Sukkar v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sukkar v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 566
Claimant:	George Sukkar
insurer:	Insurance Australia Limited t/as NRMA
Member:	Bridie Nolan
DATE OF DECISION:	20 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; statutory benefits; whether for the purposes of section 3.1 of the Motor Accident Injuries Act 2017 (2017 Act) statutory benefits are payable in respect of death or injury resulting from motor accident; whether claimant involved in a “motor accident” for the purposes of section 1.4 of the 2017 Act; claimant sustained injuries as a result of momentary loss of attention to check whereabouts of vehicle with which he had earlier briefly collided; Held –determined claimant’s injuries were caused by the use or operation of a vehicle; statutory benefits found to be payable.
determinations made:	1. For the purposes of section 3.1 the death of or injury to a person has resulted from a motor accident in this State. 2. Effective Date: This determination takes effect on 7 April 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 exclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This is an application for determination of a miscellaneous claims assessment matter regarding whether the claimant is entitled to be paid statutory benefits for an injury, which he says arose from an incident in which he was involved, which he says was a motor vehicle accident for the purposes of the Motor Accident Injuries Act 2017 (NSW) (the MAI Act).
This matter has been referred to me pursuant to Schedule 2 of the MAI Act. The claimant casts the dispute as being a miscellaneous claims assessment matter arising under Schedule 2, cl 3(n), which permits me to determine any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in the schedule. The insurer casts the dispute as arising under Schedule 2, cl 3(b) of the MAI Act, which provides for a determination as to whether for the purposes of s 3.1 (statutory benefits payable in respect of death or injury resulting from motor accident, the death or injury to a person has resulted from a motor accident in this state).
In my view, the insurer’s submission is correct: the dispute arises under Schedule 2,
s 3(b) of the MAI Act.
By letter dated 4 August 2021, the insurer accepted liability for statutory benefits, for 26 weeks from the date of “your motor accident”. It indicated that it accepted that the claimant had satisfied the requirement of due inquiry and search.
In a revised undated liability notice, issued on or about 8 October 2021, the insurer denied liability for the claim. Section 6.19 (5) of the Act permits the insurer, having earlier accepted liability, to subsequently deny liability.
On 12 October 2021, the claimant requested an internal review of the decision, which was received on 21 October 2021, affirming the revised decision on liability.
The insurer considered the material before it and determined that the accident was explained by two possible scenarios:
(a) the first, being that there was no truck and the claimant collided into the median strip by reason of his own act or omission; and
(b) the second, is that the truck did indeed reverse as the claimant said, made contact with him, which caused him to wobble, from which he thereafter regained control and turned to yell at the truck driver, and in doing so took his eyes off the road, whereafter he collided with the median strip.
The insurer apparently preferred this second version, because it determined the matter on the basis that the claimant was injured, when he turned around to yell at the truck driver, and not because of the collision. In no way do I consider this perceived preference binds me on the instant determination.

Evidence about the incident

In an Application for Personal Injury Benefits dated 15 April 2021, the claimant alleged that he was involved in a motor vehicle accident on 7 April 2021. He says that he was riding an electric motorised bicycle along Evaline Street, Campsie, and as he passed the Campsie Central Shopping Centre and Woolworths, an unidentified truck pulled out onto the street from the Woolworths car park. He says that the truck collided with his shoulder which caused him to lose balance, which he regained, only to then collide with the median strip which caused him to fall off his bicycle and injure himself.
In answer to section 3 of the Application, he depicted the accident as follows:

[image unable to render]

In a version of events given to police on the same day as the accident, the claimant said that he took his eyes off the road after the initial collision, to turn around and abuse the driver, prior to him colliding with the median island.
The claimant later explained to police that he came home from his uncle’s house at about 3:40 am to 3:50 am. He says that when he got home, his grandmother told him to get some milk and he wanted to get a Powerade from the petrol station. He said that he got on his bike, put his lights and helmet on and began to ride down the hill, heading east along Evaline Street towards Woolworths. He was riding in the left lane. He said that when he got to the bottom of the hill a truck was reversing out of the Woolworths car park where the one-way street is, towards him. At this point he was riding in the far-left lane. The truck was pulling out fast and the left rear corner of the truck hit the claimant on the right shoulder. He stumbled a bit on the bike, he says, with the bike wobbling. He regained control, turned around to yell at the driver, did not see the island in front of him and collided with the island in the middle of the road. He fell off the bike over the handlebars and hit his head on the island. He says that everything went black thereafter and he woke up to blood everywhere.
He said that he had two “Canadian Clubs” about one to two hours before the collision.
In a sketch drawn with police, the following is depicted:

[image unable to render]

Police investigated the incident and were unable to determine how it occurred. There was no CCTV footage available that covered the intersection where the alleged collision occurred. The only footage available was 50 metres further up the road from where it was alleged to have occurred with the claimant travelling quickly into the median strip and being forced over the handlebars.
Police made enquiries of Woolworths as to whether there was a truck in the vicinity at the time of the accident. They reported the outcome of the inquires of Woolworths in their report to the effect that using the tracking history of “the truck” (which truck it is not clear) it appears that the truck was on Evaline Street at 3:01 am. By 3:25 am, “the truck” was already in Penshurst. The collision allegedly occurred around 3:55 am.
Police also obtained CCTV footage from the camera facing the median island taken from Chris’s Newsagency on Evaline Street. In this footage, the claimant’s bicycle can be seen riding east along Evaline Street and travelling into the median island causing the claimant to be forced over the handlebars. In this footage, the police observed that it does not appear that the claimant’s bicycle had a bright white light as described by him in his version of events.

SUBMISSIONS

Claimant’s Submissions

The claimant relies on s 1.9 of the MAI Act which states that the MAI Act only applies in respect of death 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 a vehicle or;
(b)    a collision, or action taken to avoid a collision, with a vehicle, or;
(c)    the vehicle is running out of control, or;
(d)    a dangerous situation caused by the driving of a vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle is running out of control.
He relies on paragraph 4.1 of the Motor Accident Guidelines and s 6.8 of the MAI Act which stipulates that in order to verify a motor accident, a claimant should report the accident to police within 28 days and provide the event number to the insurer. He notes that he reported the accident to the NSW Police on 7 April 2021 at 10:23am, being approximately six hours after the subject incident.
He disputes the insurer’s position that it had taken in the Internal Review Certificate that the claimant bears the onus to prove the motor vehicle accident. The claimant says he has fulfilled the requirements under the Guidelines and the MAI Act to verify the accident and the burden now falls on the insurer to prove that the motor vehicle accident did not occur.
The claimant submits that it is perfectly reasonable for someone who has been involved in an accident to look behind them and see what has happened, check that the vehicle is not continuing in the direction and call out to the driver to alert them of the collision. Such actions are a natural reaction to having been involved in a collision. It is submitted that it was reasonable for the claimant to have looked behind him so as to avoid any further possible collision, just in case the driver had not in fact seen him. Had he not looked behind him, the claimant would have no way to avoid a further collision, had the defendant driver continued reversing in the same direction as the claimant was travelling.
He disputes the insurer’s assertion that his turning around to yell at the driver was the cause of the subject accident.
He urged me to find that the motor accident occurred, and that he was not wholly at fault for the accident. With respect to this latter finding, I do not consider that I have power to make a finding with respect to whether the claimant was wholly or mostly at fault for the subject accident as this is not the basis upon which the insurer has rejected liability, hence there is no dispute for the purposes of s 7.42(3) of the MAI Act. My power arises by virtue of a dispute about a miscellaneous claims assessment matter relating to a claim for statutory benefits. The insurer has not purported to make a finding of contributory negligence or fault; rather, it has rejected the claim outright on the basis that it does not engage s 3.1 of the MAI Act.

Insurer’s Submissions

The insurer urges upon me the following facts:
a.     the claimant was riding his electric motorised bicycle in an easterly direction along Lane 1 on Evaline Street, Campsie, towards Beamish Street, at approximately 20kph, intending to go to Budget Petrol Station on Canterbury Road;
b.    according to the Police Report, the accident occurred between 3:50 am and 4:02 am on 7 April 2021;
c.     the accident took place at the T-intersection of Evaline Street and Rudd Parade, Campsie in New South Wales;
d.    it was dark; the weather was overcast, and the surface of the road was sealed and wet;
e.     photographs of the accident location appear in the Factual Interim Report of MJM Corporate Risk Services dated 21 July 2021;
f.     there was one vehicle involved in the subject accident of which the claimant was the person in control. He was the rider of a black, electric motorised bicycle. It disputes the claimant’s allegation that an unidentified white truck with a rusted trailer was involved in the accident, as there is no evidence available to corroborate it;
g.    it relies on the Ambulance Report which does not report a collision with a truck. It states that the claimant was riding his bicycle and collided with the median strip which caused him to face plant on the roadway. He was found in the middle of the road, conscious, alert but confused. It does not indicate any injury to the right shoulder consistent with the body part impacted by the alleged reversing truck;
h.    the discharge summary from the Royal Prince Alfred Hospital does not record a collision with a truck or involvement in a motor accident. The injuries noted include multiple facial abrasions, left eyebrow, left lateral orbital, and left upper lip lacerations;
i.     the Police COPS Report notes that the claimant initially made no reference to involvement with an unidentified vehicle at all. Reference to the involvement of an unidentified vehicle was made on 12 April 2021 by the claimant’s father, whereby a later version of events was provided to police, and
j.     the Police COPS Report notes that following inquiries, the police were unable to confirm that there was a collision involving a truck as no evidence was available to corroborate the claimant’s version of events. Additionally, it notes that the claimant took his eyes off the road prior to colliding with the median strip during which he sustained injuries.
It submits that there is no identified vehicle, and I should not accept that the action of any unidentified vehicle contributed to the injuries sustained. The insurer submits that the injuries sustained were caused by the claimant’s loss of control of his bicycle.
It relies on the decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 (GSF), where the High Court held that the use of the words “is caused during” conveys the injury must be sustained during the use of the operation of a motor vehicle and the words “as a result of” conveys that the injury must be sustained as a consequence of the use or operation of the motor vehicle.
The insurer submits that on the basis of the available evidence, the injuries sustained by the claimant did not result in the impact of the unidentified truck but instead resulted from the claimant failing to maintain proper control of his bicycle and turning around to yell at the truck driver which resulted in the claimant failing to navigate his bicycle in a manner to avoid the median strip ahead. It relies on what it refers to as a “break in causation between the alleged collision at the intersection … and the injuries sustained with the collision of the median strip in that, [the claimant] was injured as a result of turning around to yell at the truck driver and not keeping a proper lookout ahead and proper control of his bicycle; and not upon impact of the right shoulder by the truck.”

DOCUMENTS CONSIDERED

I have considered the material provided in the application and the reply and the further information provided by the parties.

REASONS

In a teleconference I held with the parties on 2 March 2022, I discussed these facts with the parties and whether the matter required an oral hearing. The insurer raised the inconsistencies in the claimant’s evidence which suggested that his version of events should be given no weight. I indicated to the insurer at the time that the preponderance of evidence would appear to suggest that uncontradicted, and his credibility not having been directly put in issue, the claimant’s evidence should be accepted. The parties, viz. the insurer, nonetheless did not require an oral hearing.
The insurer relies upon inferences to be drawn from alleged omissions in third party records and various accounts compounded by the weakness of second-hand hearsay. This is insufficient to put the claimant’s credibility in issue. I have no reason to doubt that the claimant gave a truthful and honest account of the accident when there is no direct evidence which directly contradicts his version of events. The large proportion of the evidence upon which the insurer relies is subjective, which alone can contradict the claimant’s version of events. The closest the contradiction comes is in the form of the tracking of an ill-defined and unexplained truck, obtained from records maintained by Woolworths, sighted by the New South Wales Police, and referred to within its COPS report. In circumstances where the multiple levels of hearsay are so compounded, the reliability of this evidence is doubtful. In my view, the preponderance of the evidence lacks cogency and is of little to no probative value.
Accordingly, I accept the claimant’s version of events as to the presence of the truck and the sequence of events following the collision of his shoulder with it, as set out above at paragraph 12 herein.

The legislation

Section 3.1 of the Act provides:
“(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 this 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
even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.” [my emphasis]
Relevantly, this matter requires an examination of whether the injuries suffered resulted from a motor accident. This incorporates an evaluation of a causal connection arising from the expression “results from” which has been variously ascribed a meaning of “consequent upon”. “Motor accident” is a defined term. Peculiarly, the definition of “motor accident” under s 1.4 of the MAI Act, too involves a causation analysis. It is plainly a relic from the earlier iterations of third-party motor accident compensation legislation in this State, which have been the subject of extensive consideration. For example, GSF considered provisions as they were enacted in the Motor Accidents Act 1988 (NSW) (MA Act). The relevant liability clause thereunder consideration relevant to the recovery of damages under the MA Act was s 69, which picked up the definition of “injury” in s 3. That definition was an aid to the construction of s 69, the meaning of which depended on the context and object of the substantive enactment.
GSF was discussed in Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11; 228 CLR 529 (GLG) which also concerned s 3(1) of the MA Act. The definition of “injury” in the MA Act considered in GLG was relevantly identical with s 3A of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) which limited the application of the Act to certain circumstances. In this case, the definition of motor accident in s 1.4 has strong similarity to s 3A of the MAC Act but is not identical, nor, unlike s 3A o the MAC Act, is it operativ
Section 1.4 of the MAI Act, “motor accident”, provides:
“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.”
McHugh J has explained variously, that “the function of a definition is not to enact substantive law” but to “aid” the construction of those substantive enactments that contain the defined term or terms: see Kelly v The Queen [2004] HCA 12; 218 CLR 216 (Kelly) at [103]; and GSF at [12]; see also Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390;Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 at 635., per Barwick CJ, McTiernan and Taylor JJ; Moreton Bay Regional Council v Mekpine Pty Ltd (2016); [2016] HCA 7; 256 CLR 437 at [61] per French CJ, Kiefel, Bell and Nettle JJ. His Honour said that the accepted course is usually to “read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome”: Kelly at [103].

To simply insert a definitional provision which contains a complex causation analysis into an operative provision, which creates liability, and which too contains a causation analysis, is uncomfortable. Therefore, the exercise of construction will need to address any logical or grammatical infelicities that arise: Commissioner of Police v Kennedy [2007] NSWCA 328; 5 DDCR 380 at [44] per Basten JA.
In the present case, the definition results in the cumbersome entanglement of concepts, viz. an injury being caused by an incident or accident involving the use or operation of a motor vehicle that causes the injury to a person where the injury is a result of and is caused 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. However, when the legislative history and statutory purposes are taken into account, there is no reason to suppose that Parliament intended there to be two separate evaluations of causation. Rather, they should be understood as referring to a single evaluation. On this issue, in Kelly (at [84]) McHugh J cited with approval a passage from the judgment of Dixon CJ in Gibb at 397 where the Chief Justice there noted that “the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
In Federal Commissioner of Taxation v Douglas [2020] FCAFC 220, Griffiths J, Davies and Thurley JJ, had occasion to refer to the principles espoused in Gibb and to the discussion of the principle that definitional provisions are not to be given substantive effect as it discussed in both in commentary and in the authorities. What their Honours said (at [94] – [95]) bears restating in full here:
The relevant principles are discussed in Herzfeld and Prince, Interpretation, Second Edition, Thomson Reuters, 2020 at [3.10]. Reference is made there to Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 at [113] - [114] as an exceptional case in which a definition was construed as having a substantive effect. In Yazaki, the Court considered the phrase “exclusionary provision” in s 45 of the Competition and Consumer Act 2012 (Cth) (CC Act) and its interaction with s 4D of the CC Act, which was titled “Exclusionary provisions”. After noting what McHugh J said in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], namely that the function of a definition is not to enact substantive law but is to provide aid in construing a statute, the Court in Yazaki said at [113] that Kelly involved a “simple definition” (being the meaning of the phrase ‘in the course of official questioning’ within the definitions of ‘confession or admission’ and 'official questioning' in s 8(1) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas)). In contrast, the Court in Yazaki described s 4D of the CC Act as stating substantive law. At [114] the Court said that it was doubtful whether s 4D is a definition at all given that its main purpose was to enact substantive law. In terms of the relationship between ss 4D and 45, the Court said at [122] that the correct approach was to read s 4D, according to its terms and its legal context. Moreover, at [124] the Court said that s 4D is the more specific provision which was not displaced by the more general terms of s 45, particularly because s 45(3) did not purport to define the term ‘exclusionary provisions’. This view was supported by extrinsic material and other Full Court authorities.
Another example of a definition being construed as having a substantive effect is San v Rumble (No 2) [2007] NSWCA 259, which focused on the proper construction of s 51 of the Motor Accidents Compensation Act 1999 (NSW) and its interrelationship with provisions concerning costs under the Civil Procedure Rules 2005 (NSW). Campbell JA (with whom Beazley P and Ipp JA agreed) said at [55]:
The construction of section 151 that I prefer involves conferring a substantive effect on the definition, because it has the effect of altering the rights or obligations of people. It does so by providing that the only costs that can be recovered under section 151(2) are party and party costs, and (implicit in that) that costs on an indemnity basis are not recoverable under section 151(2).
If the definition had not been in the legislation, it would have been open to a court to apply the rules and principles that are usually applied in litigation to make an award of indemnity costs in an appropriate case where litigation was brought concerning a claim that has been the subject of a CARS assessment. Thus, the effect of the definition is to take away what would otherwise have been a right of a litigant to seek an order for indemnity costs in such a case. I recognise that conferring a substantive effect on the definition is something that is usually not appropriate to the function of a statutory definition: Gibb v The Commissioner of Taxation of The Commonwealth of Australia (1966) 118 CLR 628 at 635. However, as Pearce and Geddes, Statutory Interpretation in Australia, 6th edition, para [6.63] point out:
Drafters do occasionally include substantive material in a definition. This is poor drafting and can lead to error in the interpretation of the legislation because of the approach set out in Gibb's case.
Particularly when the definition in question is one that applies in one section of the legislation only, and the construction I prefer gives better effect to the policy of the Act, I am not troubled by this departure from the usual way in which statutory definitions are construed.
Likewise, in this instance, the intention of the legislature would be defeated if the definition in s 1.4 of the MAI Act is given a meaning which worked “to negate the evident policy or purpose of a substantive enactment”. Once it is clear, as it is here, that the definition must necessarily apply to create substantive prescription, the words of the definition are to be read into the substantive provision and the latter construed “in its extended or confined sense ‒ in its context and bearing in mind its purpose and the mischief that it was designed to overcome”.
The mischief the definition in s 1.4 of the MAI Act has been well traversed in the extensive judicial exegesis of the various iterations of the statutory expression as it has variously appeared, commencing with GSG and thereafter in GLG. Two further cases which are of relevance to the present are Leach v The Nominal Defendant [2014] NSWCA 257 (Leach) and Nominal Defendant v Hawkins [2011] NSWCA 93 (Hawkins).
Leach concerned a drive-by shooting in which a Commodore struck a Mitsubishi in which Mr Leach was a passenger, causing its rear to move slightly to the left. Gunshots were then fired from the Commodore into the Mitsubishi and Mr Leach was shot and suffered injuries. Her Honour considered at length, the decision in GSF and said of s 3A of the MAC Act (at [52] – [54]) as follows:
“The effect of Allianz is relevantly as follows. First, to fall within s 3A, the appellant has to establish that his injury was caused by the fault of the driver in the use or operation of the Commodore: McHugh J (at [19]). Secondly, the appellant must satisfy the temporal criterion that his injury was sustained during either the ‘driving of the [Commodore]’ or ‘a collision with the [Commodore]’. (It was not suggested that the Commodore ran out of control: s 3A(1)(c) - some reference was made to the driver of the Mitsubishi slightly losing control (primary judgment (at [7])), but s 3A(1)(c) looks to the at fault vehicle losing control). Thirdly, the appellant has to satisfy the causation criterion, that his injury was sustained as a consequence of those events: Allianz (at [94]) per Gummow, Hayne and Heydon JJ; see also McHugh J (at [17] - [18], [24); Callinan J (at [131]). This means that he had to establish that those events were the proximate cause of his injuries, guidance for which is to be found in insurance law: Allianz (at [102]).
In the law of insurance the words ‘proximate cause’ and ‘direct cause’ came to be used interchangeably: see generally Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66; (2005) 13 ANZ Insurance Cases 61-643 (‘Lasermax’)(at [39] ff) per McColl JA (Ipp and Tobias JJA agreeing); Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111 (‘Zotti’) (special leave granted ([2010] HCATrans 62), but matter discontinued) (at [49] - [51]) per Allsop P (McColl JA agreeing). In that context, ‘the proximate or direct cause of an injury’ is not ‘a cause of the cause, or the mere occasion of the injury’: Australian Casualty Co Limited v Federico [1986] HCA 32; (1986) 160 CLR 513 (at 521) per Gibbs CJ.
As discussed in Lasermax (at [44]), ‘... 'The qualities of reality, predominance and efficiency of a cause prevail over proximity in time in determining what cause or causes are proximate.' Hence the proximate or direct cause is described as the 'dominant' cause ... 'that which is proximate in efficiency' and 'the real effective cause’’.”
Her Honour’s conclusions in that case are of relevance here. After considering further the case law, her Honour said at [70] – [73]:
“In reaching my conclusion, I take into account the factors to which the appellant asserts the primary judge failed to give sufficient weight (see [28](8) above). Those factors seek to emphasise the role of the impact of the Commodore on the driving of the Mitsubishi. In my view his Honour did not fail to give those factors adequate weight. Rather, he concluded (at [14]) that "the driver drove the Commodore in a manner that facilitated the firing of the weapons at the plaintiff". However, His Honour also found (at [32]) that ‘[t]he firing of the guns in this case did not need the changing of lanes and collision for its occurrence’. That finding was not expressly challenged in the notice of appeal, although the tenor of the appellant's submissions, directed as they were to emphasise the fault of the driver of the Commodore most probably should be seen as at least an implicit challenge. Ultimately, I do not think anything turns on this.
…
I would also accept that the appellant's injuries satisfy the temporal criterion, that is to say that they were sustained during either the "driving of the Commodore" or the ‘collision’ with the Commodore. In the latter respect Zotti supports the proposition that the collision extended at least until the Mitsubishi came to a stop, albeit that the impact was clearly only a momentary occurrence.
However, in my view, the appellant's injuries were not ‘caused by the fault ... of the driver in the use or operation of the Commodore’ nor, to put it another way, were his injuries sustained as a consequence of those events: Allianz (at 94]). Rather, the gunfire was the ‘dominant cause’ or that which was ‘proximate in efficiency’ and ‘the real effective cause’ of his injuries. The ‘fault’ of the driver of the Commodore in colliding with the Mitsubishi was the mere occasion of the injury. That collision, as is apparent from the police report of the damage to the Mitsubishi and photographs of the bumper bar, caused "minor damage". As soon as Mr Russell realised shots were being fired into the car he accelerated and was able to drive away. The shooting was, in my view, ‘in a substantial way distinct from or independent of’ (cf Hawkins (at [42] per Hodgson JA; at [67], [70]-[71] per Sackville AJA) the driving fault. The primary judge did not err in distinguishing Hawkins.”
In Leach, Sackville AJA (at [85]) traversed the outcome in Hawkins:
“The decision in Nominal Defendant v Hawkins [2011] NSWCA 93 (Hawkins) is distinguishable from the present case. In Hawkins, the plaintiff was riding his bicycle when he was harassed by the driver of an unidentified motor vehicle. The plaintiff was hit on the shoulder by an object thrown from the motor vehicle. The throwing of the object at the plaintiff was found (at [67]) to be "an integral part of the harassing and intimidatory course of conduct in which the driver of the vehicle engaged". The harassment of the plaintiff in Hawkins was not part of a pre-determined plan in which the motor vehicle played an incidental part in the infliction of harm. The plaintiff was apparently randomly targeted by the occupants of the motor vehicle because he happened to be riding his bicycle on the roadway near them. In other words, he was targeted because he was a fellow road user. Moreover the plaintiff's injuries were not directly inflicted by the object thrown at him. He sustained his injuries when he lost control of the bicycle as he attempted to take evasive action to escape the harassment.”
In Hawkins at [63] – [66], his Honour said:
“Mr Rewell nonetheless submitted that the injury sustained by Mr Hawkins was not caused by the fault of the driver in the use or operation of the vehicle within the meaning of the definition of ‘injury’ in the MAC Act. However, as Hodgson JA has pointed out, the plurality in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568, did not say that the definition of ‘injury’ assumes that there can only be one cause of an injury and that that cause must be the fault of the owner in the use or operation of the vehicle. The plurality's reasoning (at [102]) directs attention to "notions of predominance and immediacy rather than to more removed circumstances". This suggests that the Court must make a judgment as to whether fault in the use of operation of a vehicle is a sufficiently predominant and immediate cause of the injury to satisfy the statutory definition.
The plurality in Allianz also said (at [102])) that the definition of injury looks to ‘notions of proximate cause’ found in insurance law (compare McHugh J's criticism of the use of ‘proximate cause’ as a criterion (at [54])). It can be seen from the judgment of Allsop P in McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28, that the authorities have accepted that there can be more than one proximate cause of an event for the purposes of insurance law. His Honour gave as examples cases in which there were two causes of a loss which were ‘concurrent and interdependent in the sense that neither would have caused the loss without the other’ (at [97]).
One way of approaching the present case is to conclude, as Hodgson JA does, that the passenger's throwing of the object can properly be considered to be part of or incidental to the actions of the driver in harassing Mr Hawkins. For the reasons I have given, I think that the throwing of the object is correctly seen as an integral part of the driver's course of conduct in controlling the vehicle in a manner designed to intimidate and harass Mr Hawkins. On this analysis, it is impossible to separate the driving of the vehicle from the particular act of the passenger which, as the driver intended, caused
Mr Hawkins to be struck by the object.
An alternative approach is to apply notions of ‘proximate cause’ in insurance law, as the plurality suggests in Allianz. On this approach, the actions of the driver of the vehicle and the actions of the passenger were concurrent and interdependent causes of Mr Hawkins being struck by an object thrown from the vehicle. The passenger could not have managed ‘successfully’ to throw an object at Mr Hawkins without the driver's participation in the course of harassment and intimidation. Nor could the driver have managed to strike
Mr Hawkins with the object, as the driver intended, without the passenger's participation in the course of harassment and intimidation.
On either approach, in my opinion, the definition of ‘injury’ in s 3(1) of the Motor Accidents Compensation Act 1999 (NSW) is satisfied.”
While there is some circularity in the incorporation of the definition of “motor accident” into s 3.1 of the MAI Act, I am mindful of McHugh J said in GSF: the underlying statutory purpose or mischief is to provide compensation in circumstances where a person’s injuries are caused by the use or operation of a vehicle. As the discussion in Leach and Hawkins above demonstrate, if this use is a sufficiently predominant and immediate cause of the injury it will satisfy the statutory definition.
I am satisfied that the claimant’s injuries in this case engage the effect and statutory intention of this provision. His injuries were occasioned by the fact that he turned to look at the offending truck. This action was concurrent and interdependent to the collision with the truck in the sense he would not have turned to look at the truck were it not to have momentarily collided with him. In this way, both the causal connections embedded in the definition of “motor accident” in s 1.4 of the MAI Act is satisfied. Likewise, so is liability enlivened under s 3.1 of the MAI Act, because the same reasoning would satisfy the inquiry into causation contained in the expression “injury to a person resulting from a motor accident” therein [my emphasis], in any event.
Therefore, for the purposes of s 3.1 of the MAI Act the death of or injury to a person has resulted from a motor accident in this State.

COSTS AND DISBURSEMENTS

I am satisfied that the claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,710 exclusive of GST.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.1 the death of or injury to a person has resulted from a motor accident in this State.
Effective Date: This determination takes effect on 7 April 2021.
Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 exclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
• the MAI Act;
• Motor Accident Injuries Regulation 2017(NSW);
• Motor Accident Guidelines;
• MA Act, and
• MAC Act.

[2022] NSWPIC 566

20 July 2022