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ABR v QBE Insurance [2018] NSWDRS CA 044

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – single vehicle accident – no fault or blameless accident – driver not at fault - motorcycle
Legislation CitedMotor Accidents Injury Act (NSW) ss 1.4, 3.1, 3.2(5), 3.11, 3.28, 3.34, 3.39, 5.1, 7.36(4), 8.10, Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017
Cases CitedN/A
Text CitedN/A
Parties ABR- Claimant
QBE Insurance  - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Replacement 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)(d) and (e) of the Act to be a miscellaneous claims assessment matter

ClaimantABR
InsurerQBE Insurance (Australia) Limited
Defendant
Date of Accident14 March 2018
DRS Reference10050858
Insurer Claim Number360005233901
DRS Decision MakerPhilip Watson
Date of Decision17 December 2018
Conference date and timeOn the papers

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.   Effective Date: This determination takes effect on 17 December 2018

4.  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, and the amount of the Claimant’s expenses is $7,409.05.

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

Philip Watson
Claims Assessor
Dispute Resolution Services

Reasons for 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)(d) and (e) of the Motor Accident Injuries Act 2017, about cessation of statutory benefits pursuant to sections 3.11 and 3.28 of the Act.

1. There is a dispute between ABR, the Claimant, and QBE Insurance (Australia) Limited, the Insurer, with respect to the cessation of statutory benefits, pursuant to sections 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 (“the Act”).

2.  The Claimant was injured in a single vehicle accident on 14 March 2018 at the Westfield Shopping Centre at Brookvale.  He was riding his motorcycle around a roundabout, when the motorcycle slipped on the roadway as a result of which he sustained injuries to his right elbow, hip, knee and ankle.

3.  As there were no other vehicles involved, the Insurer is the CTP Insurer of the Claimant’s motorcycle.  The Insurer accepted the Claimant’s claim for statutory benefits and paid weekly benefits and treatment expenses for 26 weeks but indicated that payments would then cease.  That occurred on 15 September 2018.

4.  The Insurer issued an initial liability notice on 3 July 2018 in which it indicated that it considered the Claimant mostly at fault in the motor accident and intended to cease benefits from 15 September 2018.

5.  The Claimant sought an internal review of that decision.  The Insurer reconsidered the matter and issued its Internal Review Certificate on 20 August 2018 in which it determined that the Claimant was wholly at fault in the motor accident and confirmed that statutory benefits would cease from 15 September 2018.

6.  The Claimant submits that he was neither mostly nor wholly at fault in the motor vehicle accident and that he is entitled to a continuation of statutory benefits.  He has now filed this application seeking a determination of the dispute with the Insurer.

Documents considered

7.  I have considered the documents provided in the application and the reply and any further information provided by the parties.  Following the first teleconference that I held with the parties on 31 October 2018, the Claimant has forwarded additional documentation in the form of a statement, colour photographs, CCTV footage of his accident and further detailed written submissions.

8.  The Insurer has not provided any further documents or submissions since the first teleconference and indicated that it did not intend to do so and would rely on the information in its reply and the submissions contained therein.

Submissions

9.  In its internal review decision, the Insurer indicated it considered the Claimant wholly at fault as he failed to drive to the conditions and failed to keep a proper lookout.  It also submitted that if the accident was a no-fault accident, pursuant to Part 5 of the Act, then the Claimant was not entitled to any further benefits after 26 weeks as the accident would be deemed to have been caused by the Claimant’s fault.

10. In its further submissions, the Insurer submitted that as the Claimant has made a claim against his own CTP policy, he is not entitled to sue himself and that being at fault, access to statutory benefits would cease at 26 weeks post-accident.

11. The Insurer further submitted that it was not liable for the condition of the roadway and that if liability lay with a third party tortfeasor then the cause of the accident was not the use or operation of a motor vehicle and this would disentitle the Claimant to any claim for statutory benefits.

12. The Claimant submitted that he was neither wholly nor mostly at fault at the accident and initially submitted that this was a blameless accident for the purpose of the Act.  In subsequent submissions, however, the Claimant withdrew that submission on the basis that the accident was caused by the fault of another person, that is the entity responsible for the condition of the roadway.

13. The Claimant submits that as the no-fault provisions of the Act do not apply and he was neither wholly nor mostly at fault for causing the motor vehicle accident, that he is entitled to continuing statutory benefits.

Legislation

14.  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

Reasons

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

16.  The Act introduced for the first time a regime of statutory benefits for weekly payments for loss of income and treatment expenses, for all persons injured in motor accidents in New South Wales, with some minor exceptions.  Those exceptions are not relevant here.

17.  It was in respect of those benefits that the Claimant lodged his application for personal injury benefits.  The Insurer accepted his application and paid weekly benefits and treatment expenses until 15 September 2018.

18.  Section 3.1 of the Act provides

“(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 a vehicle, or

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

19.  The Act defines both fault and motor accident (section 1.4).  The definitions are as follows:

(A) fault means negligence or any other tort.

(B) motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a)  the driving of the vehicle, or

(b)  a collision, or action taken to avoid a collision with the vehicle, or
(c)  the vehicle’s running out of control, or
(d)   a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”

20.  Pursuant to section 3.2 of the Act, statutory benefits are payable by the relevant Insurer.  If the motor accident concerned involved only one motor vehicle with motor accident insurance cover then the relevant insurer is the insurer of the motor vehicle.  In this matter that is QBE Insurance (Australia) Limited.

21.  Section 3.2(5) provides:

“For the purposes of this Act (including any motor accident insurance cover in respect of a motor vehicle) a liability that the relevant insurer has to pay statutory benefits under this Part in respect of death or injury is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (being a motor vehicle to which the insurer is the relevant insurer)”

22.  As I have noted, the Insurer accepted the Claimant’s application for statutory benefits in accordance with the above provisions.  However it submits that the Claimant has no entitlements after 26 weeks pursuant to sections 3.11 and 3.28 of the Act as the motor accident was caused wholly by the fault of the Claimant.  I have set out above its submissions in respect of this aspect and the further aspects of this accident.

23.  The Claimant submits that the accident was wholly caused by the design fault of the stormwater drainage system, which was in place on the roundabout at the time of the Claimant’s accident.  He relies on an expert report which indicates that the metal grate provided inadequate friction supply for the Claimant to maintain control of his motorcycle and was the sole cause of the Claimant losing control and the accident, and therefore his injuries.  The Claimant submits, therefore, that the accident was neither wholly nor mostly his fault and that in addition this is not a no-fault motor accident as defined in the Act.

24.   The Claimant has provided extensive supplementary submissions following the first teleconference that I held with the parties.  These submissions deal with each of the Insurer’s submissions, which it submits would disentitle the Claimant to continuing statutory benefits.  I will deal with each in turn.

Was the Claimant wholly or mostly at fault?

25.  The first submission from the Insurer is that the Claimant was wholly at fault for not driving to the roadway conditions and losing control of his vehicle.  In its internal review decision it said that the Claimant failed to drive to the conditions and failed to keep a proper lookout for changing road conditions.

26.  The Claimant relies on his statement as to his experience as a motorcycle rider over the last nine years, both in Australia and extensively overseas.  He has travelled around a number of countries on a motorcycle.  He says that although he had ridden his motorcycle to the Warringah Mall Shopping Centre previously, he had entered by a different entrance and he had not previously driven over the metal grate involved in his accident.  He says he was travelling at only 10 to 20 kph as he approached the roundabout and that it was part way through that he noticed the grate which extended right across his lane.  He said as his motorcycle encountered the grate, it felt “like I was on ice.  I could not control the motorbike.  My front wheel, which was on the metal grate at the time, lost traction and slid out, causing me to come off the bike and land on the road on my right side”.

27.  I have viewed the photographs and the CCTV footage of the accident.  These show the Claimant’s motorbike entering and attempting to travel around the roundabout and then the motorcycle sliding when it encounters the metal grate.  The motorcycle is travelling at a slow speed, applicable for the roadway and for the fact that it had been raining.  I am unable to find, as the Insurer submits, that the Claimant was not keeping a proper lookout nor driving to the roadway conditions.

28.  This is particularly so as the Claimant relies on an expert report from Mr Grant Johnston, a consulting engineer, dated 17 September 2018.  The opinion of Mr Mr Johnston is unanswered in the Insurer’s material.  Mr Johnston has provided a 29 page report together with annexures in which he analyses the accident and the cause of it.  His conclusion is that the incident was caused by a friction supply deficit due to the highly polished metal grates installed in the circulating roadway of the roundabout.  He further concluded that the Claimant’s speed of about 20 kph would have been adequate with normal friction supply and was a reasonable speed.  Having reviewed photographs and the CCTV footage, he further opined that there was nothing adverse nor unusual in the Claimant’s riding behaviour that contributed to the accident.  He concluded that the incident was wholly attributable to a design fault in the stormwater drainage system and in particular the use of highly polished metal grates within the circulating roadway which provided inadequate friction supply to the Claimant’s motorcycle.  He ended by indicating that the incident was, in his opinion, not substantially or even partly caused by the actions of the Claimant.

29.  The accident was reported to the Police but they did not attend the accident scene.  The Police accepted the Claimant’s description of the accident and the sliding of his motorcycle being as a result of his losing control on the metal grate.

30.  I am satisfied, therefore, that the accident was not caused wholly or mostly by the fault of the Claimant.  Indeed having regard to all of the material to which I have referred, I am satisfied that the Claimant has not been partly at fault for the accident, which has been wholly caused by the condition of the roadway, which caused the Claimant to lose traction, fall off his motorcycle and sustain injury.

Was the accident a no-fault motor accident?

31.  The Insurer also submitted that the accident was a no-fault motor accident.  The Claimant does not agree.

32.   A no-fault motor accident is defined in section 5.1 of the Act in the following terms:

“No-fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person”.

33.   The Claimant submits that the provisions of Part 5 of the Act do not apply because the accident was caused by the fault of another person.  This is said to be the entity responsible for the road condition, namely the owner of the Warringah Mall Shopping Centre.  I have already indicated that I do not regard the Claimant as being at fault, either wholly or partly for causing the motor accident.  I have also indicated that I am satisfied that the accident was caused solely by the road conditions for which another person would be responsible.  The accident, therefore, was caused by the fault of another person and does not meet the definition of a no-fault motor accident as contained within the Act.   I note the definition of fault, as I have set out earlier, as meaning negligence or any other tort.  Accordingly, the Insurer’s submission in this regard must also fail.

Is the Claimant precluded from ongoing statutory benefits if he has a potential cause of action against a third party?  In addition, is the accident then not a motor accident?

34.    The Insurer further submits that if the Claimant has a right of recovery against a separate tortfeasor then the Claimant has no further entitlement to statutory benefits.  It further submitted that if the condition of the roadway caused the accident then this was not in the use or operation of a motor vehicle and would disentitle the Claimant to any claim for statutory benefits.

35.   I have already noted the definition of motor accident and clearly this accident falls within that definition.  It involved the use or operation of a motor vehicle that caused injury to the Claimant where such was the result of and caused by the driving of the vehicle.  Such is consistent with the Insurer’s initial decision to accept the Claimant’s claim for statutory benefits.

36.   The Claimant submits that there is nothing in the Act to preclude the Claimant from receiving statutory benefits where he may have rights against a separate tortfeasor.

37.   Division 3.5 of the Act places restrictions and limitations on statutory benefits.  The provisions of sections 3.34 to 3.39 do not preclude the recovery by the Claimant of statutory benefits, in the circumstances here.

38.   Section 3.40 of the Act deals with the effect of recovery of damages on statutory benefits, in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, which provides that on recovery of such damages, the Claimant ceases to be entitled to any further statutory benefits and the amount of any statutory benefits is to be deducted from the damages and paid to the person who paid the statutory benefits.

39.   The Claimant submits that rather than disentitling the Claimant, this provision indicates that where there is a third party tortfeasor that there is a prospect of recovery by the insurer of the statutory benefits pursuant to section 3.40.  Whether that is correct need not be decided here, although it may be argued that the fault of the owner or driver of the motor vehicle is the deemed fault pursuant to section 3.2(5) of the Act.

40.   I am satisfied, however, that section 3.40 would not preclude ongoing payments of statutory benefits in circumstances where the Claimant has a potential right of recovery against a third party tortfeasor who is not a motor vehicle insurer, at least until the Claimant recovers damages from that third party.  That has not yet occurred.

Is the Claimant required “to sue himself” to maintain his statutory benefits?

41. The Insurer further submits that the Claimant is not entitled to further statutory benefits because where he has submitted a claim against his own CTP policy this would in effect require him to sue himself, as he must claim as an at fault party to access statutory benefits.

42. The Claimant submits that that is a misconception of the statutory benefits regime established under the Act.  It submits that the Claimant does not need to sue himself to recover statutory benefits, but that he must only meet the prerequisites created by the statute.  It refers to the provisions of Division 3.1 and sections 3.1 and 3.2, to which I have already referred.

43. There is nothing in the Act that requires the Claimant to “sue himself” for the purpose of continuing statutory benefits.  Similarly, there is nothing in the Act to require the Claimant to claim as an at fault party to access statutory benefits.  The Insurer’s submissions in this regard are, in my view, misconceived.

44.  Section 3.2(5) deems liability in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.  In most single vehicle accidents it would be readily understood that there would be actual fault on the part of the owner or driver of a motor vehicle.  However, as I have found, that is not the case here.  The deemed liability in section 3.2(5) entitled the Claimant to statutory benefits, which the Insurer recognised by the payments that it made during the first 26 weeks.  Such entitlement continues unless this Claimant is, in fact, wholly or mostly at fault.  I have found to the contrary.

Is it relevant that the Insurer is not responsible for the road condition?

45.  The Insurer further submits that statutory benefits should not continue given that it was not responsible for the road condition.  The Claimant submits that this objection is confused and misconceived as the Claimant is not required to establish a breach of duty of care in order to recover statutory benefits.  It submits that the fact that the Insurer was not responsible for the condition of the roadway is irrelevant to the issue at hand.

46.  It is to be accepted that the Insurer was not responsible for the condition of the roadway.  However that is an issue for a claim for damages and not for an entitlement to statutory benefits.  I have already outlined the provisions of the Act providing entitlement to statutory benefits and that in this case, in my view, the disentitling provisions in sections 3.11, 3.28, Division 3.5 and Part 5 of the Act do not apply in these circumstances.

47.  In summary, I do not accept any of the Insurer’s submissions which would cause the Claimant’s statutory benefits to cease as at 15 September 2018 or to date.  In coming to that view I have taken into account the objects of the Act including to encourage early and appropriate treatment and care and to provide early and ongoing financial support for persons injured in motor accidents (see section 1.3 of the Act).

48.  As I have found that the motor accident was not caused wholly nor mostly by the fault of the Claimant, then sections 3.11 and 3.28 do not apply to cease statutory benefits payable to the Claimant.

Costs and expenses

49.  Part 8 of the Act relates to costs and fees.  Section 8.10 provides for the recovery of costs and expenses in relation to claims for statutory benefits, subject to the provisions of the Motor Accident Injuries Regulation.

50.  Schedule 1 to the Regulation provides, at section 3(1), that the maximum legal costs for services provided to a Claimant in connection with the assessment of a dispute about a regulated Miscellaneous Claims Assessment is to be an amount of $1,600.00.  That has now increased from 1 October 2018 to an amount of $1,633.00.

51.  Pursuant to section 3(2)(d) and (e) disputes under section 3.11 and 3.28 are regulated Miscellaneous Claims Assessment matters.

52.  I have the power to assess a Claimant’s costs in connection with this Miscellaneous Claims Assessment matter.  The issues in dispute between the parties have been complex.  The amount of work done by the Claimant’s solicitors has been significant and the likely professional costs of the Claimant’s solicitors would exceed the amount allowed in the Regulation.

53.   I propose, therefore, to allow the maximum and assess the Claimant’s costs at $1,633.00 plus GST, making a total of $1,796.30 inclusive of GST.

54. After I issued my Certificate and Reasons for decision on 6 December 2018, the Claimant made application for the expense he incurred for the report of Mr Grant Johnston dated 17 September 2018, to which I have referred above.

55. The Claimant submitted that this amount was recoverable pursuant to section 8.10 of the Act and requested a finding to this effect.

56.  The Insurer responded by indicating that this amount should not be allowed, on two bases.  It firstly submitted that the dominant purpose of the report was in respect of the proposed claim against the public liability insurer of Westfield.  It submitted that a Statement of Claim appeared already to have been filed by the Claimant against Westfield.  Secondly, it submitted that clause 20(a) of the Motor Accident Injuries Regulation 2017 precluded the recovery of such a fee.

57. The Claimant responded by indicating that the report was specifically obtained for the purpose of this dispute and whilst a claim had been notified to Westfield, no Statement of Claim had been filed.  On receipt of that submission the Insurer withdrew its submission in that regard.  It still, however, submitted that the report fee was a matter for any claim against Westfield.

58.  The parties requested that I issue a decision in relation to this expense claimed by the Claimant.  I requested any further submissions by 12 December 2018 and have considered the submissions from both parties.

59.  The Claimant submitted that the report by Mr Johnston was obtained specifically for the purpose of this application and in relation to the Claimant’s claim for statutory benefits.  He says that it was commissioned once the Claimant received the Insurer’s original decision as to liability which was dated 3 July 2018 in which the Insurer considered the Claimant mostly at fault for the accident.

60.  I note that the report of Mr Johnston refers to an initial letter of instructions from the Claimant’s solicitors dated 13 July 2018 and then subsequent correspondence thereafter, both before and after the Insurer’s internal review decision.

61. It is clear from Mr Johnston’s report that he was also provided with information in relation to the potential claim against Westfield and documents that have been obtained from Westfield and its insurers.  However the Claimant submits that the report does not have to be obtained for the sole or dominant purpose of either claim and the only test is whether the expense was reasonable and necessary.

62. The Claimant’s entitlement to recover this expense is covered by Part 8 of the Act and specifically section 8.10.  It provides:

“(1) A Claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the Claimant in connection with the claim.  Other costs and expenses include the cost of medical and other tests and reports”.

63. I am satisfied that the report was obtained both in respect of this dispute and also in relation to the Claimant’s potential claim against Westfield.  On the information before me, however, that claim is only potential and has not yet been the subject of Court proceedings, let alone any determination thereof.  The Claimant may choose not to proceed with that claim and if he does, the success or otherwise of that claim will be a matter for the decision of a Court.  At this stage, therefore, the only right of recovery of this expense would be against the Insurer.

64. I am satisfied that it is reasonable that the Claimant recover this expense given those circumstances and the assistance that the report provided to me in the determination of this dispute and the question of whether the Claimant was wholly or mostly at fault for causing the accident.  I have set out the summary of Mr Johnston’s opinion in paragraph 28 of these Reasons and the fact that this opinion and report was unanswered in the Insurer’s material.  It was, in my view, reasonable to obtain for the Claimant to be successful in this dispute.

65.  The Claimant's legal costs are regulated and reflected in the decision that I have made in respect thereof.  Expenses are subject to the Regulation.

66.  The Insurer submits that clause 20(a) of the Regulation does not permit the fee for an accident investigator’s report or accident reconstruction report because that clause provides that “Costs referred to in this Part (Division 4 excepted) do not include any of the following:  (a)  fees for accident investigators’ reports or accident reconstruction reports”.

67.  As the Claimant submits, that is a misinterpretation of the clause.  The heading to that clause makes it clear that the matters referred to therein are fees that are not regulated by Part 6 of the Regulation.  It does not provide that the fees are not recoverable.

68.  As I have indicated, I consider the fee to be a reasonable expense, to which the Claimant is entitled pursuant to section 8.10 of the Act.  It falls within “other costs and expenses” which includes the costs of medical and other tests and reports.

69.  Accordingly, I propose to allow in addition to the Claimant’s legal costs, the Claimant’s expenses of $7,409.05 inclusive of GST.

Conclusion

70. My determination of the Miscellaneous Claim is as follows:

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

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

73.  Effective Date: This determination takes effect on 17 December 2018

74.  Legal Costs and Expenses: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST and the amount of the Claimant’s expenses assessed in accordance with the Motor Accident Injuries Act and Regulation 2017 is $7,409.05.

Philip Watson
Claims Assessor
Dispute Resolution Service