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AHQ v QBE Insurance [2019] NSWDRS CA 204

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWhether injuries sustained in a motor accident – fall from a utility – injury while pig hunting – fall from a ladder or down stairs – conflicting account of cause of injury – consumption of alcohol – contemporaneous medical records – balance of probabilities
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.1, 8.10(4)(b)
Motor Accident Injuries Regulation 2017
Motor Accident Compensation Act 1999, section 153(1)
Cases cited N/A
Text cited N/A
Parties AHQ – Claimant
QBE 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(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, about whether the Claimant’s injuries were sustained in a motor accident.

1.   There is a dispute between AHQ and the Insurer as to the cause of his injuries.  The Claimant says that he was injured in a fall from a utility being driven by a Mr TF on a property near Wollar in New South Wales.  He says that he, Mr TF and a Mr BB were all out pig hunting and when he was standing on the back of the utility Mr TF drove away and he fell, landing on his left shoulder sustaining his injury.

2.   The Insurer disputes this because when the Claimant attended the Mudgee Hospital and then later his doctor and specialist, he reported that he had injured himself initially in a fall downstairs and subsequently in a fall from a ladder.

3.   The Insurer does not dispute that there was a motor accident but says that the Claimant’s injury was sustained in a fall at home, as he told the doctors.  In those circumstances the Insurer says that the Claimant’s injuries were not sustained in a motor accident.

4.   The Insurer paid statutory benefits to the Claimant for 26 weeks but then ceased his benefits by a decision dated 25 September 2019.  The Claimant sought an internal review and the Insurer maintained its decision by internal review decision of 12 November 2019.

Documents considered

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

Submissions

6.   The Claimant’s written submissions are dated 18 November 2019, attached to its application, and were prepared by Mr Stone of Senior Counsel, who appears on his behalf.

7.   The Claimant accepts that he bears the onus to establish, for the purposes of section 3.1 of the Act, that his injury resulted from a motor accident in New South Wales.

8.   The Claimant acknowledges that the histories contained in the records of the hospital and the doctors, to which I will refer, are incorrect but reflect what he told those persons at the time.  The Claimant says this was to protect the driver of the car from trouble with his employer.

9.   The Claimant relies upon his statement, that of his girlfriend and also of the two friends who were with him at the time of the pig hunting.  He submits that considering all of this material, it would be accepted that it is more likely that he lied to protect his friend rather than he and the other persons are all being dishonest about his injury.  It is submitted that since the Claimant realised he had a serious and permanent injury, he has at all times maintained the same circumstances of injury.

10.   As the Claimant submits, I am faced with two alternate scenarios.  The Claimant says that if I find that he fell down stairs or off a ladder then all of the persons who have supplied statements must have provided false statements as to the circumstances of the accident.  It is therefore put that in the alternative I would find that the Claimant was not honest with the hospital and the doctors in order to protect his friend, until he realised the seriousness of the situation.

11.   The Insurer, as I have noted, does not dispute that there was a motor vehicle accident but says it is more likely that the Claimant’s injuries arose from a separate incident when he fell down stairs or from a ladder.  It says that if that were found to be the case then the Claimant’s injuries would not have resulted from a motor accident in the State.  The Insurer acknowledges that there is no issue of fault in dispute.

12.   The Insurer submits that I would prefer the contemporaneous medical records rather than statements from the Claimant and other persons.  It says that there are inconsistencies in those statements and that they are unreliable.

13.   When I discussed the matter with the parties’ representatives at the teleconference on 17 December 2019, the Insurer conceded that if there had been a fall this must have occurred after the motor vehicle accident rather than before.  The Insurer refers in its submissions to authorities regarding the importance of contemporaneous medical records.

14.   In order to reach a determination I will need to consider the material submitted by both parties.

The evidence

15.   The Claimant commenced his claim with an Application for Personal Injury Benefits dated 30 May 2019.  In that Application he described that the accident occurred on 25 April 2019 at 8.00 pm on a property owned by the XXX Company near Wollar.

16.   He described the accident in the following terms:

“TF was driving a Land Cruiser UTE owned by the XXX Company and BB and I were front seat passengers in the cabin of the UTE.  We had dogs on the back of the UTE.  We were pig shooting on the property.  At about 8.00 pm TF asked me to let one of the dogs off the UTE.  I got out of the cabin and let the dog off.  TF then told me to get onto the back of the UTE which I did.  TF then drove off suddenly and at speed and I was thrown off the tray of the UTE landing on my left shoulder and striking my head and bruising my eye.”

17.   The Claimant says that in the accident he sustained a severe injury to his left shoulder requiring reconstruction surgery as well as a closed head injury, bruising to his eye, shock and depression.

18.   The Claimant has also provided a written statement dated 22 October 2019.  He says that on the day of the accident, which was Anzac Day, he drove from his property to the property where Mr TF was and met him and BB.  He says that the others told him they were going pig hunting and asked him to come as well.  He says he agreed to join them and had one or two beers with them as they sat around in the shed.  He then returned to his property to collect his dog and get some more beers to take when they went hunting.

19.   He says he arrived back at the property at about 7.00 pm and they all left together in a Land Cruiser Ute which was owned by Mr TF’s employer.  Indeed it is also a company for which the Claimant works part time.

20.   They had five or six dogs on the back, including the Claimant’s.

21.   The Claimant says that Mr TF was driving and he and Mr BB were front seat passengers.  He says when they entered another property where they were to go hunting, Mr TF stopped the ute and Mr BB went with some dogs after a pig.  He says Mr TF asked him to get out of the utility and unclip one of the other dogs off the back of the utility to release it.  He said that involved getting onto the tray of the ute and he was planning then to get back into the cabin.

22.   He says that he climbed up the passenger side of the tray of the ute and as he unclipped the dog Mr TF drove off suddenly and at speed.  He says he tried to hang on to the mesh of the cage but he was thrown off and landed heavily on his left shoulder striking his head and bruising his eye.  He says “I copped a big hit”.  He said after a little while the others returned and helped him up and into the cabin of the ute.  They then drove back to Mr TF’s property and to the homestead where Mr TF’s partner, MF, was.  He said that Mr TF had called ahead to her to ask her to take him to the hospital.  The Claimant says both he and Mr TF were worried that he might get into trouble with his boss because of the way the accident had happened and he remembered Mr TF saying to MF words to the effect “Tell them that he fell downstairs or something”.

23.   The Claimant says that MF then drove him in another vehicle to the Mudgee Hospital and that took about an hour because they had a collision with a wombat on the way.

24.   The Claimant said at the hospital he couldn’t remember whether it was he or MF who gave a description of how his accident happened.  He was discharged and MF drove him back to the property where he stayed the night.

25.   The Claimant saw his GP, Dr Eliades, on 9 May 2019 and agrees that he told him he had fallen from a ladder.  He said he was still concerned about Mr TF’s job and did not realise then how serious his injury was.

26.   The Claimant says that he was then referred to a specialist, Dr Low, whom he saw on 20 May 2019.  He agreed that he also told Dr Low that he had fallen from a ladder, and for the same reason.

27.   He says it was after this and when he realised how serious his injury was that he first sought legal advice and this was on 30 May 2019.  He says that he described the motor accident and told his solicitor, Ms Henderson, that he had not been honest with the hospital and his doctors.  He said that Ms Henderson warned him that there were significant penalties if he asserted that he had fallen from the ute when that was not correct.  He said it was true that he had been injured falling from the ute and he then completed his Personal Injury Claim Form.

28.   The Claimant says he has since spoken to Dr Eliades and advised him that the original injury description was incorrect.  He says he has also explained this to Dr Low.

29.   The Claimant says that the day after the accident he rang his girlfriend, Ms ZS, and told her how he had been injured.

30.   The Claimant has provided a statement from Ms ZS which is dated 22 October 2019.  She confirms that the Claimant rang her on 26 April 2019 and said words to the following effect “I’ve been in an accident at the property.  I’ve come off a ute.  I was out pig hunting with TF and a mate.  I went to hospital.  I’m in a lot of pain.  I hit my head and I’m still not feeling too good”.

31.   Ms ZS said that at no time did the Claimant say to her that he had been injured falling from a ladder or down steps.  She says that he has always told her it was a fall from the ute.

32.   The Insurer obtained statements, through its investigator, from both Mr TF and Mr BB.  They are attached to the Reply.  I am told they were submitted because they formed part of the internal review decision, however the Insurer does not rely upon them, for the reasons that I set out at the commencement of my Certificate.

33.   The statement of Mr TF is dated 4 July 2019.  He confirms that he is employed by the XXX Company and lives on the property described by the Claimant.

34.   He agreed that the Claimant, Mr BB and he had gone pig hunting on the night of 25 April 2019.  He said they went in a Toyota Land Cruiser utility which was registered and owned by his employer.  He said that he does this on a regular basis to reduce the number of feral pigs.  He said he often went in company and that the Claimant and Mr BB regularly accompanied him and were both very experienced.

35.   Mr Frazer says he could not recall the exact details but believes that he, the Claimant and Mr BB met at about 6.00 pm at his property.  He says that he had not consumed any alcohol and didn’t believe the others had either.

36.   He says that he was driving the utility with the others in the cabin with him and the dogs on the back of the ute.  He says that a short time after entering the property he stopped the ute and the Claimant got out of the cabin and jumped up onto the back of the ute to untie another of the dogs to chase a pig.  He says Mr BB had gone off towards were two of the other dogs were chasing it.

37.   He also says that just after the Claimant got on the back of the ute he started to drive towards a second pig that he had seen a short distance away.  He says he got up to a speed of about 40 kph and he did not realise that the Claimant had fallen off the ute behind him.  He said it was only when he realised that he wasn’t there that he turned around and used the roof spotlight to look for the Claimant and found him sitting on the ground.

38.   Mr TF says that the Claimant was fully conscious but was holding his left arm and said something to the effect that his shoulder was injured and he looked in a fair bit of pain.  He said he recalled that the Claimant told him he had “popped” his shoulder out.

39.   He said Mr BB returned and they rounded up the dogs and drove back to the property and that because of the Claimant’s injury realised that he would have to go to hospital.  He said he had other duties to do at the farm and so his girlfriend drove the Claimant to Mudgee Hospital.  He said they returned a couple of hours later.

40.   Mr TF said he didn’t know how the Claimant had fallen from the ute because he did not see it but accepted that he had done so.

41.   Mr BB made a statement dated 4 July 2019.  He agreed that he had known the Claimant and Mr TF for a long time and that they have often been pig hunting on the properties owned by Mr TF’s employer.  Mr BB said that he went to the property and met Mr TF and then the Claimant met them there after.  He said he hadn’t drunk any alcohol and believed Mr TF would not drink before going pig hunting.  He agreed the three of them left in the utility with Mr TF driving to another property to commence the hunt.

42.   He said soon after entering the paddock, a couple of the dogs got a scent of a pig and took off.  He said he and the Claimant got out of the front seat of the ute and the Claimant jumped up onto the back of the ute to release another dog which was tied up.  He said he then followed the dogs and when he left the Claimant was still on the tray of the ute.  He said that when Mr TF drove back towards him he could see the Claimant was not on the tray and he said it was just after that that they found the Claimant a short distance back on the ground.  He said that the Claimant was sitting down and in pain with an injured shoulder.  He said he peeled the Claimant’s shirt back a bit and could see that his left shoulder looked different to his other one and wasn’t sitting right.  He said it was obvious that he had popped out his shoulder joint or something like that.  He said the Claimant told him that he had fallen off the ute some how.

43.   He said they then collected the dogs and drove back to Mr TF’s property and that Mr TF’s girlfriend then drove the Claimant to Mudgee Hospital.  He said he saw the Claimant again the next day and said he obviously had a dislocated shoulder and his arm was in a sling.

44.   As I have said, the Insurer relies on the contemporaneous medical records.  These commence with the records of the Mudgee Hospital where the Claimant presented on the night of the accident at about 10.40 pm.  The Hospital records state that the Claimant presented with left shoulder pain and obvious deformity and further note the following “pt states tripped and fell down stairs at home.  Pt states he has been drinking heavily all day, smells of ETOH.  Brought in by neighbour, unwitnessed fall”.  The Discharge Summary notes “ETOH assisted all (sic) down stairs at home this evening”.  I assume that is meant to say fall.

45.   The Insurer has provided me with some records for Dr Eliades with the initial visit from the Claimant on 9 May 2019.  Dr Eliades recorded “fall 2 weeks ago off ladder.  Head injury - woke up on ground.  Fell onto left shoulder.  Went to Mudgee Hospital ….. shoulder was dislocated on left side …. reduced in ED.  Nil issues from head injury since then”.

46.   Dr Eliades records that he referred the Claimant to Dr Low, an Orthopaedic Surgeon.

47.   The Claimant saw Dr Low, as he has agreed, and I have been provided with a report from Dr Low to Dr Eliades dated 20 May 2019.  That report records the following “Four weeks ago, he fell down a ladder onto the ground below.  He can’t remember the whole incident as he was concussed but he did dislocate his left shoulder which was reduced under sedation at Mudgee Hospital”.

Reasons for Decision

48.   As the Insurer has submitted, there is a clear conflict between the Claimant’s statement that he was injured when he fell from the utility and the statements that he or MF made at Mudgee Hospital and that he made to his GP and specialist.

49.   As I have also noted, the Insurer accepts that there was an incident involving the utility but that the Claimant was not injured in that incident but rather in a fall at home, either down stairs or from a ladder subsequently.

50.   To accept that submission I would need to not accept the statements of the Claimant, Mr TF and Mr BB as to the fact that the Claimant had an injury to his left shoulder after falling from the ute and whilst still on the other property.

51.   Whilst I am conscious of the importance of contemporaneous medical records, I am satisfied that there is good reason why those do not contain the correct history.  I accept that the Claimant was trying to protect Mr TF from any trouble from their employer and that it was suggested that he say he had fallen down stairs or something similar.  In addition, I note that the Claimant, Mr TF and Mr BB all agree that he was taken by Mr TF’s girlfriend from their property direct to Mudgee Hospital.  There is no statement that he returned to his own home to have the opportunity to fall down stairs or off a ladder there, as was stated to the doctors.

52.   If the injury had occurred before the motor accident, then it is most unlikely that the Claimant would have agreed to go pig hunting, or indeed would have gone to Mr TF’s property in the first place.  He would also not have been able to jump onto the tray of the truck as both Mr TF and Mr BB describe.  Ms ZS confirms that the Claimant told her the day after the accident that he had been injured falling from the ute and that he had never mentioned falling down stairs or off a ladder.

53.   I have noted that the Insurer refers to inconsistencies in the statements from Mr BB and Mr TF.  In reality the only inconsistency is that they both deny drinking alcohol on the day.  To my mind that is not surprising given that the Claimant had been injured and that Mr TF was driving a work vehicle at the time.  I note it was Anzac Day, a public holiday, when it is more likely that people may have had a drink of alcohol through the day.

54.  I accept that it is also more likely that consumption of alcohol was the reason that Mr TF did not want to drive the Claimant to Mudgee Hospital.  He says this was because he had work to do on the property but I note that at that stage it would have been later in the evening, perhaps 9.00 to 9.30 pm.

55.   I note that both of the statements of Mr TF and Mr BB were provided directly to the Insurer’s investigator.  They were not obtained by or on behalf of the Claimant and they were not included in the Claimant’s material.

56.   I note also that the Claimant says that he was advised of the penalties for making false claims and has nevertheless maintained that his injuries occurred in the motor accident.  I note that Mr TF and Mr BB both certify at the end of their statements “I have read and fully understand the contents of this statement.  The information I have provided is truthful and correct to the best of my present memory and recollection”.

57.   Therefore whilst I accept some inconsistency in those statements, it does not follow that I should disregard the whole of their statements.  Their core description of the Claimant having injured his left shoulder when they were pig hunting and them noting a deformity in the shoulder when they came upon him on the property, are consistent.

58.   To accept the Insurer’s submission, I would need to find that the Claimant, Ms ZS, Mr TF and Mr BB were all being untruthful as to the way in which the Claimant had been injured.  That would, in my view, at the very least require their evidence to be tested.  However I note that the parties both agreed that this matter could be determined on the papers.  Accordingly there was no opportunity for such testing.

59.   I am satisfied that the Claimant has discharged his onus of proving, on the balance of probabilities, that his injury was caused from a motor accident in New South Wales.

Costs and disbursements

60.   In his initial submissions, Mr Stone indicated that the Claimant would be seeking an order under section 8.10(4)(b) of the Act for legal costs, in excess of the amount prescribed by the Motor Accident Injuries Regulation 2017, because of exceptional circumstances.

61.   I discussed this with the parties at the teleconference.

62.   Mr Stone indicated that because it was being requested the matter be dealt with expeditiously, that a lump sum figure would be indicated for both solicitors costs and Counsel’s fees.  This was claimed at $5,500.00 inclusive of GST for solicitors costs and $2,750.00 inclusive of GST for Counsel’s fees.

63.   The Insurer’s solicitor indicated that in his view there was no basis to say that there were exceptional circumstances nor had any particulars been provided as to the make up of the amounts claimed.  He submitted that ultimately it was a matter for my discretion.

64.   In the decision of the Court of Appeal in San -v- Rumble (No 2) [2007] NSWCA 259, the Court considered the provisions of section 153(1) of the Motor Accidents Compensation Act 1999 which provides “Any order of a court as to costs is to be made consistently with the relevant provisions of or made under this Act.  However, the court may make an order that departs from those provisions in an exceptional case and for the avoidance of substantial injustice”.  It is an analogous provision.

65.   At paragraph 67 thereof, Campbell, JA, who delivered the leading judgment, said: “A litigant who seeks to have a court displace, under section 153(1), the costs regime that section 151 creates bears the onus of proving facts and presenting argument that persuades the court that it is appropriate to make such an order.  In deciding whether it is an “exceptional case”, within the meaning of section 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors.  But, to adopt Kelly, the case need not be one that is unique, unprecedented, or very rare.  ….. it will be necessary to approach each application by careful consideration of the facts of the individual case”.

66.   This matter ultimately involved a factual dispute and a question of whether I would accept the statements from the persons involved, including the Claimant, or the medical records.  It was in my view a straight forward issue not requiring interpretation of the Act.  It is not an unusual case either qualitatively or quantatively.

67.   I note there was limited documentation from each party, only one teleconference was required and the matter has been finalised on an expedited basis.

68.   In addition, I am required to consider fairness between both parties.  This dispute has arisen because the Claimant was not honest when he reported his accident to the hospital and to his doctors.  Whilst I appreciate that this decision impacts the Claimant’s legal representatives and not the Claimant, I am required to exercise my discretion as between the parties.

69.   I therefore assess the Claimant’s legal costs in accordance with the Motor Accident Injuries Regulation 2017 in the amount of $1,660.00 plus GST, being a total of $1,826.00.

Conclusion

My determination of the Miscellaneous Claim is as follows:

70.   For the purposes of section 3.1 of the Act the Claimant’s injury has resulted during a motor accident in the State.

71.   Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826.00 inclusive of GST.

Philip Watson
DRS Claims Assessor
Dispute Resolution Service