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AAP v AAI Limited trading as GIO Insurance (Australia) Ltd [2018] NSWDRS CA 016

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Whether the motor accident was caused wholly or mostly by the fault of the Claimant - statutory benefits – weekly payments – breach of duty of care – accident at roundabout

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.36, 8.8, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017 Sch 1 Pt 1 s3
  • Motor Accident Guidelines effective 13 July 2018 cl 7.445
  • NSW Road Rules 2014 s114(1)

Parties:

  • AAP – claimant
  • AAI Limited trading as GIO – insurer

Disclaimer: This decision has been edited to remove all unique personal identification including the name of the claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantAAP
InsurerAAI Limited trading as GIO
Date of Accident17 January 2018
DRS Reference10038274
Insurer Claim NumberY052377006
Date of Internal Review6 July 2018
DRS Decision MakerPhilip Watson
Date of Decision11 September 2018
Conference date and time17 August 2018 at 9.00 am
Conference venue and locationBy way of teleconference
Attendances for ClaimantMr Martin Bell, Solicitor
Attendances for InsurerMs Mar-Lize Crawford

The findings of the assessment of this dispute are as follows:

1. For the purposes of section 3.11 the motor accident was not caused wholly or mostly by the fault of the Claimant.

2. For the purposes of section 3.28 the motor accident was not caused wholly or mostly by the fault of the Claimant.

3. Effective Date: This determination takes effect on 11 September 2018

4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,760.00 inclusive of GST.

A brief statement of my reasons for this determination are attached to this certificate.

Philip Watson
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Services

Reasons for decision

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

Background

1. There is a dispute between the Claimant and the Insurer in respect of whether the motor accident was caused wholly or mostly by the fault of the Claimant, as the injured person.  The Claimant has been in receipt of both weekly payments of statutory benefits and treatment expenses, and this dispute relates to the cessation of the Claimant’s entitlements pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (“the Act”).

2. The Claimant, AAP, was injured in a motor accident on 17 January 2018, now over seven months ago and lodged a claim for statutory benefits with the Insurer.

3. On 26 April 2018, the Insurer issued a liability notice in respect of the Claimant’s benefits after 26 weeks post-accident and denied liability for the claim, indicating it did not believe that its insured driver was at fault and caused the Claimant’s injuries.  That decision also related to the question of whether the Claimant’s injury was a minor injury, but that is not the subject of the application before me.

4. The Claimant sought an internal review of the Insurer’s decision by application dated 14 June 2018.  That related to both the question of minor injury and also liability.

5. As required, the Insurer carried out an internal review and issued a Certificate of Determination - Internal Review, dated 6 July 2018.  The Claimant was advised that the outcome of the internal review was that he was considered at fault for the motor vehicle accident and would not entitled to treatment and care 26 weeks from the date of the motor vehicle accident.

6. Consequently the Claimant referred this dispute to the State Insurance Regulatory Authority’s Dispute Resolution Service by application dated 10 July 2018 and the matter has been referred to me for a miscellaneous claims assessment.

7. I held a teleconference with the Solicitor for the Claimant, Mr Martin Bell, and the representative of the Insurer, Ms Mar-Lize Crawford, on 17 August 2018.  Ms Crawford confirmed that although the Insurer’s internal review decision referred only to the Claimant’s entitlements to treatment and care, it should also have referred to the Claimant’s entitlements to weekly payments of statutory benefits and that the matter should be dealt with accordingly.  Ms Crawford sought the opportunity to provide a further statement from the insured driver and the Claimant sought the opportunity to respond thereto if necessary.  I made directions for the provision of this material.

8. The Insurer forwarded the statement and a report from an investigator on 31 August 2018.  I have not received any response thereto from the Claimant, which was due by 7 September 2018.

9. Both parties agreed that the matter could proceed on the papers and did not require a face to face hearing.  I indicated that I would provide my Certificate and Reasons for Decision by 14 September 2018.

Documents considered

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

11. The Claimant’s Application, which he lodged himself, did not attach any documents but referred to “all disputes and issues attached to the emails sent to drsenquiries@sira.nsw.gov.au”.  As forwarded to me, this included photographs of the accident scene, a statement from the Claimant, the Insurer’s Internal Review Decisions, photographs of the damaged vehicles and subsequently the Claimant’s submissions, prepared by Mr Bell.

12. The Insurer lodged its Reply to which it attached its submissions, the Claimant’s Application for Personal Injury Benefits, Police Report, photographs, documents from APIA Insurance in respect of the property damage claim and copies of correspondence and file notes.

13. It is clear from this material that the accident in question occurred in a roundabout in Canley Vale when both vehicles entered the roundabout and there was a collision between them.  There is a dispute as to which vehicle entered the roundabout first and which had right of way.  Each driver considers the other to be responsible for the accident.

Submissions

14. The Claimant submits that the accident was caused wholly by the fault of the insured driver.  He submits that he had already entered the roundabout at the intersection of Bartley Street and St John’s Road, Canley Vale, when the insured driver’s vehicle entered the roundabout on his left, he was unable to stop in time and there was a collision between the front of his vehicle and the rear side panel of the insured driver’s vehicle.

15. The Claimant submits that it is clear when considering the make-up of the roundabout that his vehicle must have entered the roundabout first as it had a longer distance to travel to the point of collision.

16. The Insurer submits that the Claimant is wholly or mostly at fault in causing the motor accident.  It refers to a provision of the NSW Road Rules requiring a vehicle to give way to any other vehicle in the roundabout.  It submits that it is unclear which vehicle entered the roundabout first but having regard to the damage to the vehicles it submits that the Claimant was not keeping a proper lookout and collided with the back right corner of the insured driver’s vehicle.  It further submits that the insured driver did not breach his duty of care to the Claimant by entering the roundabout when it was unsafe to do so.

Legislation

17. In making my decision 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
  • NSW Road Rules 2014

Reasons

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

19. The Claimant has made a detailed statement regarding the circumstances of the accident.  It refers to photographs showing the location of the accident, a diagram of the roundabout and photographs of the damage to the vehicles together with some debris on the road where the collision occurred.  He says that this shows he was “well established in the roundabout and that the other driver drove out in front of him causing the accident”.  He says that the accident is not a typical roundabout with equal entries and where he had entered the roundabout from Sackville Street was a longer distance than the insured driver had to enter the roundabout from Bartley Street.  He said he had to travel around 20 metres to the point of collision whereas the insured driver had driven only a few metres out into the roundabout in front of him.  He said he had little time to react, braked but collided with the back of the insured driver’s vehicle.

20. This description of the accident accords with what the Claimant wrote in his Application for Personal Injury Benefits.  He said at question 3 the following:
“I was making a right turn off of (sic) Sackville Street onto St John’s Road.  My right side was clear and after entering the roundabout, from my left side, a vehicle emerged.  I tried to break (sic), but could not stop, a (sic) hit the vehicle on the driver’s side towards the back”.

21. The Police did not attend the scene, however the Claimant reported the matter at the Cabramatta Police Station on 18 January 2018, the day after the accident.  The Police Report merely recorded the details of the drivers and vehicles and that there had been a collision.

22. With the Insurer’s Reply is a file note of a conversation between a Claims Officer and the insured driver.  It recorded, inter alia, “He was in the roundabout first.  Claimant collided into his rear”.

23. As I have indicated above, the Insurer has now provided a statement from the insured driver which is dated 24 August 2018.  In respect of the accident, he says at paragraph 18, “I looked to my right and saw a dark-coloured car approaching along Sackville St in lane 2 (nearest the centre line)”.

24. At paragraph 19 he continued “I judged that this car was not yet into the roundabout and therefore did not present a danger to me.  I cannot however be certain that the front wheels of this vehicle had not crossed the broken white line at the northern side of the roundabout when I first saw it.  It was, however, clear to me that I had plenty of time to pass in front of this vehicle without a risk of collision”.

25. He continued in paragraph 20 as follows, “I was looking ahead and had not been concentrating on the vehicle approaching from my right, because as I had said, I judged that it did not present a danger to me.  I suddenly felt and heard a collision at the driver’s side rear of my vehicle and realised this other vehicle had hit my car.  At this stage, my vehicle was well past the middle of the roundabout and was adjacent to a steel street sign, almost onto St John’s Rd”.

26. The insured driver states that there was a conversation between him and the Claimant where the Claimant said to him “I was in the roundabout first.  I had to brake hard to miss hitting you”.  The insured driver says he replied “I don’t believe you were there first, but either way I had plenty of time to pass in front of you.  You should have slowed down and let me proceed”.

27. The insured driver says the other driver had wanted to call the Police but he told him there was no need.  He said the Claimant kept insisting on the Police being called and he told him he “Could do what he liked but I was not staying around to wait for them”.

28. As I have also already noted, the Insurer obtained documents from APIA Insurance in respect of the property damage claim arising from the accident.  APIA were the property damage insurers for the insured driver.  Those records record versions from both the Claimant and the insured driver.  As a result of its enquiries, APIA determined that the insured driver was at fault and accepted the claim for repairs to the Claimant’s vehicle.  It noted that the Claimant had driven the greater distance through the roundabout and even if both parties had contributed, that the insured driver was most at fault for it.

29. Included within the APIA file was a handwritten description of the accident by the insured driver dated 18 January 2018.  It records, inter alia, “When I entered the roundabout I did notice the other car but it did not appear to be in the roundabout at that time”.

30. Within the APIA file is also a handwritten accident description form completed by the Claimant dated 17 January 2018 which reads, inter alia, “After entering the roundabout, from my left side, a vehicle emerged, I tried to break (sic) but could not stop and hit the vehicle on the driver’s side towards the back”.

31. The Insurer’s Reply also includes the Claimant’s Application for Internal Review.  In respect of the question of fault, the Claimant says therein, inter alia, “As seen on Google maps, my entry is 20 metres roughly until I arrived to where the other driver pass.  His entry is only 3 - 4 metres where I was.  He came out in front of me.  I had right of way.  I was well into the roundabout when he cut in front of me”.

32. As I have indicated, both parties have provided photographs of the accident scene, including aerial photographs.  The parties are in approximate agreement as to the point of collision which is said to be to the southern side of the roundabout, where the Claimant had entered from Sackville Street to the north and the insured driver had entered from Bartley Street to the east.  The photographs show the damage to both vehicles, consistent with the description from each driver.

33. It is clear from the photographs, particularly the aerial ones, that the Claimant’s vehicle had to traverse a much longer distance than the insured driver’s vehicle, to the point of impact.  The Claimant was also in the process of making a right hand turn around the roundabout whereas the insured driver’s vehicle was proceeding generally straight ahead.  Although I have no accurate statements of speed of each vehicle, it is likely the insured driver was travelling faster than the Claimant.

34. I am satisfied that the Claimant’s vehicle had entered the roundabout first.  I am also satisfied that it had proceeded some distance into the roundabout, before the insured driver’s vehicle entered the roundabout on his left.  If the insured driver’s vehicle had entered the roundabout first, as he thought he had, then it is more probable than not that his vehicle would have already exited the roundabout before the Claimant’s vehicle came into contact with it at the point it did, particularly given its likely greater speed.

35. The Claimant has consistently described the accident in the documents that I have referred to.  In each he clearly describes having already entered the roundabout before the insured driver’s vehicle emerged suddenly on his left.  In contrast, the insured driver is not certain that the Claimant’s vehicle was not already in the roundabout at the time he proceeded to enter it.  He said he had noticed the Claimant’s vehicle but was unsure whether it had already entered the roundabout.  My view is also reinforced by the insured driver’s own statement to the Claimant just after the accident when he said “I don’t believe you were there first, but either way I had plenty of time to pass in front of you.  You should have slowed down and let me proceed”.

36. In my view, that is a clear acceptance that the insured driver was uncertain as to the location of the Claimant’s vehicle when he entered the roundabout and in addition, an acknowledgment by him that the Claimant needed to take evasive action to attempt to avoid him.

37. The Insurer refers in its submissions to section 114(1)(a) of the NSW Road Rules 2014 requiring a driver entering a roundabout to give way to any vehicle in the roundabout.  I am satisfied that the insured driver failed to do so.

38. I do not accept the Insurer’s submission that it is more likely that the Claimant was not keeping a proper lookout.  There is no such admission from the Claimant.  Indeed the Claimant has said he braked as soon as the insured driver’s vehicle emerged on his left and into the roundabout.  The evidence relied upon by the insurer in this regard was said to be the areas of damage to the vehicles.  However that is also consistent with the Claimant’s version of the accident and the insured driver’s vehicle pulling out suddenly in front of him.

39. Accordingly, contrary to the Insurer’s submission, I find that the insured driver did breach his duty of care to the Claimant by entering the roundabout when it was unsafe to do so.  The insured driver was also in breach of the NSW Road Rules, as I have referred to.

40. In coming to my view, I have noted that it was the Claimant who reported the accident to the Police and that the insured driver, as he has stated, was not prepared to wait for them at the scene of the accident.

41. The Insurer’s internal review decision, to which I have referred, refers to the Claimant being at fault for the motor vehicle accident.  It does not determine, as it should have, whether the accident was caused wholly or mostly by the Claimant’s fault.

42. In any event, I am not satisfied that it was either.  Accordingly, I am satisfied, for the purposes of section 3.11 and 3.28 of the Act that the motor accident was not caused wholly or mostly by the fault of the Claimant.  Accordingly, the Insurer is not entitled to cease weekly payments and statutory benefits for treatment and care pursuant to either section 3.11 or 3.28.

Costs and disbursements

43. Neither party has made submissions about costs.  I note, however, that this is a Miscellaneous Claims Assessment pursuant to Schedule 1, Part 1, Section 3 of the Motor Accidents Injuries Regulation 2017.  This provides that the maximum costs of legal services provided to a Claimant about a regulated miscellaneous claims assessment matter are $1,600.00.  Such regulation is made pursuant to section 8.8 of the Act.  I see no reason why the Insurer should not pay the Claimant’s costs in the regulated amount.  This application became necessary because of the Insurer’s decisions about the question of fault and was necessary to ensure that the Claimant’s statutory benefits did not cease.

44. I am satisfied that the Claimant is entitled to payment of legal costs.  I allow costs in the sum of $1,760.00 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

45. For the purposes of section 3.11 the motor accident was caused by the fault of another person and was not caused wholly or mostly by the fault of the Claimant.

46. For the purposes of section 3.28 the motor accident was caused by the fault of another person and was not caused wholly or mostly by the fault of the injured person

47. The Insurer is not entitled to cease payments of statutory benefits pursuant to those sections.

48. Effective Date: This determination takes effect on 11 September 2018.

49. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,760.00 inclusive of GST.

Philip Watson
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Service