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AAU v Allianz Australia Insurance Ltd acting as agent for the Nominal Defendant [2018] NSWDRS CA 021

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Whether the motor accident was not caused wholly or mostly by the fault of the Claimant – nominal defendant – weekly payments – treatment expenses – motorcycle accident – statutory benefits – self represented – which insurer is the relevant insurer

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 1.4, 3.2, 3.3, 3.11, 3.28, 7.36, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.445, 4.20
  • Civil Liability Act 2002 s 5B, 5R
  • NSW Road Rules 2014 rule 126

Parties:

  • AAU - claimant
  • CIC Allianz Insurance Limited - insurer on behalf of the Nominal Defendant
  • QBE Insurance Limited - 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

ClaimantAAU
InsurersQBE Insurance Limited
Allianz Australia Insurance Limited, as agent for the Nominal Defendant
Date of Accident6 January 2018
DRS Reference10040340
Date of Internal Review4 July 2018
DRS Claims AssessorPhilip Watson
Date of Decision18 January 2019

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. For the purposes of sections 3.2 and 3.3 of the Act, the Insurer of the at fault vehicle is Allianz Australia Insurance Limited on behalf of the Nominal Defendant.

4. Legal Costs: As the Claimant is unrepresented, no amount is assessed for costs.

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

Philip Watson
DRS Claims Assessor
Dispute Resolution Service

Reasons for the 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)(a)(c)(d)(e) of the Motor Accident Injuries Act 2017, about fault, due inquiry and search and which Insurer is the Insurer for the at fault motor vehicle.

1. There is a dispute between the Claimant, AAU, and the Insurers in respect of weekly payments and treatment expenses pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (“the Act”).

2. AAU was injured in a motorcycle accident at Long Jetty on 6 January 2018. According to his claim form, a vehicle stopped suddenly in front of him and did not have any brake lights and to avoid the car he had to swerve his motorcycle, his right leg hit the road and was injured. 

3. The Claimant lodged his own claim with QBE Insurance Limited (“QBE”) and was not then, nor is he now, legally represented. QBE accepted his claim and advised him that benefits would cease at the end of 26 weeks after the accident as he was considered to be mostly or wholly at fault for the accident, it being a single vehicle accident.

4. QBE issued its decision in this regard on 24 April 2018. The Claimant sought a review and QBE confirmed its decision following that internal review on 4 July 2018. The Claimant then lodged this application.

5. I conducted an initial teleconference with the Claimant and QBE on 21 September 2018. The Claimant advised me that he had received a payment for loss of income as a one-off payment only and that QBE had also paid for medical treatment. Both of those benefits had then ceased. The Claimant sought to have them reinstated because he has been advised that he will need to have a total knee replacement and that surgery could not take place within 26 weeks after the accident.

6. The Claimant further told me that whilst in hospital he was advised to claim on his own green slip insurance and so he lodged his form with QBE. He says he was advised by QBE that the accident was his fault but he would be covered for six months. He says that he was told about the Nominal Defendant but was advised that such a claim was unlikely to be accepted.

7. At that preliminary teleconference I raised with QBE whether consideration had been given to transferring the Claimant’s claim to the Nominal Defendant, pursuant to clause 4.20 of the Motor Accident Guidelines. I was advised that that had not been done and I deferred the matter to allow time for that.

8. I conducted a second teleconference with the Claimant and QBE on 30 October 2018.

9. QBE had by then carried out investigations and obtained statements from witnesses. They generally confirm the Claimant’s account of the accident.

10. QBE indicated at that time that it considered the Claimant still be the at fault party and was uncertain, if the matter was referred to the Nominal Defendant, whether it would be successful.  

11. The Claimant indicated that he wished to pursue the claim and said that he had intended to make the claim against the Nominal Defendant initially, indicating, as he did in his Personal Injury Claim Form, that the accident was caused by the actions of the unidentified vehicle in front of him. Accordingly I directed that QBE refer the claim to the Nominal Defendant and deferred the matter to a further teleconference.

12. I conducted a third teleconference with the Claimant and QBE and also with a representative of CIC Allianz Insurance Limited now Allianz Australia Insurance Limited (“Allianz”) on behalf of the Nominal Defendant. I was advised at that teleconference that the Claimant’s claim had been referred to Allianz and that it had that same day issued a liability notice to the Claimant declining the claim on the basis that the Claimant was wholly at fault for the accident. I was unable to contact the Claimant on that occasion.

13. I raised with both Insurers’ representatives whether this application should proceed, including the Nominal Defendant or whether it would be appropriate for the Claimant to file a fresh application. The representatives agreed, very sensibly in my view, that the application should continue to save additional time and cost. Allianz however sought the opportunity to put on further submissions and I deferred the matter to a further teleconference.

14. On 12 December 2018, I conducted a final teleconference with the Claimant and representatives from QBE and Allianz. By that stage Allianz had provided a copy of its liability notice which also alleged that due inquiry and search had not been made and that the Nominal Defendant was not the relevant insurer.

15. In the light of this further dispute I asked the Claimant whether he had provided information about his enquiries to Allianz. He indicated that he had but this had not been received but he would provide a further written statement as to those matters. Allianz indicated that it would then reconsider its liability notice.

16. On 14 January 2019, Allianz advised me that it accepted that the Claimant had made due inquiry and search in respect of the unidentified vehicle.  

17. Accordingly, the issues in dispute are now limited to whether the Claimant was wholly or mostly at fault for causing the accident, so as to disentitle him to continuing statutory benefits after 6 July 2018 and whether the Nominal Defendant is the relevant Insurer.

Documents considered

18. I have considered the documents provided in the application and the reply and any further information provided by the parties. This includes further material provided by QBE and the submissions and documents from Allianz and the Claimant.

Submissions

19. As I have already noted, the Claimant is not legally represented. His written submissions are very brief. In his application he stated, inter alia, “I don’t believe that I am at fault as the car involved had no brake lights and stopped suddenly as explained in the police report”. He expanded on this in the teleconferences as I have detailed above. He says that he always regarded the driver of the unidentified vehicle as having caused the accident and said as much in his initial claim form. He says in effect that he was neither wholly nor mostly at fault for causing the accident.

20. QBE issued its initial liability notice on 24 April 2018. It determined that the Claimant was mostly at fault in a single vehicle motor accident. The Claimant did not accept that decision and lodged his request for a review on 19 June 2018 stating therein “I do not believe the accident was my fault as the other car involved had no brake lights and I only did my best to avoid a collision”.

21. QBE reconsidered its decision by way of internal review and issued its internal review decision on 4 July 2018. In that decision it confirmed that it considered the Claimant was mostly at fault. In that decision QBE said “I have determined that you are mostly at fault in the accident by finding you to be wholly at fault. You failed to keep a safe distance between you and the vehicle in front, so if necessary you could safely stop to avoid a collision with the vehicle”.

22. QBE provided further submissions when lodging its reply form to the application by the Claimant. In those submissions it indicated that the Claimant had claimed compensation from QBE as the at fault party and against his own policy. It disagreed that an unidentified vehicle had caused the accident and therefore determined that benefits should cease, as benefits against his own policy are limited to 26 weeks.

23. Allianz provided submissions and its liability notice on 7 December 2018, after the Claimant’s claim was referred by QBE to it. I have already noted that those included an allegation that due inquiry and search had not been made, however that is no longer an issue.

24. Allianz indicated on the question of fault that it did not accept that there was any fault on the part of the driver of the unidentified vehicle and that the accident was either wholly or, in the alternative, mostly the fault of the Claimant.  

25. Allianz admitted that it was foreseeable to the Claimant that a vehicle in front of him may stop suddenly and that the Claimant needed to drive a sufficient distance behind so as to be able to stop safely. It submits that the Claimant failed to do so. It further submitted that even if brake lights were not functioning on the unidentified vehicle that was not a factor causative in the accident as it was daylight conditions with high traffic and low speeds. It also submitted that as there was no actual collision, the accident only involved one vehicle, being the Claimant’s motorcycle, and that therefore the Claimant’s claim lay only against QBE, as the relevant insurer.

Legislation

26. In making my decision/conducting 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
  • Civil Liability Act 2002

Reasons

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

28. Given the disputes that I have identified, the issues that I am to decide are:

(a) Was the Claimant wholly or mostly at fault for causing the accident?

(b) Which insurer is the relevant insurer?

Was the claimant wholly or mostly at fault for causing the accident?

29. The Claimant says that the accident occurred at about 2.00 pm on 6 January 2018 at the corner of The Entrance Road and Stella Street, Long Jetty. He was accompanied by friends riding other motorcycles when a car in front of him stopped suddenly with no brake lights, causing him to swerve to avoid a collision and be injured.

30. The police report, which arises from a self-report by the Claimant, records a description of the accident as follows:

“About 14.00 on the 6 January 2018 a male rider aged approximately 58 was riding motorcycle NSW registration south bound on The Entrance Road, The Entrance cross of Stella Street at a stated speed of approximately 30 km/h. The motor vehicle in front of the rider slowed and began to brake however the rear brake lights if (sic) the motor vehicle in front failed to come one. The rider attempted to stop before missing the motor vehicle in front. In avoiding a collision and as a reflex the rider put his right foot on the roadway which caused his leg to break. No collision occurred. Rider taken to hospital. Plates and screws in leg however unknown if permanent. Unknown registration of other vehicle”.

31. The Claimant confirmed those circumstances of the accident to me at the first teleconference, to which I have referred. He said the car in front stopped suddenly without brake lights and he braked and skidded to try and avoid colliding with it. He said he missed the car by millimetres and had to put his leg down to steady himself, as a result of which he sustained his injuries. He said he was travelling in a group with other motorcycle riders who also had to take evasive action to avoid the car.

32. As I have noted, QBE carried out a factual investigation and obtained statements from three witnesses.

33. By a statement dated 20 October 2018, Witness B said that she was riding a motorcycle with the Claimant and others on the day of the accident. Her statement records that they rode in an offset position for safety reasons, meaning that one rider would be on the right hand side of the lane and the second rider three or four lengths behind and in the left hand side of the lane. She said the Claimant was travelling in the lead position on the journey and she was riding to the left of the south bound lane. She said there was only one lane in each direction and there was a lot of traffic due to it being the Christmas holiday season. She confirms that they were travelling at about 30 kph.

34. Witness B says “Without warning the vehicle that was in front of AAU and I stopped for no reason. I would estimate that we were less than five to seven metres from the rear of the vehicle. I realised that the motor vehicle did not have any brake lights. I was quickly nearing the rear of the stationary motor vehicle. I had to take an emergency braking procedure and steered towards my left and stopped my motorcycle in the left hand parking lane of The Entrance Road. There was no reason for this motor vehicle to stop without warning”.

35. Witness B also indicated that the Claimant was in the centre of the roadway, I take that to mean to the right hand side of the trafficable lane, and near a small concrete pedestrian island and she saw other motorcycle riders running to his assistance after the accident.

36. By a statement dated 18 October 2018, Brodie Rand, says that he was at the Caltex Service Station near the scene of the accident at the time. He remembers the traffic being very heavy and vehicles travelling at less than 30 kph in each direction. He says he looked up and saw a stationary vehicle in the south bound lane and also noticed several motorcycle riders and one, being the Claimant, trying to control his motorcycle near the north bound oncoming traffic. He noticed another motorcycle, clearly that of Witness B, who had taken an emergency stopping procedure in the traffic parking lane.

37. He went to help the Claimant.

38. By a statement dated 20 October 2018, Witness D, says that he is the partner of Witness B. He was also riding a motorcycle in the group on the day of the accident. He was riding at the rear of the group in what he called “the safety sweep position”.

39. Witness D says that he recalls the traffic was moving slowly, less than 30 kph. He says he saw a grey coloured motor vehicle directly in front of the Claimant and Witness B and he saw this suddenly stop for no reason. He noticed it had no brake lights. Within a second he saw Witness B struggle with the sudden stopping of the vehicle. He said there was no warning or indication from the driver of the vehicle. He said at this stage he was already braking himself and saw that the Claimant had to steer to his right to go around the stationary vehicle and was then heading for oncoming north bound traffic. He says he saw the Claimant perform an “experienced emergency safety procedure” which involved extreme braking to his right to slow himself before the oncoming traffic collided with him. He saw the Claimant extend his right leg as his bike slowed and he then heard him make a loud yelling sound. He says the vehicle in front then left the scene.

40. These are the only witness statements available, other than that of the Claimant himself. The Claimant’s enquiries of other persons in the vicinity at the time of the accident indicated that they did not witness it.

41. The Insurers both say that in the circumstances the Claimant was wholly or mostly at fault. They submit that the Claimant failed to keep a safe distance behind the vehicle in front so as to be able to safely stop and avoid a collision. Allianz submits that the Claimant should have realised that the vehicle in front may stop suddenly and he should have been travelling in a position where he could have stopped safely to avoid a collision. It refers to rule 126 of the NSW Road Rules 2014 in this regard.

42. Allianz says that this was particularly so given that the traffic was heavy and that Witness B was able to brake safely and avoid injury. It further submits that the absence of brake lights in daylight conditions with high traffic and low speed, was not a factor in causing the accident.

43. It refers to section 5B of the Civil Liability Act 2002. I am satisfied that the provisions of that section would not exonerate the driver of the unidentified vehicle. In my view, driving a motor vehicle without functioning brake lights carries with it a high probability that harm would occur, that such harm could be serious (in the form of a rear end collision or action taken to avoid a collision) and that the burden of preventing such harm was minimal ie repairing the brake lights. In addition, there is no social utility in driving a vehicle without functioning brake lights. There was clearly a foreseeable risk of danger to other road users and such risk was not insignificant. A reasonable person in the position of the driver of the unidentified vehicle, would have taken precautions to avoid this. I am satisfied from the statements of the Claimant and the witnesses, that the vehicle did not have functioning brake lights.

44. I do not accept the submission of Allianz that non-functioning brake lights in daylight conditions was not causative of the accident. Although the traffic was travelling at a low speed, the traffic was heavy and the driver of the unidentified vehicle would or should have been aware of the motorcycles travelling behind. Such persons would be more at risk potentially than drivers or passengers in cars following. A reasonable driver could expect that a vehicle ahead would have functioning brake lights so as to warn of stopping, particularly when this is done suddenly and for no apparent reason, as occurred here. An absence of brake lights would delay the reaction, of those following, to the slowing and stopping of the vehicle.

45. The fact that Witness B was able to brake safely and avoid harm does not detract from the driver of the unidentified vehicle as having contributed to the accident. Witness B had the benefit of being to the left of the lane and had an area in which to steer her motorcycle safely to a stop ie the parking lane. Such an area was not available to the Claimant as, riding to the right hand side of the lane, his only option to avoid hitting the vehicle was to steer towards the oncoming traffic.

46. The Claimant and the witnesses are all experienced motorcycle riders. None of the witnesses are critical of the Claimant’s riding of his cycle. Indeed Witness D said that the Claimant carried out an experienced emergency safety procedure that most motorcyclists would have had no opportunity to complete. That would involve steering to his right under extreme braking and managing to slow himself before colliding with oncoming traffic. As part of this he extended his right leg to the ground.

47. I am satisfied, therefore, that the driver of the unidentified motor vehicle was at fault and contributed to the motor vehicle accident. The fact that there was no collision does not make this a single vehicle accident.  See paragraph 57 following.

48. It follows that I am satisfied that the Claimant was not wholly at fault for causing the accident. The question remains whether he was mostly at fault and consideration needs to be given to the question of contributory negligence on his part.

49. Section 5R of the Civil Liability Act 2002 provides that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of harm. The standard of care required is that of a reasonable person and is to be determined on the basis of what the person knew or ought to have known at the time.

50. In the course of discussions with the Insurers’ representatives, I referred them to the decision of the High Court of Australia in Braund -v- Henning [1988] HCA36. That is a decision of the Full Court and in somewhat similar circumstances. In that case a utility slowed suddenly at an intersection because the driver intended to turn, but did not give any indication of doing so. The Plaintiff following on a motorcycle had to steer suddenly to his left but clipped the rear of the vehicle causing him to fall to the highway and sustain injuries.

51. In those circumstances their Honours said “While we recognise that the driver of a following vehicle which collides with the vehicle which is preceding ahead of it is usually held primarily liable for the consequences of the collision, we find that the circumstances of the present case, in the context of the construction of the highway in the vicinity of the intersection, dictate a different result. ……… this placed the driver of a vehicle intending to turn into Reed Road under a duty of care to following traffic to make his intention plain. We think the responsibility for the collision should be shared between the parties in the proportions of 60% to the Respondent and 40% to the Appellant”. The Appellant in that case was the injured Plaintiff.

52. In its written submissions, Allianz referred to that decision and also to the decision of the Queensland Court of Appeal in Vines -v- Deegan and Anor [1995] QCA13. In that case a motorcycle collided with the rear of a car after cresting a rise and only seeing the vehicle at 30 feet with insufficient time to stop. The court found the motorcyclist negligent to a degree of two-thirds for failing to maintain a speed which would permit him to stop, upon noticing the vehicle. In reaching that decision the court noted that the motorcycle rider should have slowed his speed for the crest of the hill to allow for unseen traffic and kept a proper lookout ahead for vehicles entering the roadway, as the vehicle with which he collided, had. As the Justices noted in each case, each matter turns on its individual circumstances.

53. In this matter, the Claimant clearly had the unidentified vehicle in front in view and it cannot be said that he was travelling at an excessive speed. In my view the Claimant was keeping a proper lookout given his instant reaction after becoming aware of the vehicle stopping, without brake lights. However according to Witness B, when the vehicle suddenly stopped, in her estimate they were less than five to seven metres from the rear of the vehicle. That, in my view, was too close for safe travel.

54. Taking all these matters into account, in my view the Claimant was responsible for the accident to the extent of 30%. That means that I find the driver of the unidentified motor vehicle at fault to an extent of 70%. The Claimant is at fault for travelling too close to the motor vehicle but the driver of the unidentified vehicle was primarily at fault for driving a vehicle with non-functioning brake lights, which would fail to give following traffic a warning of stopping, particularly where this is done suddenly on a busy road, and even at low speed.

55. It follows that I am satisfied that the Claimant was neither wholly nor mostly at fault for causing the accident.

Which insurer is the relevant insurer?

56. Allianz submitted that it was not the relevant insurer, pursuant to section 3.2 of the Act. It submitted that as the accident involved only one vehicle, being the Claimant’s motor cycle, that the relevant insurer liable to pay statutory benefits was the CTP Insurer of that vehicle, namely QBE.

57. As I have already indicated, the fact that there was no collision does not mean that the accident involved only one motor vehicle. “Motor accident” is defined in Section 1.4 of the Act to include a collision, or action taken to avoid a collision, with a vehicle.  

58. Section 3.2 provides that statutory benefits are payable by the relevant Insurer. The relevant Insurer in this case is, pursuant to section 3.2(2) either the insurer of the at fault motor vehicle or the Nominal Defendant. As the vehicle was unidentified and Allianz, on behalf of the Nominal Defendant, has accepted that the Claimant has made due inquiry and search, it is the relevant Insurer. It is liable for the fault of the driver of the unidentified vehicle, who, I have found, was most at fault.

59. QBE is not the relevant Insurer as the accident involved more than one motor vehicle and the driver of the unidentified vehicle was most at fault.

Costs and disbursements

60. As the Claimant is not legally represented, there can be no recovery of legal costs under section 8.8 of the Act.

Conclusion

My determination of the Miscellaneous Claim is as follows:

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

62. For the purposes of sections 3.2 and 3.3 of the Act, the Insurer of the at fault vehicle is Allianz Australia Insurance Limited on behalf of the Nominal Defendant.

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

Philip Watson
Claims Assessor
Dispute Resolution Service