Scattergood v Allianz Australia Insurance Limited
[2025] NSWPIC 176
•30 April 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Scattergood v Allianz Australia Insurance Limited [2025] NSWPIC 176 |
| CLAIMANT: | Michael Brian Scattergood |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | David Ford |
| DATE OF DECISION: | 30 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; claimant was a passenger on the insured bus; claimant suffers from thoracic spinal cord neuralgia; bus driver moved the bus forward and the motion of the bus caused the claimant to fall to the floor of the bus sustaining injuries; at no time did the claimant hold onto any hand rails or seats as he made his way down the aisle; having regard to the fact the claimant was utilising a walking stick determined the bus driver was negligent by not allowing the claimant sufficient time; Held – motor accident not caused wholly or mostly by the fault of the claimant; claimant is self-represented therefore there is no entitlement to legal costs. |
| DETERMINATIONS MADE: | CERTIFICATE The findings of the assessment of this dispute are as follows: 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. Effective date: this determination takes effect on 29 April 2025. 4. Legal costs: The claimant is self represented and I do not assess any amount for costs payable by the insurer. 5. A brief statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
This is a dispute between Michael Brian Scattergood (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).
The insurer undertook an internal review, and a statement of reasons is attached to the reply form and is dated 30 December 2024.
The claimant seeks to challenge the determination.
The claimant sustained an injury when boarding the insured bus on 5 June 2024. CCTV footage of the incident was lodged on the portal.
The claimant was born in 1984. He lodged an application for personal injury benefits dated 27 June 2024. The matter was previously subject of a miscellaneous claims assessment (M25926/24) which was determined by me. A certificate was issued pursuant to s 7.13 (4) of the Act on 18 November 2024, determining the claimant’s injuries resulted from a motor accident.
The insurer, in their statement of reasons, considered the claimant wholly or mostly at fault, and, after 52 weeks, the weekly payments under ss 3.11 and 3.28 will be ceased. The claimant submits he was neither wholly or mostly at fault in the motor accident and is entitled to a continuation of statutory benefits. He has now filed this application seeking a determination of the dispute with the insurer.
Documents considered
I have considered the documents provided in the Application and in the Reply and considered other documents which were subsequently lodged on the portal by both parties.
Claimant’s submissions
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., a passenger asked me if I needed an ambulance, and one was called.
I have a pre-existing condition being Thoracic Spinal Cord Neuralgia. This involves chronic pain with acute muscle spasm attacks often, brought on by sudden or strenuous physical activities. Prior to the incident, this was being managed reasonably well with medications and additional remedies, such as stretches and massage. Since the incident, I had been unable to sleep soundly due to pain and am experiencing additional pain whilst working which is being temporary managed with breakthrough pain medications. I have lost interest in most of my hobbies, and I find myself unable to concentrate on tasks. I also avoid bus stops and other forms of public transport”
At the assessment conference, the claimant refuted the submission made by the insurer that he was not using his walking stick “properly to walk on the bus”. Also, he stated he was not required by law to occupy “the first empty seat available”. He submitted the seat directly behind the bus driver, which he concedes was empty, was not suitable for him to sit in as he described it as being “a painful seat”. He stated this seat is directly over the front axle, which causes him discomfort when the bus is in motion.
He further stated it is his preference to sit alone, if possible, when travelling on a bus as this mitigates the pain which he suffers because of his pre-existing condition, thoracic spinal cord neuralgia. He submitted the insured driver should have waited for him to sit down in the seat. However, he did concede, after further questioning, the bus driver did not accelerate/depart in an unusual or reckless manner, when driving the bus forward from the bus stop. He conceded after he entered the bus, he did not hold onto any seat rail or handrail as he walked down the aisle of the bus. His walking stick was in his right hand and with his left hand he was holding onto his leather bag, as he was concerned the bag “would hit other passengers”. If the bag hits the seats as he walks down the aisle of the bus, then this would cause him pain.
When questioned, he confirmed he had no conversation with the bus driver regarding his disability. He said that he could not hold onto any handrails, because he was holding onto his leather bag. He also stated the weight of the bag interferes with his use of the walking stick. When question as to why he would not move the leather bag around onto his back, in order for his left hand to be free to hold onto the seat rails, he replied it would be unnecessarily painful for his bag to be placed at his back.
After further questioning, he conceded the seat directly behind the bus driver was reserved for handicapped passengers, but again stated, sitting in this seat will cause him to suffer pain during the journey.
Insurer’s submissions
In the Certificate of Determination Internal Review, I note the following at paragraph 5:
“40-year-old male with walking stick boarded the bus. Driver started moving the bus and passenger lost his balance, missed the step and fall down, passenger advised driver to seek medical assistance as he is hurt, not sure where.
Comments: additional footage shows the male walking to the rear of the bus and as the bus moves 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.”
I also note the following paragraphs:
“10. I accept that you were wholly at fault for the subject motor vehicle accident for the purposes of the Act, based from the following
(a), Firstly I note that you rely on the determination from Member Ford of the Personal Injury Commission in your submissions for a request for an internal review. I highlight that the determination was limited to the discrete issue of whether your fall on the bus was caused by the driver of the vehicle or whether the driving was inconsequential to your fall.
(b) Whilst I acknowledge that the determination from PIC that your injuries arise from the driving of the vehicle, there was no determination on fault as the Member’s reasoning and analysis of the dispute was limited.
(c) The CCTV footage reflects that you walked past an empty seat at the front of the bus which was prior to the bus accelerating to depart. I further note that the footage reflects that you were walking to the back of the bus and that you failed to hold on nor use your walking stick properly. The footage depicts you losing balance as the bus departs causing you to fall over.
(d) My analysis of the footage concludes that the bus did not accelerate/ department in an unusual or reckless manner, and it is apparent that all the other passengers do not move due to the movement of the bus supporting that the bus departed in an ordinary fashion.
(e) I find your fall could have been avoided and that a reasonable person in the circumstances would have either
* Sat in the first empty seat available which was at the front of the bus which would have meant that you would have been seated before the bus departed
* Use your walking stick properly to walk on the bus.
* Hold on the rails was walking on the bus.
(f) If any or all of the above were adopted by yourself, I find that the accident would have been avoided
(g) In the circumstances, I therefore find that you were wholly at fault for the motor accident.”
I refer to the submissions lodged by the solicitor for the insurer, and I note the following paragraphs,
“7. Further the insurer notes the claimant has previously given evidence to the effect that the acceleration of the bus was smooth and continual. He emphasised that the initial movement of the vehicle was not what caused him to fall, but rather the increasing acceleration which placed more forces on his body. The insurer submits this description of the driving a vehicle is consistent with there being no apparent movement of the other occupants of the bus and supports the insurer’s position the accident occurred wholly due to the fault of the claimant.
8. The insurer submits there was no negligence with respect to the driving of the vehicle, Further, it was not foreseeable that the claimant was at risk of falling, or would fall, in circumstances where he elected not to sit in available seats at the front of bus which are assigned for persons suffering disability or mobility issues.
9. The insurer submits it was foreseeable that the bus would depart the stop once all passengers had boarded and that a reasonable person would have taken a seat, or held onto any of the available hand railings, to stabilise themselves in anticipation of the departure.
10. The insurer submits the determination as to whether the claimant was negligent requires the application of the general principles set out in section 5B of a Civil Liability Act 2002”
The insurer submits there was adequate time provided to the claimant to take a seat before the bus moved from a stationary position.
On the basis of the above evidence, the insurer submits that the elements of s 5B are satisfied noting:
(a) it was (or ought to have been) foreseeable that when boarding the bus, it was going to depart and would be frequently stopping;
(b) the risk of injury presented by the situation was not insignificant;
(c) a reasonable person in the claimant’s position would have utilised the available handrails in anticipation of the bus moving, and
(d) the claimant could avoid the risk of harm by simply holding onto the available handrails or taking the first available seat.
REASONS
Was the claimant wholly at fault in causing the accident?
I was assisted in my determination by viewing the CCTV footage lodged on the portal by the insurer. In particular, the footage described as being “inside front” which clearly depicts the claimant, after entering the bus, walking down the aisle with his leather bag, slung over his right shoulder and utilising his walking stick with the right hand. The footage depicts the leather bag, at all times, being situated behind the claimant's backside, and at no time does he hold onto the strap of his leather bag with his left hand. Further, it appears from the footage, he is holding a mobile phone in his left hand, and this is clearly depicted in footage described as “rear door to back” at 10.07.25.
It is clear from the footage, he walked past the empty seat situated immediately behind the bus driver, he does not dawdle but does walk towards the empty seat situated behind the woman wearing the blue jumper, at what I would describe as being a “good pace”.
The bus driver is depicted, in footage described as “inside front”, shortly before he commences to drive the bus away from the bus stop. He does glance mirror in his rear vision (which provides vision of the aisle of the bus) immediately before he commences to drive the bus forward from the bus stop. This is depicted at 10.07.16. I discern this glance by the bus driver to have taken place at this time, as when the passengers call out when the claimant has fallen to the floor of the bus, the bus driver, once again glances in his rear vision mirror, notices the fact the claimant has fallen to the floor of the bus, and he then brings the bus to a halt. This second glance is depicted at 10.07.22.
The insured driver was not present at the assessment conference for the purposes of being questioned. I find the insured driver has a duty to observe each passenger as they enter upon the bus to ascertain whether they are handicapped or have restrictions in their mobility, and furthermore, whether they are carrying shopping items or luggage. The claimant clearly was utilising a walking stick, which is acknowledged in the internal review certificate.
I find the bus driver, upon viewing the claimant walking towards his chosen seat at the rear of the bus, should have waited only a few seconds more, to enable the claimant to take his seat. He would have clearly seen the claimant still proceeding down the aisle of the bus. I find the claimant would have safely sat in his chosen seat within a few seconds of the bus driver making his glance into the rear vision mirror. I also find the bus driver would have seen the claimant was still in the progress of walking down the aisle of the bus, which would make him more susceptible to losing his balance, once the bus commenced to move forward.
I therefore find the bus driver negligent in the driving of the bus, by not allowing the claimant sufficient time, in the circumstances, to sit down in his preferred seat. I find it was apparent to the bus driver at the time, the claimant was utilising a walking stick with his right hand, but still was walking at an appropriate pace down the aisle of the bus to reach his preferred seat. I find a delay of only a few seconds to allow the claimant to reach his seat was reasonable and appropriate in the circumstances. The bus driver should have allowed the claimant this very short period to take his seat safely.
I therefore find the claimant was not wholly at fault in causing the accident.
Was the accident caused mostly by the fault of the claimant?
The onus of proving contributory negligence rests upon the insurer. The driver of a bus is to take reasonable care for the safety of the passengers.
A claimant who asserts a bus driver is negligent in failing to keep a proper lookout as he is walking down the aisle of the bus must establish the bus driver had the opportunity to see the claimant and failed to take the appropriate precaution of allowing the claimant, who is utilising a walking stick to reach his preferred seat.
Section 5R (1) the Civil Liability Act 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time see s 5R (2) (a) and (b).
Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm, and
(e) the determination of whether a claimant has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case, see Serrao ( by his tutor) Serrao v Cornelius (2) 2016 NSW CA 231 (at [61]) and T and X Company Ltd v Chivas 2014 NSW CA 235 at [51].
I find the bus driver, immediately prior to the claimant’s fall did observe him walking at an appropriate pace down the aisle of the bus, and at the same time observed he was utilising a walking stick. The bus driver glanced in the rear vision mirror, and if he had allowed only a few seconds more, before driving the bus forward, then the claimant would have been able to reach his preferred seat in safety.
However I further find the claimant was not prevented from holding onto the seat rails, as he walked down the aisle of the bus because he was holding onto his leather bag, but rather, was prevented as he was carrying in his left hand what appears to be his mobile phone.
I also find the claimant was not concerned his bag would hit other passengers, as at all times, the bag was clearly situated behind his backside. At no time was he holding onto his leather bag as he walked down the aisle. I also find the claimant should have taken the empty seat immediately behind the bus driver, and I do not accept his submission this seat was not suitable for him because it is directly over the front axle, which he submits causes discomfort when the bus is in motion. He would require expert evidence to substantiate this allegation.
Therefore, I find the claimant is guilty of contributory negligence, as such, but do not find his contributory negligence is greater than 61%.
I therefore find the claimant was not mostly at fault in causing the accident.
FINDINGS
I therefore find the accident of 5 June 2024 was not caused wholly by the fault of the claimant.
I also find the accident of 5 June 2024 was not caused mostly by the fault of the claimant.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
(a) for the purposes of s 3.11 of the Act, the motor accident was not caused wholly by the fault of the claimant;
(b) for the purposes of s 3.28 of the Act, the motor accident was not caused mostly by the fault of the claimant;
(c) effective date: this determination takes effect on 29 April 2025 , and
(d) legal costs: nil.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) the Act;
(b) Motor Accident Injuries Act Regulation 2017;
(c) Motor Accident Guidelines 2020, and
(d) Civil Liability Act 2002.
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