Helen Huang
Special Counsel
CTP Insurance, Insurance
Breaking the Causal Chain
18 November, 2024
In Brief
- A motor accident causes an injury if the accident made a material contribution to the advent of the injury, which is more than negligible.
- In circumstances where a Claimant is harassed by a mob after an accident, a careful assessment must be made regarding whether their psychiatric injury was caused by the initial motor accident or the subsequent harassment.
Facts
On 15 November 2024, the Personal Injury Commission (PIC) published its decision in Portillo-Vera v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 758.
On 22 October 2019, the Claimant was involved in a low speed rear-end collision in a car park. The Claimant exited his vehicle in an attempt to exchange details with the other driver. However, the Claimant was confronted by angry motorists who were attempting to exit the car park.
The Claimant alleges he developed a non-threshold psychological injury as a result of the accident.
At first instance, the PIC Medical Assessor determined the accident was not the cause of the psychological injury and the events which followed the accident caused the exacerbation of the Claimant’s pre-existing persistent depressive disorder.
As the accident did not cause an injury, it follows the Claimant did not sustain an above threshold injury.
The Claimant sought a review.
The Review Panel Reasons
The Review Panel agreed the accident did not cause the Claimant’s psychological injury for following reasons:
- The Claimant’s vehicle had extensive pre-existing damage. The damage to the rear of the Claimant’s vehicle was not consistent with the contact made with the front of the Insured’s vehicle. The Insured provided a statement that he did not collide with the Claimant’s vehicle. The Panel accepted the accident was relatively minor in nature.
- There was extensive pre-accident evidence which demonstrated the Claimant had significant problems with both shoulders and that he had undergone a cervical fusion as well as being quite depressed before the accident. The Panel noted the Claimant significantly downplayed these pre-accident conditions.
- After a very detailed review of the evidence and after a re-examination of the Claimant, the Panel diagnosed the Claimant with persistent depressive disorder with anxious distress, which was pre-existing and well documented.
The Panel applied the following decisions in respect to causation, which were all similar factual scenarios:
116. In the matter of Allianz Australia Insurance ltd v Gonzales [2013] NSWSC 362 (Gonzalez) a similar factual scenario arose. In that case the claimant was seated in her car when another car reversed into her car. After the accident occurred the driver of the other vehicle made some telephone calls and then she was surrounded by a group of men. The behaviour of the men was intimidating. The insurer denied the psychological injury alleged. The insurer contended that any psychological harm was caused by the events that occurred after the collision thereby breaking the chain of causation and falling outside the scope of the MAC Act. It was found that the necessary link between the driving and the wrongful conduct of the driver and other men was not established.
117. In the matter of Pham v NRMA Insurance Limited [2015] NSWSC 1205 Harrison AsJ found that a Review Panel did not err in a similar factual scenario by determining the psychological injury did not arise from a motor accident. In his concluding remarks Harrison AsJ found:
- “45.Both Gonzales and the circumstances in this case required a determination of whether injury was caused by ‘the use or operation of the vehicle’ or by some other factor. Both required an analysis of whether a confrontation following a motor accident fell within that definition. In Gonzales, the events which caused psychiatric damage occurred after the vehicles had stopped. The plaintiff had stepped out of her vehicle. There was no link between the faulty driving and the psychiatric damage. In Ms Pham’s case, the events which caused psychiatric damage also occurred after the vehicles had stopped. Ms Pham had stepped out of her vehicle to speak with the other driver.
46.I accept that sometimes it is difficult to determine whether or not injury was caused in the ‘use or operation of a motor vehicle’. However, the closeness of the link between an incident and the driving must be “very substantial” in order to satisfy the requirements of predominance, immediacy and proximity: Gonzales at [24].
- The Panel accepted there was a break in causation chain between the physical collision of the vehicles and the subsequent events which followed because the Claimant’s main source of distress was the reported behaviour of the driver and the others at the scene (and not the accident).
- The Panel determined any intensification of the Claimant’s pre-existing persistent depressive disorder was not caused by the motor accident.
- The Panel determined the events after the collision did not form part of the “motor accident”.
- The Panel accepted the motor accident itself had no more than a negligible contribution to the Claimant’s physical presentation post-accident.
As a result, the Claimant’s statutory benefits ceased at 52 weeks and the Claimant is not entitled to recovery common law damages.
Key Learnings
The facts of this decision clearly demonstrate the Claimant’s main concern of distress was not the accident but the subsequent events that followed. As a result, the Panel was capable of applying the decisions of Allianz Australia Insurance ltd v Gonzales [2013] NSWSC 362 and Pham v NRMA Insurance Limited [2015] NSWSC 1205 in coming to that conclusion.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
