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AAY v AAMI Limited [2018] NSWDRS CA 025

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Insured driver wholly at fault for accident – statutory benefits – contributory negligence – injured person did not contribute by way of contributory negligence to the accident – traffic lights – intersection
Legislation citedMotor Accident Injuries Act 2017 (NSW) ss 7.36(4), 7.36(5), Schedule 2(3)(g)
Motor Accident Guidelines 2017 cl 7.441, 7.67.6
Cases citedSibley v Kais [1967] HCA 43
Stojanoska v Fairfax [1999] NSWCA 225
Text citedN/A
Parties AAY – Claimant
AAMI Limited – Insurer 
DisclaimerThis 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(4) of the Motor Accidents Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines
ClaimantAAY
InsurerAAMI Limited
Date of Accident10 March 2018
DRS Reference10040797
Insurer Claim NumberY054054002-01
Date of Internal Review23 July 2018
DRS Decision MakerMr Colin Stoten
Date of Decision31 August 2018
Conference Date and Time29 August 2018 at 4:30 p.m.
Conference VenueBy teleconference
Attendances for the ClaimantMr Peter Ruggeri, Solicitor
Attendance for the InsurerMs Mar-Lize Crawford, AAMI Representative

In respect of the issue to be determined, I find:

  1. That the injured person did not contribute by way of contributory negligence to the accident.
  2. That the Insurer paid to the Claimant the sum of $1,320 inclusive of GST by way of costs.

Colin Stoten
Claims Assessor – Dispute Resolution Services

Reasons

Issued in accordance with section 7.36(5) of the Motor Accidents Injuries Act 2017

Introduction

1.  The Claimant was injured in a motor vehicle accident on 10 March 2018 and has made a claim for statutory benefits against the Insurer.  The accident occurred in circumstances whereby the Insured vehicle made a right hand turn across the path of the Claimant’s vehicle at an intersection controlled by traffic lights.

2.  The Claimant made an application for statutory benefits upon the Insurer by way of a Claim Form completed on 20 March 2018.

3.  The Claimant was seriously injured as a result of the accident and suffered from an anterolisthesis of the C6 vertebrae and the C7 vertebrae involving compression of the spinal cord.  The Claimant required immediate surgery by way of a C6 laminectomy and decompression.

4. The Insurer by letter dated 20 June 2018 denied liability for the claim on the basis of a statement from its insured driver.

5.  The Claimant sought a review of that denial and lodged an application for internal review on 2 July 2018.  Upon review of evidence, which included additional evidence by way of a statement of the Claimant and submissions provided by the Claimant’s solicitors, the original decision of the Insurer was varied.  The internal reviewer, Mr Tim Virgona, in a Statement of Reasons issued on 23 July 2018 determined that on the basis of the whole of the information provided, that the Claimant was not wholly or mostly at fault for the accident, but determined that the Claimant had failed to keep a proper lookout and determined that she contributed to the accident by way of her own contributory negligence to the extent of 25%.

6.  The effect of this decision is that if left unchallenged, the Claimant’s statutory benefits would be reduced to the extent of 25%.

7.  The Claimant was unhappy with the internal decision of Mr Virgona and made an application to the Dispute Resolution Service by application dated 30 July 2018 to review the internal review relating to the finding of 25% contributory negligence.

8.  It is the Claimant’s contention that there is in fact no contributory negligence on her part and that she should be entitled to statutory benefits in full.

9.  The Dispute Resolution Service have referred the matter to me for assessment as a miscellaneous claims assessment in accordance with clause 7.67.6 of the Guidelines insofar as it is applicable under schedule 2, clause 3(g) of the Motor Accident Injuries Act 2017.

10.  I held a teleconference with the Claimant’s legal representative and the Insurer’s representative on 29 August 2018 and it was determined:

(i)   That a face to face assessment conference was not required;

(ii)   That therefore there was to be no questioning of either the insured driver or the Claimant;

(iii)   That neither party wished to adduce any further documentary evidence or provide any further submissions.

Background

11.  I have before me the statement of the Claimant dated 2 July 2018, the statement of the insured driver dated 16 April 2018, a record of a discussion between the Insurer’s investigator, Ms Miller, and one of the attending police officers as to the statements made by each of the parties according to him and his notebook.

12.  I have a diagram of the intersection and photographs of the roadway and vehicle involved.

13.  Finally, I have submissions from both parties in respect of the matter.

14.  The Claimant in her statement says that on 10 March 2018 at about 6:20 a.m. she left her home to travel to Flemington Markets to buy fruit and vegetables for the week.  It was a trip she did frequently and regularly on a Saturday morning.  The Claimant was familiar with the traffic controls and the route to be taken.

15.  The Claimant says she was travelling along Merrylands Road and intended to travel all the way to Woodville Road, and thereafter proceed to the markets.  The Claimant said she was travelling east along Merrylands Road towards Merrylands, and at the intersection of that road and the Cumberland Highway, she stopped at traffic lights facing her.  The Claimant was uncertain as to which lane she was in, but recalls that it was one of the two lanes for traffic travelling east in Merrylands Road and across the intersection with the Cumberland Highway.  The Claimant says that there are in fact three lanes at that set of traffic lights for traffic travelling east, and one of those lanes was the far right lane, which was available for traffic wishing to turn from Merrylands Road onto the Cumberland Highway.  The Claimant was not travelling in that lane shortly before or after the lights had changed to green.

16.  At all events, the Claimant says that the lights facing her changed to green, allowing her to continue through the intersection of Merrylands Road and the Cumberland Highway and to continue travelling east along Merrylands Road when at about the middle of the intersection, she suddenly noticed another vehicle making a right hand turn from Merrylands Road into the Cumberland Highway and towards her direction of travel.  The Claimant said that the other vehicle collided with the front right hand side of her car and her airbags deployed.

17.  The insured driver, MA, said in his statement that he was on his way to work at Marsden Park.  He travelled along this particular route which involved making a right hand turn at the intersection of Merrylands road and the Cumberland Highway regularly.  He said on approach to the intersection that he had a green arrow facing him which permitted him to make a right hand turn from Merrylands Road into the Cumberland Highway and travel to the North along the Cumberland Highway.  He said he approached at a speed somewhat less than 60 kilometres an hour in the right hand turn lane.  He said there was another vehicle ahead of him, which had also made a right hand turn.  He says he does not recall if there was any traffic stationary to his left in the two lanes for traffic travelling West on Merrylands Road.  He said when he reached the intersection, the green arrow facing him changed to amber and he says he was committed to the turn so entered into the intersection on an amber light.

18.  It was then MA said that he realised the other driver was coming straight towards him from the right hand turn lane.  He said he tried to stop and braked, but he was not able to avoid an impact.  He estimated that the other driver’s speed was between 50 and 60 kilometres an hour.

19.  Senior Constable Prasad attached to the Merrylands Police Station was interviewed on 10 May 2018.  He said that he arrived at the scene with his partner, Constable Barrett at about 6:45 a.m.  He recalled that the vehicle driven by the Claimant was facing in an Eastbound direction with the driver trapped.  He said they waited for the ambulance to arrive and eventually the Fire and Rescue Service came and used the “jaws of life” in order to extract the Claimant from her vehicle.

20.  The insured driver, MA, provided a statement to the police officer in similar terms to that which is contained in his signed statement.  The witness does not however state which particular lane the Claimant was travelling in immediately prior to the accident.

21.  Due to the Claimant’s injuries, she could not be interviewed initially by the police and subsequently was interviewed on 1 May 2018 at Westmead Rehabilitation Hospital.  The Claimant gave a version to the police officer that she had stopped on a red traffic signal in Merrylands Road at the intersection with the Cumberland Highway and as the lights changed to green, she proceeded through the intersection.  The Claimant then noticed the other vehicle travelling towards her and the collision occurred.  The Claimant said she could not remember the lane she was travelling in, but said that there were no other vehicles stopped in front of her.

22.  The police took no further action in relation to the matter because of the conflicting versions.

23.  Finally, the photographs which have been provided indicate that sand had been deposited on the roadway near the accident scene and that sand was located mostly in the kerb side and middle lanes of the intersection.  The Claimant alleges that this sand confirms that the accident in fact occurred at a point on the roadway where vehicles continued to travel east along Merrylands Road and through the intersection with the Cumberland Highway. She therefore confirmed her version that she was intending to proceed through the intersection and travel towards the Flemington Markets rather than in the lane intending to make a right hand turn to travel towards Smithfield.  The Claimant says she was not intending to proceed in that direction, but to adopt her normal route which was to travel ultimately to the Flemington Markets.

The submissions

24.  The Claimant’s solicitor firstly takes issue with the statement of the insured driver who says in paragraph 26 of his statement that he remembered that the Claimant’s vehicle stopped on his side of the intersection and that his vehicle stayed in the position it was at the time of the accident.  He said his car did not move in any direction.

25.  The further submission made is that this statement cannot be correct when one views the photographic evidence showing the positioning of sand on the roadway immediately after the accident indicating that the accident occurred on the Claimant’s correct side of the roadway and confirms the Claimant’s version that she was travelling through the intersection and to continue travelling east along Merrylands Road.

26.  It is further submitted that the statement provided by the insured driver to the police crucially does not make reference to the claim made in the later statement of the insured driver given to the investigator, namely that the Claimant’s vehicle was in the right hand turn lane facing him immediately before the accident.

27.  The Insurer by its submissions forming part of the reply document and dated 21 August 2018 says that the High Court decision in Sibley v Kais [1967] HCA 43 is persuasive in relation to a finding of 25% in the circumstances applicable to the present claim.  The High Court there said that reasonable care was required on the part of drivers approaching an intersection where other vehicles are also approaching the same intersection.  It is submitted by the Insurer that the driver of the other vehicle should clearly have been in view of the Claimant as she entered the intersection, and if she had taken reasonable care, then the accident may well have been mitigated.

Determination

28.  I have determined that the Claimant was not guilty of contributory negligence for the following reasons:

(i)  I accept the Claimant’s evidence as to the circumstances in which the accident occurred because that explanation is more plausible than that provided by the insured driver.  This is because the independent evidence as set out in the photographic material attached to the Insurer’s investigation report clearly shows that the likely position of contact of both vehicles was on the Claimant’s correct side of the roadway, as is demonstrated by the sand which was placed on the roadway by the rescue services after the collision.  As a result of that evidence, I am of the view that the insured driver cannot be accepted in relation to his statement at paragraph 26 that says that the Claimant’s vehicle came to a stop on his side of the intersection.

(ii)  Furthermore, the insured driver did not tell the attending police officers who interviewed him at the scene that immediately before the impact he had observed the Claimant’s vehicle in the right hand turn lane in Merrylands Road, and that reference to it in his subsequent statement provided to investigator, was an attempt by him to exculpate himself from liability for the accident.

(iii)  Once it is accepted that the Claimant was travelling along Merrylands Road with the intention of proceeding through the intersection with the Cumberland Highway and to continue travelling in Merrylands Road, it is obvious from the documentary material and the photographs and plans of the intersection attached to the investigation report that if the Claimant had a green light facing her, then in the absence of any evidence as to any malfunction of the traffic control lights at the intersection, the traffic control light facing the insured driver must have been red at the time he entered into the intersection.

(iv)  The Claimant’s statement as to what had occurred in the accident is corroborated by the independent objective evidence as depicted in the photographs, namely the positioning of sand on the roadway at the point where the collision occurred, namely on the Claimant’s correct side of the roadway.

(v)   In respect of the application of the decision of Sibley v Kais, that case is readily distinguishable from the facts of the present accident because the intersection involved in the deliberations by the High Court was an intersection not controlled by traffic lights from my reading of the facts of the case.  The factual scenario involved in this collision is that the intersection is clearly controlled by traffic lights, and whilst there is a general obligation on any road users to approach an intersection with caution, it would not be within the ambit of a driver to anticipate vehicles in such a scenario to proceed blatantly against a red light, which is the conclusion I have drawn in this particular claim.

In this respect I refer to the decision of the Court of Appeal (leading judgment from Justice Meagher) in the decision of Stojanoska v Fairfax [1999] NSWCA 225.  Although the facts of that claim are considerably different to those relevant to the Sibley v Kais case, as a matter of principle, the obligation on drivers generally was the subject of comment by Justice Meagher.  In that decision, the injured person was a pedestrian proceeding through banked up traffic and then suddenly appearing in front of the car driver leading to a collision between the pedestrian and the driver.  Justice Meagher made reference to the proposition that:

“A motorist must always when he drives be conscious of the fact that the pedestrian may do something silly and adjust his conduct to account for that possibility.  On the other hand, he can hardly drive in such a way that he expects such accidents to occur every minute, otherwise no traffic would ever move.”

(vi)   Such an observation can be made in respect of this particular accident because traffic lights are there for the safety of all road users and it would be expected that motor vehicle drivers would obey traffic control signals.  Having regard to my findings if the Claimant had a green light facing her, then the insured driver must have had a red traffic control light facing him, it could hardly be suggested in such circumstances that the Claimant ought to have waited to see if the insured driver obeyed the traffic signal facing him.

29.  For these reasons I find wholly in favour of the Claimant on the issue of liability and that the insured driver was wholly responsible for the accident.

Costs

30.  In respect of costs, as the Claimant has been successful I allow professional costs in the sum of $1,200 plus GST, giving a total of $1,320.

Colin Stoten
Claims Assessor – Dispute Resolution Services