stoker was not clear, to the extent that staff at the shopping centre had formed views or conclusions as to what transpired based on that footage, those views have the same limitations as those formed by Constable Stoker.[7]
[7] See record of interview with Constable Stoker from [Q11 – A14].
There is no statement of the scooter driver in evidence before me. The record of a conversation between an investigator and the scooter driver records that the driver was not sure whether she hit Mr Njaim or he fell over. She said she didn’t remember hitting him. The incident report from the shopping centre records that the scooter driver said that “it was a complete accident and [she] didn’t mean to hit [Mr Njaim]”.
The parties agree, and I have found, that the scooter driver is seen in view 1 of the CCTV footage holding a mobile phone to her left ear with her left hand for the entire time she can be seen. I have found that the incident occurred shortly after Mr Njaim and the scooter driver move out of view at the bottom left of the footage. I consider it more probable than not that the scooter driver was still talking on her mobile phone when the incident occurred. Based on the evidence before me, I am not persuaded that the scooter driver knows if she struck Mr Njaim at any time, whether before the fall, after the fall, or both.
The first recorded account of the incident provided by Mr Njaim appears to be that recorded in the shopping centre incident report. The report states that Mr Njaim’s version of the incident was that he was walking past Michel’s Patisserie when a lady in a mobility scooter ran into him from behind.
There is then the account contained in the hospital notes in relation to Mr Njaim’s attendance on the day of the incident, which I infer reflects what hospital staff were told by Mr Njaim. The notes record that Mr Njaim was pushed from behind by a motorised wheelchair which subsequently ran over his lower limbs.
The claim form dated 1 January 2021 records that the scooter collided into Mr Njaim “from the back”.
In his statement of 11 February 2021 Mr Njaim provided the following account of the incident:
“16. I was walking as a pedestrian and there were a lot of other pedestrians there. I suddenly felt something hit the back of my legs. I felt pressure on the back of my legs for a couple of seconds and then it stopped. The pressure forced me forward and I thought I am going to fall. I fell forward and I don’t remember exactly how I fell, and the next thing I remember was that I was on the ground on my hands and knees and my hands slid out from underneath me and I ended up lying on the ground.
17 I pushed up onto my knees to get my wallet and my phone that had come out of my pockets and were on the ground. While I was doing this I looked behind me and I saw the scooter on my right hand side coming towards me, the front of the scooter hit my right leg between the knee and the ankle…”
Mr Njaim has consistently maintained that he was struck by the scooter from behind, and that this caused him to fall. He does not, however, give evidence that he saw the scooter hit him from behind.
I was initially troubled by Mr Njaim’s evidence that, after falling, he saw the scooter coming towards him and was struck again by the scooter. This evidence seemed to me to be inconsistent with the scooter having been close enough to him to hit the back of his legs. I have concluded that his evidence that he saw the scooter on his right hand side coming towards him was an impression formed in the heat of the moment and that his impression of time and space should be evaluated in this context.
The combined effect of Mr Njaim’s account of the incident as recorded in the shopping centre incident form, the history recorded in the hospital notes on 22 December 2020, and his statement of 11 February 2021 at [16 -17], has persuaded me that it is more probable than not that Mr Njaim did feel pressure on the back of his legs before he fell.
There is, in my assessment, no other cause identified in the evidence for Mr Njaim feeling pressure on the back of his legs other than the motor scooter having come into contact with his legs. I am satisfied, on the balance of probabilities, that the motor scooter collided with the back of Mr Njaim’s legs before he fell.
I find that Mr Njaim was struck in the legs from behind by the scooter just after
12.05 pm on 22 December 2020. I find that as a result of being struck by the scooter Mr Njaim fell to the ground.
I am also satisfied that Mr Njaim was hit by the scooter a second time, after he had fallen. I accept his evidence in this regard.
Mr Njaim’s statement records at [18] that he experienced pain in his shoulder immediately after he had fallen. While the statement doesn’t record which shoulder he was referring to, I infer that it was his left shoulder. I accept his evidence in this regard, as it is supported by the complaints of shoulder symptoms recorded in the hospital notes relating to his attendance on the day of the incident. It is also consistent with him being referred for an x-ray of his left shoulder at that time. I find that it is more probable than not that Mr Njaim suffered a left shoulder injury as a result of him falling to the ground after being struck from behind by the scooter. The x-ray report records that there was no visible fracture line seen in the left shoulder. Given the X-ray findings, I am not satisfied that Mr Njaim fractured his left shoulder as a result of the incident. I consider it more probable than not that he suffered a left shoulder strain, as diagnosed by Dr Assaad in his certificate dated 14 January 2021.
There are no low back complaints recorded in the hospital notes relating to Mr Njaim’s attendance on 22 December 2020. His evidence is that pain developed in his back the day after the accident, and that this led him to return to the hospital[8]. The hospital records confirm that he attended with complaints of L3/L4 pain on 24 December 2020, two days after the incident. The lumbosacral spine x-ray report dated 24 December 2020 records a history of a fall the day before. I infer that the history of a fall that is recorded in the x-ray report was provided by Mr Njaim and that he attributed his lumbar spine pain to the fall. This evidence satisfies me that it is more probable than not that Mr Njaim suffered injury to his lumbar spine as a result of falling after he was struck by the scooter. I accept Dr Assaad’s diagnosis of a lumbar back strain.[9]
[8] Statement dated 11 February 2021 at [25].
[9] Certificate dated 14 January 2021.
There is no record of neck symptoms or injury in the hospital records relating to Mr Njaim’s attendance on 22 December 2020. The hospital notes state that there was no midline cervical spine tenderness. No x-rays of Mr Njaim’s neck were performed when he attended the hospital on 22 December 2020. Mr Njaim’s evidence is that he experienced neck pain the day after the accident. If he had suffered symptoms in his neck, I would have expected him to have made complaints about those symptoms when he attended the hospital on 24 December 2020. I consider it probable that if he had complained of neck symptoms, those complaints would have been recorded in the hospital notes. Further, had he complained of neck symptoms on 24 December 2020, I consider it probable that x-rays of his neck would have been performed at that time, as they were in relation to the injuries he complained of when he attended the hospital on 22 and 24 December 2020. In these circumstances, I am not satisfied, on the balance of probabilities, that Mr Njaim suffered an injury to his neck as a result of being struck by the scooter on either the first or second occasion.
I am satisfied that the motor scooter is a motor vehicle within the meaning of the RT Act and the MAI Act as it is a vehicle that is built to be propelled by a motor that forms part of the vehicle. I find that on each of the two occasions Mr Njaim was struck by the scooter he was involved in an accident involving the use and operation of a motor vehicle and that he suffered injury to his left shoulder and back that was the result of, and caused during, a collision with the scooter. Consequently, I find that Mr Njaim suffered injury to his left shoulder and back as a result of a motor accident. He is entitled to statutory benefits in accordance with Part 3 of the MAI Act.

Costs

Mr Njaim seeks costs of the proceedings, which relate to a claim for statutory benefits. His entitlement to costs is governed by s 8.10 of the MAI Act. He is entitled to recover his reasonable costs: s 8.10(1). The regulations have fixed the maximum costs recoverable: s 8.10(2). The current maximum allowed by the regulations for a dispute of this nature is $1,710 plus GST. Recovery of legal costs at the maximum allowed by the regulations is not mandatory. The amount that can be recovered is the reasonable and necessary costs in connection with the dispute.
Having regard to the issues in dispute, the evidence before me, and my assessment of the legal work involved in connection with the proceedings, I allow $1,710 plus GST.

Brett Williams

Member (Motor Accidents Division)

Personal Injury Commission

[2022] NSWPIC 151

8 April 2022