SIRA Logo

AGW v Allianz Australia Insurance Limited [2019] NSWDRS CA 181

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Definition of motor accident – use or operation – wheelchair bound passenger – taxi – ramp – stationary vehicle – temporal criteria - engine on
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 1.3(2), 1.4, 1.9, 3.1, 7.36(4), 7.36(5), Schedule 1, Schedule 2(3)(b)

Motor Accident Injuries Regulation 2017

Motor Accident Guidelines 7.441
Cases cited Leach v the Nominal Defendant (QBE Insurance (Australia) Limited) [2014] NSWCA 257
Text cited N/A
Parties AGW – Claimant

Allianz Australia Insurance Limited – Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

MISCELLANEOUS CLAIMS ASSESSMENT CERTIFICATE

REASONS FOR DECISION - MISCELLANEOUS CLAIMS ASSESSMENT

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

BACKGROUND

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(b) of the Motor Accident Injuries Act 2017.

1. This is a dispute as to whether the Claimant has suffered an injury that has resulted from a motor vehicle accident in this state in accordance with the definition of "motor accident" pursuant to Section 1.4 of the Motor Accidents Injuries Act 2017 ("the Act").

2.  "Motor accident" pursuant to Section 1.4 of the Act 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 the 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".

3. The "use or operation" of a motor vehicle is restricted pursuant to Section 1.9 of the Act to where any injury in these circumstances is caused (whether or not as a result of a defect in the vehicle) during either of the above mentioned four circumstances referred to in Section 1.4 above being subsection (a) to (d) inclusive.

4. The Insurer submits that the definition of a motor accident in the circumstances of the facts surrounding the injury sustained to the Claimant does not satisfy the definition. The Claimant's Solicitor on the other hand submits that the elements are satisfied.

FACTS

5. There appears to be no dispute that the Claimant had driven a wheelchair bound passenger in a taxi to the car park of Bankstown Hospital. Whilst the motor of the taxi was still running and the taxi in a stationery position the driver lowered the ramp at the rear of the taxi to permit the wheelchair bound passenger to reverse down the ramp with the Claimant providing the following version that appears to be accepted by the Insurer factually being:

"The passenger put her wheelchair at a high speed and came down the ramp instead of at a slower and safer speed. The ramp has a fence on either side but because of the high speed, the chair jumped over the fence of the ramp and hit me".

DOCUMENTS CONSIDERED

6. I have considered the documents provided in the Application and the Reply and any further information provided by the parties at the teleconference.

SUBMISSIONS

The Claimant's Submissions

7. It was submitted on behalf of the Claimant that as the motor vehicle's ignition was still engaged albeit the vehicle was stationery it was the part of the vehicle being the ramp upon which the wheelchair was travelling that caused the injury. In support of that proposition a number of cases were referred to by the Claimant's Solicitor.

The Insurer's Submissions

8. The Insurer on the other hand submits that to satisfy the definition of a motor vehicle accident that falls within Section 1.9 there must be met a temporal criteria in that the injury must be sustained during the use or operation of a vehicle.

9. Secondly, the injury must be the result of and be caused by either of the four scenarios referred to in the sub-paragraphs of Section 1.4 and 1.9. The Insurer disputes that the injury is the result of and caused during any of the events referred to in the sub-sections and deals with each separately. The Insurer submits the injury has not arisen out of the use or operation of the vehicle that is a pre-requisite for the application of the Act.

REASONS

10. I agree with the Insurer's analysis that there must be a temporal criteria that is met in that the injury must be sustained during the "use or operation" of a vehicle.

11. Whilst it was submitted on behalf of the Claimant that the engine remained engaged and still running such in the circumstances of the factual matrix in this matter is consequential in that the driver was in fact adjacent to the ramp at the rear of the vehicle when he was injured. In my view the fact that the ignition was engaged was incidental to the injury sustained whilst the third party descended the ramp in a wheelchair.

12. It is necessary as the Insurer submits that the injury must be sustained as a consequence of one of the four scenarios set out in Section 1.4 and 1.9 of the Act. Such is clearly not the case in this matter.

13. The Claimant's Solicitor submitted that the injury arose out of the use of part of the motor vehicle, namely the ramp and referred to various decisions including Leach v the Nominal Defendant (QBE Insurance (Australia) Limited) [2014] NSWCA 257 ("Leach"). The Claimant's Solicitor submitted Leach's case suggested that gun shots were fired from the vehicle at fault in the collision the injuries were found to be caused by the driver. With respect such in my view misstates the finding of the leading judgment of McColl JA. McColl JA clearly found that the driving of the vehicle at fault in that case was not a relevant cause within the meaning of Section 3A. The gun fire was the "real effective" cause of the injuries and the driver of the vehicle at fault that collided with the Claimant's vehicle in that case did not cause the injuries but rather there was an elaborate plan that was·inferred was hatched between the two passengers in the vehicle at fault which in effect was unrelated to the "collision".

14. In this matter the real cause of the Claimant's injuries is as the Claimant articulated: "the chair jumped over the fence of the ramp and hit me". The use or operation of the taxi did not as a consequence cause the injuries.

15. Having found that the injuries sustained did not arise out of the use or operation of the motor vehicle in this case I need not venture beyond the definition in those circumstances. However, in my view it is equally clear as has been submitted by the Insurer that when engaging each of the four sub-sections in Section 1.9 of the Act it is clear that the Claimant's application must fail. There was clearly no "driving" of the vehicle purportedly at fault nor any collision caused by the vehicle at fault.

16. I according find that the injuries sustained by the Claimant in the accident was not one that has resulted in what is defined as a motor accident in this state.

LEGISLATION

17. In making my decision/conducting my review I have considered the following legislation and guidelines:

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

COSTS AND DISBURSEMENTS

18. As the Claimant has not been successful in my view and could not have been successful on an objective view of applying the facts to the definition section there is no reason for costs not to follow the event and accordingly I assess the Claimant's costs in accordance with the Motor Accidents Injuries Regulation 2017 at Nil.

19. Schedule 1 of the Motor Accident Injuries Amendment Regulation 2017 makes reference to "maximum costs for legal services" and hence permits an unfettered discretion in making such assessment. When declining to make provision for costs in those circumstances I am also mindful of the stated objects of the Act in Section 1.3(2} of the Act.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:

20. For the purposes of Section 3.1 of the Act the death of or injury to a person has not resulted from a motor accident in this State.

21. Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $NIL.


Terry Broomfield
DRS Claims Assessor Dispute Resolution Services