Tiedemann v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tiedemann v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 397
CLAIMANT:	Richard Tiedemann
INSURER:	Insurance Australia Limited t/as NRMA
MEMBER:	Elizabeth Medland
DATE OF DECISION:	23 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims dispute; whether the incident constituted a motor accident as defined by the MAI Act; claimant was driving a utility vehicle when he came upon a fallen tree blocking the road ahead and he stopped his vehicle with an intention to exit and assess the situation; claimant not aware he had driven into a live powerline that had fallen; the powerline was in contact with the vehicle when the claimant exited the vehicle, which had its ignition running, and in the process he was electrocuted; insurer denied liability for the claim for statutory benefits on the basis that the circumstances of the incident did not satisfy the definition of motor accident contained in section 1.4 of the MAI Act, and the accident did not fall within the provisions of the MAI Act pursuant to the restrictions set out in section 1.9; QBE Insurance (Australia) Ltd v Smith considered; Held – the incident satisfied the definition of motor accident as the claimant was still in the process of driving at the time of the accident and/or was injured during a dangerous situation caused by the driving of the vehicle.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessmentis: 1. Mr Tiedemann did sustain an injury in a motor accident within the meaning of s 3.1(1) of the Act.

STATEMENT OF REASONS

INTRODUCTION

Mr Richard Tiedemann (the claimant) has lodged a claim under the Motor Accident Injuries Act 2017 (MAI Act) or statutory benefits upon Insurance Australia Limited t/a NRMA Insurance (the insurer) following an incident occurring on 21 September 2023.
The insurer has denied liability for the claim, essentially on the basis that the incident does not fall within the definition of “motor accident” and therefore the provisions of the MAI Act do not apply.
The circumstances of the incident are unusual and traumatic. The claimant has suffered significant injuries due to an electrocution.
The claimant was the driver of a vehicle in Upper Mangogarie when he came upon a fallen tree that had blocked the roadway. The claimant drove towards the tree and his vehicle came in contact with fallen powerlines. When he attempted to get out of his vehicle to try and make way to proceed forward, he was electrocuted.
The claimant subsequently lodged an Application for personal injury benefits (claim form) with the insurer. The insurer denied the claim by way of notice dated 3 November 2023 on the basis that that accident does not meet the definition of motor accident outlines in s 1.4 of the MAI Act and does not meet the general restrictions on application of the Act as per s 1.9 of the MAI Act. An internal review of that decision was requested and the insurer subsequently affirmed that original decision.
An application was then lodged with the Personal Injury Commission (Commission) by the claimant’s then lawyers. The claimant has since become self-represented.
I held a teleconference with the parties on 13 May 2024. The claimant was self-represented, but I was informed that a law firm had been engaged. It is apparent that they have been engaged in respect of the incident but not in respect of the claim under the MAI Act. I stood the matter over to give the claimant the opportunity to inform his lawyers of these proceedings so that they can represent him if deemed appropriate.
I held a second teleconference on 11 June 2024. The claimant was once again self-represented and confirmed that the situation would remain so. Noting that at that stage I did not have a fulsome written version of events from the claimant, I deemed it appropriate that this matter be set down for an assessment conference so that the claimant was given every opportunity to provide his version of events and all relevant matters were traversed before I made a determination.
An assessment conference took place on 21 June 2024 via videolink. The claimant was questioned by me as to the circumstances of the accident and the insurer was given the opportunity to ask questions and make any further submissions.

LEGISLATIVE FRAMEWORK

The matter involves a miscellaneous claims dispute as to whether the claimant was injured in a motor accident. Whilst the insurer in their written submissions have referred to Schedule 2, cl 3 (n) of the MAI Act, the dispute best fits Schedule 2, cl 3 (b) of the MAI Act – whether for the purposes of s 3.1 (statutory benefits payable in respect of death or injury resulting from a motor accident) the death of or injury to a person has resulted from a motor accident in this State.
Section 3.1 of the MAI Act provides, inter alia that statutory benefits are payable in respect of a death of or injury to a person that results from a motor accident in this State.
Section 1.4 of the MAI Act defines a “motor accident” as follows:
“…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 of 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.”
Section 1.9 provides, inter alia, that the MAI Act applies where the death of injury falls within the circumstances set out above.

DOCUMENTATION

I have considered all the material provided by both parties in their application and reply and all other documents provided.

SUMMARY OF DOCUMENTARY EVIDENCE

A number of documents have been provided by the claimant that detail the significant injuries he has suffered. My task is to consider whether the incident falls within the definition of motor accident. The extent and nature of the injuries suffered are not relevant to this enquiry. However, the claimant should not view this as a dismissal of the injuries and the pain, loss and disability he has suffered. It is clear the accident was particularly traumatic and the effects of same are significant and ongoing.

Claim form dated 11 October 2023

The claimant provides the following description within his claim form:
“Travelling home, tree across the road. I stopped to investigate, whether or not I can drive around the tree that was crossing the road? Unbeknownst to me, I had parked under a stretched live power line. The powerline was resting on my vehicle. I opened my car door, attempted to step out and my body became the earth rod.”

NSW police material

Before me is the police file obtained by the claimant under the Government Information (Public Access) Act 2009 (NSW).
Relevantly, the “COPS” narration is as follows:
“About 5.30pm on Thursday 21^st September 2023 the DRIVER was travelling in the VEH at an unknown speed, north bound on Upper Cherry Rd, Upper Mongogarie approximately 2km north of the intersection of Upper Mongogarie Road, Upper Mongogarie.
The DRIVER has come across a large wattle tree which had fallen across the road blocking access. As the tree has fallen it has collected one of the live power lines above and it has become caught up in the fallen.
The DRIVER has driven his vehicle towards the fallen tree not seeing the live power line which has made contact with the front bullbar H rack and the trays sports bar located behind the cab of the vehicle. The DRIVER has stopped approximately 2 metres south of the tree.
Due to the power line now touching the VEH frame As VEH it was energised.
At this time the DRIVERE has attemtped [sic] to get out of the VEH to move the tree. The DRIVER has opened the O-side door and made contact with the outside of the VEH frame resulting in the DRIVER being electrocuted.
The DRIVER has eventually broken free from the VEH and attempted to walk back along the road to find help.
…”
The claimant was driving a Toyota Hilux utility vehicle.
A number of photographs are included in the file, taken at night with some artificial illumination on the vehicle, that depict a power line in contact with a metal raised bar at the front of the vehicle, and also in contact with the sports bar located at the back of the cab and before the utility tray. The photographs also depict branches and foliage of a tree across the roadway immediately in front of the vehicle. The photographs also depict what is apparent to be burn marks where the claimant’s leg contacted the metal door frame.
The police material also states that the claimant attended Casino Police Station on 23 October 2023 to discuss picking up his vehicle. It is further stated: “TIEDMANN also mentioned that he wanted it noted, that he was approx. 220 metres away from the tree and not 2 metres as the incident report stated.”
The photographs provided would suggest that two metres distance between the car and the tree, is in fact more accurate than 20 metres.

Investigation report

The insurer obtained an investigation report of Barringtons dated 8 February 2024. The report attaches a record of interview between an investigator and Senior Constable Carlie Shailes carried out on 6 February 2024 at Lismore Police Station.
The Senior Constable confirmed that she attended the scene of the accident on the relevant date. She confirms that the police attended following report of the electrocution and they were greeted by witnesses that had come up to them to warn of the powerlines being down. The Senior Constable confirms that she observed the powerlines touching the frame at the front of the claimant’s vehicle.
She states that it is her opinion that the claimant stopped because of the fallen tree and did not see the powerlines across the top. She notes that when she attended the sun was shining directly towards them and it was quite difficult to see the powerlines.

EVIDENCE AT THE ASSESSMENT CONFERENCE

Mr Tiedemann presented as a straight forward and honest man, however, clearly traumatised by the accident.
He confirmed that at the time of the accident it was still sunlight. He confirmed that unbeknownst to him, the car was live when he stopped the vehicle. He confirmed that the car was still running and he had not turned off the ignition. He had an intention to get out of the car to assess the situation presented to him with the tree across the road.
He stated that the powerline was invisible.
He started to get out of the car and left hand was attached to the steering wheel and as soon as his foot touched the ground he was electrocuted. He had to use all his strength to peel his limbs from the vehicle. He used his left arm to rip off his right arm from the vehicle. He confirmed that he had not actually exited the vehicle when the accident occurred.

SUBMISSIONS

The insurer submits that the term “is a result of” means “because”, and on the facts that definition of motor accident is not met. The insurer submits “…that the claimant’s injuries was [sic] a result of the actions of the claimant exiting or attempting to exit his stationary vehicle, and making contact with the outside of the vehicle and subsequently getting electrocuted.”
The insurer goes on to submit that there is no feature of the incident described by the claimant that could bring the incident within the definition of motor accident and the injuries were caused by the live wire and “…as such no feature of driving his vehicle is relevant to the occurrence of his electrocuted burn injuries.”
The decision of Cavanagh J in QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588 (Abberton) at [68]-[69] is relied upon. The paragraphs refer to set out the court’s findings that if there is no motor accident that causes the injury, then there is no motor accident.

REASONS

The insurer’s case seems to centre on the argument that the vehicle was stationary and therefore the incident does not fall within the definition of motor accident. Whilst not articulated clearly, it appears that the suggestion is that because the vehicle was stationary the incident did not occur during the driving of the vehicle.
To be a motor accident, the definition does require that the injury is a result of and is caused “during” one of the circumstances listed in subsections (a)-(d).
In terms of subsection (a) – during the driving of the vehicle – I reject the insurer’s suggestion that because the vehicle was stationary the injury did not occur during the “driving”. The insurer has not taken me to any case law to support such proposition.
The definition of “driving” has been the subject of much case law. In case of QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130 (Smith) a driver pulled a truck to a stop on the side of the road. He left the engine running and asked his son, who was a passenger, to go across the road and open the gate to a property. The son ran in front of a truck travelling on the roadway and was struck.
The court considered the issue of “caused during” the driving of the vehicle. The Court ultimately found that the injury was caused by his father “in the use or operation of” his vehicle, and was “a result of” and was “caused during” the driving of the vehicle. Even though the vehicle was brought to a stop, the defendant driver was still in the course of driving the vehicle.
The Court was required to consider the issue of “fault”, which is not a feature of the issue in this present case. However, the findings of the court are of assistance in determining the question of whether the accident falls within the definition of motor accident. The relevant legislation considered was the Motor Accidents Compensation Act1999. It is noted that for all relevant purposes the s 3 of such Act is essentially the same as s 1.9 of the MAI Act.
In finding the driver (father) of the vehicle liable Hodgson JA found at [35] to [38] as follows:
“35    Dealing first with the question of whether the fault of Mr. Smith was in the use or operation of the vehicle, in my opinion it was part of the use or operation of the vehicle for Mr. Smith to cause the vehicle to pause and to arrange for the opening of a gate through which the vehicle was to drive, in the same way as it is part of the use or operation of a vehicle for the driver to cause the vehicle to pause and to put a coin in an automatic toll system to open a toll gate to proceed. Accordingly, Mr. Smith’s fault in making arrangements to cause the gate to be opened can be regarded as fault in the use or operation of the motor vehicle.
36     In my opinion also, Mr. Smith was still in the course of driving the vehicle when the injury occurred, so that the injury was caused during the driving of the vehicle. Just as a driver does not cease driving when a vehicle pauses at a toll gate, in my opinion Mr. Smith did not cease driving when he caused the vehicle to pause, with its engine running, so as to enable the gate to be opened in order that he could proceed with the vehicle through it. In my opinion, this is not inconsistent with anything said in Container Handlers.
37     The most doubtful question is whether the injury was a result of the driving of the motor vehicle; and having regard to the policy of the legislature indicated by the terms of the amendment that introduced the new definition of ‘injury’ and the second reading speech, and also having regard to the reasons of McHugh J in Container Handlers, I accept that this requires that the injury be the result of some feature of the driving, that is, of the way the vehicle is driven.
38     In my opinion, the strategy adopted by a driver for bringing about the passage of a vehicle through gates which bar its way, including the placing of the vehicle and the arrangements made for causing the gates to be open, is a feature of the driving of the vehicle. In this case, the positioning of the vehicle, on its own, would not have amounted to negligence if combined with proper steps to ensure that the plaintiff could safely cross the road; but the positioning of the vehicle actually effected by Mr. Smith did create an unreasonable risk of harm if those proper steps were not taken, as in fact they were not.”
Considering the facts of the circumstances surrounding the claimant’s injury in the subject matter, I find that his injury was a result of and caused during the driving of the vehicle in satisfaction of s 1.9(1)(a) of the MAI Act. In this regard, the claimant’s vehicle’s ignition was still running at the time of the accident and he had not exited the vehicle. In addition his left hand was still on the steering wheel at the time of the electrocution. Furthermore, his act of stopping the vehicle was merely part of an intention to assess the situation in front of him so that he could continue on his journey. Accordingly, I find that the intention to assess the situation so that a path could be chosen to continue on the journey is a feature of the driving of the vehicle, similar to what the court found in the matter of Smith.
If I am in error on the issue of “driving”, the other sub-ss of s 1.9(1) of the MAI Act still need to be considered. I note that the insurer has not included discussion on such further subsections in their submissions.
On the facts, I do not consider sub-ss (b) or (c) to be relevant. However, sub-s (d) is relevant to the facts presented. The sub-section provides that an accident is a motor accident if the injury is a result of and caused during “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.”
In my opinion, the simple and uncontroversial facts are such that sub-s (d) is satisfied, thus resulting in the accident falling within the definition of “motor accident”. It is difficult, and more aptly, impossible, to envisage how driving a vehicle into a live powerline could not be considered a “dangerous situation”. Plainly, the vehicle coming into contact with the powerline was caused by the driving of the vehicle.
In making my determination, I have considered the case of Abberton that the insurer has referred me to. I am unable to ascertain how the case is relevant other than to confirm that the reference to motor vehicle in the MAI Act is satisfied when the circumstances involve a single motor vehicle accident. Further, as I have found above I have determined that the accident has arisen from the use and operation of a motor vehicle.

CONCLUSION

I find that the accident giving rise to the claim made by Mr Tiedemann satisfies the definition of motor accident contained within s 1.4 of the MAI Act and also falls within the requirements contained in s 1.9. Accordingly, the insurer is liable to make payments of statutory benefits in accordance with the provision of Part 3 of the MAI Act.
The claimant is self-represented and I therefore make no award as to costs.

[2024] NSWPIC 397

23 July 2024