Zhao v AAI Limited t/as GIO
[2023] NSWPICMR 62
•22 December 2023
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Zhao v AAI Limited t/as GIO [2023] NSWPICMR 62 |
| CLAIMANT: | Yanchun Zhao |
| INSURER: | GIO |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 22 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Dispute about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by section 3.39 (limitation on statutory benefits in relation to certain mental harm)) of the Motor Accident Injuries Act 2017; whether it is foreseeable that a person of normal fortitude, in the circumstance of the case, might suffer a recognised psychiatric illness if reasonable care were not taken by the at fault driver; section 32 of the Civil Liability Act 2002; whether the claimant suffered a recognised psychiatric illness; section 31 of the Civil Liability Act 2002; whether the injury is the result of the motor accident; Held – the reviewable decision is affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Yanchun Zhao (the claimant) and the insurer about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (the CLA) (as applied by s 3.39 (Limitation on statutory benefits in relation to certain mental harm)) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant’s husband was involved in a motor accident on 19 October 2021.
On 23 May 2022, the claimant made an application for personal injury benefits under the MAI Act. The claimant contended she suffered post-traumatic stress disorder, depression and anxiety as a result of her husband’s motor accident.
On 20 July 2022 the insurer denied liability to the claimant on the basis the requirements of s 3.39 of the MAI Act and in turn, Part 3 of the CLA have not been met.
The claimant requested an internal review of the insurer’s decision of 20 July 2023.
On 5 August 2022 the insurer issued their internal review decision in which the insurer affirmed their decision of 20 July 2022.
The claimant has made an application for a merit review of the reviewable decision dated 5 August 2023 (the Application).
SUBMISSIONS
Both parties have provided detailed written submissions which have been considered.
In short, the claimant submits she is a person of normal fortitude, and it was foreseeable to the driver at fault in relation to her husband’s accident that in the circumstances, the claimant would have suffered a recognised psychiatric illness if care were not taken.
The insurer submits it is not foreseeable that a person of normal fortitude would, in the circumstances, suffer a recognised psychiatric illness.
The parties were given an opportunity to make submissions as to whether a hearing should be conducted in this matter. Both parties requested that the matter be determined on the papers.
REASONS
Legislation
This dispute concerns the limitation on liability to pay statutory benefits under s 3.39 of the MAI Act, which provides:
“Part 3 (Mental harm) of the Civil Liability Act 2002 applies to the payment of statutory benefits under this Part in connection with an injury in the same way as it applies to the award of damages in connection with an injury, subject to any necessary modifications and to any modifications prescribed by the regulations.”
There does not appear to be any dispute that s 3.39 of the MAI Act and in turn, Part 3 of the CLA applies on the basis the claimant was not involved in the motor accident but contends her personal injury arose wholly or in part from mental or nervous shock in connection with her husband’s motor accident.
Section 30 of the CLA limits the categories of persons entitled to recover damages (or in this case, statutory benefits). The claimant did not witness her husband’s motor accident. However, there does not appear to be any dispute that the claimant meets the requirements of s 30 as the spouse of the victim.
Under s 31 of the CLA the insurer is not liable to pay statutory benefits to the claimant under the MAI Act unless the claimant’s injury “consists of a recognised psychiatric illness”.
Relevantly, s 32 of the CLA provides:
“(1) A person (‘the defendant’) does not owe a duty of care to another person (‘the plaintiff’) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following--
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.”
By virtue of s 3.39 of the MAI Act, s 32 of the CLA applies in relation to the insurer’s liability to pay statutory benefits to the claimant. Relevantly, the insurer is not required to pay statutory benefits to the claimant unless it is foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.
Subsections 32(2) (and (3) of the CLA set out a non-exhaustive list of circumstances of a case to be considered for the purpose of determining whether it is foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness.
Under s 32(4) of the CLA any actual or constructive knowledge the defendant or in this case, the at fault, or partly at fault driver in the motor accident had about the claimant’s fortitude may also be considered.
Is it foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness?
Section 32 of the CLA requires an objective test as to whether a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness. It must be borne in mind that s 32 does not state that the claimant themselves must be a person of normal fortitude, which is a mistake sometimes made by legal practitioners[1] and one which appears to have been made in the claimant’s submissions. At paragraph 27b. of the claimant’s submissions dated 31 January 2023 the claimant submits “whether the claimant is eligible for statutory benefit[s]” depends on “whether the claimant is of normal fortitude” and therefore this is an issue to be determined. At paragraph 41 of the submissions the claimant further contends she is “a person of a normal fortitude”. However, this is not the test required by s 32. In a sense, the claimant’s fortitude is irrelevant.
[1] See for example Hollier v Sutcliffe [2010] NSWSC 279.
This is because s 32 does not require assessment of whether the claimant is a person of normal fortitude, as submitted by the claimant. Instead, s 32 requires it to be foreseeable that a person of normal fortitude, in the claimant's position, might suffer a recognised psychiatric illness. In other words, the test is objective and, in this sense, being a person of normal fortitude is not a precondition of being owed a duty of care for the purpose of Part 3 of the CLA Act[2] and in turn, s 3.39 of the MAI Act. To illustrate, a claimant may not be of normal fortitude but if it is nonetheless foreseeable that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness then prima facie (subject to satisfying other requirements of the MAI Act and Part 3 of the CLA) that claimant, despite not being of normal fortitude themselves, is entitled to statutory benefits.
[2] See Tame v New South Wales [2002] HCA 35 211 CLR 317.
Further, under s 32 a “recognised psychiatric illness” must be a foreseeable consequence arising from the circumstances and not simply that it is foreseeable that a person might suffer shock, grief, emotional distress, upset, worry, sadness or similar, whether for a short period of time or long term. In other words, the fact it may be foreseeable that a spouse might suffer initial shock or be distressed, upset or experience stress or unhappiness, even for a prolonged period is not sufficient. Section 32 of the CLA clearly requires that a “recognised psychiatric illness” be foreseeable as distinct from some other emotional or psychological reaction that may not be a recognised psychiatric illness.
How a person of "normal fortitude" would have responded will depend on the circumstances of each case. In Tame v New South Wales [2002] HCA 35 211 CLR 317 (Tame) the High Court found that consideration of the question was an application of the ordinary foreseeability test. In essence, the question is what is foreseeable in the circumstances. An "unusually sensitive" victim cannot recover damages unless the defendant knew, or ought to have known of that unusual sensitivity. However, if it is foreseeable that a person of normal fortitude might suffer psychiatric injury in any event, a person’s unusual sensitivity in a sense becomes irrelevant.
Onus of proof
The claimant has the onus of proof under s 32 of the CLA. The question that must ultimately be determined in this case is whether the claimant is able to establish on the balance of probabilities that, in the circumstances of her case, it is foreseeable that a person of normal fortitude would suffer a recognised psychiatric illness as a result of her husband’s accident.
In determining this question, the Personal Injury Commission (Commission) is informed and persuaded only by the presentation of evidence to the Commission. Evidence is material which tends to persuade the Commission of the truth or probability of the facts being alleged. Evidence may be photography, documentary or testimonial, but will only succeed in persuading the Commission if it appears as being truthful, reliable and cogent. In civil cases the standard of proof depends on the balance (or preponderance) of probabilities. This simply means a party must prove their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case.
Section 32(2)(a): whether or not the mental harm was suffered as the result of a sudden shock
The parties agree a sudden shock is not a prerequisite to satisfy an entitlement to statutory benefits under Part 3 of the CLA. However, it remains a relevant consideration as to whether it is foreseeable that a person of normal fortitude might suffer a recognised psychiatric injury.
One would expect the claimant to be clear in the manner in which she contends she suffered a recognised psychiatric injury that is, the first link in the chain of causation which led to such diagnosis. However, the claimant’s evidence is inconsistent in this regard. In presenting her claim for the most part, the claimant is adamant she suffered sudden shock upon either receiving a phone call from her husband or seeing her husband in hospital on the day of the motor accident (which of these events triggered the alleged sudden shock is unclear). At other times, however, the claimant says she developed psychiatric illness as a result of the burden placed on her in caring for her husband over time, as a result of her husband being injured in the motor accident.
A case of sudden shock by the claimant is inconsistent with the contemporaneous evidence. This includes that the claimant did not immediately travel to hospital after hearing of her husband’s accident by telephone around 11:00am on the day of the accident. Nor did she immediately arrange for an ambulance to be called, as the ambulance was not called until 90 minutes later, at 12:33pm. In submissions it is stated the claimant was unable to travel to the hospital until 4pm but no explanation is provided as to why she could not travel to hospital for several hours. Presumably, if there were an immediate shock upon learning of the accident and in turn, a desire to immediately get to her husband to check on his wellbeing the claimant could have travelled immediately by Uber, other rideshare or taxi instead of waiting for her sister to be available to drive her five hours later, at 4:00pm. Instead, the claimant had several telephone calls with her husband’s boss, Jenny before Jenny arranged to call an ambulance at 12.33pm. The claimant was also able to call her sister to arrange a lift to the hospital. The making of a number of telephone calls over a 90 minute period and making arrangements is not consistent with a person experiencing sudden shock upon receiving news of the accident by telephone at 11.00am.
On one view, the claimant’s submissions suggest the claimant’s sudden shock was triggered by a combination of the husband’s telephone call at 11:00am and observing the husband in hospital five hours later, at around 4:00pm. However, this is not consistent with a “sudden” shock. By its very nature, sudden shock does not occur over a five hour period during which multiple events take place.
On the other hand, the submissions suggest there was sudden shock to the claimant as a result of witnessing her husband in hospital at around 4:00pm. However, the claimant had been aware of the accident for around five hours. She did not rush to be by her husband’s side. There is no evidence to suggest that in this five hour period the claimant received information that might suggest to her the circumstances of the accident were more serious than a minor vehicle impact at low to medium speed whilst the claimant’s husband’s vehicle was stationary or that her husband’s injuries were any more serious than what the evidence shows was first reported by him.
There are photographs of the claimant’s husband in hospital which were presumably taken by the claimant. Such activity is not consistent with a person being, at the time, in a state of sudden shock. Further, the claimant was told by doctors that her husband “should be fine”, he was discharged within a few hours of the claimant’s arrival, on the same day as the accident after CT scans confirmed no brain or bone injury. It is clear the claimant attributes her shock to various contentions about what she saw and heard at the hospital. However, these contentions are not made out on the contemporaneous medical records. This includes that the claimant contends she found her husband in hospital, “barely conscious”. The claimant’s husband’s Glasgow Coma Scale (GCS) (discussed further below) is inconsistent with him being barely conscious.
Further, the claimant did not present to any general practitioner or other treatment provider with symptoms of a psychiatric illness until approximately six months after the motor accident. The claimant first informed her general practitioner she was suffering insomnia and feeling depressed on 22 April 2022. The claimant first attended Mr Fu, treating psychologist on 17 May 2022. This delay in seeking treatment is inconsistent with a sudden shock resulting in psychiatric illness.
On 17 May 2022 Mr Fu recorded that the claimant had been caring for her husband since the motor accident and diagnosed the claimant as suffering an adjustment disorder. Mr Fu does not suggest the claimant had suffered a sudden shock on the day of the accident.
At a follow up appointment on 3 June 2022 Mr Fu recorded that the claimant’s adjustment disorder is “due to significant stress managing changes and caring for her husband who experienced an MVA.” Again, Mr Fu does not attribute the claimant’s condition to a sudden shock on 19 October 2021.
On 14 June 2022 Mr Fu confirmed his diagnosis for the claimant of adjustment disorder and also diagnosed “mixed anxiety and depression” as a result of the claimant reporting that her symptoms were worsening, and she was experiencing difficulties coping with her position as sole carer.
On 1 July 2022 the claimant consulted Mr Fu and reported to him she experienced nightmares and that her husband was frustrated in relation to his treatment.
On 22 July 2022 the claimant consulted with Mr Fu. There is little reference to the claimant having any ongoing symptoms. Mr Fu recommended the claimant practice setting boundaries with her husband. On the information before me, the claimant has not consulted with Mr Fu or any other psychologist or psychiatrist in relation to any psychological or psychiatric condition or symptoms since 22 July 2022.
There is suggestion by Mr Fu in his treatment records that the claimant’s condition was brought about by a sudden shock, although in a report dated 1 October 2022 Mr Fu notes the claimant “reported she felt shocked, panicked and emotionally distressed witnessing her husband’s condition in hospital”. Mr Fu confirms in his 1 October 2022 report that in his opinion, the claimant suffered adjustment disorder, mixed anxiety, and depression as a result of the “stress of managing the affairs and care of her husband”. The “stress” that has resulted in Mr Fu’s diagnosis is said by Mr Fu to arise from looking after “all [the claimant’s husband’s] affairs including legal/insurance matters, treatment appointments, and domestic duties”.
Given the above analysis and for the following reasons, I am not satisfied on the balance of probabilities that the claimant suffered sudden shock either upon receiving her husband’s telephone call at 11:00am or upon observing him in hospital at around 4:00pm:
(a) the claimant did not immediately react to news of her husband’s accident by telephone at 11:00am by taking rideshare, taxi or public transport to the hospital and instead made the decision to wait several hours for her sister to become available to drive her to the hospital;
(b) the claimant retrospectively describes events said to be shocking to her, which are not supported by the contemporaneous medical records, such as her husband being barely conscious and going to die;
(c) the six month delay before reporting any symptoms to her general practitioner or seeking treatment;
(d) inconsistencies in the claimant’s submissions and written statement, and
(e) a lack of medical evidence to support sudden shock as a trigger for the development of a psychiatric illness.
As stated in Tame at [66], in many cases the risk of psychiatric illness “will not be foreseeable in the absence of a sudden shock”.
Section 32(2)(b): whether the claimant witnessed, at the scene, a person being killed, injured or put in peril
The claimant did not witness her husband’s motor accident. Nor did she witness the aftermath. She did not attend the scene of the accident.
Section 32(2)(c): the nature of the relationship between the claimant and any person killed, injured or put in peril
The claimant is the spouse of the person, her husband, injured in the subject accident. They had been married for over 30 years and have one (now adult) child together. The claimant states that her and her husband “barely had any arguments” and that their relations was “very good”. Their daughter’s achievements are mentioned but otherwise, the claimant has not provided any evidence as to the nature of her relationship with her husband before the accident.
There is of course, no doubt that it is foreseeable that a spouse of an injured person might suffer some form of emotional upset whether that be, for example, distress or in the case of death, grief regardless of how close and loving their relationship was with their partner. I do not think this is in dispute. However, as set out above the question is whether a recognised psychiatric illness is foreseeable, which is a different consideration to whether some form of emotional distress is foreseeable.
Section 32(2)(d): whether or not there was a pre-existing relationship between the claimant and the other driver involved in the accident
There is no evidence of any pre-existing relationship between the claimant and the other driver who was at fault in the motor accident.
Section 32(2)(4): the other driver’s knowledge about the fortitude of the claimant
There is no evidence to establish the driver at fault in the motor accident knew, or ought to have known about the fortitude of the claimant such as any unusual sensitivity.
Other relevant circumstances and analysis
As noted, s 32(2) of the CLA is not an exhaustive list of circumstances to be considered for the purpose of determining whether, in the circumstances, it is foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care is not taken.
Each case will turn on its own facts. In Optus Administration Pty Ltd V Wright [2017] NSWCA 21 (Optus) the Court of Appeal emphasised that it was critical to consider the specific “circumstances of the case”. It was not sufficient to identify general circumstances or even that one scenario ‘may possibly’ lead to another but rather that the particular events were reasonably foreseeable. As such, claims for mental harm should be examined closely to determine whether, when viewed prospectively, the specific circumstances that unfolded would mean that the onset of mental harm was reasonably foreseeable.
In this case, where the claimant did not witness the incident, it is relevant to consider what a person of normal fortitude in the claimant’s position would have learned of the circumstances of the accident upon receiving a phone call and/or attending hospital to visit the person injured in the accident.
Neither police nor ambulance were called to the scene. The accident was reported to police the following day at which time it was reported (presumably by the claimant’s husband) that the claimant’s husband’s vehicle was stationary at the time of impact, the claimant’s husband had only experienced “neck and lower back” pain and that although he had seen a doctor, he had not received any treatment.
An ambulance was called approximately 90 minutes following the accident. The ambulance report records that the vehicle that hit the claimant’s husband’s stationary vehicle was travelling at “medium speed” and that there was only “minor” damage to the vehicles with both vehicles driveable following the collision. Consistent with this, the ambulance report records that the claimant experienced “whiplash injuries” and continued to work for a few hours before calling an ambulance. The claimant’s husband denied any loss of consciousness.
Upon arrival at hospital the hospital recorded that the claimant’s vehicle was hit from behind at “low to moderate speed”, causing “minor” vehicle damage and that the claimant’s husband initially experienced “no symptoms and persisted working over a few hours” following the accident. Progress notes also record only “minor” damage to the vehicles involved in the accident.
The claimant’s contention that the damage to her husband’s vehicle was “so great that the vehicle had to be written off” is inconsistent with all contemporaneous reports of the accident in so far as the claimant contends the damage was “so great” (the vehicle may have been written off but that is irrelevant). The claimant has provided photographs, which do not show extensive damage but show minor damage to the claimant’s husband’s vehicle, as recorded by police, ambulance, and the hospital. There is a repair quotation for the vehicle for approximately $25,000. However, the estimated cost of repair is not always indicative of the amount of damage. In this case, it seems the repair cost is largely attributable to damage beneath the vehicle which was not observed by the claimant or her husband at the time and therefore unknown to them. The mere fact an insurer writes of a vehicle does not mean the vehicle was severely damaged. It is not unusual for an insurer to determine a write off for commercial reasons. It may be, for example, that repair costs outweigh the vehicle’s depreciated value.
There is dashcam footage which shows the claimant’s husband’s vehicle did not travel any significant distance forward after being hit from behind, indicating minor impact.
Given the evidence that impact between the two vehicles was minor, occurring at “low to medium speed” whilst the claimant’s husband’s vehicle was stationery and the limited damage visible on the claimant’s husband’s vehicle, I conclude on balance that the accident was not significant.
The hospital records record that the claimant’s husband’s Glasgow Coma Scale (GCS) score was 15/15. A score of 15 is the highest possible score and means the claimant’s husband was fully awake, responsive and had no problems with thinking ability or memory on assessment at hospital.
The claimant’s statement that her husband was “barely awake”, “not responsive”, “could not speak” and “still barely conscious” on discharge is inconsistent with independent contemporaneous medical evidence that the claimant’s husband had a GCS score of 15.
The claimant’s husband initially denied losing consciousness in the accident. He subsequently reported to different treatment providers that he lost consciousness for anywhere from a few seconds up to 40 seconds (there are many inconsistencies in the information provided by the claimant and her husband about the circumstances of the accident and it seems they are both prone to exaggeration).
There is dashcam footage from the claimant’s husband’s vehicle from which the following can be established:
(a) impact between the two vehicles occurs at 2.09.05;
(b) at 2.09.11, within 6 seconds of impact the claimant’s husband can be heard to apply his handbrake (it is unlikely that a person rendered unconscious would have sufficient awareness upon regaining conscious to make the decision to apply the handbrake all within 6 seconds of impact), and
(c) noises akin to a person readying to exit the vehicle, including the sound of opening the door can be heard constantly from 2.09.12 to 2.09.27 at which time the claimant’s husband’s vehicle door can be heard closing.
According, it appears from dashcam footage that the claimant was able to apply his handbrake within 6 seconds of impact and immediately prepare to exit and did exit the vehicle almost immediately by being fully out of his vehicle with the door now closed behind him within 16 seconds of applying the handbrake. This chronology suggests there was no loss of consciousness, which is consistent with initial reports by the claimant’s husband that he did not lose consciousness. I am therefore satisfied on balance that the claimant’s husband did not lose consciousness. Certainly, one report by the husband to a doctor that he was unconscious for up to 40 seconds is a significant exaggeration in light of the dashcam footage.
The accident occurred at 11:00am. The claimant first observed her husband after the accident when she arrived at the hospital that afternoon at around 4:00pm. By this time, the claimant had around 5 hours to digest news of the accident and by the time she arrived at the hospital her husband was under the care of hospital staff. The claimant states that her perception of events at hospital was that her husband’s life was at risk and that she thought she was “going to lose [her] husband”. However, the claimant was told by a doctor that her husband “should be fine”. The claimant’s husband was discharged from hospital by around 7:00pm with no obvious injuries, including that CT scans of the brain, cervical spine and lumbar spine showed no acute intracranial pathology, cervical spine injury or lumber spine injury.
The claimant’s stated claims and/or perception or belief of events is inconsistent with the contemporaneous evidence. However, as noted above the test under s 32 is not a subjective test as to what the claimant believed. The test is objective, requiring consideration of a person of normal fortitude in the claimant’s position.
Having regard to the analysis above, a person in the claimant’s position would have known or been in the following relevant circumstances established on the evidence before me:
(a) the accident was not serious enough for either driver involved or any bystander or other passing driver to consider police or ambulance should be called to the scene (nor was it initially considered serious enough to the claimant to call an ambulance immediately if her evidence of a telephone call at 11:00am and that her husband’s boss, Jenny called an ambulance is accepted, as ambulance records show the call was not made until 12:33pm, around 90 minutes after the claimant was informed of the accident);
(b) impact between the vehicles occurred whilst the claimant’s vehicle was stationary, and the other vehicle was at low to medium speed and the impact to the rear of the claimant’s husband’s vehicle did not cause his vehicle to travel any significant distance forward (as shown in dashcam footage);
(c) damage to both vehicles was minor;
(d) the claimant’s husband did not lose consciousness and his symptoms on the day of the accident were limited to some pain in his neck and back;
(e) the claimant’s husband was able to exit his vehicle independently, exchange driver details and telephone the claimant;
(f) the claimant’s husband was able to continue working for a few hours after the accident before awaiting an ambulance either called by him or the husband’s boss, “Jenny” (this is unclear due to inconsistencies in the claimant’s and her husband’s evidence) about 90 minutes after the accident;
(g) the claimant’s husband had a GCS score of 15 meaning he was fully awake and responsive during his time at hospital;
(h) doctors at the hospital said the claimant’s husband should be fine;
(i) CT scans cleared the claimant’s husband of any acute intracranial pathology, cervical spine or lumbar spine injury;
(j) the claimant’s husband was discharged from hospital the same day;
(k) three days after the accident, on 22 October 2021 the claimant’s husband was diagnosed with minor injury in the form of lumbar spine musculoligamentous strains;
(l) surgery, or other invasive treatment for the claimant’s husband was not warranted with recommended treatment limited to physiotherapy, and
(m) the claimant’s husband did not pursue active treatment for some weeks thereafter.
Applying the objective test of whether it is foreseeable that a person of normal fortitude, in the circumstances of the case (including that they are the spouse of the victim), might suffer a recognised psychiatric illness I am not persuaded this is foreseeable. Whilst I accept a person in the position of the claimant might become “panicked and emotionally distressed”, as described by Mr Fu, I do not consider it foreseeable that a person of normal fortitude, in the circumstances of this case outlined above, might suffer a recognised psychiatric illness if the at fault driver did not take reasonable care. Having regard to the circumstances of the case set out under paragraph 61 above I would reach the same conclusion even if the claimant established on balance, she suffered a sudden shock either upon receiving her husband’s telephone call or upon seeing him in hospital, as alleged.
The claimant appears prone to exaggeration or alternatively, she is a person of unusual sensitivity as her contended reaction to events is disproportionate to the minor nature of the accident and minor physical injuries suffered by her husband at the time the claimant says she suffered sudden shock. The claimant contends in her statement, for example, that when she received her husband’s telephone call she was “very scared” and felt like her husband was “suffering a very serious trauma”, which is inconsistent with the independent medical evidence, dashcam footage and contemporaneous police, ambulance and hospital record of events. The claimant also contends she thought her husband’s “life was at risk” and that she thought she was “going to lose [her] husband”. The claimant states she had never seen anyone close to her “get so injured”, but hospital records confirm no significant injury and the claimant’s husband was discharged the same day. The claimant also contends her husband was “barely conscious” which is inconsistent with the evidence.
People attend hospitals every day for a range of injuries and illnesses. In many cases, people attend hospitals for minor issues including on an emergency basis such as a dislocated or fractured finger (or in this case, whiplash type injury) that is not a significant injury but may require immediate treatment. A person of normal fortitude would not assume every person in hospital (or any family member), regardless of whether they are hooked up to equipment, in a neck brace or asleep, is in a critical condition or has serious injuries or might die. There would need to be further information available for a person of normal fortitude to have the reaction described by the claimant (or potentially, they would need to be an eyewitness to the victim being put in a perilous situation that might result in more significant injury even though the ultimate injury may be minor).
In the claimant’s case, the circumstances involve a minor motor accident resulting in minor physical injuries to the claimant’s husband at the time. There is no circumstance established that might lead the claimant to think otherwise. Her husband called at 11:00am to report the accident to the claimant and then continued to work. An ambulance was not called until 12:33 pm. The claimant waited a further three and a half hours after the ambulance was called before attending hospital at 4:00pm. There is no evidence of any information being provided to the claimant to suggest the claimant’s husband’s condition had become more serious in the meantime. In fact, if further information was provided to the claimant, it would have confirmed the situation was not serious. This is because the ambulance arrived on scene at 1:15pm and if information was provided by the ambulance service to the claimant, she would have been informed that her husband had reported a whiplash injury, there was no loss of consciousness, no neurovascular deficit and that her husband was able to move all limbs and walk on his own to the stretcher.
In all of the circumstances, I do not think a person of normal fortitude would be likely to react in the manner the claimant says she did on arrival at hospital or have the claimant’s perception that her husband’s condition was critical, and he might die. In any event, I do not think it is foreseeable, in the circumstances, that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care was not taken by the at fault driver regardless of whether the claimant suffered sudden shock.
Pursuant to s 32 of the CLA and s 3.39 of the MAI the claimant is therefore not entitled to statutory benefits, as the foreseeability test in s 32 is not satisfied. The insurer is therefore entitled to refuse payment of statutory benefits under Part 3 of the CLA, as applied by s 3.39 of the MAI Act.
Has the claimant suffered a recognised psychiatric illness?
There is a report of Mr Fu diagnosing recognised psychiatric illness in the form of adjustment disorder, anxiety and depression. However, Mr Fu’s report is distinctly lacking for the purpose of what might constitute adequate expert evidence. There is no independent medico-legal expert report from either party in adequate form with, for example, sufficient reasoning upon which one might be persuaded the claimant suffered a recognised psychiatric illness. However, it is not necessary for me to determine this issue and this is therefore an observation only.
Is the claimant’s injury the result of the motor accident?
The evidence before me puts in issue whether the claimant’s injury is the result of the motor accident. This is not an issue presently before me for determination. Accordingly, the following are observations only.
Independently of considerations under Part 3 of the CLA Act, the MAI Act provides that statutory benefits are only payable if the injury is the result of the motor accident. The MAI Act does not appear to make room for an injury to be partially the result of the accident.
The only medical evidence providing expert opinion on the cause of the claimant’s injury is a report from Mr Fu dated 1 October 2022. Mr Fu opines the claimant’s condition is “due to the persistent stress of managing the affairs and care of her husband” which he goes on to clarify is the stress of looking after “all of [the claimant’s husband’s] affairs including legal/insurance mattes, treatment appointments and domestic duties”. This alone puts into issue whether the injury was the result of the motor accident.
The claimant has also provided a signed statement in which she attributes her injury to causes other than the motor accident. For example, the claimant states at paragraph 23 of her statement that assisting her husband to “deal with his motor accident claim”, including dealing with the insurer and former lawyers who did not explain the claim process properly was “very frustrating” for the claimant, as a result of which her “psychiatric problem, instead of resolving itself has deteriorated”. This puts into issue whether the claimant suffered a recognised psychiatric illness only after her mental health deteriorated due to the frustration of dealing with the insurer and former lawyers. If that is the case, then the psychiatric illness that must be a recognised psychiatric illness for the purpose of Part 3 of the CLA would not be the result of the motor accident.
At paragraph 25 of her statement the claimant says it had become necessary for her to “scream at” her husband to be heard and at paragraph 28 the claimant states that because of her husband’s hearing loss she has had “no choice but have had to handle his communication over the phone, including with his lawyer” which has “further added to [the claimant’s] stress”. The evidence establishes on balance the claimant’s husband’s hearing loss is unrelated to the motor accident. Accordingly, any psychological illness arising from the stress of dealing with the claimant’s husband’s hearing loss would not be the result of the accident.
The claimant also appears to suggest her psychological condition is partly caused by her inability to return to full-time work, which she contends she was engaged in at the time of the accident. The claimant’s tax returns, however, suggest the claimant had not been working full-time for some years. In the 2022 tax year, for example, the claimant’s gross declared earnings (excluding interest) are only $250. Accepting the claimant has not returned to work since the accident then this is her gross earnings in the period
1 July 2021 to 19 October 2021 which is not indicative of full-time employment.
Accordingly, there is evidence before me that suggests any psychological illness suffered by the claimant is more likely the result of frustration experienced due to the claimant’s husband’s hearing loss and having to handle the claimant’s husband’s motor accident claim on his behalf, including dealing with the insurer and previous lawyers who the claimant says provided inadequate advice and not the result of the motor accident.
As noted, the above is by way of observation only as this is not an issue for determination in this merit review.
CONCLUSION
For the reasons set out above I conclude that it is not foreseeable that a person of normal fortitude, in the circumstances of the claimant’s case, might suffer a recognised psychiatric illness if the at fault driver did not take reasonable care. The insurer is therefore entitled to refuse payment of statutory benefits under Part 3 of the CLA, as applied by s 3.39 of the MAI Act.
Accordingly, the reviewable decision is affirmed.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· the Application, Reply and supporting documentation;
· MAI Act;
· CLA;
· the Motor Accident Guidelines, and
· the Motor Accident Injuries Regulation 2017.
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