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ADH v AAMI Limited [2019] NSWDRS CA 086

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – assault – collision – retired – not an earner – chain of causation – statutory treatment or care benefits – bio-mechanical expert – physical injuries – psychological injuries – non-English speaker – medical causation
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss3.1, 3.2, 3.11(1)(b), 3.28(1)(b), 3.24(2), 6.21(2), 7.36(4), 7.36(5), 7.42, 8.10, Div 3.4, Schedule 2(2)(b), Schedule 2(2)(e), Schedule 2(3), Schedule 2(3)(b) 
Motor Accident Injuries Regulation 2017 cl 22 and Schedule 1(3)(a)
Motor Accident Guidelines 2017 
Cases citedN/A
Text cited N/A
Parties ADH– Claimant
AAMI Insurance – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

Reasons for Decision

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017

Introduction

1.   On 27 August 2018 at about 10.30 in the morning, ADH was involved in the following two incidents:

a.   A motor vehicle accident in Mary Street Auburn. A car behind ADH’s driven by XXX appears to have tried to overtake as the Claimant was turning right and a collision occurred. I will refer to this incident as ‘the collision’.

b.   An assault. After getting out of their cars to exchange particulars, an altercation occurred over the return of XXX’s driver’s license which ADH was keeping. XXX was subsequently charged with (and convicted of) assaulting ADH and I will therefore refer to this incident as ‘the assault’.

2.   It would also appear that sometime after the assault, XXX was involved in an altercation with members of the Claimant’s family who may have assaulted XXX, but this did not involve the Claimant.

3.   ADH made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 against AAMI Limited, the relevant insurer under s 3.2 of the Act being the third party insurer of the vehicle XXX was driving at the time of the collision.

4.   The Claimant’s application for statutory benefits identified the injuries the Claimant says she received in this accident as ‘injury to neck, back, fractured left arm, fractured hip, injury to left leg/knee, injury to teeth, psychological injury’.

5.   The original certificate of capacity / certificate of fitness signed by Dr John Coombs notes injuries as follows, ‘left NOF (neck of femur) and left ulnar fracture’ and says these injuries were ‘sustained during an alleged assault after a motor vehicle accident’.

6.   The Insurer has denied liability to pay any statutory benefits to the Claimant in a liability notice dated 17 October 2018 [A4]saying:

Based on the current medical information that has been provided there is no indication that the injuries incurred were as a result of the motor accident.

7.   No internal review of this decision was undertaken and so the Claimant disputed the decision by referring it to the State Insurance Regulatory Authority’s Dispute Resolution Service (the DRS) which in turn allocated the dispute to me for determination.

Jurisdiction

8.   The dispute that has arisen between XXX and AAMI has been referred to the DRS under Schedule 2(3)(b) which provides a claims assessor with jurisdiction to determine:

a.   Whether for the purposes of section 3.1 (statutory benefits payable in respect of … injury resulting from motor accident) the … injury to a person has resulted from a motor accident in this state.

9.   Section 3.1 of the Act is as follows:

(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

(b)   even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.

10.   I should note that ADH is a retired lady over the age of 74 and it is not asserted that she is an ‘earner’ within the meaning of the legislation. Therefore if she has an entitlement to statutory benefits, she would only be entitled to statutory benefits for treatment and care under Division 3.4.

11.   At the first teleconference, the Claimant’s legal representative acknowledged the ‘chain of causation’ argument and conceded that ADH sustained some injuries in the collision and some in the assault. The Insurer said ADH sustained no injuries in the collision and all her injuries in the assault. The Insurer did not dispute that if ADH sustained any injury in the collision, statutory benefits would be payable by it in respect of those injuries.

12.   I note that, for the purposes of terminating statutory benefits under ss 3.11(1)(b) and 3.28(1)(b), and in accordance with schedule 2(2)(b) of the Act, a medical assessor has power to determine whether a Claimant’s injuries caused by (resulting from) an accident are minor injuries. I note also that under s 3.24(2) and in accordance with Schedule 2(2)(e) a medical assessor has power to determine whether any statutory treatment or care benefits claimed are reasonable and necessary or relate to an injury caused by the accident.

13.   At the second teleconference I expressed the preliminary view that I have to determine whether ADH sustained any injuries from a motor accident in this state (as opposed to the assault). While that is a matter that will undoubtedly require medical evidence to determine, it is not a medical assessment matter listed in Schedule 2(2) of the Act. The parties agreed that, so as not to encroach upon the jurisdiction and expertise of medical assessors in medical assessment matters, I should ask myself the simple question of whether ADH sustained any of her alleged injuries in the collision.

14.   I also expressed the view that because s 3.1 creates a right or entitlement to statutory benefits, it is for the Claimant to satisfy me that she has sustained some injury in the collision (motor accident).

Additional documents

15.   In addition to the information and documentation in the application and reply forms, the Claimant has served on the Insurer and sent to me the following:

a.   A fresh certificate of capacity / fitness;

b.   A statement from the Claimant; and

c.   Property damage documentation.

16.   The Insurer has provided me with the following:

a.   A revised liability notice dated 15 March 2019;

b.   St Joseph’s Hospital notes; and

c.   An investigator’s report dated 22 May 2019.

17.   In answer to a s 7.43 direction I also received copies of the Police records in relation to both the accident and the assault.

Submissions

18.  At the final teleconference, the parties indicated they did not wish to make any further submissions and that they relied on the written submissions already provided plus what has been discussed at the previous teleconferences.

Claimant’s submissions

19.   In the application form, the Claimant makes submissions as to the following relevant matters:

a.   The Claimant sustained physical and psychological injuries in the accident;

b.   The Claimant does not speak English and anything she said to the Police or Ambulance personnel is not reliable evidence because of her lack of English skills and the absence of an interpreter;

c.   ADH has been psychologically traumatised as a result of the accident.

Insurer’s submissions

20.   The Insurer attached to the reply form submissions [R1] as follows:

a.   The Insurer quotes the ambulance report which notes a low speed collision, refers to ADH experiencing pain in her left side, left hip, left arm and shoulder. She denied pain on palpation of the cervical spine and it was noted there were no ‘other signs of obvious trauma’.

b.   The Insurer also refers to the police report which says ‘Driver: ADH; Injuries: Advised nil due to collision, sore hip after recent hip surgery from when she fell to the ground’.

c.   The Insurer refers to the old, original certificate of capacity / fitness.

d.   The Insurer is of the view this is an issue of ‘medical causation’ and that there is evidence that her injuries (in the original certificate) were not caused by the accident and were caused by the assault.

e.   The Insurer says I should consider the extent of the Claimant’s English, whether she has made ‘prior inconsistent statements’, whether there are issues of credibility and clarification of the injuries caused by the accident and the assault and that I must then consider whether there is evidence to confirm the alleged injuries were caused as a result of the accident.

21.   The Insurer concludes by saying there is no evidence to support ADH sustaining any injury in the collision and that all her injuries occurred in the assault.

22.   The Insurer indicated at the final teleconference that in addition to the police report and the Ambulance report, AAMI relies on the evidence of XXX contained in the statement obtained by AAMI’s investigators which confirms, in its view, that the Claimant was not injured at all in the collision

My review of the evidence

What evidence does the Claimant rely on?

23.   In the fresh certificate of capacity / certificate of fitness completed by ADH’s GP Dr Harry Abdalia after the first teleconference is a revised diagnosis of ‘lower back pain, neck and bilateral shoulder, anxiety’.

24.   In the Claimant’s statement of 7 March 2019 she says about the collision ‘I have never felt an impact to my vehicle so great before’ [paragraph 5] and ‘After the accident I was in immediate shock and felt pain in my neck and back’ [paragraph 6]. She clarifies [at paragraphs 20 and 21] that she injured her neck, back and shoulders in the collision and sustained psychological injuries but that the injury to her left arm, fracture to the hip, injury to her teeth, left leg and knee are related to the assault.

25.   The Claimant also relies on documentation concerning the value of repairs done to her car. While I am not a bio-mechanical expert the $19,000 cost to repair ADH’s car suggests to me the collision was not a minor or trivial one.

What evidence does the Insurer rely on?

26.   The Insurer relies on the police report which is undated but which was sent to the Insurer on 6 November 2018 [R7]. This report was completed by Constable Vial one of the police officers involved in the investigation of this event and I have already noted the report says ADH sustained no injuries in the collision but had a sore hip after recent hip surgery when she fell to the ground.

27.   The Insurer also relies on the Ambulance report [R5] which I have also detailed above and which contains no direct evidence of any specific collision related injuries.

28.   The Insurer provided me with copies of documents provided by St Joseph’s Hospital at Auburn where the Claimant was sent for rehabilitation after discharge from Westmead Hospital. I have not been provided with a copy of the Westmead Hospital notes. I have reviewed the St Joseph’s hospital documents and I can find no information of relevance to the issue. The primary concern of the hospital was the Claimant’s assault related injuries.

29.   The Insurer has also provided me with a factual investigation completed by MJM Corporate risk services dated 22 May 2019. This includes a statement from XXX:

a.   He sets out the circumstances of the accident. XXX appears to lay blame for the accident on ADH. He says she had slowed down and looked like she was going to park and so he moved out to go past her. As he was level with her, XXX says she turned right without indicating and the collision occurred.

b.   XXX says the Claimant spoke xxxxx and did not speak English and he could not understand anything she said (at 28)

c.   At paragraph 28 he says that after he gave her his driver’s license she walked away and that ‘she did not appear injured in any way and was walking fine’.

d.   He denies assaulting or touching the Claimant (at 33) and (at 34) that after he had grabed his license back from her ‘she then slowly lay on the ground onto her back and was totally acting. It was disgraceful’. He says (at 35) ‘she was pretending to be injured. There was nothing wrong with her at all’.

e.   He documents the assault upon him and the attendance of the police and ambulance.

f.   XXX repeats (at 44) that ADH was not injured after the accident at all. ‘She was acting the whole tine [sic] there was no injuries. I heard the son instructing her to stay down and keep pretending on the ground’.

g.   XXX says (at 48) that his car was towed away and (at 55) that ‘there was a lot of damage more than twenty thousand total’.

What is in the police records?

30.   The Police records reveal the following:

a.  On 27 August 2018, Constable Vial says at paragraph 6 of her statement ‘ADH advised there was a collision and then the man grabbed her and she fell to the ground hurting her hip and leg’;

b.   On 12 September, Constable Vial says at paragraph 12 she attended St Joseph’s hospital and obtained a statement from ADH in her notebook. That statement contains no information about any injuries in the collision but it appears no question was asked about whether she sustained any injuries in the collision. ADH does however say at paragraph 6 of her statement to Constable Vial that she fractured her left arm and hip in the assault.

c.   XXX (the insured) says in his first statement (see the police notebook p 87) that he did not sustain any injuries in the collision.

d.   Constable Harpreet Khera’s statement at paragraph 6 says that ‘I approached the people and noticed that one was an elderly female who did not speak any English but there were a few people around her saying that she was in a lot of pain’.

e.   Senior Constable Leigh Murtz records at paragraph 6 of his statement ‘I attempted to communicate with her [ADH], however I could not understand due to a language barrier’.

f.   There is a statement from AA who witnessed the accident. Paragraph 4 of that statement says ‘I was still sitting in my car at this stage and I could see her shaking, she seemed very stressed.’ This was an observation of the Claimant as she was calling her sons and apparently before the assault.

g.   There is a long record of interview of XXX. Most of this interview concerns the assault however his evidence (generally) is that the Claimant had very limited English and that she was walking around normally after the collision (and before the assault).

Is the police report reliable evidence?

31.   The police report sent to AAMI on 6 November 2018 and relied on by the Insurer is secondary evidence complied at some stage after the Police have completed their investigations. In my experience the primary evidence (the police records) are usually more accurate and informative.

32.   Having read the original Police records I have doubts as to the reliability of the statement contained in the Police report that the Claimant sustained no injuries in the collision. I note the Police records state that it was XXX who was not injured in the collision and there is no record of any question being put to ADH about any collision related injuries. I should also note the Police report suggests the Claimant had a sore left hip and leg after the assault when the other medical records suggests she had severe pain which was discovered to be a fractured left hip and fractured arm as a result of the assault.

33.   I therefore do not accept the police report as reliable evidence and I reject the suggestion in it that the Claimant sustained no injury in the collision.

Is XXX’s evidence reliable?

34.   In XXX’s evidence to the police, he notes the language problem and his difficulties in understanding the Claimant. He says in his police statement that the Claimant was walking around normally after the collision. There is nothing in his statement to suggest he asked the Claimant whether she had been injured or not, he has observed the Claimant and formed his own opinion that she was uninjured. I note in XXX’s police statement he has attempted to exculpate himself denying any assault in the face of independent witnesses who say he did. In my view the evidence he gives in this statement about the assault is not credible and therefore affects my assessment of the reliability of all of his evidence.

35.   XXX’s statement to the Insurer’s investigator does little to improve my confidence in the reliability of his evidence. His suggestion that the Claimant lay down and faked her injury flies in the face of the evidence from the Claimant and the independent witnesses and the medical evidence that the Claimant fractured her hip and her arm when she fell to the ground after the struggle with XXX over her possession of his license. Having said he could not understand anything the Claimant said (because she spoke in xxxxx to her sons) suggests paragraph 44 of his statement to the investigators that he heard (and by implication understood) her son to tell her to stay down and continue pretending to be injured, is fanciful.

36.   I therefore reject any of his evidence as to his opinion that the Claimant was uninjured in the collision.

Is the ambulance report supportive of there being no injury?

37.   The ambulance report does not contain any information about any collision-related injuries.

38.   I note that the ambulance officers were treating the Claimant for what turned out to be fractures and their focus would have been on relieving her ‘severe’ pain (she was given methoxyflurane and morphine) and transporting her to hospital for medical treatment. The ambulance officers would have no need to question the Claimant or record in their records any distinction between the two incidents and the injuries sustained in each. In any event, the injuries ADH says she sustained in the collision are minor by comparison to the major injuries sustained in the assault and it is likely she too was focused on those major injuries.

39.   Finally I note the language barriers identified in other material.

40.   Therefore while the ambulance report is reliable evidence, the absence of any record of collision-related injuries is, in all the circumstances of this particular claim, not supportive of the Insurer’s argument that ADH sustained no injuries in the collision.

Did the Claimant sustain an injury in the collision?

41.   In her statement, the Claimant says she injured her neck, lower back, both shoulders and suffered a psychological injury.

42.   The Claimant’s GP has issued a revised certificate listing ‘lower back pain, neck and bilateral shoulder, anxiety’ as injuries.

43.   After receiving the revised certificate the Insurer issued a fresh liability notice dated 15 March 2019 which says in part:

Upon review, we maintain our previous liability decision to deny that you sustained any injuries as a result of the motor vehicle accident. The evidence taken around the time of the accident does not indicate any injuries as a result of the motor vehicle accident. We note that the police report states “Injuries: Advised nil due to collision”. We consider the injuries to the neck, back and shoulders to be caused from the assault and your fall to the ground as a result of the assault.

44.   While the Insurer’s revised notice refers to the Claimant’s alleged physical injuries, this notice makes no reference to the psychological injury she says she sustained or the ‘anxiety’ referred to by the Claimant’s doctor

45.   The Claimant’s evidence, documented in her statement is that she sustained some form of a psychological injury. Her doctor has given (medical) evidence of ADH having accident related ‘anxiety’. The statement of AA is evidence from an independent witness who saw the Claimant sitting in her vehicle immediately after the accident ‘shaking’ and ‘stressed’. There is therefore credible evidence before me that the Claimant has sustained at least a psychological injury in the collision.

46.   In my view I do not have to determine what particular psychological injury ADH sustained (although it appears it may be a stress-related disorder) and whether she stills suffers from it. I am also of the view that I do not have to determine whether ADH sustained any other injuries (such as the alleged injuries to her neck, back or shoulders) although I do note that both the Claimant and XXX’s vehicles sustained damage in the order of $19,000 and $20,000 respectively which suggest something other than a minor impact.

47.   When ADH makes a claim for treatment and care benefits, the Insurer will have to consider all of the evidence, the assault related injuries and then determine, whether any particular treatment or care is reasonable or necessary and related to the injuries resulting from the collision. Any disputes arising from the Insurer’s decisions in this area are medical assessment matters for resolution or determination by DRS medical assessors at some later stage as are disputes about whether her psychological injury or any other injury is minor or not.

Conclusion

48.   I am satisfied that the Claimant sustained a psychological injury resulting from the motor accident (collision).

49.   It therefore follows that ADH is entitled to statutory benefits under Part 3 of the Act. The amount or level of those statutory benefits is not something that I have power to determine at this stage if at all.

Costs and disbursements

General matters

50.   Section 8.10 of the Act provides that the Claimant is entitled to recover costs from the insurer incurred by her in connection with the claim and that the regulations may make provision for costs. Clause 22 and Schedule 1(3)(a) of the Motor Accident Injuries Regulation sets a maximum amount of $1,633 for the costs associated with this dispute. The Claimant seeks this sum and informs me no disbursements have been incurred.

51.   The Insurer, in helpful and succinct submissions dated 12 June 2019 concedes that the Claimant should recover the maximum ‘due to the complexity of the matter’.

Should I award a costs penalty?

52.   The Claimant also made a claim for the uplift (of 25%) provided for in s 6.21 due to the amount of work involved in the claim an the Insurer’s attitude to liability. Section 6.21(1) says:

If an insurer denies liability … the claims assessor may, in assessing costs on the claim, impose a costs penalty under this section if the claims assessor is of the opinion that there was no reasonable basis for the denial of liability.

53.   What is a ‘reasonable basis’ is defined in s 6.21(2) as a denial ‘based on provable facts and a reasonably arguable view of the law’.

54.   The Insurer’s submissions on costs argue that the Insurer should not be penalised because ‘the Insurer had reasonable grounds to deny that the Claimant sustained no injuries in the accident’. The Insurer relies in these submissions on the first Certificate of Fitness dated 19 September 2018 and the ambulance report.

55.   While I agree with the Insurer that the Insurer’s original liability notice 17 October 2018 was a reasonable denial based on the original certificate of fitness and the ambulance report, the Insurer’s continued denial was unreasonable in the face of:

a.   The revised certificate of fitness;

b.   The Claimant’s evidence in her statement;

c.   The material contained in the police records (in particular the evidence of the independent witness AA);

d.   The clear evidence that ADH could not communicate effectively in English.

56.   I should also note that at the very first teleconference the Insurer did not dispute that I only needed to be satisfied that ADH had sustained an injury in the collision, no matter how minor or transient for her to be entitled to statutory benefits. It is also of relevance to me in the exercise of my discretion that the Insurer did not address the allegation of psychological injury in its revised liability notice or at any time thereafter. Finally in my fourth preliminary conference report having reviewed all the evidence I expressed by preliminary in order to encourage resolution of the dispute to no avail.

57.   In my view the Insurer’s conduct of continuing to deny liability for statutory benefits on the basis that ADH sustained no injury at all in the collision was unreasonable from 12 March 2019 when the revised certificate of fitness and ADH’s statement were served.

58.   I will therefore, in the circumstances of this case, impose a costs penalty on the Insurer by increasing the Claimant’s costs by $408.25 (being 25% of the regulated fee of $1,633) making the total sum of costs awarded $2,041.25 plus GST.

59.   Suncorp were aware of the issues in this matter and were helpful at all times. They were, however, it appears constricted by a process within their organisation that may not have assisted the earliest resolution of this dispute. As it was explained to me at the final teleconference, the claims team makes the original decision (in this case to deny liability), if an internal review takes places a decision is made by someone completely independent of the original claims team. When a dispute is then referred to DRS, the matter is handed to a third and different team who have no authority to make submissions, concede any points and must refer back to the claims team (that made the original decision) for all necessary ‘instructions’.

Belinda Cassidy
Claims Assessor
Dispute Resolution Service
13 June 2019