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AAS v NRMA Insurance Ltd acting as agent for the Nominal Defendant [2018] NSWDRS CA 019

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Statutory benefits – Weekly payments – whether the motor accident was caused by the fault of another person – whether the motor accident was not caused wholly by the fault of the claimant – contributory negligence – motorcycle accident – reliability of police report

Legislation cited:

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

Parties:

  • AAS - claimant
  • NRMA Insurance Ltd acting as agent for the Nominal Defendant – 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

ClaimantAAS
InsurerNRMA Insurance Australia Limited as agent for the Nominal Defendant
Date of Accident7 January 2018
DRS Reference10040203
Insurer Claim NumberNWRND 180002301
Date of Internal Review28 June 2018
DRS Decision MakerClaims Assessor Cassidy
Date of Decision29 August 2018
Conference date and time29 August 2018 at 9.00am
Conference venue and locationTeleconference
Attendances for ClaimantMr Trevor Wells solicitor Lough & Wells Lawyers
AAS - Claimant
Attendances for InsurerMs Priya Hariharan – Quality Compliance Consultant NRMA

The findings of this assessment are:

1. For the purposes of section 3.11 the motor accident was caused by the fault of another person – that is the motor accident was caused by the fault of a person other than the claimant.

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

Belinda Cassidy
Claims Assessor - Dispute Resolution Services

Reasons for decision

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

Introduction

1. AAS was injured in a motor accident on 7 January 2018 shortly before midday. He made a claim for statutory benefits under the Act against the Nominal Defendant on the basis that the vehicle that he says caused his accident could not be identified after due inquiry and search.

2. NRMA has been appointed by the Nominal Defendant to manage this claim.

3. On 18 May 2018, Robert Nimac, a Senior Consultant in CTP Claims at NRMA wrote to the Claimant denying liability to pay statutory benefits beyond the first 26 weeks after the accident based on information contained in the police report.

4. AAS sought an internal review of that decision and on 28 June 2018 Rhys Wilson a Consultant at Quality and Compliance in NRMA Insurance signed a certificate of determination affirming the original decision and this was accompanied by reasons.

5. AAS has referred NRMA’s decision to the State Insurance Regulatory Authority’s Dispute Resolution Service under Schedule 2(3)(d) and (e) of the Act and I have been appointed by the Service to conduct the assessment of this dispute.

6. The matter proceeded by way of a teleconference today. Ms Hariharan confirmed that the Insurer does not make an allegation that the Claimant has made false or misleading statements in relation to this claim. As the credibility of the Claimant as a witness was not in issue, I did not consider it necessary to hold an assessment conference.

7. After hearing from the parties, I gave oral reasons at the teleconference which I have now reduced to writing below.

Material considered

8.I have been provided with a copy of the Claimant’s application form and the Insurer’s reply form.

9.The Claimant was present at the teleconference and gave me additional information about the accident.

10.The Insurer’s representative was also of assistance and gave me further information about the accident. I was concerned however that Ms Hariharan indicated at one stage that there was information on her file from what appeared to be a property damage claim made by AAS. No documentation in relation to that property damage file has been provided to me by the Insurer and while Ms Hariharan said that file was not considered by the Insurer when making its original or internal review decision by NRMA, I am concerned that there is relevant material that the Insurer has chosen not to consider and not to share with the Claimant.

Insurer's internal review

11. The Insurer’s internal review decision considers AAS was ‘most at fault’ in his accident [page 2, last line]. This is clarified later in the decision when the Insurer says that ‘AAS was at fault’ and ‘… I have found that AAS’s injuries were caused by the fault of his own actions’.

12. The Insurer’s decision quotes the NSW Police report which contained a version of events said to be from AAS. NRMA’s decision maker says:

Based on the above version of events, wherein in [sic] your client has failed to maintain control of his motorcycle and navigate a turn safely, I consider AAS was at fault for his motor accident …

I note your comments regarding the conflicting versions of events provided by AAS in his Application for Personal Injury Benefits and subsequent statement, as well as the version of events provided by (name removed) in his statement. I also note the version of event provided in the NSW Ambulance report. I do consider, however, that the version of event provided by NSW Police is a contemporaneous and detailed version of the accident, and is therefore likely to be accurate.

13. NRMA’s representative confirmed at the teleconference that:

a. NRMA agrees that the Claimant has satisfied the due enquiry and search requirements of the Act, and
b. NRMA considers AAS wholly at fault.

14. I asked Ms Hariharan whether NRMA made any allegation of contributory negligence on the part of the Claimant in the alternative. Ms Hariharan informed me that at this point in time no allegation of contributory negligence was made. NRMA appears to be reserving the right to make an allegation (at more than 61% or less) at some point in the future. This is not desirable, in my view, as this could lead to further disputation about whether AAS is mostly at fault (as opposed to wholly at fault) or whether AAS’s statutory income benefits should be reduced under s 3.38.

15. I was also advised by Ms Hariharan that NRMA has decided that AAS has sustained a minor injury on the basis that he sustained soft tissue injuries only. Ms Hariharan advised me that AAS has not yet been informed of this decision in writing although he is now aware of it. This decision does not appear to have taken into account the significant development four weeks after the accident when an x-ray to the Claimant’s left leg revealed a fractured tibia.

Further information provided at the teleconference

Claimant’s information

16. AAS told me that he did not know who called 000 and he assumed it was the person in the car behind him who stopped to render assistance. AAS did not know who the person was and does not have any contact details for him.

17. AAS confirmed he was travelling east toward the coast having made a round trip that morning from his home.

18. Mr Wells said he has not taken a statement from the Claimant’s other fellow motor bike rider (name removed).

NRMA’s information

19. NRMA’s representative confirmed that it has retained investigators to investigate this accident. Ms Hariharan confirmed its investigators did not visit the scene of the accident and they did not speak with the attending police officers. No one else from NRMA and have not spoken with the attending police officers. The Insurer has not ascertained the identity of the vehicle AAS says caused his accident.

What are the issues in this claim?

20.The matter for me to determine in this matter is whether AAS was wholly at fault in causing his accident. In determining that matter I have identified the following issues:

  • What is the real reason for the Insurer denying liability?
  • Is the police report reliable and contemporaneous evidence as to how the accident happened?
  • What other evidence is there?
  • Was AAS wholly at fault in causing his accident?

My consideration of the issues

What is the real reason for the Insurer denying liability?

21.The Insurer says this accident occurred wholly due to the fault of AAS because it accepts the version of events recorded in the NSW Police computerised record system. The Insurer says there are conflicting versions of events and that the Police report is a contemporaneous and detailed version of how this accident happened and that therefore this version should be accepted over other versions.

22.The police report says this:

At the above time/date the DRI [driver] was travelling in a westerly direction on Braidwood Road, Nerriga. There was an unknown vehicle in front towing a trailer. This vehicle has indicated and began turning off the road into a driveway on the left-hand side of the road. The DRI moved to the centre of the road to go around the trailer, but slip on loose gravel and fell onto the left side, causing minor injuries to the DRI.
Ambulance were contacted and attended the LOI [location of incident]. The DRI was conveyed to Shoalhaven Hospital for precautionary measures with two minor abrasions on his left leg. Police were notified of the incident by ambulance.
About 16.55 that day, police attended Shoalhaven Hospital and spoke with the DRI about the matter. He provided police with the above version. He told police that scans and x-rays had not revealed any serious injuries and he was released a short time later without the need for treatment. Blood was taken from the DRI while in hospital.
Is the police report reliable and contemporaneous evidence as to how the accident happened?

23. At the teleconference today, I took Ms Hariharan to the police note book. She confirmed that the two pages of the police officer’s note book contain only the barest of details about the accident. I note that there is no statement written in that note book. In my experience, you would usually expect to see a statement in a note book which is then transferred into the computerised police record system.

24. The parties agree that the police did not attend the scene of the accident but that they came to the hospital at about 5.00pm.

25. I then took Ms Hariharan to the printout of the police computerised records. Ms Hariharan agreed that the narrative containing the Claimant’s alleged version of events was created by Senior Constable Potts on 11 February 2018 at 5.56pm some 5 weeks after AAS’s accident.  Ms Hariharan then conceded that the police report is not a contemporaneous record of AAS’s version of events.

26. I have considered the evidence of AAS in his signed ‘summary of events’ dated 5 July 2018. He notes there were two police officers, neither of whom he says took a statement in their notebook or wrote anything down in his presence and neither of them asked him to sign anything. AAS observed the Police being distracted and attending to other patients in the hospital.

27. In the absence of statements or an explanation from the police, I am not satisfied that the unsigned and unverified statement recorded in the police computerised record system is a reliable source of evidence as to how this accident happened.

28. My view on this is strengthened by considering the inaccuracies in it – for example the Claimant’s date of birth is incorrect; the direction of travel is incorrect (according to the Claimant and his friend (name removed)); and there is reference to a driveway which does not exist (according to the aerial photographs).

What other evidence is there about how this accident happened?

29. The Insurer’s original decision referred only to the police report. The Insurer’s internal review decision refers to the police report and the Ambulance report but makes no mention of the hospital records and dismissed, without reason the evidence of AAS and his friend.

30. The accident occurred shortly before midday on 7 January 2018.

31. The ambulance report says:

patient states he was travelling at 60 kph and had to avoid an oncoming car and layed [sic] his bike down Pt NIL LOC moderate gravel grazing to both knees

32. While there is no date on this report it was printed on the day of the accident 7 January 2018 at 13.53. In my experience, this is done so that a copy can be placed on the hospital file. Therefore, I will take this version of events as having been recorded by ambulance officers at some time between the ambulance arriving on the scene and 1.53pm.

33. The hospital triage was performed on at 1.49pm and this says ‘brought in by ambulance, low speed MVA, layed [sic] bike down in gravel’. This is similar to the history taken by the ambulance officers and is likely to be the history given by ambulance officers to the hospital on handing over the patient.

34. The hospital progress notes refer to an examination performed by Louella Pink (Casualty Medical Officer) at 3.19pm where she says:

Riding in convoy with friends approx 70 km/hr lost control trying to avoid car with trailer on bend denies any precipitating symptoms of SOB dizziness, weakness, chest pain, slid on gravel road states bike hit fence wearing helmet and protective clothing recalls hitting head as a result left side of helmet visor break no LOC no amnesia to events denies headaches/dizziness called friends post-accident able to mobilise with assistance from friends

35. This could only be a history taken from the Claimant and is, in my view consistent with what the ambulance record says, that is avoiding a car coming head on and deliberately laying the bike down. There is one inconsistency namely the speed of the vehicle but in my view, nothing much turns on the speed of the vehicle. This record also contains additional details (the car had a trailer, slid on gravel and hit head on fence).

36. In his claim form dated 14 Feb 2018 the Claimant says:

I was riding east on the Braidwood Road going around a blind right hand bend that was also downhill. Midway through the corner a while utility towing a boat was on my lane well over the double lines. To avoid front impact, I lifted the bike to the left, the trailer and boat skewed into my path and forced me into the ARMCO barrier on the verge. The front tyre slid under me as it contacted the gravel. The Ute left the scene.

37. In my view, this statement is entirely consistent with the version of events given to the ambulance officers and the hospital with of course, more detail.

38. Finally, there is a statement from (name removed) one of the Claimant’s riding mates. He says there were three of them riding together and that AAS was at the rear. They did not see the accident but turned around after they realised AAS was no longer behind them. AAS’s friend observed as they were travelling west that there was lots of traffic with many people towing boats and show cars. AAS’s friend recalls the Claimant saying:

Sorry I couldn’t get ute of his way, a white ute towing a boar was on my side of the road …

The driver was looking at ta woman in the passenger side, I missed the car but the trailer or boat hit my right side.

39. AAS’s friend checked the roadway and saw ‘flicked out blue metal’ parallel with the ARMCO fencing and the Claimant’s motor bike lying on its right side. AAS’s friend says the bend was a down-hill one with a blind corner and no side streets.

40. AAS’s friend statement corroborates some of the details provided by the Claimant (the downhill bend and damage to the right side of the bike) and the recorded conversation with the Claimant is also consistent with the version of events provided by the Claimant to the Ambulance and the Hospital.

Was AAS wholly at fault in causing his accident?

41. If the accident occurred in the manner in which the police have recorded it in their records then it is likely AAS would be considered wholly at fault in causing his accident. However I have found the computerised police record is not a reliable source of information about how this accident happened.

42. I have before me a history given by the Claimant contained in the ambulance report, a history taken from the Claimant and contained in the hospital records and the statements of the Claimant and the claimant’s friend. When considered together these descriptions of the accident are consistent in the basic details that is a vehicle approached on the incorrect side of the road, the Claimant laid his bike down to avoid a collision and lost control as a result.

43. I also have the aerial photograph and AAS’s friend evidence which suggests there were no side streets or driveways which cast doubt on the accuracy of the report in the police records.

44. There is also evidence by way of the claimant’s friend statements and the damage to AAS’s motor bike. I note the police report suggests the Claimant said his bike fell to the left. I am not an accident reconstruction expert but in the absence of such an expert and without access to the Insurer’s property damage file, it is my view that if that was the case there would be no damage to the right side of the vehicle and the evidence from AAS suggests there was.

45. I am satisfied that the cause of the accident that resulted in injury to AAS was the sudden appearance on the incorrect side of the road of an approaching vehicle towing a trailer. This has caused AAS to take reasonable and appropriate action to avoid a head on collision which has in turn caused him to lose control and collide with the barrier on the side of the road.

Findings

46. It follows therefore that I must find that the accident on 7 January 2018 was not caused wholly by the fault of AAS.

47. For the purposes of s 3.11 the motor accident was caused by the fault of another person being the driver of the vehicle that has not been identified after due inquiry and search.

48. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the injured person.

Claimant's costs and disbursements

49. The Claimant made an application for costs pursuant to the regulation at the maximum amount permitted of $1,600 plus GST.

50. After confirming the amount claimed by the Claimant is the maximum amount allowed under the Motor Accident Injuries Regulation 2017 and that the Claimant’s solicitor represented the Claimant from the outset, NRMA’s representative agreed that the Claimant should be allowed costs in the sum claimed.

51. I am satisfied that the Claimant is entitled to the payment of legal costs and I allow the sum of $1,760 inclusive of GST.

Belinda Cassidy
Claims Assessor – Dispute Resolution Service