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ABU v NRMA Insurance [2018] NSWDRS CA 047

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – statutory benefits – single vehicle accident – chemical spillage – no-fault motor accident – blameless accident – rental car
Legislation citedMotor Accidents Injury Act (NSW) ss 3.28, 3.36, 7.36(4), 5.1, 5.2(1), Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines cl 7.445
Cases citedN/A
Text citedN/A
Parties ABU - Claimant
NRMA 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 clause 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

ClaimantABU
InsurerNRMA Insurance
ApplicantABU
Date of Accident2 April 2018
DRS Reference10051704
Insurer Claim NumberNWRTP180067001
Decision MakerMargaret Holz

The findings of the assessment of this dispute are as follows:

For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person

Effective Date: This determination takes effect on 13 November 2018

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

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service
13 November 2018

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)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 (Cessation statutory benefits after 26 weeks to injured adult person most at fault) the motor accident was caused mostly by the fault of the injured person.

2.  On the night in question, ABU (hereafter called ‘the claimant’) was driving a Hertz rental car around a roundabout at the intersection of Allambie and Goondari Roads, Allambie Heights, when the vehicle went out of control, left the road, mounted a kerb and struck a power pole. The claimant was injured and has claimed statutory benefits against the insurer of the vehicle he was driving.

3.  The insurer has accepted the claim and statutory benefits have been paid for 26 weeks. The insurer now denies that it is required to make further payments on the basis that claimant is wholly or mostly at fault for his injuries.

4.  The claimant denies that he was at fault, stating that the accident occurred because the road was wet and there may have been grease or oil on the road, which caused him to lose control.

5.  An internal review of the insurer’s decision was carried out and a determination was made on 31 August 2018, relying on a police report and the contents of a conversation with the claimant. The original decision was affirmed.

The Evidence

6.  The Police report states:

“Whilst negotiating a roundabout, the driver lost control of the vehicle and mounted the kerb, striking a light pole.”

7.   It is noted that the roadway was wet at the time and that street lighting was on. The claimant is recorded as being the party at fault, according to police.

8.   In his conversation with the NRMA claims consultant in April 2018, the claimant reportedly stated that he slipped off the road due to heavy rain.

9.  After the insurer notified the claimant on 18 July 2018 of its intention to cease payments, the Claimant sought an internal review. His application dated 15 August 2018 makes reference for the first time to there being oil or grease on the road and he argues that he is not therefore at fault for the accident.

10.  The Consultant, Quality and Compliance of NRMA, who carried out the internal review, determined:

“In light of the above accident description provided by you and the New South Wales Police Department, I consider that you have failed to drive to the conditions, being heavy rain and a slippery road.  This has resulted in you losing control of your vehicle and colliding with the power pole.  Based on the above, I consider that you are wholly or mostly at fault for your motor accident.”

11.  Following this determination, the claimant sent an email to NRMA on 11 September 2018 stating as follows:

“I was not at fault driver because the road I was driving on was slippery due to oil/grease on the road.

The Police Report says it was raining that weekend, but I believe the potential of oil and grease has caused these materials to convert into a high viscous phase that made the road extremely slippery.

However, the Northern Beaches Hospital is located at the junction between Allambie Road and Warringah Road work has been commenced on in December 2014 and is expected to be completed late 2019.

The hospital construction site beside other sites around the area are involving heavy duty earth moving equipments such as diggers, trucks.....etc, these equipments are driving all over the area 24/7 and operating 365 days a year and chemical spillage would have been caused by such equipments.

To conclude, although these slippery materials that came from construction site equipments surrounding Allambie Road has caused the car slip off the road which caused the accident.”

Documents considered

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

Submissions of the parties

13.   The insurer submits that the claimant was wholly or mostly at fault for his injury.  It further submits that the recent assertion that the road was slippery due to the fault of some other person, being a person or company involved in the construction of the Northern Beaches Hospital, places this matter outside the scope of being a “no fault” accident in accordance with Section 5.1 of the Act.

14.  The claimant simply asserts that the accident was not his fault, for the reasons outlined above.

Consideration

15.  The first reference to there being grease or oil on the road seems to have been made when the claimant sought an internal review on 15 August 2018, more than four months after the accident. There is no mention of any substance on the road in the Police Report or the Application for Personal Injury Benefits or in the conversation that the claimant had with an NRMA consultant on 18 April 2018.  The first such mention appears to have been on after the claimant had received notice of cessation of benefits.

16.  The reference to possible ‘chemical spillage’ and the suggestion of heavy earthmoving equipment being involved in depositing the spillage was made for the first time on 11 September 2018, more that five months after the accident.

17.  Prior to the assertion about grease or oil being made, the claimant’s assertion was that it was the wetness of the road that made it slippery and caused him to slide off.  I note that he admits to travelling at 50km/h which does seem to be quite a high speed for someone navigating a roundabout on a wet road.

18.  In my view, the existence of a substance on the roadway is pure speculation on the part of the claimant, having been made late and without any evidentiary support. Had it been otherwise, the claimant would have mentioned it at an earlier time. Further, it seems to be speculation on his part as to the origin of the alleged substance. I note that the Northern Beaches Hospital is at least a couple of kilometres away from the accident site. If there was a substance of some description on the roadway, then it could have come from anywhere. There is nothing to indicate that the substance came to be on the road through the fault of anyone.

19.  The claimant is unrepresented and is understandably unaware of the requirements for establishing a no-fault accident. Section 5.1 defines a "no-fault motor accident" as:

“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.

20.  In order to defeat the possibility that the accident was a no-fault accident, the insurer bears the onus of establishing that the accident was “caused by the fault of any other person”. It must identify the person or persons responsible, even if only in a general way, and say how they were at fault. The insurer purports to rely on the claimant’s assertion of oil and grease coming from heavy earth moving equipment (presumably driven by another person) but provides no evidence of its own. As indicated, I consider the claimant’s assertion to amount to speculation. There being no other evidence, the insurer’s argument against this being a no-fault accident cannot be maintained.

21.  There are two possible causes of the accident. The first is that the accident has occurred wholly due to the claimant’s own negligence in failing to drive safely and in accordance with the prevailing conditions. If this is the case, then pursuant to Section 3.28, the claimant’s entitlement to ongoing statutory benefits ceases at the expiration of 26 weeks.

22.  Alternatively, if there was some substance on the road, whether grease, oil or something else, then this accident can be considered a no-fault accident. However, such a categorisation does not assist the claimant in relation to the cessation of statutory benefits because, pursuant to Section 5.2(1), the claimant is deemed to be at fault because he was the driver of the vehicle.  In other words, the law says that drivers who are injured in circumstances where no-one is at fault are assumed to be the person at fault for the accident.

23.   Either way, whether or not this is a no-fault accident, it is my determination that the claimant, whether through his own actions or by virtue of the deeming provision in Section 5.2(1), is the party at fault for this accident.

Legislation

24.  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 Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person.

Effective Date: This determination takes effect on 13 November 2018.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service
13 November 2018