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ABS v CIC Allianz Insurance [2018] NSWDRS CA 045

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsInjury from an accident in NSW – definition of a motor accident – bus accident – CCTV footage – hearsay evidence – falling bus passenger
Legislation citedMotor Accidents Injury Act (NSW) ss 3.1, 7.36(4), 1.4, Schedule 2(3)(b)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.445
Cases cited

N/A

Text citedN/A
Parties ABS - Claimant
CIC Allianz Insurance - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantABS
InsurerCIC Allianz Insurance
ApplicantABS
Date of Accident3 April 2018
DRS Reference10051141
Insurer Claim Number37C000334
Date of Internal Review21 August 2018
Decision MakerMargaret Holz
Date of Decision7 November 2018

The findings of the assessment of this dispute are as follows

For the purposes of section 3.1 the injury to the Claimant has resulted from a motor accident in this State

1.    Effective Date: This determination takes effect on 7 November 2018

2.    Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

A brief statement of my reasons for this determination are attached to this certificate.

Margaret Holz
DRS Claims Assessor,
Dispute Resolution Services

Reasons for Decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(b) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.1, the injury to the claimant has resulted from a motor accident.

Background

1.  ABS, a 67 year old pensioner, was injured while travelling on a bus to her home in East Maitland.  According to her statement, she and her friend had met in East Maitland where they enjoyed some hours playing Housie at the Maitland Leagues Club.

2.  The claimant left and caught a bus home just after 2.00 pm and was sitting towards the front of the bus on the left-hand side, facing forward, as it travelled along the streets of East Maitland towards Brisbane Street.

3.   On its travels around East Maitland the bus was boarded by a man aged around 40 and who the claimant describes as “evidently drunk as he was speaking loudly and had trouble getting his Opal Card out and then getting along the aisle to his seat.”

4.   The man sat further up the bus behind the claimant for some time.  As the bus proceeded along Brisbane Street and up a hill, he chose to change seats and to move towards the front of the bus to sit in the area for persons needing assistance.

5.   As the man passed the claimant, he suddenly lost his footing and fell forward with all of his weight landing on the claimant’s right shoulder.  He then proceeded to move further forwards, took his seat and did not apologise.

6.   The claimant says that she needed medical treatment for her injured right shoulder but has been financially constrained in obtaining it.

7.   The insurer has denied liability for her claim for treatment expenses, stating that her injury was not caused by a motor accident. It argues that the injury was caused by the man falling on the claimant and that this is in no way connected with the use and operation of the bus.

8.   Following the insurer’s internal review, the claimant lodged a further statement from that given by her to the insurer’s investigator.  In that statement, she said that the investigator did not ask her about what movement was taking place at the time of her injury.  She clarifies as follows:

“At this time the bus was going up a steep hill and had to change gears.

The changing of the gears jolted the bus, which caused him to lose balance and fall on me with all his weight.”

Documents considered

9.   I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislation

10.  In making my decision I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

11.  A motor accident is defined in Section 1.4 of the Motor Accidents Injuries Act 2017 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 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.

12.  It is relevant in this matter to consider whether the accident involved the “use or operation of a motor vehicle” and whether the injury to the claimant “is a result of and is caused during the driving of the vehicle.”

The Insurer's Argument

13.  The insurer’s evidence comprises statements by the bus driver and by his supervisor, both witnesses having had their names redacted from their statements.  The bus driver was totally unaware of the incident until informed by his operations supervisor that the claimant had made a report of it.

14.  The driver says that there were four CCTV cameras fitted to the bus and more on newer buses, but that “it is my understanding that footage from the day in question has been examined, but shows no incident.”

15.  The driver goes on to say that he recalls the “unknown male” being on the bus, but that “he was not rowdy, was polite and did not appear to be having any difficulties in walking or moving around the bus.”

16.  The driver does not recall where the claimant was sitting, but it is his recollection that the claimant and the unknown male and most of the other passengers got off the bus at the Greenhills bus stop.  This belief does not accord with the claimant’s statement about where she alighted.

17.  I find the bus driver’s evidence to be of little assistance in clarifying the events that took place.

18.  The unnamed supervisor gives evidence in his statement concerning his conversation with the claimant about 3 hours after the accident occurred, it having been reported to Customer Complaints about 2 hours earlier.

19.  The Operations Supervisor says that he advised the claimant that he would view footage from the CCTV cameras, but it appears that one of the other staff members did so during the day and that there was no evidence of any incident involving the claimant. The supervisor cannot state who the person was who allegedly viewed the footage or when it was done.  The footage has been deleted.

20.  I find the evidence of the Operations Supervisor to be of little assistance.

21.  In her determination of the internal review, the insurer’s Internal Dispute Resolution Officer has stated:

“Whilst I acknowledge you state the bus was moving forward, fault cannot be attributed to the bus driver.  There is no indicator by yourself, the insured driver, witnesses or the police to confirm the bus driver’s actions contributed to the accident.”

22.  It is important to note that the issue of the driver’s fault in the use or operation of the vehicle does not arise. The Internal Dispute Resolution Officer has misled herself.  The only consideration is whether the incident occurred during the use or operation of the bus and while it was being driven.

Consideration

23.  I find that the hearsay upon hearsay evidence concerning the CCTV footage is unsatisfactory. It is impossible to conclude whether CCTV footage existed and if it did, what it showed. It is extraordinary that any footage was not preserved, given the very early report of injury and the acknowledgement by the Operations Supervisor of the need to view it.

24.  It is not alleged by the insurer that the incident did not occur or that the claimant is fabricating her claim.  I am satisfied in the circumstances that the incident did occur and that it occurred as the claimant has alleged.

25.  I am further satisfied that the incident occurred as the bus was moving and while it was being driven up a hill.  Clearly the vehicle was being used or operated at the time.

26.  Had the vehicle been stationary at the time that the man fell onto the claimant, then it would be difficult to draw any inference that his loss of footing was connected in any way with the driving of the bus. Had he fallen simply because of drunkenness, then he could have fallen onto the claimant whether she was seated on a bus or anywhere else and the critical nexus between the fall and the driving of the bus would be absent.

27.  That however is not what occurred, according to the claimant whose evidence is unchallenged. She says the man lost his footing while the bus was in motion, going uphill and changing gears, in other words, while it was being driven. The driver seems to have had some recollection of the man involved being on his bus and not being inebriated. I infer that the man lost his footing not because of drunkenness but because of the fact that the bus was being driven.

28.  I have reached the view that the circumstances surrounding the claimant’s injury do fall within the definition of a ‘motor accident’ in Section 1.4 of the Motor Accident Injuries Act 2017 and that the claimant is therefore entitled to statutory benefits.

Costs and Disbursements

29.  There is no issue that the Claimant, if successful, is entitled to the payment of legal costs. I allow costs in the sum of $1,769.30 inclusive of GST.

Conclusion

30.  My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.1 the injury to the claimant has resulted from a motor accident in this State.

Effective Date: This determination takes effect on 7 November 2018.

Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,769.30 inclusive of GST.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service