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AAZ v NRMA Insurance Limited [2019] NSWDRS CA 026

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsFault – mostly at fault – negligence – blameless accident – dashcam footage – microsleep – medical misadventure – termination of statutory benefits
Legislation citedMotor Accidents Injury Act (NSW) ss 3.1, 3.11, 3.28, 5.1, 5.2(2), 5.3(2), 7.36(4), 7.41(2)(b), Schedule 2(3)(d), Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines cl 7.445
Cases citedN/A
Text citedN/A
Parties AAZ - Claimant
NRMA Insurance 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 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

ClaimantAAZ
InsurerNRMA Insurance Limited
Date of Accident30 December 2017
DRS Reference10040948
Insurer Claim NumberNWRTP180008901
DRS Decision MakerClaims Assessor Belinda Cassidy
Date of Decision13 May 2019
Conference date and time2 May 2019 at 4.00pm
8 May 2019 at 2.00pm
Conference venue and locationTeleconference
Appearances for ClaimantNo response from AAZ on 2 and 8 May 2019
AAZ is self-represented
Appearances for InsurerMs Nadine King

The findings of this assessment are:

1. For the purposes of section 3.11 and 3.28 of the Motor Accident Injuries Act, the motor accident was caused wholly by the fault of the injured person.

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.   AAZ was involved in an accident on the Pacific Highway near Nabiac on 30 December 2017. She was the driver of one of two vehicles involved in that accident.

2.   On or about 18 January 2018 AAZ made a claim for statutory income support and treatment benefits with her own Greenslip insurer, NRMA and on 9 May 2018, NRMA wrote to AAZ denying liability to pay her any benefits from 30 June 2018, a point in time 26 weeks after the motor accident.

3.   AAZ sought internal review of that decision on 31 May 2018 and NRMA did not conduct that review.

4.   In accordance with s 7.41(2)(b), AAZ has referred her dispute with NRMA to the Dispute Resolution Service operated by the State Insurance Regulatory Authority and I was allocated the dispute to assess.

5.   I conducted my first tele-conference in the matter on 27 September 2018 and I issued reasons to the parties on or about 15 October 2018.

6.   Following an application by the Insurer, which was agreed to by the Claimant, I revisited my decision due to me making a jurisdictional error in the assessment of this dispute. I have conducted three further tele-conferences. At the third conference on 20 February 2019 I directed AAZ to provide evidence as to how her accident happened in response to the evidence from the insurer. I have received no evidence from the Claimant.

7.   At the fourth tele-conference on 2 May 2019, AAZ was not available on the mobile phone number I had been using to make contact with her. I made three attempts to contact AAZ on that day within 30 minutes of the scheduled time. I deferred the conference to 8 May. On that day I made a further three attempts to contact AAZ within thirty minutes of the scheduled time.

8.   At the request of the Insurer and in the absence of anything further from the Claimant I have decided to determine the dispute.

Background

9.   AAZ made a claim for statutory benefits following a car accident on 30 December 2017. She was the driver of one of two vehicles involved in this accident. She has made the claim against her own insurer NRMA Insurance Limited.

10.   Statutory benefits include weekly payments for lost income and payments for reasonable and necessary treatment and care. AAZ confirmed that she was paid income support benefits for the first 26 weeks after the accident but that she is now back at work and not receiving income support benefits. AAZ says NRMA had been paying for treatment but that it stopped paying for her treatment 26 weeks after the accident. AAZ says she is still having physiotherapy and paying for it herself.

11.   AAZ’s claim for statutory benefits is made under Part 3 of the Motor Accident Injuries Act 2017. Section 3.1 of the Act provides as follows:

(1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.

(2)  Statutory benefits are payable (except as otherwise provided by this Part):

(a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or

(b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.

12.   Section 3.1 provides for the payment of benefits to people injured in car accidents regardless of whether anyone was at fault and regardless of whether the person making the claim was at fault. But it is important to note that the Act does not provide benefits for everyone injured in a car accident forever. There are limits to what benefits can be paid and those limits are set out clearly in the legislation.

13.   Sections 3.11 and 3.28 of the Act provide that benefits cannot be paid to an injured person after the first 26 weeks if:

a. The Claimant sustained only a minor injury, or

b. The Claimant was wholly at fault for causing the accident, or

c. The Claimant was mostly at fault for causing the accident

14.   Benefits are paid by the ‘relevant insurer’ as determined in s 3.2 of the Act that is in the case of a vehicle involving two or more vehicles, the vehicle ‘most at fault’. NRMA is the insurer of AAZ’s vehicle and it has been paying her statutory benefits.

15.   NRMA agrees that AAZ’s injuries are not minor injuries. She sustained serious injuries in this accident but, NRMA has terminated AAZ’s statutory benefits because NRMA says that AAZ is wholly at fault for causing her accident.

16.   AAZ says she is not wholly at fault because she did not deliberately cause the accident. She says she did not intend to cause the accident. She has said that she was not at fault and that the other driver was not at fault. She said that she was given a ticket or fine by the police for a minor traffic infringement and was not charged with negligent driving therefore she cannot be negligent and cannot be at fault.

17.   NSW Police are concerned with criminal behavior including serious driving offences. I am not dealing with whether AAZ has committed a criminal offence or not and therefore what the police did or did not charge AAZ with is not relevant to the matter I have to decide. I have to decide whether AAZ was or was not at fault and as this is a ‘civil’ matter, the police have no jurisdiction or power to determine what I have to decide.

18.   AAZ has declared her accident is a no-fault accident within the meaning of s 5.1 that is that her accident was not caused by the fault of any of the owners or drivers of the motor vehicles involved in her accident and not caused by the fault of any other person.

19.   Section 5.3(2) says that:

In connection with an application for statutory benefits in respect of the death of or injury to a person resulting from a motor accident, a declaration by the applicant that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary.

20.   In accordance with s 5.3(2) there is therefore a presumption that her accident is a no- fault accident unless the Insurer can produce evidence to the contrary. NRMA has now provided evidence which it says rebuts the presumption that AAZ’s accident is a no-fault accident. NRMA’s evidence is attached to a letter dated 13 February 2019.

NRMA’S evidence

21.   AAZ was driving in the right-hand lane of two lanes of the Pacific Highway near Wang Wauk. At about midday she collided with a vehicle driven by MH in the left- hand lane.

Dash-cam footage

22.   NRMA has provided me with the dash-cam footage [attachment A] taken by a driver who was following behind MH. That footage shows AAZ’s vehicle moving from the right-hand lane into the left-hand lane clipping the rear driver’s side bumper area of MH’s vehicle. No indicators appear to have been activated at the time of AAZ’s movement to the left. The footage then shows AAZ’s vehicle turning sharply to the right, crashing through the guard wire and rolling several times.

23.   The dash-cam footage shows the speed of the vehicle to which it is attached. That speed was between 95 and 100 kmph and at one stage the Claimant’s vehicle overtakes that vehicle. It would appear that the Claimant was driving at around 100 kmph at or shortly before the time of the crash.

Statements

24.   Attachment B to NRMA’s letter is a statement from NS the ‘owner’ of the dash- cam footage and the driver behind MH’s vehicle. What he saw is documented in his statement. His statement really adds little to my understanding of the accident as the dash-cam footage is so clear. NS describes AAZ’s vehicle as drifting to the left before making the sudden veer to the right. I tend to agree with his description.

25.   Attachment C is a statement from PR who was driving a vehicle behind both AAZ and NS and his vehicle is not visible in the dash-cam footage. He says that he was in the right-hand lane when AAZ’s vehicle came up behind him at which stage he moved over to the left to allow her to pass following which he moved back into the right-hand lane. He describes the first manoeuvre of AAZ’s vehicle as a swerve to the left then a violent veering to the right. Again, I am not greatly assisted by his statement as the dash-cam footage is so clear.

26.   Attachment D is a statement from Senior Constable Reid who attended the accident scene. He says that the Claimant was firstly of the view that MH was at fault saying he merged into her lane. SC Reid says AAZ later agreed this was not true when shown the dash-cam footage. SC Reid says he issued her with an infringement notice for not changing lanes safely. He was asked (question 36) how AAZ appeared and he said:

She didn’t state anything. She just believed she was driving along and, from what I understand, she stated that she – she was, in her mind, thinking that the other car may have merged over into her lane. But she just remembers waking up and the car being upside down.

Medical evidence

27.   Attachment E is a letter to the Claimant’s GP Dr Fa. The Claimant has no memory of the events leading up to the accident and said at an earlier teleconference that when she discussed the matter with her doctor, Dr Fa, he said what happened was consistent with her having a microsleep. Attachment F is Dr Fa’s response to that letter. He did not engage fully with all the questions posed to him but does say:

a.  The Claimant was not on medication before the accident;

b.  She had not sought advice from the practice for driving difficulties before the accident;

c.  There was no documented history of microsleep or sleep disorder before the accident;

d.  The issue of microsleep was raised in a conversation but his recollection is there was no structured discussion about it.

28.  Attachment G is a report from Professor Paul Thomas who is described as a respiratory and sleep physician. He says:

a.  There is no settled definition of a microsleep but suggests the Oxford English Dictionary definition should be adopted that is ‘Sleep lasting for a very short period of time (specifically up to ten seconds), seen especially in persons with sleep disorders; an occasion of such sleep’;

b.  In terms of clinical criteria, a history of drowsiness or transient sleepiness while driving is indicative of a microsleep but it can occur at other times such as watching television or during repetitive or monotonous tasks. He recommends a sleep study to assess sleep disorders;

c.   He suggests some factors that might increase the likelihood of a person having a micro-sleep including sleep deprivation, alcohol, sedatives, repetitive or boring tasks, driving in the early hours of the morning or after lunch, shift work and so on. Sleep apnoea or sleep disordered breathing would increase the risk of a micros-sleep.

d.  Professor Thomas suggests there are signs or symptoms before a microsleep and these include drowsiness, loss of attention, head and neck jerks, difficulties keeping eyelids open and so on.

29.   NRMA had asked Professor Thomas whether microsleeps happen to healthy people without warning and he says ‘this is a very controversial area’. He refers to the medical or scientific literature to say ‘The overall balance of opinion in this medical literature is that mico-sleeps have [a] warning period which may not be recalled after an accident’.

Was AAZ wholly at fault?

30.  AAZ has no legal representation at any stage during the course of this dispute and apart from her remarks given at the earlier teleconference and the material in her application form she has not put any evidence before me as to how her accident happened.

31.   There is no doubt from the dash-cam footage that the cause of the accident was the Claimant’s vehicle coming into contact with MH’s vehicle and then apparently correcting (or over-correcting) to the right and AAZ losing control of her vehicle.

32.  However, what is still unknown is what caused the Claimant’s vehicle to come into contact with MH’s vehicle in the first place. Did the Claimant misjudge her lane change? Did she fall asleep at the wheel, have a micro-sleep or a medical misadventure? Was she eating or drinking, playing with her mobile phone or the car stereo, or was she in some other way distracted?

33.   AAZ does not know what caused her vehicle to come into contact with MH’s vehicle because she does not remember. However, there were two other occupants of the vehicle. The police did not take statements from them and neither has NRMA taken statements from them. The Claimant has not provided evidence from them despite me inviting her to do so in my report following the third prelimimary conference.

34.   If the Claimant fell asleep at the wheel or was playing with her mobile phone or the car stereo or was otherwise distracted it is my view that she is wholly at fault for causing

the accident and NRMA is correct in terminating her statutory benefits. Those things are indicative in my view of fault or negligence because a person is supposed to be alert at all times while driving and have control of their vehicle at all times while driving a vehicle.

35.  If the Claimant had, without warning, a medical misadventure such as a heart attack or a stroke or an anaphylactic reaction then, on the basis of Dr Fa’s evidence and in the absence of any evidence to the contrary, it is my view that AAZ would not be wholly at fault for causing the accident. Her accident in those circumstances would be a no- fault or blameless accident and pursuant to s 5.2(2) she is deemed or taken to be equally at fault along with the driver of MH’s vehicle and NRMA would not be able to terminate AAZ’s benefits.

36.   Did AAZ have a miscrosleep which caused her to drift from her lane and impact MH’s vehicle? If she did, is a microsleep a type of falling asleep at the wheel which would be indicative of fault or negligence or a form of medical misadventure which is not indicative of negligence and is a no-fault or blameless.

37.  The Insurer has satisfied me, on the basis of Dr Fa’s evidence that the Claimant did not have a medical misadventure. Having viewed the dash-cam footage the most likely cause of AAZ drifting into contact with MH’s vehicle was her inadvertence or lack of care in changing lanes. In my view this constitutes fault or negligence. Alternatively if she did have a microsleep then my view on the basis of the uncontradicted evidence from Professor Thomas is that a miscrosleep is a form of sleep, of which the Claimant would have had warning. Having had a warning she should have reduced her speed, pulled over or taken other precaustions to avoid causing an accident.

38.  Finally I note the clear evidence from the dash-cam footage that upon colliding with the rear of MH’s vehicle, the Claimant made a voluntary and intentional correcting manoeuvre which caused her to come into contact with the guard wire which in turn caused her vehicle to roll several times causing her injury. It is my view that this deliberate and dangerous manoeuvre of suddenly turning (whilst travelling at speed) caused AAZ to lose control of her vehicle. It is self evidence that a driver should have their vehicle under control at all times. On that basis AAZ’s driving was the sole and only cause of this accident and she is therefore wholly at fault for causing her accident.

Conclusion

39.   It therefore follows that the Insurer’s decision to terminate AAZ’s statutory benefits beyond 26 weeks after the accident was the correct decision.

Belinda Cassidy Claims Assessor
Motor Accidents Injuries Act 2017
Dispute Resolution Service

13 May 2019