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ABI v Allianz Insurance [2018] NSWDRS CA 035

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsReduction of statutory benefits – contributory negligence – caravan – parking caravan – injured by caravan –inconsistent versions of events – costs
Legislation citedMotor Accidents Injury Act (NSW) ss 3.38, 7.36(4) schedule 2(3)(g)
Motor Accident Injuries Regulation 2017 Schedule 1
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

N/A

Text citedN/A
Parties ABI - Claimant
Allianz Insurance - 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

ClaimantABI
InsurerAllianz Insurance
ApplicantABI
Date of Accident5 December 2017
DRS Reference10045870
Insurer Claim Number75C000092
Decision MakerMargaret Holz

The findings of the assessment of this dispute are as follows

1.    For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident by 15%.

2.Effective Date: This determination takes effect on 9 November 2018.

3.Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

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

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services

Reasons for Decision

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

Background

1.  This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(g) of the Motor Accident Injuries Act 2017 about whether the claimant’s entitlement to statutory benefits comprising weekly benefits (but not treatment and care) should be reduced after 26 weeks because of the claimant’s contributory negligence.

2.   ABI was severely injured when she was caught between a caravan being towed by a vehicle driven by her husband and a power box attached to a metal pole. She was outside the vehicle at the time, directing the driver while he positioned the caravan at a powered site within the Moonee Beach Caravan Park.

3.   The insurer has alleged that she contributed to her injuries by 25%.

4.   The insurer’s decision was the subject of an internal review on 17 August 2018. The decision was affirmed.

5.  ABI seeks to challenge that determination.

Documents considered

6.  I have considered the documents provided in the application and the reply and the further information provided by the parties. In particular, I have considered a further statement, a diagram, a map and further photographs provided by the claimant.

Legislation

7.  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

Circumstances of the accident

8.  On 5 December 2017, ABI and her husband travelled from their home in Queensland to the Moonee Beach Caravan Park near Coffs Harbour.  They were travelling in a Nissan Patrol, towing a caravan.

9.   At the caravan park, they were assigned a camping site and proceeded to drive to it.  ABI got out of the vehicle to assist her husband in navigating his way into the caravan site, which appears not to have been an easy task. There was a pole with a large power box attached which impeded their access onto the site so that the Nissan Patrol and the caravan needed to be driven at an angle past the pole and power box before straightening up onto the designated site.

10.   ABI was standing on a concrete slab immediately beside and allegedly behind the pole as her husband drove the vehicle forward. It was her job to call out instructions to ensure that the vehicle and the caravan did not strike the power box.  I understand that they had performed this sort of manoeuvre on a number of occasions, with ABI’s husband driving the vehicle and keeping an eye on ABI from the rear view mirror which extended out some distance from the side of the Nissan Patrol.

11.   On this occasion, ABI says that her husband had driven the Nissan Patrol past her and she was providing direction to him as he moved forward in accordance with her directions.  However, as he continued forward, she saw that he was coming close to the pole and power box. I assume, since the Patrol had already passed, that it was the caravan that she felt was moving too close to the power box.

12.   ABI says that she turned towards her husband to signal for him to stop by waving her arms and yelling out to him.  She says “Every other time we have parked the caravan Mr ABI was watching me and responded immediately to my direction.”

13.   She thought he would stop, but he did not.  The caravan continued forward becoming progressively closer to the pole/power box next to where ABI was standing.  She was pulled between the caravan and the pole/power box and suffered serious crushing injuries.

14.   At the teleconference in this matter, I expressed difficulty in understanding quite how the incident had occurred, assuming that the caravan was being towed parallel to the pole and power box.  It was unclear to me how ABI could be caught between the pole/power box and the caravan in those circumstances.

15.   ABI has provided an additional statement clarifying that the caravan was at an angle to the pole/power box and that everything happened very quickly, allowing her no time to move out of the way. I note a diagram recently provided that shows the caravan at an angle to the pole/power box but, significantly, that the Patrol had straightened up as it moved forward onto the camping site, and in doing so, seems to have made a slight right turn from the original direction of travel.

16.   ABI’s husband says that he was proceeding forward at a minimal speed and then lost sight of his wife in the rear-view mirror.  He had also lost sight of the power box.  He next saw her as she fell away from the caravan. He does not state that he heard her call out at any time and I infer that he did not.

Submissions

17.  The claimant’s argument is essentially that ABI’s husband was not keeping a proper lookout and that he was not using the extended mirrors to keep his wife under observation. It is alleged that he misjudged the position of the caravan, failed to keep his eye on his wife as he parked the caravan in accordance with their usual practice and that he thereby struck her with the caravan. It is submitted that there should be no reduction for contributory negligence.

18.  The Insurer submits that the claimant had a responsibility to take care for her own safety. It argues that, as the claimant was directing the path of the vehicle, it would have been reasonable, in her position, to keep a proper lookout as to the movements of the vehicle relative to surrounding structures such as the power box and ensure that she was in a position that kept her away from the path of the vehicle. Is further argued that as the claimant had performed this procedure about 100 times before, she should have anticipated the path of the vehicle and removed herself from harm. It is submitted that as the vehicle was moving slowly, she would have had a reasonable opportunity to move from the path of the vehicle before it made contact with her.

Consideration

19.   In assessing contributory negligence, it is necessary to weigh the respective acts of the claimant and of her husband and to determine the degree of causal potency of each.

20.   As regards the insured driver, he was in charge of the vehicle and, even without ABI’s input, had the assistance of large rear-vision mirrors that extended out from the sides of his vehicle. In the usual course of events, he should have been able to see what was going on with the caravan.  While there is no evidence that the caravan actually struck the pole/power box, it must have come very close to it.  Despite this, ABI’s husband continued driving.

21.   Of more significance is the fact that the insured driver had placed ABI outside the vehicle specifically to assist with directing his line of travel and he should have been alert for her signals that the caravan was moving too close to the pole/power box. The fact that he lost sight of her may be because he straightened the Patrol by turning it slightly to the right and putting it at an angle with the caravan.  It is reasonable to assume that had this occurred, he would have lost sight of both the pole/power box and his wife as the mirror would be facing away from the side of the caravan.

22.   One of the critical issues in this case appears to be that ABI’s husband makes no reference at all to having heard his wife call out.  He certainly did not see her signalling to him that he was getting too close to the pole/power box.  That is precisely the danger of which ABI was to warn him.  If he could not see his wife, then he should have been particularly alert to any verbal warning from her and yet there is no indication from him that he heard anything.

23.   For her part, ABI says that she called out and waved, although it appears that waving may not have assisted as she had ceased to be visible in the rear-view mirror.  Her calls were in vain.  She says that she thought her husband would stop and heed her directions, that it all happened very quickly and that by the time it was apparent that he was not stopping she had no chance to jump away or move to safety.

24.   I am concerned by the evidence of ABI that she was standing behind the pole and therefore in a position of safety. Had she been standing there, then she should not have been struck. The pole with the power box attached would have been between her and the caravan, yet there is no indication that the caravan struck either the power box or the pole. It seems to me logical to infer that ABI must have been standing between the pole/power box and the caravan in order for her to have been crushed between them.

25.   I have not had the opportunity to speak to either the claimant or the driver who live in Queensland.  I have carried out an assessment on the papers.  There appears some inconsistency between the versions of ABI and her husband as to whether, as ABI says, the incident occurred very quickly or whether, as ABI’s husband says, he was proceeding at a minimal speed. It may be possible that both versions are correct, but that would be a matter for expert opinion, which is not available to me. Further, as indicated, I find it difficult to accept that ABI was standing behind the pole and in a position of safety when the accident occurred.

26.   There is clear negligence on the part of the insured driver but I am not satisfied that the claimant has not contributed to her accident by failing to move away from a position of danger when it became apparent that the vehicle was not stopping and was continuing to move closer to the pole/power box. There is nothing to indicate that her ability to move away from the position of danger was impeded, noting she was on foot at the time.

27.   In my view, a fair apportionment of blame between ABI and her husband is 85% for ABI’s husband and 15% for ABI. In other words, ABI has contributed to her injuries to the extent of 15%.

Costs

28.  Costs are awarded in accordance with the Motor Accident Injuries Regulation 2017 Schedule 1 which is a fixed fee of 16 monetary units or $1,633 plus GST.

29.   The claimant’s solicitor has submitted an additional claim for travel expenses to visit her client in Queensland to take a statement and obtain additional information.  Such fees are not recoverable under the Regulation.

30.   I allow costs therefore in the sum of $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

31.  For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident by 15%.

32.  Effective Date: This determination takes effect on 9 November 2018.

33.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services