Sayour v Allianz Australia Insurance Limited
[2025] NSWPIC 459
•5 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Sayour v Allianz Australia Insurance Limited [2025] NSWPIC 459 |
CLAIMANT: | Hilal Sayour |
INSURER: | Allianz Australia Insurance Limited |
MEMBER: | David Ford |
DATE OF DECISION: | 5 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; insurer does not accept the injury sustained by the claimant was a result of a motor accident; claimant was a passenger in an Uber motor vehicle being driven by the insured driver; the insured driver was subject to a random breath test which resulted in a BAC reading of 0.86; it is alleged the claimant as a consequence of being a passenger in the vehicle suffered psychological injuries; insurer asserted this was not a single event; claimant cited the Court of Appeal decision of Galea v Bagtrans Pty Ltd submitting the claimant’s psychiatric injuries should be treated as arising from the one incident; determined the one trip did not constitute a series of incidents with injury arising gradually; determined the claimant did sustain a psychiatric injury in the course of this occurrence; claim does fall within the scope of the Act and the claimant is entitled to statutory payments; Held – decision of the insurer is set aside and determined the claimant is entitled to statutory benefits pursuant to section 3.1. |
DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. The reviewable decision concerns the amount of statutory benefits that are payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the Act) and is therefore a miscellaneous claims matter under Schedule 2.3(b) of the Act. 2. The reviewable decision dated 21 May 2025 is set aside. I determine the claimant is entitled to statutory benefits pursuant to s 3.1 of the Act. 3. For the purposes of Schedule 2.3(b) of the Act whether for the purposes of section 3.1(statutory benefits payable in respect of death or injury resulting from motor accident) the injury to the claimant has resulted from a motor accident in this state. 4. The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Act Regulation 2017 is assessed at the maximum regulated fee. |
STATEMENT OF REASONS
INTRODUCTION
On 20 February 2025, Hilal Sayour (the claimant) was a passenger in a motor vehicle being driven by the insured driver who was intoxicated and, allegedly, was driving the motor vehicle in a dangerous and frightening manner. The insured driver was subject to a random breath test which resulted in a BAC reading of .086.
It is alleged the claimant, as a consequence of being a passenger in the vehicle, suffered psychological injuries.
The insurer does not accept the injury sustained by the claimant was as a result off a motor accident as defined under the Motor Accident Injuries Act 2017 (the Act). The matter is to be determined as a miscellaneous claims dispute under Schedule 2.3 (b) of the Act, as follows, “whether for the purposes of section 3.1(statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this State”.
I held the first preliminary conference on 24 July 2025 and a second preliminary conference on 7 August 2025, and with the agreement of both parties, I advised I would determine the matter on the papers.
At the preliminary conference on 7 August 2025, Senior Counsel for the claimant submitted I am required to determine in this miscellaneous claim assessment, if the claimant sustained a psychiatric injury in the course of this occurrence, does it fall within the scope of the Motor Accident Injuries Act 2017, such that, he is entitled to statutory payments. The solicitor for the insurer noted this submission by Senior Counsel.
This is a discrete issue to be determined by me. In the submission lodged by the solicitor for the insurer dated 15 July 2025, I noted since the lodgement of the application, the insurer served a further liability notice dated 1 July 2025. It was submitted, whilst the issue as to whether the claimant sustained an injury in the motor vehicle accident, defined under section 1.9 of the MAI Act, there was a secondary dispute relating to injury. The insurer submitted there are two separate determinations to be considered, one relating as to whether there was a motor accident (which is a legal determination) and the second relating to injury (a medical determination).
I agree with this submission by the insurer, a non-medical member ought not to determine both disputes, and with respect as to whether the claimant sustained an injury, this dispute should be referred to the Medical Service for determination. Furthermore, the insurer submitted it relies upon the matters as set out in the liability notice dated 1 July 2025 and the internal review certificate dated 21 May 2025.
The claimant lodged an Application for personal injury benefits dated 31 March 2025. Initially, the insurer declined liability on the basis the claimant was not injured as a result have a motor vehicle accident under the Act. This decision was made on 30 April 2025. The claimant lodged an application for internal review. In the determination dated 21 May 2025 the insurer stated the following:
“Outcome of internal review
1. The decision that Allianz does not accept that the injuries you have sustained have resulted from a motor accident for the purposes of the Act is maintained.
2. The effect of this decision is that Allianz does not accept liability for your claim for statutory benefits for the first 52 weeks from the date of the accident.”
The insurer issued a further liability notice dated 1 July 2025
DOCUMENTATION
I have reviewed and considered all documentation included in the application and reply and all additional information provided by the parties.
LEGISLATIVE FRAMEWORK
Section 1.4 of the Act defines “motor accident” as:
“Motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is as 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 vehicles 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 vehicles running out of control”.
Section 1.9 of the Act provides:
“This Act (including any third-party policy under the Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only, if the death or injury is as 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 vehicles 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”.
SUBMISSIONS BY THE CLAIMANT
I refer to the submissions lodged on behalf of the claimant dated 7 May 2025. I note the following paragraphs:
2. Allianz have denied that the psychiatric injury suffered by the claimant falls within the scope of the Motor Accident Injuries Act 2017. This is on the basis of the application of section 1.9(2) Allianz assert that the claimant’s (psychiatric) injury arose gradually from a series of incidents.
3. The circumstances of the injury are not in dispute. Allianz have accepted the claimant’s account that he ordered an Uber to take him home. On that trip, the Uber driver was intoxicated and drove negligently. The claimant perceived that his life was being put in jeopardy as the Uber driver was closing his eyes whilst driving, braking at the last moment and swerving in and between lanes.
4. The claimant’s Uber ride came to an end when the driver was subject to a roadside breath test and returned a positive reading of 0.086. Police observed the Uber driver to have bloodshot eyes. Police could smell alcohol on the driver’s breath.
5. Allianz do not appear to be contesting that it was a breach of duty of care on the part of the insured driver to drive whilst under the influence and put the claimant in fear for his safety. Allianz do not appear to be challenging that the claimant’s psychiatric condition has arisen as a consequence of an understandingly terrifying experience in the course of the driver driving the vehicle.
6. The sole point of dispute between the parties appears to be Allianz’s assertion that this was not a single event. Allianz appear to be trying to break up the trip as between each and every swerve or near miss or dangerous moment that made the claimant fear for his life.
7. With respect, the initial decision maker has misconstrued the legislation. With a more conventional type of “accident “there is no legal distinction drawn between a vehicle initially leaving the road, the first roll over, the second rollover, the third roll over and the ultimate collision with the tree. The totality of events is treated as the one accident or incident.
8. So too ,what occurred to the claimant was the one, short road trip where the intoxication of the driver and the reckless driving behaviour ,caused psychiatric injury as the claimant was in fear for his life. This one trip does not constitute a series of incidents with injury arising gradually.
…
14. If the claimant had spent weeks or months travelling with the reckless drunken driver, then the progressive injury exclusion in section 1.9(2) may have had some relevance. However, the claimant’s psychiatric injury arose in the course of one short trip.
Senior Counsel referred to the case of Galea v Bagtrans Pty Ltd [2010] NSWCA 350 (Galea). The Court of Appeal comprised the President, Justice Allsop, Justices Hodgson and Macfarlan. It is submitted with regards the issue of whether the circumstances comprised a motor accident, the court held that the jolting of the truck for a 5 to 10 minute period, over 5 to 10 kilometre stretch of potholed road, was a sufficiently circumscribed unity to be” an incident” for the purposes of the motor accidents scheme.
It is therefore submitted consistent with this Court of Appeal authority, the claimant’s psychiatric injuries should be treated as arising from the one incident, being a short traumatising trip with a driver impaired by an illegal and unsafe level of intoxication.
SUBMISSIONS BY THE INSURER
I refer to the internal review of the insurer dated 21 May 2025, and I note the following paragraphs:
14. In these circumstances, I note there is no “incident” that is described as per the definition of a motor vehicle accident in section 1.4 of the Act. Section 1.4 of the Act describes a motor accident as an” incident or accident involving the use or operation of a motor vehicle that causes death of or injury to a person.”
16. Whilst it was determined in Galea that there was a motor vehicle accident, the Court ruled that it was not necessary to show that the injury has been caused by an accident but rather that there be an incident which causes the injury.
17. In Galea, it was clear that there was a jolt which subsequently caused the plaintiff’s neck to crack. I find that these set of circumstances differ markedly to yours and there is no clear evidence in your case establishing a causal connection between an “incident” and your alleged psychological injury.
18. I acknowledge that your solicitors allege that your” psychiatric injuries should be treated as arising from the one incident, being a short traumatising trip with the driver impaired by an illegal an unsafe level of intoxication.” As noted above, I am not satisfied that this one short trip/ journey is captured by the definition of a motor accident as there was no “incident” causing injury.
19. Finally, your solicitor suggests that Allianz has admitted a breach of duty of care which has not been the case.
20. Given that I find that there is no incident that occurred during your Uber trip, I find that your alleged motor vehicle accident does not meet the definition of a” motor accident” for the purposes of Section 1.4 of the Act.
21. I am therefore not satisfied that your alleged psychological injuries were caused from a motor vehicle accident for the purposes of the Act.
In the liability notice dated 1 July 2025, the insurer states on page 3 the following:
“As your injury was sustained by a series of events during your Uber trip, not by any single event that occurred during the driving of the vehicle or by any single action of the driver of the vehicle, we do not except liability of your claim as you have not been involved in a motor accident as outlined in section 1.9 of the Act.
We have since received further information which in the event it is found that you were involved in a motor vehicle accident, we do not consider that you sustained an injury.”
On page 4, I note the following:
“However, Allianz note that you (sic) have stated in your claim form that you could smell alcohol on the insured’s breath, which was confirmed during initial phone call when you allege that you were aware our insured had been drinking before even getting into the vehicle and continued to proceed with your Uber journey.
Allianz received GP notes from Dr Khaled Osman - Hall Street Medical Centre. In the notes we confirm you have pre-existing anxiety and depression, as reported by your GP on 9 July 2024 and a mental health care plan was issued. We note that your mental health concerns at the time revolve around financial difficulties in relation to your court fine and relationship breakdown with insomnia. You also informed the writer that your grandmother was suffering from breast cancer.
…
Based on the above information we conclude there is no causal link between the psychological injury listed and the subject motor vehicle accident. with consideration of section 3.1 and 3.24 (20) of the Motor Accident Injuries Act 2017, statutory benefits for treatment and care are not payable.
We do not accept that you were involved in a motor accident. In the alternative, should it be found that you were involved in a motor vehicle accident, we do not accept liability of your claim as we do not agree that you have sustained an injury.”
REASONS
The insurer as stated above, submitted the claimant’s injuries were not “caused” by the driving of the Uber vehicle and accordingly, there is no causal nexus between the driving and the claimant's injuries. Whilst this is a reference to fault, there is no requirement contained within s 1.9 the accident be caused by the fault of the owner or driver. It is a requirement of s 1.9 of the Act, for the claimant to succeed in his argument, the injury results from the use or operation of the vehicle, and only, if the injury is a result of and is caused during one of the four circumstances listed at s 1.4 (a) to (d).
I again refer to the submission lodged by the solicitor for the insurer dated 15 July 2025, in which it was submitted there are two separate determinations to be considered, one relating as to whether there was a motor accident (which is a legal determination) and the second relating to injury (a medical determination).
In the internal review of the insurer dated 21 May 2025, the internal reviewer states he is not satisfied this one short trip/journey is captured by the definition of a motor accident, as there was no “incident” causing the injury. In the liability notice dated 1 July 2025, the insurer states the injury was sustained by a series of events during the Uber trip, not by any single event that occurred during the driving of the vehicle or by any single action of the driver of the vehicle. The insurer then states, that in the event it is found the claimant was involved in a motor vehicle accident, the insurer does not consider the claimant sustained an injury. The insurer then refers to clinical records of the claimant’s general practitioner, Dr Khaled Osman.
The solicitors for the claimant submitted the sole point of dispute between the parties appears to be the insurer's assertion this was not a single event. They refer to the Court of Appeal decision of Galea and I accept their submission this case is good authority for the acceptance the claimant’s psychiatric injuries should be treated as arising from the one incident, being a short, traumatising trip with a driver impaired by an illegal and unsafe level of intoxication.
The trip was a constant journey and was a short road trip only, and I accept the submission this one trip did not constitute a series of incidents with injury arising gradually.
Accordingly, I determine the claimant did sustain a psychiatric injury in the course of this occurrence, and as such, this claim does fall within the scope of the Motor Accident Injuries Act 2017 and the claimant is entitled to statutory payments.
LEGAL COSTS
The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Act Regulation 2017 is assessed at the maximum regulated fee.
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