Saleh v Allianz Australia Insurance Limited
[2022] NSWPIC 97
•9 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Saleh v Allianz Australia Insurance Limited [2022] NSWPIC 97 |
| CLAIMANT: | Chahide Saleh |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 9 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether claimant wholly or mostly at fault; claimant passenger in public bus; injured when she fell as she moved down the aisle to alight from the bus; CCTV footage provided but no expert evidence; Member invited to make findings based on her interpretation of the footage; Held- claimant wholly at fault; no evidence bus driver braked sharply or suddenly as alleged; no evidence any other passenger was thrown about the bus as alleged; cause of accident was claimant’s failure to take any care for her own safety; claimant did not hold onto anything as she stood up and moved through the bus; claimant held mobile phone in one hand and bus ticket in the other; no matter of principle; costs allowed on the regulated basis. |
| DETERMINATIONS MADE: | In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. 2. The amount of the claimant’s costs in the matter is $1,880 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
Ms Chahide Saleh (the claimant) was involved in a motor vehicle accident on 16 September 2020. She was a passenger on a Hills Bus and fell and was injured as the bus came to a stop to allow Ms Saleh to alight and to pick up waiting passengers.
On or about 9 February 2021 the claimant made a claim[1] against Allianz the third-party insurer of the vehicle she alleges caused the accident and her injuries. Allianz accepted liability for the claim[2] and has made payments to or on behalf of Ms Saleh.
[1] Ms Saleh’s application for statutory benefit is document A1 in the Commission’s electronic file.
[2] The insurer’s first liability notice for benefits up to 26 weeks is dated 22 April 2021 and is document AD2 in the Commission’s electronic file.
The insurer has terminated Ms Saleh’s benefits and a dispute has arisen about whether the claimant is entitled to ongoing benefits[3]. Ms Saleh has referred that dispute to the Personal Injury Commission (the Commission) and it has been allocated to me for determination.
[3] The insurer’s second liability notice for benefits beyond the first 26 weeks after the accident is dated 4 June 2021 and is document AD3 in the Commission’s electronic file.
LEGISLATIVE BACKGROUND
Ms Saleh made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act). She is close to 70 years of age and makes a claim for treatment and care expenses only pursuant to Part 3, Division 3.4 of the MAI Act.
Under section 3.1 of the 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 section 3.28(1), an injured person is not entitled to benefits more than 26 weeks after the accident if the injured person has only minor injuries (within the definition in section 1.6) or if the accident was caused wholly or mostly by the fault of the injured person. Section 3.28(2) says that a motor accident is caused mostly by the fault of the injured person if the injured person’s contributory negligence is greater than 61%.
Allianz has determined that the claimant’s injuries are not minor injuries.
The parties agree that Part 7 of the MAI Act and Schedule 2(e) provides the Commission with jurisdiction to determine whether Ms Saleh is wholly or mostly at fault.
REVIEW OF THE EVIDENCE
Claimant’s evidence
In her claim form dated 9 February 2021,[4] the claimant declares that the information in the form is ‘true and correct’. She says the accident occurred when she caught a Hills Bus 705 service from Pendle Hill to Westmead. She says:
“Passenger in a bus. I was going to Westmead Hospital for an appointment. I pressed the button for bus driver to stop. I was standing and the female driver pressed her brakes very [sic] and I and other passengers were thrown around in the bus and I was injured.”
[4] Document A1 in the Commission’s electronic file.
In a short statement dated 21 October 2021[5] the claimant says she was going to get out at the Darcy Street, Westmead bus stop. She says:
“I got off my bus chair and then stood up and moved into the bus aisle. I pressed the button for the bus to stop. The bus was travelling at about 30 kilometres per hour. I was standing when I fell backward landing on my left hip when the bus driver suddenly pressed her brakes hard just before the bus stop so she could stop the bus.”
[5] Document A3 in the Commission’s electronic file.
Insurer’s evidence
The insurer has provided a copy of a letter from the New South Wales Police advising that there is no record of the incident[6].
[6] Document R2 in the Commission’s electronic file and dated 2 March 2021.
The insurer also provided a copy of the claimant’s certificate of capacity, signed by Dr Cheng and dated 9 March 2021 which describes the accident as “fell after bus driver brake suddenly”.
Bus driver’s statement
Both the insurer and the claimant rely on a statement from the bus driver dated 12 April 2021[7]. Bearing in mind the quality and coverage of the closed circuit television (CCTV) footage the driver’s statement on most matters does not add greatly to my understanding of the cause of this accident.
[7] The statement is identified as document A2 and is also contained within R1 in the Commission’s electronic file. The statement is in the form of questions and answers which appear to have been transcribed from a recording. References to the numbered question and its corresponding answer are provided in brackets in these reasons.
Of relevance to this matter is that the driver says she has been driving buses for 30 years (4), 13 of those for Hills Bus (5) and that she has driven the route often (12).
The driver says she was coming to a stop because there were people waiting at the bus stop (18-20). The driver refers to some passengers as regulars but says the claimant was not a “regular” (33-34).
There is reference to the speed limit being 40 km per hour (51) and that she was driving at about 20 km per hour (51-53). The driver did not see the claimant fall but heard her and looked around (55-60).
In her report of injury or incident form,[8] the driver says:
“Before the Bus reach to the bus stop to pickup this person stand up n she should wait until the bus stop n start to move. It is not my fault she fell. I didn’t.”
[8] Document R6 in the Commission’s electronic file. I have reproduced it exactly as it appears in the form.
CCTV footage
I am mindful of the warning issued by the Courts in cases such as Blacktown City Council v Hocking and another[9] that care must be taken when interpreting photographs and such warnings would also apply to interpreting video or film evidence.
[9] [2008] NSWCA 14.
At the teleconference in this matter, I invited the parties to consider obtaining expert evidence however the parties were of the view that was not necessary. The parties agreed that I could view the CCTV footage to form an opinion as to the movement of the bus and the cause of the claimant’s fall.
The film that has been provided is about 30 minutes long and commences before the claimant enters the bus. It shows four views from four different cameras in and outside the bus which are arranged in one single frame. Each of the four views are called “channels”.
The arrangement of the four and each channel is identified and my description of them is as follows:
Channel 1 – inside the bus looking down the aisle with a good view of the driver. The camera appears to be mounted at the front of and inside the bus.
Channel 2 – inside the bus looking down the length of the bus but from a camera that appears to be mounted on a screen which is behind the bus driver.
Channel 3 – inside the bus looking down the back part of the bus from a camera that appears to be mounted close to or opposite the middle doors.
Channel 4 – outside the bus looking down the length of the bus from a camera that appears to be mounted towards the front of the bus.
Channels 1 and 2 show Ms Saleh getting on the bus at 13:24:56 and sits down at about 13.25. She takes her first seat in one of the fold-down seats parallel to the aisle at the front of the bus. A short time later at about 13.25 22 she gets up, while the bus is moving, and sits in the first bench seat perpendicular to the aisle and on the opposite side to the driver’s side. As she undertakes this manoeuvre, Ms Saleh holds on to the handle on the barrier between the fold down seat area and the first bench seat.
There are handles hanging from straps attached to rails above the seats. Channel 2 gives a good view of these swaying with movement of the bus from side to side (for example when the bus proceeds around a curve) and backwards and forwards as the bus slows and stops (for example when the claimant got on the bus or at traffic lights).
Channel 3 shows, shortly before the accident, a man in the second or third row from the back on the driver’s side with a beard and wearing a cap. There are also two women in this part of the bus. The first, sitting on the driver’s side is looking at what appears to be her mobile phone. Another woman in a light-coloured top sits on the opposite (kerb) side at the window.
At 1.33.26 the passenger at the front of the bus gets up holding onto the seats in front of her. She moves towards the front of the bus towards the Opal card reader using one hand on the handle and rails while the bus is moving. She swipes her Opal card and moves forward when the bus has stopped. At this time there is negligible movement from the seated passengers or the handles hanging from straps.
At 13.35.50 the bus stops possibly at traffic lights and there is a very small movement of the hanging handles. The bus moved on.
The 13.36.20 the bus stops, a woman and two children get off the bus and two people get on. At 13.36.49 the claimant stands up holding on to the seat in front of her and looks around before she sits back down all while the bus is stopped. Her phone rings at about 13.37.20 and she gets it out of her bag, flips it open, then holds it up to her left ear. The claimant stands up at 13.37.43 and sits down shortly after while still on the phone. Ms Saleh stands up again at 13.38 and sits down when the bus stops. She is still on the phone but she holds on to one of the uprights while she is standing. The bus moves off at 13.39.25.
At 13.39.36, channel 2 shows the claimant getting up for the fourth time. She has her left hand holding the phone to her ear. She has a green carry bag over her left arm. She is holding her ticket and stands for a short time before moving towards the Opal card reading machine. Channel 1 shows clearly the claimant walking to the front and standing, facing the Opal card reader. She is unsteady on her feet. The bus slows and she stumbles, reaching for something to hold onto with her right hand. She falls backwards and to her left. The claimant is on her phone with her left hand occupied in holding the phone.
Channel 1 shows, at the same time the three people in the back of the bus. They barely move as the bus comes to a halt. The man with the beard and the cap has his arms folded on the seat back in front of him and he is leaning on his arms. There is very little movement in his body. The woman on her phone moves slightly and the woman in the light top, barely at all. There are no other passengers in the bus at that time other than those three people and the claimant.
The outside view of the bus from channel 4 shows the shadow of the bus contrasted with the light-coloured roadway as it slows and then stops.
SUBMISSIONS
Claimant’s submissions
In her application for internal review[10], the claimant says she was not at fault. She says she fell in the bus after the bus driver applied the brakes and she relies on the statement of the bus driver.
[10] Document A2 in the portal dated 13 October 2021 and signed by Peter Livers of Slattery Thompson solicitors.
At the teleconference held on 1 February 2022, the claimant’s solicitor agreed that if the bus braked normally or without any sudden movement, that his client would have difficulty establishing fault or negligence on the part of the bus driver. He advised me that he did not intend to retain an expert with a view to interpreting the CCTV footage and forming an opinion as to whether the bus braked harshly or not.
In written submissions from her solicitor dated 2 March 2022[11] the claimant says she pressed the button for the bus to stop, it was travelling at 30 km per hour and that the bus driver braked suddenly pressing her brakes hard.
[11] Document AD4 in the Commission’s electronic file.
The claimant argues that:
“After viewing the bus footage, in particular at 16.9.20 at the frame at 13.39.45 the applicant violently falls backward after the bus driver applies the brakes. The inference from the film is that given the suddenness of the applicant’s fall in a backwards direction that the bus driver braked suddenly and hard.”
The claimant refers me to a case of ABE v GIO General Limited [2018] NSWDRSCA 031(ABE) and says that the degree of care to be exercised by a person varies with the risk and is a question of fact and that contributory negligence is determined objectively. While the claimant accepts she was standing at the time of the accident she says this does not mean she contributed to the accident and that it is not just or equitable to direct all the blame to her or at a degree of more than 61%.
The case of ABE is a decision of Claims Assessor Terry Stern. The circumstances of that case were that the claimant’s vehicle was turning right following other vehicles and that the one in front braked suddenly causing the claimant to brake suddenly and collide with the vehicle in front.
Insurer’s decisions and submissions
In its letter of 4 June 2021, Allianz denied liability for statutory benefits after the first 26 weeks following the accident and advised the claimant her statutory benefits would cease on 17 March 2021.
Allianz expressed the view that the claimant was wholly at fault. Allianz denied their insured bus driver was at fault. The insurer referred to CCTV footage taken from inside the bus and said the bus driver did not appear to be driving “out of the ordinary” and “is shown to slow and stop as normal”. Allianz also says that the claimant fell after standing and that she was “not holding on to any available hand-rails” at the time.
Allianz reserved its right to allege the claimant was mostly at fault and consider contributory negligence.
After receiving the claimant’s application for internal review of the above liability decision,[12] Allianz affirmed its decision in a document headed “Certificate of determination – Internal Review”[13]. The insurer describes the CCTV film and says the claimant stood up from her seat with an object in one hand and not holding on to anything as the bus slowed and came to a stop. The insurer says the claimant then stumbled and fell and that the three other passengers remained in their seats and did not move as the bus stopped.
[12] Document A2 in the Commission’s electronic file and dated 10 October 2021.
[13] Document A4 in the Commission’s electronic file and dated 3 November 2021. The review decision refers to another application for internal review dated 14 October 2021 but as this relates to a 76-year-old claimant represented by a different firm of solicitor, I have disregarded the information quoted from that application.
The insurer refers to the statement from the bus driver and her stated speed of 20 km per hour and says she was not negligent.
It the submissions lodged with its reply[14], the solicitors for Allianz note that the claimant “rose from her seat and walked down the bus aisle” (5) while speaking on her mobile phone and while not holding or attempting to hold on to any rails or supports (6). She fell while she walked and talked (7).
[14] Document R1 in the Commission’s electronic file and dated 21 December 2021.
Allianz’s solicitor describe (8) the film including an observation that the claimant held her phone in her left hand to her ear while holding a bus pass in her right hand and carrying a shopping bag on her left shoulder. The film is further described as showing the bus slowing and stopping and none of the other passengers moving and “an unremarkable stop”.
Allianz says fault is “of the kind” referred to in section 3.38 (9) which in turn should take me to a consideration of section 5R(1) of the Civil Liability Act 2002 (Civil Liability Act) (11) and a consideration of whether the claimant has failed to take care for her own safety (12).
Allianz says there is no evidence of any fault or negligence on the part of the driver or any other person (13–19) and a “typical person” in the claimant’s position would not have walked and talked while not holding on to anything and this was not reasonable (20-22). The insurer also says the accident would not have happened and the claimant would not have fallen if she had held on to the bus (24–27).
The insurer restates its position that the driver was not at fault, no one else contributed to the accident, the claimant behaved in a negligent matter and her negligence was the sole cause of the fall and the accident was entirely her fault.
Finally, the insurer says that if the claimant Is not wholly at fault her degree of culpability is greater than 61%.
CONSIDERATION OF THE ISSUES
Findings - what did the bus driver do?
There is a dispute about whether the bus was travelling at 30 km per hour or 20 km per hour. The film does not show the speed of the bus and it is not within my expertise to ascertain its speed from, for example, the time stamp on the film and considering the distance travelled in that time. The bus was travelling in a 40 km per hour zone and was slowing down to stop. There is no suggestion by either party that at any time the driver was speeding. In my view nothing turns on that difference in speed and it is not necessary to make any findings in relation to the speed of the bus.
The claimant’s final submissions suggest that the bus driver must have braked suddenly because of the suddenness of the claimant’s fall.
There is no doubt that in order to stop and let people get on or off the bus, the bus driver has to slow down and then stop the bus.
There is no expert evidence to suggest the bus stopped sharply or suddenly and no evidence from the driver that she applied her brakes “hard”. The CCTV footage does not appear to me to show anything other than a bus being driven normally. I note for example the three occupants of the rear of the bus, clearly shown in channel 1 of the film barely move as the bus slows and stops leading up to the claimant’s fall. They were certainly not “thrown around” as the claimant alleges in her claim form. The handles on the straps hanging from the rails of the bus are shown in the channel 2 view to sway as the bus slows down, but in my view no more or less than on the many other occasions in the 30 minutes of film when the bus has stopped. They move in accordance with the change of momentum. Finally, when the view of the exterior of the bus from channel 4 is considered together with the side of the bus and looking at the shadow of the bus as it moves, there are no jerky or sudden movements.
A bus, by its very nature stops and starts. In Ms Saleh’s case the bus had to stop to let her off and allow other passengers to board the bus. The driver of the bus has to stop safely in terms of the manner of driving and the location of where it stops.
I am comfortably satisfied that the bus driver was travelling within the speed limit and driving the bus smoothly. There is nothing in the footage to suggest the bus braked sharply or suddenly.
Findings – what did the claimant do?
When all the relevant CCTV footage is considered, I make the following findings about what the claimant did during the bus ride:
(a) The claimant stood up while the bus was moving.
(b) She moved into and along the aisle while the bus was moving.
(c) When she got up, the claimant did not hold onto anything for support as she moved from her seated position to the front of the bus.
(d) There are handles available at the end of each bus seat, there are rails above her and handles hanging from straps. There are the uprights upon which the button or bell used to stop the bus are mounted. On the driver’s side there appears to be a rear facing seat. All of these parts of the bus could have provided the claimant with support and safe passage to the front of the bus while the bus was moving.
(e) As the claimant got up and moved, she had her hands fully occupied. She held her mobile phone to her ear with her left hand and her bus ticket in her right hand. By not having her hands free she had no means of supporting or stabilising herself.
When she first gets on the bus, the film shows the claimant moving to a fold down seat then moving to a different seat while the bus is moving. As she does this she holds on to a part of the seat for support.
The film also shows the claimant standing up on other occasions, in all of these she holds on to something.
Is the claimant wholly or mostly at fault?
Ms Saleh is not entitled to statutory benefits beyond 17 March 2021 under section 3.28(1) if her accident “was caused wholly or mostly by” her own fault.
In my view this requires me to determine:
(a) Whether the claimant was wholly at fault?
(b) If not, whether she is mostly at fault? That in turn is determined by considering:
(i)Whether she is responsible for any contributory negligence at all?
(ii)If she is, the degree of that contributory negligence?
If her contributory negligence is greater than 61% then section 3.28(2) operates to disentitle her to any further benefits.
While the insurer takes me to section 3.38 and section 5R of the Civil Liability Act, there is a definition in section 1.4 of the MAI Act of “fault” which is “negligence or any other tort”.
In the circumstances of Ms Saleh’s claim, I believe it would be appropriate to start by considering whether there is any fault (negligence) on the part of the bus driver. If there is, then Ms Saleh cannot be wholly at fault.
There can be no question that the bus driver owed Ms Saleh a duty of care as a passenger on a public bus, but did the driver breach that duty of care?
In the context of this claim, a driver has to take all reasonable steps to drive the bus so as to avoid injuring the passengers in the course of their journey.
There is nothing in the CCTV footage to suggest to me that the bus driver has breached her duty of care to the claimant. She was not speeding, she was not driving erratically. She has slowed the bus down and stopped and as she has done so, the change in momentum has caused the people in and objects attached to the bus to move, but that is part of the normal operation of the bus. I am therefore not satisfied that there is any fault or negligence on the part of the bus driver.
There is no other person and nothing else alleged by the claimant to be at fault in causing her accident. In the light of the finding above in respect of the driver, the answer to the question about whether the claimant is wholly at fault must be answered in favour of the insurer.
The claimant says I should infer the driver braked harshly or suddenly due to the violence of her fall. In my view I must make findings of fact, based on the evidence before me and in this matter I have found that there is no evidence of the bus driver braking suddenly or harshly.
The claimant submits that standing at the time of the accident does not mean that she contributed to the cause of the accident. I would agree with that submission, but only if the claimant had been standing and holding onto something. Had she held onto the available parts of the bus as she stood and moved up the aisle, as she did on previous occasions, it is likely she would not have fallen.
I agree with the claimant’s argument that the test of contributory negligence is an objective one, and the one imposed by section 5R of the Civil Liability Act is that of a reasonable person in the position of the claimant determined on the basis of what they knew or ought to have known. In my view, a reasonable person in the position of the claimant knowing that the bus was going to stop (because on her evidence she pressed the button) would have remained seated or would have held on to something as she stood up and moved. I note the film shows the claimant holding on to various supports as she stood and moved within the bus during the earlier parts of her journey. This suggests she is aware of the risk of standing and walking in a moving bus.
The claimant’s solicitor says it would not be just and equitable to direct the blame to the claimant or consider her to be mostly at fault. The issue of “just and equitable” is certainly relevant to the degree of a person’s contributory negligence as section 3.38(3) requires in the circumstances of the case. However, it is not an issue for the determination of whether the accident was caused wholly by the fault of the claimant.
For completeness I note that if there had been negligence on the part of the driver as alleged by the claimant, that is that she braked suddenly or sharply, I would have found a very high degree of contributory negligence on the part of the claimant, beyond 61%. The claimant’s failure to wait until the bus came to a complete stop or to hold onto the rails or the seats or some other part of the bus as she moved down the aisle suggests to me that her culpability is significantly higher than any culpability I would have found on the part of the bus driver.
It therefore follows that the claimant’s application must fail.
COSTS
In the report issued after the 1 February 2022 teleconference, I noted that the dispute between the claimant and the insurer attracted the regulated fee of $1,710 plus any disbursements incurred. I invited the parties to resolve the question of costs but that, in the absence of any submissions I would assess costs in accordance with the regulation.
I have received no submissions from either party as to costs.
I note the decision of Justice Wright in AAI Limited t/as GIO v Moon[15] at [82] says that there is nothing in the MAI Act that suggests the claimant’s entitlement to recover costs depends upon the outcome of the determination of the dispute. I will permit the payment of legal costs as they are reasonable and necessary in accordance with section 8.10(3) and I have been assisted by Mr Livers in preparing the application and making submissions.
[15] [2020] NSWSC 714.
I assess the quantum of those costs on the basis of the amount allowed by the Motor Accident Injuries Regulation 2017 (the Regulation).
Schedule 1(3)(e) of the Regulation designates a dispute about the cessation of treatment and care benefits under section 3.28 as a regulated miscellaneous claims assessment matter which attracts the regulated fee of up to 16 monetary units (currently $1,710). I will allow that sum taking into account the work undertaken by the claimant’s solicitor in relation to this dispute.
I have not been provided with information about any disbursements and therefore will not add any additional amounts other than goods and services tax.
Member Belinda Cassidy
Motor Accidents Division
Personal Injury Commission
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