District Court New South Wales Medium Neutral Citation: Brooker v Allianz Australia Insurance Limited [2018] NSWDC 248 Hearing dates: 31 August 2018 Date of orders: 07 September 2018 Decision date: 07 September 2018 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Dismiss the defendant's motion filed on 20 July 2018. (2) Order the defendant to pay the plaintiff's costs of the motion. Catchwords: MOTOR ACCIDENTS – blameless motor accident – tyre blowout caused driver to lose control – psychiatric injury but no physical injury alleged MOTOR ACCIDENTS – blameless motor accident – no recovery if motor accident caused by an act or omission of the driver – no evidence of that at this interlocutory stage – application to dismiss or strike out pleading refused MOTOR ACCIDENTS – damages for psychiatric injury where no physical injury alleged – application of Part 3 of Civil Liability Act 2002 dealing with mental harm – distinction between injury arising from plaintiff's fear for own safety and injury arising from fear for safety of another person – bystander cases – claim for nervous shock arising from fear for own safety preserved by s 29 Civil Liability Act 2002 – claim in bystander case governed by s 30 Civil Liability Act 2002 – application to dismiss or strike out pleading refused Legislation Cited: Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Law Reform (Miscellaneous Provisions) Act 1944 Motor Accidents Compensation Act 1999 Cases Cited: Connaughton v Pacific Rail Engineering Pty Limited [2015] NSWDC 89 Hassain v Mirdha [2015] NSWDC 108 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 Whitfield v Melenewycz [2016] NSWCA 235 Category: Procedural and other rulings Parties: Kyle Brooker (plaintiff) Allianz Australia Insurance Limited (defendant) Representation: Counsel: J Wilson (plaintiff) W Reynolds (defendant) Solicitors: Stacks Lawyers (plaintiff) Moray & Agnew (defendant) File Number(s): 2018/87802 Judgment Background 1. On 11 February 2016 the plaintiff was driving a heavy transport truck owned by his employer Blocktrans Pty Limited in southern New South Wales. The front driver's side tyre blew out unexpectedly and the truck veered across the right-hand lane of the freeway. The plaintiff no longer had control of the vehicle. The plaintiff feared that he was going to collide with a car travelling on his right-hand side in the adjacent lane and also feared that either he or the other driver would be killed or seriously injured. As a result of those fears the plaintiff claims to have suffered psychiatric injury. 2. By a Statement of Claim filed on 19 March 2018 the plaintiff sued the third party insurer of the vehicle under the blameless accident provisions of the Motor Accidents Compensation Act 1999 (the Act). 3. By a Defence dated 3 July 2018 the defendant denied the claim on two bases: 1. that the accident was not a blameless accident; 2. that the plaintiff did not fall within the class of persons who can claim for pure mental harm under Pt 3 of the Civil Liability Act 2002. 1. By a Notice of Motion filed on 20 July 2018 the defendant sought the dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), or in the alternative, an order pursuant to r 14.2 striking out the Statement of Claim. The defendant submitted that no reasonable cause of action was disclosed on the pleadings or in the proceedings. 2. In an affidavit dated 23 August 2018 the plaintiff said in relation to the accident: "9. On 11 February 2016 I was driving my usual transportation route in a B-Double Western Star Truck with federal licence plates NV06IA. I was traveling in the left-hand lane of the Hume freeway near the intersection of Woomargama Way, Woomargama travelling in the direction of Benalla. 10. Whilst I was driving, the front wheel on the driver's side of the truck blew out unexpectedly. The force of the blow out caused the truck to veer across the right-hand lane of the freeway. 11. The force of the tyre blowing out meant that I no longer had control of the vehicle and I could not do anything to avoid the circumstances that followed. 12. The belt from the blown-out tyre collided with the truck causing damage to the left side. 13. At the time that the tyre blow out occurred, there was another vehicle travelling in the same direction as me, in the right-hand lane, right next to the truck. When the tyre blow out occurred, I recall that I thought I was going to collide with the other vehicle and that if we collided, either myself or the other driver would be killed or seriously injured. The fear of a collision was very real and very traumatic because we were travelling side by side and I have suffered flashbacks and nightmares since the accident as a result of this traumatic experience. 14. Because the force of the tyre blowing out meant that I no longer had control of the vehicle, there was nothing I could do to avoid a collision with the other vehicle. 15. The other vehicle accelerated to avoid a collision. 16. I also narrowly missed colliding with the right-hand lane barrier. 17. After the near miss with the other vehicle and the barrier, the truck gradually reduced speed and I was able to finally regain control of the truck, pull over to the left side shoulder of the road and come to a complete stop." 1. The plaintiff also said in his affidavit that the truck he was driving was owned by his employer Blocktrans Pty Limited and that the defendant is the compulsory third party insurer of the vehicle. However, the plaintiff did not sue the owner of the vehicle, just the third party insurer. Preliminary Point Regarding Appropriate Parties 1. At the hearing of the motion I raised as a preliminary matter with counsel for the plaintiff why the claim had not been brought against the owner as defendant rather than the insurer. Counsel made it plain that suing the insurer was not an attempt for the plaintiff to, in effect, sue himself, but the intention was that the insurer was sued as a proxy for the owner. Very sensibly, counsel for the defendant accepted that this was so and that the motion should proceed. 2. In due course the plaintiff should give attention to joining the owner as a second defendant. It seems to me from the terms of the blameless accident provisions that the claim has to be brought against the owner as defendant. I can see no right under the Act for the plaintiff to sue the insurer alone. I note that in the Court of Appeal decision in Whitfield v Melenewycz [2016] NSWCA 235, the plaintiff had sued both the owner of the vehicle and the third party insurer of the owner's vehicle. The Court of Appeal made no adverse comment about the joinder of both parties. Blameless Accident 1. A fundamental concept under s 10 of the Act is that compulsory third party insurance is provided to the owners of motor vehicles to indemnify them for any claim for death or injury based upon the fault of the owner or driver. Section 3 of the Act defines "fault" to mean negligence or any other tort. The definition of "injury" in s 3 includes psychological or psychiatric injury. 2. Insurance cover is provided where the claim arises out of a "motor accident". In s 3 the relevant definition is 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." 1. But for the blameless accident provisions in the Act, the plaintiff could not recover any damages for his alleged psychiatric injury. This is because he cannot demonstrate "fault" on the part of the owner of the truck. Section 3A of the Act provides that the Act applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. 2. Part 1.2 Division 1 deals with recovery for blameless accidents. Section 7A contains the following definition: "In this division: Blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person." 1. In considering this definition, one must keep in mind that the word "fault" is to be equated with negligence. In the present case counsel for the defendant very properly conceded that on the allegations made by the plaintiff, he was involved in a "motor accident" and that that accident was not caused by the fault of the owner or driver of the truck. Thus it was not in issue that what occurred met the definition of "blameless motor accident" in s 7A. 2. The blowout of the tyre and the subsequent events occurred without any negligence on the part of the owner or of the plaintiff who was the driver. 3. The blameless accident provisions operate by deeming any injury that results from a blameless motor accident to have been caused by the fault (i.e. negligence) of the owner or driver. Section 7B(1) provides: "The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. " 1. The effect of this provision is that a compulsory third party insurance policy responds to indemnify the owner or driver of a motor vehicle involved in an accident which is a blameless motor accident, as fault is deemed to have occurred. 2. Section 7C of the Act provides: "In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of any evidence to the contrary." 1. As counsel for the defendant correctly put it in submissions, this is a rebuttable presumption. Nevertheless, the plaintiff did so aver in his Statement of Claim. 2. The defendant's primary submission in relation to blameless accident focuses on s 7E which provides: "(1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of sub-section (1) even if: (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event." [1] 1. The defendant submitted that the motor accident was caused by an act or omission of the plaintiff as driver in two respects: 1. travelling at a speed where if an incident such as a blown tyre occurred, the driver was not able to control the vehicle; 2. making attempts to control the vehicle after the tyre blew. Consideration 1. Section 7E of the Act has been considered in two decisions in the District Court. The first was Connaughton v Pacific Rail Engineering Pty Limited [2015] NSWDC 89 which is the decision of Judge Norton SC. There was a one car accident involving a roadside tree falling onto a truck which then ran out of control. For the defendant it was submitted that it was the plaintiff's act of driving which attracted the exclusion in s 7E. It was further submitted that there was no intention to cover the driver in a single vehicle accident. 2. Her Honour found at [71] that the driver did not cause the accident. His driving on the road was "no more than a background fact which explains no more than why he was in a position where he could be struck by a tree". Thus the accident was not caused by an act or omission of the driver. 3. An opposite result was reached on the facts in Hassain v Mirdha [2015] NSWDC 108, which is a decision of Judge Elkaim SC (as his Honour then was). 4. The plaintiff was driving a taxi when a dog ran from the side of the road in front of the vehicle. The plaintiff applied the brakes and steered the motor vehicle to attempt to avoid hitting the dog, causing the taxi to collide with a stationary truck. The driver was injured and sued under the blameless accident provisions. 5. There was no fault alleged on the part of the driver. It was submitted that the case could be distinguished from Connaughton, on the basis that in that case no act or omission of the driver had caused the accident whereas the taxi driver had acted by steering away from the dog and then into the truck. His Honour held that the act of steering the vehicle away from the dog was an act of the driver and it was an act that was a cause of the injury to him. It was not the sole or primary cause but nevertheless it was an act which caused his vehicle to collide with the truck – at [29]. The plaintiff therefore failed because he had no entitlement to recover damages as the motor accident was caused by his act or omission, even though that act or omission did not constitute fault – s 7E(1) and s 7E(2)(a). 6. The meaning and operation of s 7E has been considered by the NSW Court of Appeal in Whitfield v Melenewycz [2016] NSWCA 235. 7. The plaintiff in that case was riding a motor cycle on an unsealed dirt road near Bourke when he collided with a kangaroo. The trial judge found for the plaintiff and the insurer appealed. The insurer submitted that the effect of s 7E was to exclude any claim for damages by the driver of a motor vehicle, or the driver of a vehicle in a single motor vehicle accident. The Court of Appeal rejected that argument saying that s 7E was capable of applying whether there is one, or more than one, motor vehicle involved in the accident. 8. The insurer also argued that in the circumstances of the case the accident was caused by acts or omissions by the driver, being the act of travelling at a speed that involved a greater risk of collision, and the act of colliding with the kangaroo. Justice Meagher, with whom Justices Simpson and Sackville agreed, said that it had not been established that a slower speed would have prevented the collision. The trial judge had found that the motor cycle was being ridden at approximately 90-100kph and that the speed at which the rider was travelling at the time of the accident was not excessive or unreasonable in the circumstances. This factual finding was not disturbed on appeal. 9. In the present case, while the defendant has submitted that the truck was travelling at a speed where if an incident occurred, the driver was not able to control the vehicle, there is no evidence to establish that. That may well be an issue for the trial, but it is not made out on the pleadings or on the evidence filed on the motion. 10. The defendant has also submitted that there was an act or omission of the driver in that he made attempts to do something to regain control of the truck after the tyre blew out. However, there is no evidence at this stage (although there could be at the trial) that any steps taken by the plaintiff towards recovery of control of the truck contributed in any way to causing the accident. Indeed, the only evidence presently before the court is that when the tyre blew out the plaintiff had no control at all over the vehicle and thus his driving of the vehicle after the tyre blow out was not an act or omission that caused the accident. Conclusion on Blameless Accident 1. The claim pleaded in the Statement of Claim satisfies the definition of "blameless motor accident" under s 7A of the Act. There is no evidence presently before the court to establish that the motor accident was caused by any act or omission of the plaintiff as driver of the truck. The case is more like Connaughton and Whitfield, where external events caused the driver to lose control and the vehicle to crash, rather than the case of Hassain, where the driver actually performed acts after the emergency arose and those acts were a cause of the motor accident. 2. I find that the motion for dismissal or strike out, in so far as it raises the issue of blameless accident, fails. Mental Harm 1. Part 3 of the Civil Liability Act 2002 (CLA) deals with mental harm. Section 3B(2)(e) of the CLA provides that the mental harm provisions in the CLA apply to motor accidents. 2. Claims for psychiatric injury can arise in several ways. Firstly, a person may suffer an insult to the psyche in an event, such that there is no physical injury but there is mental harm leading to the development of a psychiatric condition. Typically such cases have been described as "nervous shock" cases. Secondly, a person may suffer physical injuries, and consequent upon those physical injuries may develop a psychiatric condition. A typical example is a person who suffers a serious spinal injury leading to pain, and then suffers an adjustment disorder or depression as a result of the pain. Thirdly, a person may be exposed to traumatic events relating to another person, and that insult to the psyche leads to a psychiatric injury. A typical example would be where a person is a passenger in a car where another person in the car is killed or injured in the accident, and the trauma of witnessing that event leads to psychiatric illness in the physically uninjured plaintiff. 3. As background to consideration of the mental harm provisions in the CLA, it is important to recall that the plaintiff alleges two kinds of fear and anguish which he suffered when the tyre blew out and he lost control of the truck. Firstly, he feared that he himself would be killed or injured. Secondly, he feared that the driver in the car travelling adjacent to him, next to the burst tyre, would be killed or injured. 4. The defendant submits that the plaintiff is precluded from seeking damages for his psychiatric injury, because of the mental harm provisions of the CLA. 5. Section 28 of Part 3 of the CLA deals with the application of the Part. It provides: "(1) This Part (except Section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) Section 29 applies to a claim for damages in any civil proceedings. (3) This Part does not apply to civil liability that is excluded from the operation of this Part by Section 3B." 1. Section 29 of the CLA provides: "In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock." 1. Section 30 of the CLA is headed "Limitation on Recovery for Pure Mental Harm Arising from Shock". So far as is relevant, s 30 provides: "(1) This section applies to the liability of a person ('the defendant') for pure mental harm to a person ('the plaintiff') arising wholly or partly from mental or nervous shock in connection with another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim." 1. The defendant submits that Pt 3 applies because when s 28(1) speaks of a claim for damages for mental harm resulting from negligence, this includes a blameless accident claim. This is because, while there is no actual negligence in such a claim, there is deemed fault on the part of an owner or driver, and the Motor Accidents Compensation Act 1999 defines fault to mean negligence or any other tort. Thus it is submitted the plaintiff's claim is one for damages for mental harm resulting from negligence and Pt 3 applies. 2. The phrase "mental harm" is defined in s 27 to mean "impairment of a person's mental condition". 3. I find that Pt 3 does apply to the plaintiff's claim, but only to part of the claim. I reject the defendant's submission that the only kind of claim for mental or nervous shock which can be brought is one governed by s 30 of the CLA (i.e. a "bystander" claim). 4. In so far as the claim for mental harm caused by the fear that the adjacent driver would be killed or injured, s 30 of the CLA applies. It applies to the liability of a person (in this case the owner who should be the defendant) for pure mental harm to the plaintiff arising wholly or partly from mental or nervous shock in connection with another person (the adjacent driver) being put in peril by the act or omission of the defendant. I find that the plaintiff is entitled to recover damages for his pure mental harm because he witnessed, at the scene, the "victim" (the adjacent driver) being put in peril. To adopt the memorable phrase of counsel for the defendant, the plaintiff must have the trifecta under s 30 of the CLA. He has all three elements. 5. That leaves the plaintiff's claim for nervous shock arising from his perception of the threat to his own safety caused by the tyre blowout. 6. Firstly, it is to be noted that s 29 does not speak of a claim for any of the defined terms in s 27 being "mental harm", "consequential mental harm" or "pure mental harm". Those terms have relevance to s 30 but have no part to play in the interpretation of s 29. 7. Rather s 29 uses the phrase "mental or nervous shock" in relation to the injury for which damages are sought, and that phrase encompasses a claim for damages where a plaintiff claims to have himself suffered nervous shock because of a perceived threat to his own safety. Thus s 29 deals with that part of the plaintiff's claim where he asserts that he has suffered a psychiatric illness because of fears for his own safety, and s 30 deals with that part of the plaintiff's claim where he claims a psychiatric injury arising from fears for the safety of the driver of the adjacent car. It is plain from a reading of s 30(1) that it has nothing to do with a claim involving only two parties (a plaintiff and a defendant) whereas it does cover a claim involving three parties, being a plaintiff, a defendant and a victim. 8. The history of s 29 of the CLA is as follows. After the decision of the Privy Council in Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, recovery was denied where the only injury suffered was nervous shock unaccompanied by any physical injury. The effect of that decision was reversed by s 3 of the Law Reform (Miscellaneous Provisions) Act 1944 (the 1944 Act) which provided: "(1) In any action for injury to the person caused after the commencement of this Act, the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock." 1. That statutory cause of action subsisted until s 3 of the 1944 Act was repealed by s 4(1) and Sch 3 of the Civil Liability Amendment (Personal Responsibility) Act 2002 which came into effect from 6 December 2002. That repeal was part of the "reforms" which included the CLA. Section 29 of the CLA then operated to allow a plaintiff recovery for mental or nervous shock suffered by the plaintiff in the absence of any physical injury. It is to be noted that the phrase in relation to the injury is the same in s 3 of the 1944 Act as it is in s 29 of the CLA i.e. "mental or nervous shock". Indeed, the wording in s 29 is to the same effect as the wording in s 3(1) of the 1944 Act, although the language has been updated. 2. The provisions of Pt 3 of the CLA, and in particular the provision in s 30 relate to cases where there is pure mental harm in "bystander cases". Such a cause of action was previously codified in s 4 of the 1944 Act. Section 30 of the CLA is the new version of the statutory test in "bystander" cases. 3. Thus from 1944 to 2002, a plaintiff could sue for nervous shock suffered because of fear for their own safety pursuant to s 3 of the 1944 Act, and in certain limited circumstances could sue if they suffered nervous shock because they were a bystander when another person was put in peril. Those same rights were preserved (although in a different form in bystander cases) by s 29 of the CLA, in the case of mental or nervous shock suffered by a plaintiff because of a perceived threat to themselves, and by Pt 3 of the CLA generally (except s 29) in bystander cases. 4. I therefore find that the plaintiff is not prevented from recovering damages by the provisions of Pt 3 of the CLA because: 1. In relation to his fears for his own safety, he has an entitlement to claim for mental or nervous shock, unrestricted by Pt 3 of the CLA – see s 29; 2. In relation to the claim that he has suffered a psychiatric injury because of fears for the safety of the adjacent driver, he satisfies the elements of s 30 of the CLA. 1. I find that the motion for dismissal or strikeout, in so far as it raises the issue of mental harm under the CLA, fails. ORDERS 1. My orders are: 1. Dismiss the defendant's motion filed on 20 July 2018. 2. Order the defendant to pay the plaintiff's costs of the motion. ********** Endnote 1. Section 7E(2)(d) should be read as if the word "not" appeared before the words "have caused" – Whitfield v Malenewycz [2016] NSWCA 235 at [15]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2018