| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Pham v AAI Limited t/as GIO [2022] NSWPIC 304 |
| CLAIMANT: | Michael Pham |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 17 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault and whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant swerved to avoid hitting a dog which suddenly ran across his path; claimant subsequently collide with a tree sustaining serious injuries; single vehicle accident; Held– claimant not wholly or mostly at fault; issues of constructions of ‘motor accident’ and “fault” and section 1.4 of the 2017 Act considered; consideration as to cases in single vehicle accidents; costs assessed on exceptional basis pursuant to section 8.10(4)(b)of the 2017 Act. |
| DETERMINATIONS MADE: | 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. The amount of the injured person costs assessed in the sum of $11,662.20 inclusive of GST. |
REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT
Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
Michael My Duy Pham (the injured person) was injured on 14 October 2020 at around 5.00pm on Magpie Hollow Road at Rydal, in New South Wales when he swerved to avoid a dog, lost control of his vehicle and collided with a tree.
In the accident he sustained the following injuries:
(a) right comminuted midshaft femoral fracture;
(b) right open ulna with forearm fracture and elbow laceration;
(c) fracture of middle finger;
(d) fracture to the sternum and right rib;
(e) left undisplaced based 3rd metacarpal fracture;
(f) left undisplaced small trapezoid fracture requiring splint, and
(g) cuts and bruises soft tissue injuries.
The injured person made a claim against GIO, the third-party insurer of his own vehicle.
A dispute has arisen in connection with the claim as to whether the injured person is entitled to receive statutory benefits after 26 weeks. The injured person has referred that dispute to the Personal Injury Commission (the Commission). The dispute is before me for determination.
The matter has been the subject of numerous teleconferences and an Assessment Conference which took place on 1 April 2022 with Mr Stone senior counsel of counsel appearing for the injured person and Ms J Gumbert of counsel appearing for the insurer.
Statutory framework
The claim is one for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
Under s 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident.
However, pursuant to ss 3.11 (relevant to weekly benefits) and 3.28 (relevant to treatment and care benefits), after 26 weeks from the date of the accident, an injured person is not entitled to statutory benefits if the injured person only has minor injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident. In this case there is no dispute that the injured person sustained non-minor injuries.
Schedule 2, cl3(d), (e) and (n) provide the Commission with jurisdiction to determine whether the motor accident on 14 October 2020 was caused wholly or mostly by the fault of the injured person and therefore whether GIO (the insurer) can terminate his weekly statutory benefits under ss 3.11(1) and (2) his and treatment and care statutory benefits under s 3.28(1) and (2).
Insurer’s decision
In its first liability notice dated 16 November 2020, the insurer accepted liability to pay the injured person statutory benefits for the first 26 weeks after the accident. By accepting liability, the insurer at this point in time accepted the accident was a motor accident within the definition in s 1.4 of the MAI Act and that it was the relevant insurer under s 3.2.
In its second liability notice dated 18 January 2021, the insurer accepted that the injured person had sustained non-minor injuries but denied any liability for statutory benefits beyond the first 26 weeks (14 April 2021).
The injured person sought internal review and the review was conducted by
S Thistlethwaite. In this determination dated 26 February 2021, the insurer says the injured person is “wholly at fault for the accident”. Relying upon the Application for Personal Injury Benefits dated 19 October 2020 and the police report dated 9 November 2020 it believed that the injured person was wholly at fault for the accident because he:
“(a) failed to see the dog … in sufficient time.
(b) swerved and steered your car when it was unsafe to do so
(c) failed to control your car so as to avoid hitting a tree
(d) failed to slow down and control your vehicle so as to avoid injury
(e) failing to take care to avoid injury."
In the statement of reasons in the internal review conducted by the insurer the decision continued:-
“the writer has assessed the issue of whether you were wholly or mostly at fault on the following basis:
1. You were travelling approximately 100km/h. The writer notes that you have not stated your speed in any of the documents however you the Police report records your pre-crash speed as 100km/h and that has not been challenged.
2. It was daylight (as recorded in the Police report).
3. The dog appeared suddenly on the road in front of you.
4. You took evasive action by swerving to avoid the dog and as a result you collided with a tree
….
“The question therefore is whether your actions in swerving to avoid a dog when travelling at 100km/h were the actions of a reasonable person when faced to act in an unexpected and unheralded situation. It is patently obvious that a reasonable person would have been aware that there was a risk of serious injury when taking evasive action at such high speed. The writer considers that the risk of injury was so great that a reasonable person in your position would not have taken such evasive action and would have unfortunately collided with the dog. In support of that position the writer refers to NSW Insurance Ministerial Corporation v Reeve (NSW Court of Appeal, unreported decision, 24 September 1993). In that case a driver on the Pacific Highway had stopped suddenly to avoid some ducks crossing the road. The Chief Justice observed: “Perhaps somewhat generously to Mr Cotterill, his Honour did not seem to regard it as an aspect of negligence on his behalf that he did not decide to run over the ducks rather than imperil the people in the cars behind him.” The writer acknowledges that this was mere obiter dicta but the sentiment expressed supports the proposition that a reasonable driver would run over an animal on the road rather than imperil other road users or themselves.
Having regard to the above, the writer considers that you were wholly at fault for the subject motor accident and that the evasive actions taken in order to avoid a collision with a dog were not the actions of a reasonable person in that position. “
Conclusion
In determining an Internal Review Application, the Internal Reviewer is to review the matter on the merits and make their decision having regard to the material before them, including your version of events and the Police version. The writer notes that the Police found you to be responsible for the accident.
The writer submits that the legislation [Motor Accident Injuries Act 2017 (NSW)] is clear on the cessation of entitlements after 26 weeks for persons who are found to be wholly or mostly at fault.
All CTP insurers in New South Wales are bound by the stipulations of this legislation and there is no room for digression or flexibility from what this legislation dictates.
The writer has made the decision to affirm the decision of the GIO Claims Team and considers that you were wholly at fault for the subject accident. Accordingly, your weekly benefits will cease 26 weeks from the date of the motor accident, and, you will not be entitled to treatment and care incurred 26 weeks from the date of the motor accident.”
Claim form, ambulance record and NSW Police documents
According to ambulance case record dated 14 October 2020 the injured person was confused and had nil recollection of the event when first attended upon. The Case Description recorded at page 2:
“C/T single vehicle MVA – high speed into tree, single occupant. O/A two vehs passing by present with teo [sic] people sitting with PT. PT located in foetal position next to driver side of vehicle. Vehicle located down a 1.5 mere embankment some metres from tree it collided with – major deformation to the sedan hatch front/ roof/and drivers side with full intrusion into vehicle at all above mentioned points. PT appears to have been wearing seatbelt per observed bruising. Pt unable to recall inicident [sic] or how he extricated from the vehicle…”
In the injured person’s Application for Personal Injury benefits, dated 19 October 2020 completed whilst in hospital, by his brother without intervention of legal representation, the accident description provided was:
“Was driving down Hollow Rd,. Saw a dog on the path. Made an instant reaction of swerving to avoid the animal, Ended up hitting a tree front on.”
NSW Police attended the scene of the accident and complied a report dated 2 November 2020 bearing event no E299610096. Police noted the speed limit was
100 kph, the road alignment was curved, the weather was fine, the surface was sealed and dry and it was daylight. The injured person was wearing a seatbelt. The recorded noted the speedometer was stuck on 100km/h.
The crash summary details were recorded as:
“About 5pm on Wednesday 14 October 2020 a white Volkswagon Golf was travelling in an easterly direction along Magpie Hollow road Rydal. Approximately 500 metres south-west if [sic] Martins rd the Volkswagon has collided heavily with a tree a few metres north of the roadway. The driver who was the sole occupant of the vehicle sustained serious injuries to his limbs.”
The injured person was not charged with any offence as a result of the accident.
Photographs taken by the police of the scene attached to the letter dated 3 November 2021 to the insurer from the injured person (AD4) reveals the proximity of the tree to the roadway. There were two trees, one that was struck and one very close behind it were growing out of the vegetation adjacent to the gravel next to the bitumen. The trees appear to be no more than 1 to 2 m to the left of the sealed section of the road. The gravel section was fairly narrow.
The report of NSW Police Senior Constable Mamouzelos upon a telephone interview with the injured person on 24 February 2021 provides the following additional details:
“He said he was driving along at the sign posted speed (100). He said a dog ran out from the nature strip to ahead of him on the right side of the road in the directions he was travelling. He said he swerved to miss it and lost control of his vehicle and cannot remember anything else until after the collision.” (p4)
The site diagram prepared by Senior Constable Mamouzelos indicated the direction of travel, location of vehicle upon collision having taken place and distance from nearest intersection.
The photographs taken by the injured person to establish the speed of the area on 15 February 2021 produced at R6 show a sign post of 100km/h but does not appear to be reflective of the actual point of the collision with the tree. The relevance of the document has not been made clear. It shows the bitumen road, and vegetation on both sides of the road.
The dispute
The dispute was summarised into a four point of contention:
(a) issues of fact – whether a dog was involved in the circumstances of the accident?
(b) issues of fact and law – whether the injured person in swerving to avoid a dog and hitting a tree amounted to fault / negligence;
(c) legal precedent and statutory definition – relating to motor accident and fault where the accident is a single vehicle, and
(d) application for exceptional costs
The parties provided voluminous submissions:
(a) the injured person provided written submissions dated:
(i)17 June 2021 - AD1;
(ii)8 February 2022 – AD6;
(iii)15 March 2022 – AD8, and
(iv)4 May 2022 -AD16.
(b) The insurer provided written submissions dated:
(i)24 November 2021 - AD5;
(ii)15 February 2022 - AD7, and
(iii)10 May 2022 – AD 17.
Assessment conference
The parties requested that the matter proceed to an assessment conference to enable oral submissions on the extensive case law submitted and their application to the circumstances of the facts in the matter. This matter involved complex issues of law and statutory interpretation.
I requested a joint bundle of authorities and this was produced (AD11) to support the written submissions as to the relevance of the caselaw and reference to submissions.
In summary the case law relied upon by the parties were as follows:
| Authority | Reliance |
| 2. Leishman v Thomas (1957) 75 WN (NSW) | Exigencies of the moment at para. 175 |
| 3. Derrick v Cheung [2000] HCA48 | Not every accident involves a breach of duty at para.13 |
| 4. Abdallah v Newton [1998] 28 MVR 364 | Exigencies of the moment |
| 5. Cusack v Stayt – [2001] HCA 325 | Exigencies of the moment |
| 6. Whitfield v Melenewycz - | Blameless accident under 1999 act limited relevance to 2017 Act |
| 7. QBE Insurance (Australia) Limited v Abberton - | Illegality a bar to statutory benefits relied upon by Insurer |
| 8. AAI Limited v Singh – [2019] NSWSC1300 | Recoverable following single vehicle accident in which driver was not at fault. |
| 9. Browne v Dunn (1893) 6 R. 67 | |
| 10. AAI Ltd trading as GIO v Moon – [2020] NSWSC714 | Exceptional costs can be recovered if allowed in a statutory benefits dispute. Para 97, 100,101, 109-112, 127,129 and 135 |
| 11. MacMahon v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 427 | Single vehicle lost control on bend – no fault found Para.74,83-85,96 |
| Driver is not expected to know or predict every event which happens in the vicinity of vehicles -nor required to be in position to react to everything that may happen [36-37]. | |
| 13. Maggar v NRMA [2022] NSWPIC 59 (24 January 2022) | 70 year old lost control of scooter at roundabout found no fault and statutory benefits allowed Para. 43-44 |
| 14. ACV v The Nominal Defendant [2022] NSWPIC 64 (14 February 2022) | Psychotic event sees injured person run off road. Deference will not extend beyond what is extracted from written submissions. Para71,72,82-83,86 and 93 |
| 15. Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89 | Tree falling on truck blameless 1999Act |
| 16. Motor Accident Injuries Act 2017 | Section 1.4 of MAI Act relevantly defines motor accident as “accident or incident involving the use or operation of a motor vehicle that causes …injury” |
| 17. MOTOR ACCIDENTS (LIFETIME CARE AND SUPPORT) ACT 2006 - s3 | Section 3 of Motor Accident (Lifetime Care and Support) Act 2006 says that such Act applies “only if there is a motor vehicle involved in the motor accident concerned that has motor accident insurance cover for the motor accident”. Illustrating the intention of the respective statutes for “use or operation” that causes injury vs the mere involvement of a motor vehicle. |
| 18. Axiak v Ingram - NSW Caselaw | |
| 19. Bayon v Bayon - NSW Caselaw | The assessment of ‘fault’ of an injured person is different to the assessment of the common law liability of the driver or owner. Para. 16 |
| 20. Hossain v Mirdha - NSW Caselaw | The act of steering the vehicle away from a dog is an act of the driver and an act that is a cause of injuries. Para 29 |
| 21. Allianz Aust v GSF Aust [2005] HCA 26; 221 CLR 568; 215 ALR 385; 79 ALJR 1079 (19 May 2005) | There must be 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. Para 49 |
| 22. ALQ v GIO Insurance (Claims Assessment) [2020] NSWSIRADRS 100 (28 May 2020) | Assessor agreed with that any finding that a Council was negligent in respect of the accident fell outside of the definition of “motor accident” set out in Section 1.4 of the Act. Para 29-34 |
| 23. QBE Insurance (Australia) Limited v Abberton – [2021] NSWSC 588 | The definition of motor accident requires that there be the use or operation of a motor vehicle that causes the injury. If there is no accident involving the use or operation of a motor vehicle that causes the injury, then there is no motor accident. Para 68-69 |
| 24. Whitfield v Melenewycz - [2016] NSWCA 235 | “A “motor accident” is one involving use or operation of a vehicle that causes death or injury. Although not expressly stated, that causative use or operation must be by the owner or driver (or both of them).” Para 37 |
| 25. Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) | In considering the definition of a motor accident in the WA CTP scheme, the High Court considered the words “in respect of the death of or bodily injury to any person caused by or arising out of the use of that motor vehicle” and held that the words injury “arising out of” the use of a motor vehicle expanded the CTP cover. Para 7 and 11 The MAI Act does not use the words “arising out of” and only uses the words “use or operation of a motor vehicle that causes injury” (s 1.4) and “injury to a person results from a motor accident” (ss1.9 and 3.1) which operates to narrow and exclude any injury that may arise from an accident or incident involving tortious act, a dog, hazard on the road, or other than the negligent use of a motor vehicle. |
| 26. AAI Ltd trading as GIO v Moon – [2020] NSWCA 714 | The requirements under the Legal Profession Uniform Law applies to all legal services for regulated and unregulated legal costs provided in connection with a miscellaneous dispute. Para 114 and Endnote 5 |
| Member agreed that if the accident was not the fault of the injured person, and instead was entirely due to the condition of the roadway, then the accident would not meet the definition of ‘motor accident’ in s1.4 of the MAI Act or otherwise would fall outside the scope of the MAI Act as set out in s1.9. Para 36 | |
| 28. Williams v Licensing Court of NSW - NSW Caselaw | See para 14 for discussion of the meaning of ‘as a result of’ and ‘caused by.’ |
| Single vehicle accident. Insurer argued circumstances of accident did not constitute a motor accident and did not fall within the scope of MAI Act. Same argument as presented in this matter. |
The issue of whether a dog ran in front of the injured person was not a point of dispute at the time of the assessment. The insurer did not dispute the sudden presence of a dog on the roadway.
The factual scenario before me at the assessment conference was that the injured person swerved to avoid a dog which suddenly appeared from the bushes and ran across his path from the right. To avoid hitting the dog, the injured person in the agony of the moment immediately swerved then collided with a tree.
The ambulance report records that after the collision with the tree the vehicle came to rest in a ditch about 1.5 m from the tree.
By the conclusion of the assessment conference the issue before me outside of the costs application was the interpretation of s 1.4 of the MAI Act and what constitutes a “motor accident” and “fault” and in the insurer’s submission if the accident was cause solely by a dog, as submitted by the injured person then by definition it was not a motor accident.
Injuredperson’s submissions
The injured person submitted the insurer bears the onus of proof in satisfying me that the injured person is wholly or mostly at fault. And the evidence lacked any basis for such conclusion.
The injured person took evasive measure to avoid imminent risk, but still collided with a tree he was not at fault and was entitled to ongoing benefits.
The injured person relied on the proposition that injured persons in single vehicle accidents where there is no fault on the part of the injured person or of any other person can be entitled to statutory benefits relying upon the decisions of AAI Limited v Singh [2019] NSWSC 1300 (Singh).
The statutory benefits regime provides lifetime benefits for injured persons who have more than a minor injury and are not wholly or mostly at fault. There is no requirement that the cause of the accident be the use or operation of a motor vehicle by the injured person.
Again relying on the determination of Member Cassidy in MacMahon v Insurance Australia Limited t/as NRMA insurance [2021] NSWPIC 427 (MacMahon) it addressed the Member’s commentary on issues of principle and fault in submissions 8 February 2022 at paragraphs 23-25:
“23. Addressing issues of principle and the definition of fault, PIC Member Cassidy stated [at 83-85]:
‘…the dispute before me is about entitlement to a statutory scheme
of benefits and the claim before me is not a claim for common law damages. Mr. MacMahon owes no duty of care to himself and therefore considering whether he was negligent or not is, in my view, not the way to approach the question posed in Sections 3.11(1) and 3.28(1).
In Mr. MacMahon’s case there is no ‘defendant’ and therefore I do not, in my view, have to determine the primary negligence of any particular person or entity. I do not have to consider, for example, whether the local council owed a duty of care to Mr. MacMahon and breached that duty of care. My focus is on Mr. MacMahon and his actions or inactions
and whether he, and he alone was to blame or was responsible for causing his accident.
In my view the way to approach the question of whether the accident was caused wholly by the fault of Mr. MacMahon is to consider whether there was anyone or anything that caused this accident other than Mr. MacMahon. If there is, then he cannot be wholly at fault.’
24. As to whether the accident was caused wholly by the fault of Mr. MacMahon, PIC Member Cassidy went on to find that the accident was not wholly caused by his fault. The PIC Member determined that the road design (in various forms) meant that Mr. MacMahon’s actions or inactions alone could not be considered to have caused the accident.
25. The PIC Member quoted with approval the comments of Meagher JA in Marien v Gardiner [2013] NSWCA 396 that the High Court decision in Manley v Alexander does not require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle, or, at all times, be in a position to react to everything which might occur. In short, things can happen on the roadway causing accidents that are not the fault of the driver.”
I was also referred to another single vehicle accident decision of Member Castagnet in Maggar v NRMA [2022] NSW PIC 59 (Maggar). The Member has allowed the injured person to recover when the accident was caused by an externality (sand or gravel on the roadway) and where there was no use of the vehicle causative of the accident.
The Member ultimately concluded at paragraphs 43-44:
“There was nothing in the circumstances of accident to suggest that
the injured person was behaving recklessly or inattentively or that he failed
to exercise due care while negotiating the roundabout. On the contrary, he had pulled over to allow an emergency vehicle to pass shortly before the accident and he was travelling at an appropriately moderate speed.
In the circumstances of this matter and for the purposes of s.3.28 of
the MAI Act, I find the injured person was not at fault in the motor accident.”
The determination of Member Cassidy in ACV v The Nominal Defendant [2022] NSWPIC 64 was relied upon to establish that circumstance can arise where there is a single vehicle accident and the injured person driving is not at fault.
Relevant to the present circumstances, Member Cassidy commented [from 86]:
“But in a single vehicle collision involving a claim by the driver,
an analysis of whether there was fault in terms of negligence or a breach of duty of care is irrelevant because the tort of negligence concerns one person’s obligation to look out for or prevent harm to another person. The injured person owes a duty of care to prevent accident injury to other road users, but not to himself. And, as the court noted in Whitfield v Melenewycz you cannot sue yourself in negligence.
How then does one approach the consideration of whether an injured person is wholly or mostly at fault in a single vehicle collision where there is no other vehicle, no other person and no other external input into
the cause of the crash. In my view, the approach should be taken by considering whether the injured person was solely responsible or solely to blame for the accident that caused his injuries.
In my view, the injured person was not solely responsible or solely to blame and therefore not wholly at fault because he was in a psychotic state, having hallucinations and delusional thoughts in the lead up to his accident. In my view, having read the whole of the evidence, the injured person was not operating in any sphere of reality and therefore was not aware of what he was really doing or why he was doing it.”
Member Cassidy went on to comment [at 93]:
“If the injured person had, without any warning a heart attack or stroke causing him to lose control of his car in the gravel and crash into an electric pole resulting in injury, presumably the insurer would not argue the injured person was wholly at fault in terms of wholly responsible or wholly to blame for the accident and deprived him of statutory benefits. If the injured person’s medical episode was of a psychiatric rather than a physical one, I believe the same result should follow.”
The position that the insurer has adopted in this matter runs contrary to numerous findings by Members that statutory benefits are recoverable by an injured person in a single vehicle motor accident where the injured person’s use or operation of the vehicle was not directly causative of the accident and where an externality (a mis laden container being hauled; the condition of the roadway or sand and gravel on the roadway) or even an internality (a psychotic episode) does not operate to exclude an injured person from recovering lifetime statutory benefits.
It is well worth noting that the insurer has not identified a single case directly related to a claim for statutory benefits where the argument that the insurer propounds in this case as to the construction of the definition of a motor accident has been accepted.
To the contrary, as has been identified, the insurer needs to satisfy me that
Member Castagnet incorrectly decided Maggar and Member Cassidy incorrectly decided Singh, MacMahon, ACV and Yankovich v AAI Limited t/s GIO [2022] 137 (Yankovich).The judgment of Justice Fagan in Singh was handed down on 27 September 2019. This decision is 18 months old. The Singh decision made crystal clear (if it was not already clear) that although damages recoverable under the MAI Act would still require the proving of fault (or an accident within the scope of the no-fault accidents regime) the first party component of the MAI Act and the statutory benefits regime would operate differently. After Singh there was no doubt that a driver who was injured in a single vehicle accident received lifetime statutory benefits if they were not at fault. The fact that the NSW Parliament has not moved to amend the Act in light of the Singh decision is good reason for me to accept (as a variety of other Members have) that there is no statutory construction bar to the injured person recovering statutory benefits in this case.
Insurer’s submissions
To be eligible for statutory benefits there must be a causal connection between the use or operation of a vehicle and the injury resulting where use or operation of a motor vehicle is proximate cause of injury.
The injured person must establish that the motor accident was the proximate cause of his injury. The injury must have been caused by and resulted from a motor accident including the temporal requirements of ss 1.4 and 1.9 of the MAI Act namely:
(a) incident or accident;
(b) use or operation of a motor vehicle that causes injury;
(c) injury is a result of and caused during the driving/collision, and
(d) injury that results from the use or operation of a motor vehicle.
The operation of ss 1.4 and 1.9 operates to ensure that the MAI Act only applies and entitles statutory benefits are payable where the use or operation of the motor vehicle was the proximate cause of the injury.
Sections 3.11 and 3.28 requires assessment of “fault” of an injured person. Fault is defined by s 1.4 as “negligence or any other tort”,
(a) the assessment of fault refers to the fault of an injured person (not fault of owner or driver);
(b) the assessment of how the injured person contributed to their own injuries;
(c) this fault of injured person must mean contributory or non-tortious negligence. (ie a pedestrian) per (Axiak v Ingram [2012] NSWCA 311), and
(d) the assessment of fault of an injured person is different to the assessment of the common law liability of the driver or owner. Basten JA in Bayon v Bayon [2014] NSWCA 434:
“16. Dealing with causation differently with respect to a claim for third party insurance and in determining the common law liability of the driver or owner of the vehicle is a recipe for incoherence”.
The proper assessment of fault of an injured person is found under s 5R of the Civil Liability Act 2002 which applies to motor accidents that the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person. Such duty where the only person using or operating a motor vehicle capable of causing and resulting in his own injury is a duty of care to ensure that such use or operation of the motor vehicle avoids the foreseeable harm.
Whilst not guilty of any moral blame for his injury the injured person is using and operating the only motor vehicle capable of causing and resulting in injury. Absent any use or operation of a motor vehicle that caused and resulted in the injured person’s injury, by another person results, in the injured person being wholly at fault.
Injured person is defined in s 1.4 to mean “a person who has suffered an injury in respect of which this Act as provided by Division 1.3”.
In Division 1.3 dealing with the Application at Section 1.9 “General restrictions on application of “ expressly says:
“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..”
The insurer argued:
(a) the onus is on the injured person on the balance of probabilities, any fact relevant to the issue of causation;
(b) the onus is to establish injury results from the motor accident, and
(c) if one accepts that a dog caused the injured persons injuries, it is submitted that the CTP scheme does not provide benefits for injuries caused and resulted from a dog and the injured person has established that his injury was caused by and resulted from something other than a motor accident.
The insurer relying on the injured person’s version of events, submitted that if the only cause of the accident is a dog running out onto the roadway, then the dog is the cause of injury and the accident could not be a “Motor Accident”
As to the injured persons acts or omissions the cause of his injury the insurer reiterated that the injured person was at fault for the following reasons:
(a) failing to see the dog in sufficient time (if it is accepted that there was a dog on the road);
(b) swerving and steering the vehicle when it was unsafe to do so;
(c) failure to control his vehicle so as to avoid hitting the tree;
(d) failing to slow down and control the vehicle so as to avoid injury;
(e) failing to keep a proper lookout, and
(f) failing to take adequate care for his own safety.
Fault of injured person’s use or operation of his motor vehicle was based upon the information:
(a) in the claim form the injured person says “he saw a dog on the path and made an instant reaction of swerving to avoid the animal”;
(b) the police report dated 3 November 2021 records “collided heavily with a tree” records the injured person was responsible for the accident and had a pre-crash speed of 100km/h in an 80km/h zone; (This was corrected later on as the speed limit was 100 and not 80).
(c) NSW Police brief recorded “police observed the spedometer [sic] stuck on 100km/h and Mr Pham said he swerved to miss a dog and lost control of his vehicle;
(d) ambulance report dated 14 October 202 C/t single MVA -High speed into tree, and
(e) the above establishes the injured person onus under s 5E of the Civil Liability Act 2002 that his injury was caused by and resulted from his own use or operation of his own motor vehicle, therefore resulting in his being wholly at fault and most importantly – entitled to 26 weeks benefits.
Reliance was placed on the decision of Hossain v Mirdha [2015] NSWDC. (Hossain) The facts of this case involved a taxi driver who collided with a parked truck while avoiding a dog that ran across the road. The Court said:
“The act of steering the vehicle away from the dog was an act of the driver and it was an act that was a cause of the injury to him. It was not the sole or primary cause but nevertheless was an act which caused the vehicle to collide with the truck. Suffice to say here that it is assumed in my decision, derived from the statement of agreed facts, that the taxi would not have collided with the truck if the driver had continued straight along the road without trying to avoid the dog by adjusting his direction of travel.”
Whilst the Court was considering the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act), it was submitted that the same reasoning ought to be applied, had the injured person not swerved to avoid the dog it is likely the accident would not have occurred.
Whilst initially the injured person sought to claim in the alternative a no-fault accident. In the case of Singh Fagan J held that no-fault accident provisions in Part 5 of the MAI Act have no bearing on the entitlement to statutory benefits in Part 3.
The insurer submitted that the correct construction of a motor accident is:
“an incident or accident involving the use or operation of a motor vehicle that causes the death or injury”
Further it submitted that:
“all temporal requirements and words have work to do to ensure fairness and consistency of the scheme ie. an accident or incident + the involvement of the use or operation of a motor vehicle accident that causes injury = motor accident.”
Such construction,
“promotes the objects of the MAI act to ensure all drivers that use and operate their vehicle in a way that causes and results in injury are afforded 26 weeks benefits keeping the scheme within reasonable bounds and premiums affordable. Such construction must prevail, pursuant to s1.3(5) of the MAI Act.”
Use and operation must be causative of the injury, it does not imply an incidental involvement but must cause the injury.
Use and operation requires a close causal connection between the use of a motor vehicle and injury.
If such words “use and operation” were only intended to be a qualifier, it would distort the definition of motor vehicle accident to mean accident or incident involving a motor vehicle that causes injury. This would produce unfair and inconsistent entitlements to injured persons.
It disputed the injured person’s submissions that “a fair reading of the definition is that it is the incident or accident that has to cause injury and that it is the incident or accident that needs to involve the use or operation of the motor vehicle”. It argued that the interpretation widens the CTP scheme to pay benefits for accidents or incidents that involve the incidental use of a vehicle and caused by something other than the use of a vehicle.
The Court of Appeal in Whitfield v Melenewycz [2016] NSWCA 235 (Melenewycz) at [37] is consistent with the recent decision of QBE Insurance (Australia) Limited v Abberton [2021]NSWSC 588 (Abberton)where the Supreme Court interpreted the MAI Act:
“68. ‘Motor accident’ is defined to mean an incident or accident involving the use or operation of a motor vehicle that caused the death or injury to a person in the circumstances as set out in the definition in s1.4 of the MAI Act. The definition of motor accident thus necessarily requires that there be the use or operation of a motor vehicle that causes the injury. If there is no accident involving the use or operation of a motor vehicle that causes the injury, then there is no motor accident as that term is defined”
The insurer referred to ss 1.4, 1.9 and 3.1 of the MAI Act and submitted operate to ensure that benefits are paid when injury is the cause and result of the use or operation of a motor vehicle. Where a driver is injured in a single motor accident and the only user or operator of the only motor vehicle (with motor vehicle insurance) in a way that causes and results in injury to other road users and themselves is negligent ie fault. This is because no-one is injured spontaneously without any accidental negligent use or operation of the vehicle.
All “motor accidents” require an at-fault driver or owner. Sections 3.2(2) and (4) requires the identification of the relevant insurer and calls for the assessment of “at fault motor vehicle”. The insurer of the at fault motor vehicle is:
(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.
It was submitted that one cannot identify an at fault motor vehicle or motor vehicle most at fault without an at fault driver or owner that used or operated a motor vehicle that caused and resulted in injury.
If there is no “at-fault motor vehicle” then there is no relevant insurer.
“Use and operation that causes injury” is confined to the negligent use or operation of a motor vehicle which is consistent with a third-party insurance scheme with the additional 26 weeks benefit available to all drivers that accidentally injure themselves in their own use or operation of their own vehicle
The MAI Act does not use the words “arising out of” and only uses the words “use or operation of a motor vehicle that causes injury (s 1.4) and injury to a person results from a “motor accident” (ss 1.9 and 3.1) which operates to narrow and exclude any injury that may from an accident or incident involving a tortious act, a dog, hazard on the road, or other than the negligent use of a motor vehicle.
The insurer submits the injured person must discharge the onus of s 5E of the Civil Liability Act 2002 and identify the cause of his injury The insurer advocated that the injured person used or operated his motor vehicle that has caused and resulted in his injury, meeting the definition of motor accident and entitled to a maximum of 26 weeks benefits.
The onus then shifts to the insurer, to identify contributory negligence or whether the motor accident was caused by the fault of another person using or operating a motor vehicle. This is the wording of the miscellaneous dispute contained in Schedule 2 of the MAI Act.
The insurer’s construction ensures that benefits are paid where injury is caused and resulted from the use and operation of a motor vehicle and not for injuries caused and resulted from the negligence of a dog owner who failed to keep a dog off the road, a council who failed to repair or remove a hazard or someone who incorrectly loaded up a shipping container.
The position submitted by the injured person expands the cover of CTP to those injured in an accident with the mere incidental use of a motor vehicle. Such misrepresentation will impose an unfair and unreasonable burden on the insurer to investigate fault by searching and eliminating other causes of injury that may never be able to prove or verify. For example, whether a dog existed, whether the dog’s owner was at fault, verify whether the injured person had a clear account of the scene or attempt to identify fault based on assumed visibility available, distances, times and stopping difficulties. This is an almost impossible task particularly where the injured person did not have a clear account of the scene and appears to have reacted in an agony of the moment, recalls seeing a dog and is the only witness in a single motor accident.
Section 4.0 and the common law, as it applies to a claim for benefits, does not permit the standard of care, that is required of all drivers regardless of any reason in which they may have been distracted, spooked, blinded etc to be reduced or absolved. The common law standard of a reasonable driver exercising reasonable care and skill to avoid injury cannot be adjusted or watered down to permit an entitlement to benefits post 26 weeks by taking into consideration other possible causes of a driver losing control of their own motor vehicle that causes and results in injury.
The injured person’s construction would mean all injured drivers that can identify some other cause for their injury and be relieved of any fault in their use or operation of their motor vehicle, will be entitled a lifetime of benefits whilst being able to recover damages against an identifiable tortfeasor, such as the owner of the dog, that actually caused the injury, without any scope for the scheme to recover benefits paid.
The proper construction for interpretation and construction of “motor accident” to promote the objects of the MAI Act to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes. Also, to ensure that all drivers injured in single motor vehicle accidents are provided benefits without fault to be proven for the first 26 weeks.
Such approach is consistent with the second reading speech 9 March 2017,
“Part 3 of the bill includes provision for a statutory income, medical and care benefits for up to six months for all injured people, without any need for fault to be proven.”
After 26 weeks identification of a driver or owner that used or operated a motor vehicle that caused and resulted in injury is required to maintain indemnity under the CTP scheme.
It is precisely the reason why the miscellaneous dispute under cl 3(d) of Schedule 2 requires the assessment of whether the “motor accident concerned was caused by the fault of another person”. If there is another owner or driver that used or operated a motor vehicle (with insurance cover) that caused and resulted in injury, then the injured person is entitled to benefits post 26 weeks.
If there is only one motor vehicle involved in the motor accident then it results that either the injured person has used or operated the motor vehicle in a way that caused and resulted in their own injury and entitled to a maximum 26 weeks or the injury did not result from a motor accident as found by the court in Abberton.
As to apportionment of fault in a single vehicle motor accident, the reliance upon the decision of Singh by the injured person, the decision did not look into whether Mr Singh was injured in a motor accident and did not consider temporal requirement and the definition of motor accident, its relevance is limited.
The insurer agreed with the injured person’s submission that drivers of vehicles, any passenger in such vehicles and any other persons injured as a consequence of the loss of control of the vehicle, should be entitled to statutory benefits. However, the insurer submitted that ss 1.4, 1.9 and 3.1 requires that injury be confined only to the use and operation of a motor vehicle and cannot venture or be apportioned to any external causal event.
When assessing fault of an injured driver of a single vehicle motor accident, there is temptation to look for other causes of the injury and apportion fault for such cause. For example, apportioning say 30% to the fault to the injured driver and 70% fault of a dog owner who allowed a stray dog on the road. The dog owner is not using a motor vehicle and therefore any fault cannot be apportioned between the dog owner and the injured driver.
The definition of motor accident does not mean an accident or incident involving the use or operation of a motor vehicle or any other hazard or tortfeasor that causes injury.
In further submissions dated 23 March 2022 (AD9) the insurer argued:
(a) externalities do not cause motor accidents. Such external factors cause drivers to use or operate a motor vehicle that causes and results in injury. The MAI Act does not provide a universal provision of benefits to every person who sustains injury that was some way connected to a motor vehicle accident. One of the objects of the scheme is to stabilise and keep premiums affordable. To provide benefits to all those injured by externalities would expand the liability of the scheme and would be contrary to the objects of the scheme;
(b) it is common that drivers lose control because of external factors, however such factors cannot reduce or absolve the duty of care of a driver to use a vehicle in a way that avoids injury;
(c) at fault motor vehicle is omitted from s 3.2.(2)(a) where there is only one vehicle involved, it can be implied that if there is only one driver that uses or operates the only motor vehicle involved then that driver is at fault in the use of the only vehicle involved. It is illogical to require a “most at fault” vehicle in a multiple motor vehicle accident and not require any at fault motor vehicle in a single vehicle accident;
(d) to provide benefits post 26 weeks for external casual events, extends the scheme to insure for liability in respect of injury to a person caused by anything or anyone that incidentally involves a motor vehicle, and
(e) the intention of the Act is to preserve benefits to injured third parties. The scheme protects all for the first 26 weeks.
Injured person’s further submissions
Noting that the submissions made by the insurer were almost identical in the matter of Yankovich, the findings of Member Cassidy and her rejection of the insurer’s interpretation of the statutory definition of motor vehicle accident at paragraphs 61 to 74 should be followed in this instance.
Of relevance, whilst the Member found the conduct of the injured person in that matter was wholly the cause of her injuries, I was invited to follow the determination in relation to the definition and finding of motor accident and determine no fault on the part of injured person in this matter.
The submission made by the insurer at paragraph 15 of the submissions of 15 February 2022 assert that:
“Section 3.2(2) and (4) requires the identification of the ‘relevant
insurer’ and calls for the assessment of an ‘at fault motor vehicle’.”
The insurer also asserts at paragraphs 16 and 17 of the same submission:
“It is submitted that one cannot identify ‘an at-fault motor vehicle’ or ‘motor vehicle most at fault’ without an at fault driver or owner that used or operated a motor vehicle that caused and resulted in injury.
If there is no ‘at fault motor vehicle’ then there is no relevant insurer.”
This submission is legally incorrect. If s 3.2(2) was read by the insurer in full, then it would have realised that the Act defines the relevant insurer (who pays statutory benefits) in s 3.2(2)(a) as:
(a) If the motor accident concerned involved only one motor vehicle
withmotor accident insurance cover, the insurer of the motor vehicle.
Section 3.2(4) which makes provision for determining the insurer of the at fault motor vehicle, is only required if s 3.2(2)(b) is engaged and there is more than one motor vehicle involved in the accident.
Where there is only one motor vehicle involved, then the relevant insurer who pays statutory benefits is determined by s 3.2(2)(a) with no requirement whatsoever as to fault on the part of anyone.
The injured person submitted that:
(a) the accident was a “motor accident” within the meaning of s 1.4 of the Act and that fault is not relevant in that definition. As a result, whatever the cause or whoever is to blame, statutory benefits are payable;
(b) the Minister’s second reading speech cannot override the fact that each case should be decided on its own facts and the interpretation of the statute;
(c) the case of Abberton does not assist because it was a case about whether a serious driving offence had been committed and the disentitlement to any benefits at all under s 3.37;
(d) the cases of ALQ v GIO [2020] NSWSIRADRS 100 (ALQ) and Desmond v GIO [2021] NSWPIC 437 (Desmond) relied on by the insurer concerned claims where the allegation was that the accident was caused by the state of the road. In both those cases there was no issue about whether the accident was a “motor accident” within the meaning of s 1.4. In both matters the injured persons were not legally represented;
(e)
the insurer refers to the cause of the injured person’s injuries whereas
ss 3.11 and 3.28 require a consideration of the cause of the accident, and
(f) the insurer’s submissions that all accidents require an at-fault driver is contrary to the dicta contained in Singh.
In Singh, MacMahon and Maggar, the injured person’s injury was caused by an “external causal event”. In all these cases, a DRS Assessor or Member found an entitlement to statutory benefits. In the very first of those cases, a Supreme Court Judge confirmed that statutory benefits were recoverable.
Further submissions were issued upon the recent publication of Member Cassidy’s decision in Yankovich.
The injured person highlighted that the insurer’s submissions as to how the circumstances of a single vehicle accident did not constitute a motor accident and did not fall within the scope of the MAI Act was a submission made in this matter in near identical terms and the injured person argued the decision set a precedent that I should follow. The relevant extracts of Member Cassidy’s reasoning included the following:
“64. The thrust of the insurer’s submissions appears to be that in order for the injured person’s accident to be considered a “motor accident” within the definition, her injury must be caused by her use or operation of her vehicle. If her accident was caused, as she says by the sun, then the insurer says it was not caused by her use or operation of the vehicle and therefore she was not injured in a “motor accident” and the insurer has no liability to pay benefits.
65. The definition of “motor accident” can apply to a single vehicle accident or a multi-vehicle pile-up. It can apply to an incident such as when a passenger falls in a bus or an accident in its more usual sense of a collision between a vehicle and another vehicle or object. But the incident or accident does not have to be caused by the use or operation of the vehicle, the incident or accident must simply involve the use or operation of a motor vehicle. (emphasis added)
66. Whatever the cause of the accident, human or environmental, her injuries were caused as a result of and during her driving of the motorcycle and her collision with the tree.
67. I agree with the injured person’s submissions that Ms Yankovich was injured in a “motor accident” within the meaning of section 1.4.
70. For the insurer to now argue that the third-party scheme does not provide any benefits to persons injured by “environmental factors” while using or operating a motor vehicle appears to ignore section 3.1(1) and the remainder of Part 3 which provides no such exclusion or restriction.
71. The injured person was injured in a “motor accident” and has an entitlement to statutory benefits.”
It was submitted that I should not depart from the interpretation taken by
Member Cassidy and that if anything the insurer should address in supplementary submissions in reply where these determinations relied upon by the injured person were incorrect and should not be followed.
Insurer’s response to injured person’s final submission
In the submissions dated 10 May 2022 the insurer responded:
(a)
whilst the injured person seeks to rely upon the determination of
Member Cassidy in Yankovich where the Member found the injured person was wholly at fault for the motor accident and concluded:
“121, While the word fault in the MAI Act suggests negligence, liability or culpability which in turn suggests blame and guilt, the word fault can also be interpreted to simply mean responsibility. In my view, on the facts and circumstances of this case the responsibility for this accident lies with Ms Yankovich.”
(b) this decision is another decision of the Commission that is inconsistent with the decisions ALQ v GIO Insurance and Desmond v GIO [2020] and the Supreme Court in Abberton and the Court of Appeal in Melenewycz, and
(c) the Commission’s decision of Yankovich is not binding upon me.
It is open for me to determine whether the motor accident was caused by the fault of another person, or mostly the fault of the injured person in accordance with Schedule 2 cl 3(d) (d) or whether the injured person was injured by a dog and not a motor accident in accordance with (n) of the MAI Act and the dicta in Abberton.
That I would not be assisted by Member Cassidy’s determination for the following reasons:
(a) the Member did not consider or address the dicta of Abberton;
(b) at paragraph 65. The Member found:
“….But the incident or accident does not have to be caused by the use or operation of the vehicle, the incident or accident must simply involve the use or operation of a motor vehicle..”
(c) the Member’s findings are inconsistent with the Court of Appeal’s findings in Melenewycz at paragraphs 33 and 37:
“33. It is instructive at this point to consider some of the circumstances in which the driver of a vehicle, who is not the owner, might claim damages from the owner in respect of injury caused by the owner’s fault. To maintain such a claim, the injury must be caused by the fault of the owner in the use or operation of the vehicle, and must satisfy the further causal and temporal requirements in
s 3A(1)
…
37. A ‘motor accident’ is one involving use or operation of a vehicle that causes death or injury. Although not expressly stated, that causative use or operation must be by the owner or driver (or both of them)”.
To give efficacy and consistency to the entitlement of benefits to drivers injured in single vehicle motor accidents and damages to injured third parties, the incident or accident must involve a driver or owner’s use or operation of a motor vehicle in a way that causes injury to meet the definition of motor accident.
Definitions
The parties have referred in their submissions to two definitions from s 1.4 of the MAI Act as follows:
“‘fault’ means negligence or any other tort.
and
‘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.”
Legislation - PART 3 Motor Accident Injuries Act 2017 – statutory benefits
The MAI Act came into effect after 1 December 2017.
Division 3.1 deal with entitlements:
“● In accordance with section 3.1 there is an entitlement to benefits in respect of death or injury resulting from a 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 the 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.”
Division 3.2 provides statutory benefits for funeral expenses.
Division 3.3 deals with weekly payment of statutory benefits to injured persons:
“● Section 3.11 Cessation of weekly payments to injured person most at fault or with minor injuries after 26 weeks.
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division 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
(b) the person's only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.12 further limits the entitlement to weekly payment maximum periods, depending on the person’s permanent impairment.
Division 3.4 statutory benefits for treatment and care:
“Section s3.28 in this division relates to cessation of statutory benefits after 26 weeks to injured adult persons most at fault.”
Division 3.5 governs restrictions and limitation.
Was the accident a “motor accident”
The evidence of the injured person is that he was driving along Magpie Hollow Road at Rydal on 14 October 2020 at approximately 5.00pm The incident was reported to the police at 5.13 pm by road users.
In a statement provided to the police on 21 February 2021 the injured person provided his history of the event,
“He was driving along the road at 100km/h . ..a dog ran out from the nature strip to ahead of him on the right side of the road in the direction he was travelling... .He said he swerved to miss it and lost control of his vehicle and cannot remember anything else until after the collision.”
Noting the photographs taken by attending police officers, the vehicle he was travelling collided at speed estimated to be 100km/h into a tree on the left hand side of the road which was within 1-2 m of the edge of the bitumen surface of the road.
The insurer’s submission is that there must be an “at-fault” driver in every accident. I do not agree. Firstly, section 3.1 provides that a injured person is entitled to statutory benefits if there is no one at fault. Secondly, the case of Singh has considered an insurer’s liability to pay statutory benefits in a single vehicle accident with only one driver who was not at fault. In that case Justice Fagan found liability on the part of the insurer to pay statutory benefits beyond the first 26 weeks. The injured person in that case was a truck driver towing a trailer upon which a loaded shipping container had been placed. Mr Singh had nothing to do with the loading of the trailer and, when he turned a corner at slow speed, his truck tipped over because the load, which had been not properly secured within the container shifted.”
The insurer cited the wording in Schedule 2(3) of the MAI Act to support its argument. Schedule 2 of the MAI Act “designates for the purposes of Chapter 7” of the Act what is a miscellaneous claims assessment matter, what is a medical assessment matter and what is a merit review matter. The purpose of Schedule 2 is only to provide jurisdiction to the various types of decision-makers identified in Chapter 7. Schedule 2 is limited in its operation to Chapter 7 and it should not be used to interpret the substantive parts of the legislation. In any event, Schedule 2(3) of the Act provides the jurisdiction as identified by the insurer in (d) and (e) but it also provides in (n) the jurisdiction for a member to determine any other issue of liability or part of liability of a statutory benefits claim.
In the cases of Melenewycz and Connaughton, Abberton the accidents were caused when something untoward happened to the injured persons by an animate (jumping kangaroo) or inanimate (falling tree) object while the injured persons were riding or driving their vehicles. In these cases, the injured person was held to be not at fault.
Findings on motor accident
The entitlement to any benefits at all depends on there being a “motor accident” which is defined in s 1.4 of the MAI Act:
“motor accident” means an incident or accident involving the use and operation of a motor vehicle that causes the death of or injury to a person whether the death or injury is a result of or is caused (whether or not as a result of a defect in the vehicle) during - which requires there to be:
(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 a vehicle being driven, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
In the circumstance of this case, I find there was a motor accident within the definition of “motor accident” because:
(a) there was an incident or accident involving the use and operation of a motor vehicle that caused injury to a person…;
(b) which is a result of or caused during the driving of the vehicle;
(c) a collision occurred (in this case with a tree), and
(d) the vehicle’s running out of control (in this case as a consequence of sudden swerving to avoid the dog suddenly moving across the roadway).
The injuries were occasioned by use or operation of the motor vehicle and is a “motor accident” within the definition of s 1.4 of MAI Act.
Was the injured person wholly or mostly at fault
“Fault” defined in s 1.4 means negligence or other tort.
The critical issue of fault in this matter, and whether injured person was ‘wholly or mostly’ at fault, is because the finding will trigger the cessation of statutory entitlements pursuant to ss 3.11 (weekly payments) and 3.28 (treatment and care).
Noting that the term fault is defined in s 1.4 of the MAI Act to mean negligence or any other tort. The term negligence is not defined in the MAI Act. The concept of fault should be considered in regard to the general principles with regards the duty of care contained at s 5B and 5C of the Civil Liability Act 2002. The parties accepted that the general principles in regard to duty of care provided by this statute was applicable here.
The injured person’s submission that there was no fault on his part, in terms of his emergency decision to swerve to avoid a collision with a dog that suddenly emerged onto the road into his path is persuasive.
Relying on the concept of “agony of the moment” and considerations to be made as noted by the chief justice in Leishman v Thomas (1957) 75 WN (NSW) 273 Street CJ. Ultimately, any breach of duty of care is to be judged prospectively (considering the circumstances applicable prior to an accident occurring) rather than with the benefit of hindsight judgment.
The injured person says the insurer has made unsubstantiated allegations on fault and its decision “the injured person was wholly at fault” was wrong. The injured person contends the action taken by the injured person to swerve to avoid the sudden presence of the dog on the road, did not constitute fault on his part, so he is entitled to ongoing statutory benefits within the scope of Part 3 of the MAI Act.
The actions considered to be negligence relied upon by the insurer in its decision to find the injured person wholly at fault, was not successfully proven by the evidence.
The allegation of the insurer that the injured person swerved when it was unsafe to do so, is based on hindsight and nothing further. Such is not a proper test for negligence noting the commentary found in Derrick v Cheung [2000] HCA 48 (Derrick):
136.“Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different risk. But the possibility of a different result is not the issue and does not represent the proper test for negligence.”
The insurer has used an improper test for negligence by merely suggesting alternative actions that might have or could have been taken has the injured person acted in another way. The actions of the injured person were made in the agony of the moment and were not negligent. His actions were that of a reasonable driver in circumstances where the sudden emergence of an animal necessitated he swerve to avoid it.
The initial determination of Member Castagnet in Abberton which was not challenged on judicial review, found there was no fault on the part of the injured person where an injured person swerved to avoid a kangaroo. The decision of the Court in Abberton turned on interpretation of s3.37 and did not apply to this matter.
The case of Hossain was a blameless accident case and the determination of the application of s 7E of an earlier Act - MAC Act. In that matter there was no alleged fault on the part of the driver made by the insurer. In that matte the relevant insurer did not see fit to argue that there was any fault on the part of the driver who made an instinctive decision to swerve and avoid a collision with a dog. The remainder of the decision is not on point.
I accept the injured person was not travelling at a speed in excess of the signposted speed limit of the road at the time, as the police report indicated that there were no breaches of road rules. An open road in a rural setting.
The injured person has successfully argued in this matter:
(a) no evidence was provided as to when the injured person should have undertaken the braking before or after seeing the dog. It was submitted that the injured person was travelling at the speed limit in daylight hours on a rural road where there was no expectation of a dog might be emerging into the path of a moving car. The photographs indicate it was not a built up area and was a rural location with vegetation on both sides of the road;
(b) that the insurer making allegations that the injured person swerved when it was unsafe to do so and failed to control his vehicle so as to avoid hitting a tree was not supported by any evidence to substantiate the allegation. There were no times and distances provided, and no accident reconstruction report to support it would not have happened in any event;
(c) that the injured person should have elected to deliberately run down the dog, rather than swerve off the road, is inconsistent with a reflex reaction. The injured person did not have time to assess the risks of hitting the dog rather than swerving. Had he have hit the dog, there is nothing to say, that the same collision would not have occurred with the tree causing the same injury, and
(d) there is no evidence in this matter from the insurer that established there would have been a different outcome had the injured person slowed, to what extent he should have slowed, whether there was room to take a different course of action.
In a single vehicle accident, where the owner and or driver is the only person involved, looking for “fault” in terms of negligence is not helpful because the injured owner or driver does not owe themselves an actionable duty of care which could found a suit in negligence.
Member Cassidy’s reasoning in Yankovich is useful in this matter:
“Where there is no other person involved, it is appropriate to approach the question of whether the accident was caused “wholly [by the] fault” of the injured person by considering whether the accident was caused in whole or in part by something other than the injured person’s driving. If there is something else that caused the accident, then the injured person cannot be “wholly” at fault.”
In the facts of Melenewycz the injured person was riding a friend’s motorcycle when he was knocked off that motorcycle by a kangaroo that had jumped out, without warning. If a person was injured in similar circumstances under the current scheme, in the circumstances where they were travelling within the speed limit and keeping a proper lookout, they would be unlikely to be considered “wholly” at fault because the primary cause of the accident was the actions of a wild animal.
The injured person submitted a finding of no fault was available to me, having regard to the emergency decision to swerve to avoid a collision with a dog that suddenly emerged onto the road into his path and relying on the concept of “agony of the moment” and considerations to be made as noted by the chief justice in Leishman v Thomas (1957) 75 WN (NSW) 273 Street CJ. any breach of duty of care is to be judged prospectively (considering the circumstances applicable prior to an accident occurring) rather than with the benefit of hindsight judgment.
The approach to whether a person is “mostly at fault” simply requires a consideration of the conduct of the injured person and if not wholly at fault, whether any component of conduct amounted to fault and whether that contribution exceeds 61%. If the conduct was less than 61% then the finding of mostly at fault cannot be made.
Relying on the evidence presented in this case, that the injured person was travelling within the designated speed limit, there was nothing to suggest his actions to make a sudden swerve was behaviour that was reckless or inattentive, noting he saw the dog and acted immediately to avoid hitting it. His actions did not depart from that of a reasonably prudent person trying to avoid a dog.
There is insufficient material before me to find an act or omission on his part that contributed to the cause of the motor accident noting the decision to swerve was taken in the agony of the moment.
I accept that the injured person reacted to the agony of the moment. The decision to swerve was both a reflex response and entirely understandable. Applying prospective rather than hindsight reasoning. The decision to swerve was within the scope of reasonable responses available.
I note Hossain and Abberton decisions confirm when an emergency decision to swerve to avoid a collision with an animal on the roadway occurs, the decision to swerve was a reasonable response in the circumstance.
Here a dog runs onto the roadway. Not dissimilar to an infant in Derrick. The High Court determined:
“There was no basis on which any finding of negligence on the part of the appellant could be made as there was no evidence had the driver been travelling a few kilometres per hour slower, they would have been able to avoid the collision.”
The High Court in Manley v Alexander [2005] HCA 79 (Manley) decided:
“12. The reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…
13. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.”
I consider that the injured person exercised reasonable care for his own safety.
There is no judicial authority exactly on point noting the submission of the parties in this matter.
Equally the reasoning of other decision makers in this Commission having a consistent view on the interpretation of a statutory provision can be persuasive where these determinations have not been subject of further review.
The duty to give words of a statutory provision the meaning that the legislature intended will correspond with the definitions provided by the Act.
This matter is determined on the circumstances of this case and the facts before me. The evidence or lack thereof in this matter is critical to my findings.
The insurer had the onus under ss 3.11 and 3.28 to establish that the injured person was at fault for the motor accident. It has not been successful in this matter due to a lack of evidence to support the allegations of contributory negligence.
I find that there was no negligence on the part of the injured person. He was not wholly or mostly at fault.
The insurer should not have ceased paying the injured person statutory benefits after 26 weeks, pursuant to ss 3.11 and 3.28 of the MAI Act on the basis that the injured person was not wholly or mostly at fault.
COSTS
The parties agree that the complexity of this matter justifies the injured person recovering exceptional costs
The insurer agreed this matter was one of exceptional circumstances and s 8.10(4) of the MAI Act applied to the assessment of costs.
“The Commission can permit payment of legal costs incurred by a claimant (in relation to a claim for statutory benefits) in excess of the regulated fees if “exceptional circumstances exist that justify the payment of legal costs incurred by the claimant”.
The insurer submitted that the amount that should be allowed be $1,710 x 3 = $5,130.72 plus GST.
The injured person noted the allowance made by the insurer was the exact amount regulated costs would permit.
Dispute arose as to whether the insurer should reveal what they pay to their counsel and whether the injured person should produce his costs agreement pursuant to the Legal Profession Act.
I note the decision of Justice Wright in Moon at [82] said that there is nothing in the MAI Act or the Motor Accident Injuries Regulation 2017 (the Regulation) that suggests the injured person’s entitlement to recover costs depends upon the outcome of the determination of the dispute.
Costs in a statutory benefits claim are governed by provisions in ss 8.3 and 8.10 of the MAI Act. In essence these provisions allow for the awarding of costs on two bases:
(a) where costs are permitted in the Regulation, in which case only the costs allowed in the Regulation can be awarded, and
(b) where the Commission permits costs beyond those provided in the Regulation and that can only be done in circumstances were the injured person is lacking in legal capacity or where “exceptional circumstances” exist which justify the awarding of costs on that basis.
The injured person seeks costs of the application on the basis there are “exceptional circumstances” in the case. The insurer agreeing on this point the only dispute on costs is the quantum claimed.
As to the issue of whether the costs submitted are “incurred” the injured person relied upon Justice Wright in the matter of Moon at paragraphs 109-112:
“Accordingly, in the context of charging and recovering legal costs as found in s.8.10, it can properly be said, in my view, that where the claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment, the relevant costs have been ‘incurred’ by a claimant. Absent an existing entitlement to payment, the costs would not be said to have been ‘incurred’. It is not necessary, however, that the claimant has actually paid the legal costs. An actual liability to pay, with the concomitant entitlement to be paid, is sufficient.”
The dispute was a legally complex as it involved extensive review of decisions and case law as well as a variety of interpretations of sections and definitions of terms contained within the Act.
There were four sets of submissions on two occasions in excess of 16 pages and an assessment conference and further submissions on costs. I have reviewed the sums claimed and the identification of work undertaken as set out in document AD13 counsel’s memorandum of fees $13,200 and document AD14 solicitors fees in the sum of $7,238.
Whilst exceptional circumstances are agreed, this is not a situation of indemnity.
My assessment should have reference to what the regulated fees are and what costs were incurred by the exceptional circumstances. In addition, whether the costs claimed are reasonable and necessary and incurred in connections with the claim.
The assessment of costs
The claim for solicitors’ costs is calculated at the rate of $500 - $530 per hour. There were various rates within the document for the period of 0.1 unit per hour from $20 to $50 for work performed with no description as to who performed the task.
The insurer submitted that 16 hours of legal services provided to Mr Pham, at the hourly rate of $321 being the maximum hourly rate. The prescribed hourly rate set by the regulations is reasonable. Having regard to the discreet issues in the matter, with no expert evidence or questioning of witnesses at the hearing it submitted an appropriate amount for the claim inclusive of both solicitor and counsel be $5,136 plus GST.
The injured person argued the matter required a detailed knowledge of the operation of the MAI Act. Senior senior counsel retained was the one who appeared in the Supreme Court judicial review applications in both Singh and Moon and successfully argued the lack of merit in the insurer’s statutory construction challenges in each of those cases. Given the complexity of the arguments raised by the insurer in this matter, the retention of senior counsel with specialist expertise in the construction of the MAI Act was warranted. Senior counsel has acted without requiring that he be briefed with junior counsel.
I have reviewed the fees of the solicitor and noting the overall aim of keeping the scheme affordable, I consider from review of the attendances recorded in document ADthat in relation to the 19.6 hours claimed, not all attendances are reasonable or necessary in the conduct of the matter. I consider that 12 hours is an appropriate allowance for work involved with preparation of the matter, briefing of counsel and conferring for the assessment conference and subsequent submissions. Using the rate of $321 per hour total solicitor costs are allowed in the sum of $3,852 plus GST.
Upon review of counsel’s memorandum of fees, I consider the claim of 20 hours at $600 unreasonable in the circumstances. I allow $450 per hour and consider that 15 hours of attendances were reasonable and necessary for the preparation of submissions and appearances. Accordingly, I propose to allow senior counsel’s fees calculated at $450 per hour for 15 hours in the sum of $6,750 plus GST.
I assess costs in favour of the claimant in the total sum of $11,662.20 inclusive of GST.
- AGLC
- Pham v AAI Limited t/as GIO [2022] NSWPIC 304
- Case
- [2022] NSWPIC 304
- Decision Date
CaseChat Overview and Summary
The court was required to decide several legal issues, including the interpretation of the terms ‘motor accident’ and ‘fault’ under the 2017 Act, and the applicability of the provision to single vehicle accidents. The court considered whether the claimant's actions in swerving to avoid the dog constituted the actions of a reasonable person, given the unexpected nature of the event. The court also evaluated the insurer's argument that the accident did not qualify as a ‘motor accident’ because it was not caused by the claimant's use or operation of the vehicle. The court examined previous cases such as NSW Insurance Ministerial Corporation v Reeve and Member Cassidy's reasoning in Yankovich, which held that the accident qualified as a ‘motor accident’ as it involved the use of the vehicle, regardless of the cause.
The court concluded that the claimant was not wholly or mostly at fault for the accident. The reasoning hinged on the interpretation that a reasonable person, faced with an unexpected event such as a dog suddenly running across the road, might take evasive action even at high speeds. The court found that such action did not necessarily make the claimant wholly at fault. Additionally, the court held that the 2017 Act covered single vehicle accidents and that the claimant's injuries resulted from the use of the vehicle, fulfilling the definition of a ‘motor accident’. The court found the insurer's submissions on the cessation of benefits to be without merit, affirming the claimant's entitlement to statutory benefits. Costs were assessed on an exceptional basis pursuant to section 8.10(4)(b) of the 2017 Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The injured person highlighted that the insurer’s submissions as to how the circumstances of a single vehicle accident did not constitute a motor accident and did not fall within the scope of the MAI Act was a submission made in this matter in near identical terms and the injured person argued the decision set a precedent that I should follow. The relevant extracts of Member Cassidy’s reasoning included the following:“64. The thrust of the insurer’s submissions appears to be that in order for the injured person’s accident to be considered a “motor accident” within the definition, her injury must be caused by her use or operation of her vehicle. If her accident was caused, as she says by the sun, then the insurer says it was not caused by her use or operation of the vehicle and therefore she was not injured in a “motor accident” and the insurer has no liability to pay benefits.65. The definition of “motor accident” can apply to a single vehicle accident or a multi-vehicle pile-up. It can apply to an incident such as when a passenger falls in a bus or an accident in its more usual sense of a collision between a vehicle and another vehicle or object. But the incident or accident does not have to be caused by the use or operation of the vehicle, the incident or accident must simply involve the use or operation of a motor vehicle. (emphasis added)66. Whatever the cause of the accident, human or environmental, her injuries were caused as a result of and during her driving of the motorcycle and her collision with the tree.67. I agree with the injured person’s submissions that Ms Yankovich was injured in a “motor accident” within the meaning of section 1.4.70. For the insurer to now argue that the third-party scheme does not provide any benefits to persons injured by “environmental factors” while using or operating a motor vehicle appears to ignore section 3.1(1) and the remainder of Part 3 which provides no such exclusion or restriction.71. The injured person was injured in a “motor accident” and has an entitlement to statutory benefits.” It was submitted that I should not depart from the interpretation taken by Member Cassidy and that if anything the insurer should address in supplementary submissions in reply where these determinations relied upon by the injured person were incorrect and should not be followed. In the submissions dated 10 May 2022 the insurer responded:(a) whilst the injured person seeks to rely upon the determination of Member Cassidy in Yankovich where the Member found the injured person was wholly at fault for the motor accident and concluded:“121, While the word fault in the MAI Act suggests negligence, liability or culpability which in turn suggests blame and guilt, the word fault can also be interpreted to simply mean responsibility. In my view, on the facts and circumstances of this case the responsibility for this accident lies with Ms Yankovich.” (b) this decision is another decision of the Commission that is inconsistent with the decisions ALQ v GIO Insurance and Desmond v GIO [2020] and the Supreme Court in Abberton and the Court of Appeal in Melenewycz, and(c) the Commission’s decision of Yankovich is not binding upon me.