|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Mostly at fault – contributory negligence – independent witness – statutory benefits – Civil Liability Act – truck collision|
|Legislation cited||Motor Accidents Injury Act (NSW) ss 3.11, 3.11(1)(a), 3.28, 3.28(1)(a), 7.36(4), 7.36(5)|
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 2017 cl 7.441
Civil Liability Act (NSW) 2002 s 5R
|Parties||ABL - Claimant|
CIC Allianz 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
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
|Insurer||CIC Allianz Insurance Limited|
|Date of Accident||20 March 2018|
|Insurer Claim Number||37C000205|
|Date of Internal Review||13 August 2018|
|DRS Decision Maker||David R Ford|
|Date of Decision||21 November 2018|
|Conference date and time||14 November 2018 at 2:00 PM|
|Conference venue and location||Level 21, 1 Oxford Street, Darlinghurst|
|Attendances for Claimant||John Elhage, solicitor|
MS, Arabic Interpreter NAATI number xxxxxxxxx
|Attendances for Insurer||Anthony Crowne, solicitor|
Marcus de Courtenay, Internal Disputes Resolution Officer
BH, driver of the Insured vehicle (by telephone)
The findings of the assessment of this dispute are as follows :
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 ABL.
2. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of ABL.
3. Effective Date: This determination takes effect on 21 November 2018.
David R Ford
Dispute Resolution Services
Reasons for decision
Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)[e] of the Motor Accident Injuries Act 2017, about whether for the purposes of Section 3.28 (Statutory Benefits up to 26 weeks to injured adult persons most at fault, or to injured persons with minor injuries).
1. The Section of the Act that is under dispute is Section 3 (11) (1) (a) and statutory benefits under Section 3.28 (1) (a).
2. The Insurer submits the Claimant was wholly or mostly at fault in the accident and the Insurer has ceased, after 26 weeks, weekly payments under Section 3 (11) (1) (a) and statutory benefits under Section 3.28 (1) (a).
3. The Insurer undertook an internal review and a Statement of Reasons in attached to the Application form and is dated 13 August 2018.
4. ABL seeks to challenge that determination.
5. I have considered the documents provided in the Application and the Reply and also a Statutory Declaration of KS dated 4 November 2018, annexing Verifact Conversation log dated 24 July 2018. This Statutory Declaration with annexure was sent to me by the solicitor for the Insurer by letter dated 7 November 2018 and a copy on the same day was also provided to the solicitor for the Claimant.
Submissions made by the Claimant
6. On 20 March 2018, the Claimant drove his Toyota motor vehicle onto the entrance to the M5 Motorway at Heathcote Road, travelling in a south-westerly direction towards Liverpool at approximately 9:30 am. As he entered the M5 Motorway, he remained in the far left lane, which is a turning lane. At the General Assessment Conference on 14 November 2018, the Claimant stated he travelled at least 150 – 200 metres along this left lane and he then made a decision to enter the adjacent lane to his right; he put his blinker on and he saw the truck being driven by the Insured’s driver in his mirror.
7. When the Claimant sighted the truck in his rear-vision mirror, he stated it was “not far” and estimated the distance was about 50 metres behind him. At the General Assessment Conference, he stated he would let the truck pass him as he thought the truck may be turning into the left turning lane to go onto the exit. He then stated “He (meaning the truck) hit me”. He also stated at no time did he merge into the lane which the truck was travelling.
8. In the Application for Personal Injury Benefits lodged by the Claimant dated 10 April 2018, he states the following:-
9. The Claimant lodged a further statement dated 3 October 2018, in which he states, inter-alia:-
Paragraph 6: I remained in the far-left lane as I entered the M5 Motorway.
Paragraph 7: There was a large truck with a tipper attached to its rear travelling in the lane besides me. I now know the registration number of that vehicle is XXXXXX.
Paragraph 8: My vehicle was a little ahead of the truck.
Paragraph 9: Not long after I entered the M5 Motorway the other driver attempted to merge into the far-left lane, my lane, and in doing so collided with the right rear quarter panel of my vehicle.
Paragraph 10: I hold the other driver responsible for the accident as he merged into my lane when it was not safe to do so.
Paragraph 11: I had only entered the M5 Motorway and was still a considerable distance from the Moorebank exit when the accident occurred.”
Submissions made by the Insurer
10. At the General Assessment Conference, the solicitor for the Insurer questioned the Claimant regarding the circumstances leading up to the accident. The Claimant stated he wanted to leave the M5 Motorway at the Casula exit not the Moorebank exit. He also stated he initially entered the M5 travelling at 60 km per hour then increased to 80 km per hour. He further stated he was still in the turning lane when the truck hit. He also stated he was “beginning to change the lane” but he did not change the lane and was still was in his lane when his vehicle was struck by the truck. When the collision occurred he was travelling at approximately 60 – 70 km per hour and he estimated the truck was travelling between 80 – 90 km per hour. He could not answer as to when he first noticed the presence of the truck on the motorway, but again stated he had travelled in the left turning lane for approximately 150 metres before making the decision to change into the right lane adjacent to his vehicle.
11. In the Internal Review Decision there is a statement from the Insured driver dated 24 July 2018. The Insured driver stated as he approached the Moorebank Avenue ramp, he decided to change lanes from the second lane from the centre into the third lane which is the slow vehicle lane. He further records in his statement the following:-
I had moved into that 3rd traffic lane. Almost immediately after I had moved into that lane the white Toyota Echo cut across from the 4th lane, the left turn only lane right into front of me, in the 3rd traffic lane. The right rear quarter panel connected with the left front bumper of my truck which caused the white Toyota Echo to spin clockwise and the front bumper collided into the side of the Toyota Echo.”
12. The driver of the Insured truck BH was questioned at the General Assessment Conference by telephone. He stated that when he first sighted the Claimant’s vehicle, it was not moving into the third lane and the Claimant had at no stage put his indicator on. He again confirmed he did not attempt to drive his truck into the far-left turning lane, and when the collision between both vehicles, it was a distance of approximately 20 metres in front of the Moorebank exit.
13. The Statutory Declaration which annexes the Conversation Log with the witness, CW, is dated 24 July 2018. CW states he was travelling in the third lane and at this particular point on the M5 Motorway there are four lanes. The first lane is for left turn only to get onto the ramp to go to Moorebank, and the other three lanes are for straight through traffic. He stated he was approximately three or four car lengths back from the position of the truck or the white Toyota.
14. The conversation log records as follows:-
A: Probably a bit slower because the truck had moved over from the third lane into the second lane. The truck was already in the second lane when the white Toyota just put its blinker on and moved from the first lane straight in front of the truck. The truck couldn’t do anything he had nowhere to go. He hit the white car and it spun. That’s all I can remember.”
15. In making my decision 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 (NSW) 2002
16. I have considered the documents provided in the Application and the Reply and any further information provided by the parties.
Was ABL wholly at fault in causing his accident?
17. I find that at all times, the motor vehicle being driven by ABL upon entering the M5 Motorway, was in front of the Insured’s truck and was at all times visible and in the line of sight of the Insured’s driver, BH.
18. I further find the Insured’s truck was travelling at a speed greater than the speed of the Claimant’s vehicle, and in this regard I accept the estimate of speed stated by the Claimant at the General Assessment Conference.
19. It was encumbered upon BH, if he was keeping a proper lookout, to ascertain whether or not the Claimant’s vehicle would remain in the fourth or left-turn only lane or merge into the lane in which his truck was travelling.
20. I further accept the evidence of the Claimant that he had travelled a distance of between 150 – 200 metres in the left-hand turn lane before the collision occurred. This finding is not contradicted by the statement of CW.
21. I find that BH whilst he was changing from the second lane in the centre into the third lane as described in his statement dated 24 July 2018, was more focussed upon this manoeuvre than noticing the presence of the Claimant’s vehicle ahead of him in the left-turn only lane.
22. I find BH should have reduced the speed of his truck whilst both vehicles were approaching the exit to Moorebank Avenue in case the Claimant decided to change lanes from the left-turn only lane into the third lane.
23. I find BH has presumed the Claimant did intend to exit the M5 Motorway at the Moorebank Avenue exit.
24. I also find the Claimant did commence to change lanes from the left-turn lane into the third lane as stated by the witness, CW, and also BH.
25. I also accept the Claimant had put his indicator on in order to commence this manoeuvre. I further note the conversation log with CW also confirms the Claimant “had put its blinker on and moved from the first lane straight in front of the truck.”
26. I therefore find the driver of the Insured truck, BH, was not keeping a proper lookout and in the circumstance, was travelling at an excessive speed. He should have taken greater notice of the presence of the Claimant’s vehicle in the left-turn only lane and also should have noticed the Claimant’s vehicle had only just entered upon the M5 Motorway and it was not reasonable in the circumstances for BH to presume that the Claimant intended to exit at the Moorebank Avenue exit.
Was the motor accident caused mostly by the fault of ABL?
27. The onus of proving contributory negligence rests upon the Insurer.
28. In deciding whether ABL was guilty of contributory negligence, I must have regard as to the standard of care set out in Section 5R of the Civil Liability Act (NSW) 2002.
i. The principles that are applicable in determining whether a person is being negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm.
ii. For that purpose:-
(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.
29. As stated above, I have determined that ABL did attempt to move from his vehicle from the far left lane into the third lane, and in doing so collided with the Insured’s truck. I do not accept his statement he thought the driver of the Insured’s truck intended to exit the M5 Motorway at the Moorebank Avenue exit. I find ABL has misjudged the speed at which the speed was approaching from the rear. I accept that when he activated his indicator the truck was at a distance of not greater than 50 metres behind him but was travelling at a greater speed.
30. I therefore find that ABL is guilty of contributory negligence in failing to change lanes in a safe manner, but I do not find his contributory negligence was greater than 61%.
31. At the commencement of the General Assessment Conference, I asked both legal representatives as to whether they wish me to make an assessment of contributory negligence, however, both parties requested I do not make such an assessment. I will therefore comply with their request.
32. Therefore, I find the accident of 20 March 2018, was not caused wholly by the fault of ABL.
33. I also find for the purposes of Section 3.28, the motor accident was not caused mostly by the fault of ABL.
Costs and disbursements
34. There is no issue that the Claimant, if successful, is entitled to the payment of legal costs. I allow costs in the sum of $1,769.30 inclusive of GST.
My determination of the Miscellaneous Claim is as follows:
35. For the purposes of section 3.11 the motor accident was caused by the fault of another person.
36. For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.
37. Effective Date: This determination takes effect on 21 November 2018.
38. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,769.30 inclusive of GST.
David R Ford
Dispute Resolution Service