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AAQ v QBE Insurance (Australia) Ltd [2018] NSWDRS CA 017

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Statutory benefits – Weekly payments – whether the motor accident was not caused by the fault of another person – duty of care when changing lanes - whether the motor accident was not caused by the fault of the claimant

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 7.36, 7.36, 3.11, 3.28, Schedule 2
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • AAQ - claimant
  • QBE Insurance (Australia) Ltd - 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 section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter
ClaimantAAQ
InsurerQBE Insurance
Date of Accident11 January 2018
DRS Reference10038261
Insurer Claim Number360005162601
Date of Internal Review12 June 2018
DRS Decision MakerDavid R Ford
Date of Decision27 November 2018
Conference date and time13 November 2018 at 12:00 PM
Conference venue and locationTeleconference
Attendances for ClaimantClaimant
Korean Interpreter
Attendances for InsurerTom Livanos, Claims Officer

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 by the fault of another person

2. Effective Date: This determination takes effect on 27 November 2018.

David R Ford

Claims Assessor
Dispute Resolution Services

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)[e] of the Motor Accident Injuries Act 2017, about whether for the purposes of Section 3.28 (Statutory Benefits up to 26 weeks to injured adult persons most at fault, or to injured persons with minor injuries).

1.   The Section of the Act that is under dispute is Section 3 (11) (1) (a) and statutory benefits under Section 3.28 (1) (a).

2.   The Insurer submits the Claimant was wholly or mostly at fault in the accident and the Insurer has ceased, after 26 weeks, weekly payments under Section 3 (11) (1) (a) and statutory benefits under Section 3.28 (1) (a).

3.   The Insurer undertook an internal review and a Statement of Reasons in attached to the Application form and is dated 12 June 2018.

4.   AAQ seeks to challenge that determination.

Documents considered

5.   I have considered the documents provided in the Application and the Reply, and also the following documents which were sent to me by the Insurer:-

a.   Application for personal benefits including emergency department discharge report, Concord Hospital.
b.   Police report dated 17 January 2018.
c.   Factual investigation completed for QBE by Pulse Investigations dated 13 April 2018.

Submissions

Submissions made by the claimant

6.   On 11 January 2018 at approximately 5:50 am the Claimant was driving his Toyota motor vehicle along Fairfield Road, Guildford West, when it is alleged the Mercedes Benz truck being driven by the Insured’s driver, (name omitted), changed lanes from the kerb lane (lane 1) into the middle lane (lane 2) and collided with the rear of the Claimant’s vehicle.

7.   In the Application for personal injury benefits completed by the Claimant dated 17 January 2018, he states on page 3:-
“I was on the way to work.  I was driving at the right lane on Fairfield Rd.  The trucker on a big truck was driving on the left lane behind me.  The trucker hit my car by stepping to lanes with ignoring safety distance.”

8.   The police did not attend the scene of the accident, however, a late report was subsequently made and is dated 8 March 2018 (event number 66237127). 9.   In the police report on page 2, it is reported as follows:-

“At the above date and time, the PR (AAQ) was driving vehicle (UPI removed) in lane two of two, when the driver of vehicle 1, registration number (UPI removed), has attempted to change lanes, and colliding with the rear of the PR’s vehicle.
Both parties have exchanged details at the scene and moved their vehicles.”

10.   In the Dispute Resolution Service Application form, the Claimant has annexed a further statement and inter-alia, he states as follows:-

“Q:  What lane were you in before the collision?  What lane was the other driver in before the collision?
A:  I was on right lane and the truck (later found out) was behind my car and believe it was on left lane.
Q:  Were you or the other driver attempting to change lanes when the accident occurred?
A:  I did not attempt to change lanes and was going straight.  I do not know whether the truck was changing lanes or not as I was focussing on the road ahead.
Q:  What was the condition after the accident – did you lose consciousness, were you badly injured, were you able to get out of the car unaided?
A:  I think I was unconscious for about 5-10 minutes.  I woke up by sound of loud banging on my car and shouts from outside.  I drag myself out of my car slowly as I could not move fast and felt severe aches and pains all over my body.
Q:  If you were injured, lost consciousness or unable to exit your car unaided, did the police or ambulance service attend the accident?  If they did not attend, why not - were they called?
A:  I felt lots of pain on my body and severe headache and was in vacant and dull state.  I could not stand up straight and sat down and leaned against the steel wire fence on footpath to rest against it.
The truck driver asked me if he should call the police and I asked the driver of the truck to call the police but the police never came to the accident scene.”

Submissions made by the insurer

11.   The Insured’s driver, was interviewed and the record of interview is contained in the report from Pulse Investigations dated 13 April 2018.

12.   On page 4 of the report, it is stated as follows:-

“Q:  At some point does the driver attribute responsibility to yourself?
A:  Yes, he told me that I was travelling too fast.
Q:  What did you say in response?
A:  I said it didn’t matter how fast I was travelling because you overtook me and turned so it didn’t matter if I was doing 10 or 100, you turned in front of me.
Q:  What did he say?
A:  He went quiet for a little bit and then told me it’s a 50/50.  I’ll take 50% of the responsibility, he takes 50% of the responsibility and I said to him it can’t be my fault as my truck did not leave the lane.  I was still in my lane.  Either he would have had to turn or I would have had to turn to cause the impact and he insisted that it was half his fault, half my fault.
Q:  You refute that don’t you?
A:  There’s no way I could have turned.”
13.   Furthermore, there is a detailed record of interview dated 10 April 2018.
14.   On page 7, it is stated as follows:-
“Q:  At what speed were you travelling at as you’re traversing Fairfield Road, Guildford West, in the proximity of the collision zone?  Approximately what was your speed of travel?
A:  Approximately 50 to 55 kilometres.
Q:  Were you conscious immediately before the collision that there was a vehicle in Lane No. 2?
A:  Yes, I noticed there was a vehicle next to me but did not pay too much attention as it was just another vehicle next to me.
Q:  When you noticed there was a vehicle next to you in Lane No. 2, where was it in relation to your cabin?  Was it adjacent to your cabin, was it behind your cabin?
A:  No it was adjacent.  Right next to me.
Q:  (name omitted), in your own words, tell me what happened on that date as you’re travelling in Lane No. 1 southbound on Fairfield Road, Guildford West?  In your own words, tell me what happened?
A:  Okay.  As we were travelling together the other vehicle came up next to me, stayed next to me for probably about 5, 10 metres and then all of a sudden turned literally in front of me.  His back corner of his car hit the right hand corner of my truck.
Q:  Do you mean the rear near side of his vehicle struck (sic) the front off side of your vehicle?
A:  Correct.
Q:  Was there any indication that the vehicle was coming across?
A:  No.
Q:  Did you see an indicator?
A:  No.
Q:  Were the headlights of that vehicle burning?
A:  Yes
Q:  At the point of impact were you holding within Lane No. 1?
A:  Yes I was.”

15.   The insured driver, also in his statement stated the debris of the collision was all located in lane number one.  Furthermore, in the statement, the insured driver, records his conversations with the Claimant after the accident.  On page 12, it is stated as follows:-

“Q:  Did the driver, AAQ, make any reference to you of having occasioned any injury?
A:  No, he didn’t mention at all.  I asked him about three or four times if he wanted an ambulance or if he wanted police to come and he didn’t say nothing to those, he said no, he’s alright.”

Legislation

16.   In making my decision 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

Reasons

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

Was AAQ wholly at fault in causing his accident?

18.   I find at all times the Mercedes Benz truck being the insured driver remained in the kerbside lane (lane 1).

19.   I further find the motor vehicle being driven by the Claimant attempted to cross over into lane one whilst travelling adjacent to the Mercedes Benz truck and furthermore, I find the Claimant did not exercise all due care and caution when changing lanes and attempting this manoeuvre.

20. I find the Claimant should have allowed the truck to pass him prior to attempting to manoeuvre his vehicle from lane one into the kerbside lane (lane 2).

21.   I find the Insured’s driver had no opportunity to brake or swerve or avoid a collision with the Claimant’s vehicle, as the action of the Claimant in attempting to change lanes was done so without warning and was an unsafe manoeuvre.

Was the motor accident caused mostly by the fault of AAQ?

22.   I have found AAQ was wholly at fault in causing his accident, and therefore, it is not necessary for me to make a finding as to whether or not he was mostly at fault.

Findings

23.   Therefore, I find the accident of 11 January 2018 was caused wholly by the fault of AAQ.

Costs and disbursements

24.   The Claimant has been unsuccessful in his Application and therefore, there is no entitlement of payment to legal costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

25.   For the purposes of section 3.11 the motor accident was not caused by the fault of another person

26.   Effective Date: This determination takes effect on 27 November 2018.

27.   Legal Costs:  The claim was unsuccessful and therefore is no entitlement to the payment of legal costs.

David R Ford
Claims Assessor
Dispute Resolution Service