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ACA v QBE Insurance [2018] NSWDRS CA 053

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – contributory negligence – negligence of claimant – reduction in statutory benefits – motorcyclist – failure to keep proper lookout – failure to take care for own safety – collision with truck
Legislation citedMotor Accidents Injury Act (NSW) ss 3.38, 7.36(4), Schedule 2(3)(g)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.445
Cases cited

N/A

Text citedN/A
Parties ACA - Claimant
QBE 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

ClaimantACA
InsurerQBE Insurance
ApplicantACA
Date of Accident11 April 2018
DRS Reference10052780
Insurer Claim Number360005246801
Date of Internal Review21 August 2018
Decision MakerClaims Assessor Margaret Holz
Determined on the papers.

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

For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident by any percentage.

Effective Date: This determination takes effect on 20 November 2018

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 Service
20 November 2018

Reasons for decision

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

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 insurer is entitled to reduce the statutory benefits payable in respect of the accident.

Background

2.  Just before dawn on 11 April 2018, the claimant was riding his motorbike in an easterly direction along Oakes Road, Griffith, when he collided with the rear tyre of a large truck which was crossing the road from his right and was directly in his path.  The truck was fitted with a long tray on which was mounted a large cylindrical water tank.

3.  The claimant suffered very serious injuries and was transported to St George Hospital in Sydney.  He has no recollection of the accident.

4.  The claimant submitted a claim for statutory benefits which was accepted and payments were duly made.

5.  By letter of 3 September 2018, the insurer wrote to the claimant advising that his weekly benefits would be reduced by 40% at the expiration of 26 weeks post-accident on account of the claimant’s alleged contributory negligence. The insurer relied on a factual investigation report of Pulse Investigations of 5 July 2018 and the police report. Specifically, the insurer alleged that the claimant failed to keep a proper lookout, drove in a manner unsafe in the prevailing conditions and failed to take care for his own safety.

6.  The claimant sought an internal review of this decision. On 4 October 2018, the insurer’s Internal Review Specialist affirmed the decision, relying on the claimant's claim form, the police report, the medical records from St George Hospital and the factual report from Pulse Investigations. The insurer also relied on the case of Dent v Calgagno [2016] NSWCA 289.

The evidence

7.  It is relevant in this matter to consider the actions of both parties and to weigh their respective actions when determining contributory negligence.

8.  There is no issue that the insured driver has been negligent. Police investigations have not yet concluded, but it is expected that the insured driver, Mr D, will be charged with an offence.

9.  Because the investigation remains incomplete, police officers have been unable to provide copies of written statements, but the police officer when interviewed, has provided a narrative of what the insured driver told police on the day of the accident.  It is, in some respects, different from what he told the insurer’s investigator.

10.  The police officer was able to confirm that there were no witnesses to the incident, that mechanical inspection of the claimant’s motorcycle did not reveal any defects or component failure which may have contributed to the incident and that the results of blood alcohol testing of both parties were unavailable.

11.  Essentially, little is known about the actions of the claimant in the moments leading up to the accident.  The insured driver did not see him prior to impact and merely heard and felt a thud when the motorbike ran into him.  The claimant was found some 5 metres away from what is assumed to have been the point of impact, although quite where that was on the roadway is unclear.  It does seem that the claimant came off his bike and flew across the back of the tray of the truck, missing the water tank, before landing on the ground.

12.  The insurer alleges that the claimant was proceeding at 80km/h in a 50km/h zone.  Firstly, the speed limit in the area was 60km/h not 50km/h, according to the police report.  Secondly, there is no evidence at all of the claimant’s speed.  The figure of 80km/h appears in the ambulance report contained in the hospital notes, having been communicated by someone who was obviously not at the scene and therefore not in a position to make any judgment of speed. The police officer was unable to offer any information concerning the claimant’s speed and the insurer’s allegation is unsubstantiated.

13.  By contrast, the actions of the insured driver are well known.  He says that he was travelling east along Oakes Road, intending to collect water from a council water source which was on his left. As he approached the turn off to the water source, he activated his left indicator. Rather than turn left, he then veered across the road to the right and onto a dirt verge, where he executed a wide U-turn which placed him opposite the entrance and driveway leading to the water source.  His left indicator was still operating.  He had his lights on.  The driver then proceeded straight across the road towards the entrance to the water source and as he did so, his truck was struck by the claimant’s motorcycle.

14.  Although the driver told police that he was proceeding only at 10km/h as he crossed the road, his version to the insurer’s investigator was that he was doing between 20km/h and 40km/h, probably in third gear.  He admits that his left blinker was still on.  He admits that he did not stop before re-entering the road to drive across it.  It seems that the last time he checked for traffic was before he veered off to the right.  When asked whether he had seen any lights coming from the west, he said:  “No I didn’t. I don’t think I looked. I just entered the road and faced north and then went across the road and as the tail end of my truck is making its way across the lane I heard and felt this thud.”

15.  The driver, having heard and felt the thud, proceeded across the road, onto the driveway of the water source and only then looked in his side mirror and could see something on the road, which turned out to be the claimant.

16.  While the insured driver believes that the claimant would have been almost in the centre of the east-bound lane (i.e. on his correct side of the road) at the time that the collision took place, there is no evidence concerning the actual point of impact on the roadway, usually ascertainable by the presence of debris.  The police information, such as has been ascertainable, does not include that detail.

17.  The negligence of the insured driver is manifest.  The activation of a left indicator prior to turning right may not have been causative of the accident, but the fact that the driver emerged onto the roadway from the claimant’s right, still indicating that he was making a left-hand turn, may well have caused or contributed to the collision. Further, it seems clear that the driver did not look for oncoming traffic or stop before starting to drive across the road towards the entrance to the water source.  Had he done so, he should have seen the claimant’s motorcycle.

Documents considered

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

Submissions

19.  The insurer relies on the factual report from its investigator, although much of that material is hearsay.  There are photographs of the scene of the accident, but they are of poor quality and nothing can be discerned from them. The insurer submits that the claimant was not taking care for his own safety, that the truck was visible to the claimant because its headlights were on, that the majority of the truck had already passed in front of the claimant prior to impact and that the claimant had an opportunity to take evasive action and/or attempt to avoid the collision.

20.  The claimant’s solicitor submits that, faced with a vehicle with its left blinker on, the claimant would have expected that the driver would execute a left turn and not proceed directly across the road.  It is submitted that the roadway is 6.1 metres wide and that the truck is 8 to 10 metres long. It is submitted that the claimant may have been closer to the front of the truck in the moments before impact and that he may have swerved to the right to try and avoid the truck or at least to avoid the water barrel in the middle of the truck.

21.  It is submitted on behalf of the claimant that he did not have sufficient time to take any precaution and that the truck driver’s actions made the accident inevitable and unavoidable.  Further, as the claimant ended up 5 metres from the truck, this suggests that he was travelling at a relatively low speed.

22.  It is submitted that the insurer has not engaged in a comparative exercise of weighing the respective actions of the parties and that had it done so, the claimant’s contributory negligence would be nil.

Consideration

23.  The insurer bears the onus of establishing contributory negligence.  In my view, it has failed to discharge that onus.  There is no evidence that the claimant, when faced with a very long truck emerging onto the roadway where he was travelling, has acted in a manner that might be considered negligent.  The fact that the truck’s headlights were on does not suggest that the claimant may have acted negligently, in the context that the truck has emerged suddenly from the side of the road with its left indicator on and then crossed the claimant’s path. There is nothing in the material relied on by the insurer to indicate that the claimant failed to take evasive action. The fact that he missed striking the large water tank on the back of the truck may suggest however that he did attempt to swerve.

24.  The facts surrounding this accident have no similarity to those in the case of Dent v Calgagno except that both involve a motorcycle colliding with another vehicle on the road. The citing of this decision does not assist the insurer.

25.  The insurer has not established negligence on the part of the claimant, such as to enable a balancing of the respective negligent acts to take place.  The clear and substantial negligence of the insured driver cannot be balanced against any actions on the part of the claimant, because the insurer has not established what his actions were or that they were negligent.  Once the issue of speed is taken away (and there is no evidence at all of the claimant’s speed pre-accident), then all we know about the claimant’s actions is that he collided with the rear wheel of a very large truck that was crossing his path just before dawn.

26.  I am not satisfied that the insurer has established that the claimant contributed to his accident by 40% or indeed, by any other percentage.

Legislation

27.   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

Costs

28.  I am satisfied that the Claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident by any percentage.

Effective Date: This determination takes effect on 20 November 2018.

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 Service
20 November 2018