Scattergood v Allianz Australia Insurance Limited
[2024] NSWPICMR 72
•18 November 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
CITATION: | Scattergood v Allianz Australia Insurance Limited [2024] NSWPICMR 72 |
CLAIMANT: | Michael Brian Scattergood |
INSURER: | ALLIANZ |
MERIT REVIEWER: | David Ford |
DATE OF DECISION: | 18 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment; insurer’s application for merit review in respect of insurer’s determination of the amount of statutory benefits that are payable under Division 3.3 of the MAI Act; merit review matter under Schedule 2.3(b) of the MAI Act; insurer does not accept the injury sustained by the claimant was as a result of a motor accident as defined under the MAI Act; claimant was a passenger injured whilst boarding the insured bus; insurer accepts the injury has occurred during the driving of the vehicle, but does not accept the injuries sustained by the claimant have resulted from a motor vehicle accident, but rather the claimant tripped over his own feet, and the motion of the bus did not cause him to lose his balance and fall to the floor of the bus; CCTV footage of the incident available to both parties determined the claimant did not trip over his own feet and furthermore the driving of the bus caused him to lose his balance and fall to the floor of the bus; Held – decision of the insurer is set aside; 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:
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STATEMENT OF REASONS
INTRODUCTION
Michael Brian Scattergood (the claimant) sustained an injury when boarding the insured bus on 5 June 2024. The insurer lodged on the portal CCTV footage of the incident.
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”.
At the assessment conference, I explained to both parties, this is a discrete issue to be determined by me. I have not been asked to determine a dispute under Schedule 2.3 (d) or (e) of the Act. These two sub-sections deal with the issue as to whether the motor accident concerned was caused by either the fault of another person or caused mostly by default of the injured person.
The claimant was born in 1984 and is presently 40 years of age. He lodged an Application for Personal Injury Benefits dated 27 June 2024. Initially the insurer declined liability on the basis the claimant was not injured as a result of a “motor vehicle accident” under the Act. This decision was made on 24 July 2024. The claimant lodged an application for an internal review. In the Determination dated 20 August 2024, 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 affirmed.
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 or for any period after this and you are not entitled to weekly payments of salary benefits or treatment and care expenses.”
I held a preliminary conference with the parties on 3 October 2024 and I determined the matter should be listed for a miscellaneous claims assessment hearing on 15 October 2024. The assessment conference proceeded as arranged on that date and a transcript was taken at that time.
DOCUMENTATION
I have reviewed and considered all documentation and CCTV footage 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
In the application for personal injury benefits the claimant states the following:
“After boarding the bus, I saw the nearest empty seat was towards the back of the vehicle. Before I reached the empty [sic] seat, I felt the bus move, and lost my balance. My memory of the incident beyond this point is unclear. I believe I grabbed for a seat to slow or halt my fall but hit the floor of the bus all the same I heard passengers calling out for the bus driver. I believe I attempted to rise but was unable to do so I passenger asked me if I needed an ambulance, and no one was called.”
This dispute has arisen because the driver of the insured bus, after viewing the CCTV footage, stated “it looked like he tripped over his own feet”. The insurer has conceded the injury occurred during the driving of the vehicle as shown clearly in the CCTV footage but does not accept the injuries were sustained as a result of a “motor accident” because, it is submitted, the plaintiff tripped over his own feet and the motion of the bus moving forward was not the proximate cause of the injury sustained by the claimant.
At the assessment conference, the claimant was adamant he did not trip over his own feet but rather, he stated it was the “smooth and continual acceleration” of the bus moving forward, which caused him to fall forward on to the floor of the bus. He described the acceleration as being “unexpected”.
SUBMISSIONS BY THE INSURER
I note the following in the Certificate of Determination- Internal Review of the insurer dated 20 August 2024:
“Driver ID404541 operating Route 888 at MacArthur Square Kellicar Road at TSN25
60668. 40-year-old male with walking stick boarding the bus. Driver started moving the bus and passenger lost his balance missed the step and fell down. Passenger advised driver to seek medical assistance as he is hurt, not sure where, driver has called ambulance and waiting for it.
17 passengers were on board, informed TMC and OTSI. Ambulance #1821. Ambulance required assistance from another ambulance crew to get passenger out of the bus.
Comments, additional footage shows the male walking to the rear of the bus and as the bus move slowly away from the stop the male falls to the floor of the bus on his right side. It looked like he tripped over his own feet.”
The insurer accepts the injury has occurred during the driving of the vehicle as the CCTV footage clearly demonstrates this is the case. However, the insurer does not accept the injuries sustained by the claimant have resulted from a motor accident for the purposes of the Act.
The solicitor for the insurer lodged detailed submissions dated 27 September 2024 and in summary, submitted the claimant’s injuries were not “caused” by the fault of the owner or driver of the vehicle, but rather the injuries were caused by the claimant tripping/falling in the ordinary driving of the vehicle. It is submitted the claimant's injury is incidental to the driving of the vehicle and therefore does not fall within the provisions of s 1.9(d) of the Act, as the fall was not caused by the driving of the vehicle. It is submitted there is no causal nexus between the driving and the claimant’s injuries.
CCTV FOOTAGE
At the assessment conference, the CCTV footage was viewed by me and the parties and was played in normal speed and in slow motion. After the footage was viewed, the claimant submitted it was clear the footage did not reveal him tripping over his own feet. In response, the solicitor for the insurer submitted the footage did disclose the claimant tripping over his own feet, and the motion of the bus did not cause him to lose his balance and fall to the floor of the bus. After the footage was shown to the parties, I advised I would review the CCTV footage again, before making my determination.
After the assessment conference, I took the opportunity to view the footage on several occasions, both at normal speed and in slow motion, and I find the claimant did not trip over his own feet, and I further find, the driving of the bus caused him to lose his balance and fall to the floor of the bus.
REASONS
The insurer as stated above, submitted the claimant’s injuries were not “caused” by the driving of the 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).
It is clear the injury has occurred during the driving of the vehicle as demonstrated in the CCTV footage and I again note the insurer has conceded this fact.
I find the claimant did not trip over his own feet, and I further find, the driving of the bus caused the claimant to lose his balance and fall to the floor of the bus.
I therefore find the injury to the claimant has resulted from a motor vehicle in this State. I determine the claimant is entitled to statutory benefits pursuant to s 3.1 of the Act.
Since the claimant is self-represented, there will be no order as to costs.
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