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ACG v AAI Limited trading as GIO [2019] NSWDRS CA 059

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault - rear-end collision - no witnesses - no police attendance - changing lanes
Legislation citedMotor Accidents Injury Act (NSW) ss 3.11, 3.28, 7.36(5), schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

N/A

Text citedN/A
Parties ACG - Claimant
AAI Limited trading as GIO - 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 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

ClaimantACG
InsurerAAI Limited  trading as GIO
Date of Accident14 April 2018
DRS Reference10057374
Date of Internal Review5 September 2018
DRS Claims Assessor Philip Watson
Date of Decision4 March 2019

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 nor mostly by the fault of the injured person
  2. For the purposes of section 3.28 the motor accident was not caused wholly nor mostly by the fault of the injured person
  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.

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 whether the Claimant was wholly or mostly at fault for the accident.

1. There is a dispute between ACG, the Claimant and AAI Limited trading as GIO, the Insurer, in respect of whether the Claimant is entitled to continuing payments of weekly benefits and treatment expenses more than 26 weeks after the accident.

2. The Insurer alleges that the Claimant was wholly or mostly at fault for the motor vehicle accident and has terminated the Claimant’s entitlements.  This was by initial decision on 6 August 2018.  The Claimant sought an internal review which was issued by the Insurer on 5 September 2018, in the same terms.

3. The accident occurred in the early hours of the morning on the M4 motorway at Merrylands.  The Claimant says that the driver of the insured vehicle changed lanes into his and collided with the rear of the vehicle that he was driving.  The insured driver says that the Claimant changed lanes in front of him and hence there was a collision between the two vehicles.

4. Because of the hour of the day, it appears that there were no other vehicles on the road and no other witnesses to the accident.  The accident was reported to the police but they did not attend the scene.

5. The Insurer relies on the accident report form completed by its driver together with his signed statement.  The Claimant relies on the details set out in his claim form and his signed statement.  In effect each driver blames the other for causing the accident.

Documents Considered

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

7. At the first teleconference it was agreed that each driver would provide a signed statement.  This was arranged between the parties by the Insurer having a factual investigation carried out.  These have now been obtained and provided to me.

8. I have no photographs of the accident scene as the investigator has indicated that because of the location of the accident on the M4 motorway it was not possible to have photographs taken.

Submissions

9. The Claimant submits that I should find that the accident occurred as he has described.  He says there was no logical reason for him to be changing lanes given his entrance and proposed exit from the motorway.  He submits that the photographs of the damage to each vehicle is consistent with his version of the accident and that I would prefer his version of the accident to that of the insured driver.

10. The Insurer submits that I should accept the statement of its insured driver which indicates that the Claimant’s vehicle changed lanes into his lane and caused the collision.  It submits that the photographs are consistent with a rear-end collision, as described by its insured driver.  It submits that if I accept the statement of the insured driver then this would indicate that the Claimant was wholly or mostly at fault for causing the accident.

11. I held teleconferences with the parties on 6 December 2018, 23 January 2019 and 13 February 2019.  At the last teleconference both parties representatives agreed that this was a matter that could be determined on the papers.  Accordingly my reasons for decision are set out below.

Legislation

12. In making my decision I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Injuries Guidelines 2017

Reasons

13. In order to arrive at a decision I need to consider the material from each party as to the circumstances of the accident.

14. The Claimant lodged a claim for personal injury benefits with the Insurer dated 27 April 2018, that is less than two weeks after the accident.

15. In that form he described the accident as follows “I was travelling along the M4 doing 90 km/hour on the left lane.  Then this car hit me on the rear”.  He followed that description with a diagram.

16. The Claimant has since provided a detailed statement dated 20 February 2019.  This is a slightly amended version of the statement obtained by the Insurer’s investigator and I will refer to it rather than to the un-signed draft provided by the Insurer.

17. The Claimant is 58 years of age and says that he has held a drivers licence for approximately 35 years.

18. On the day of the accident he was driving a Renault van, owned by his employer.  He works as a contracted driver to deliver bread to various businesses between Parramatta and Broadway and he was in the process of this work when the accident occurred.

19. He says that at about sometime between 2.40am and 2.55 am he had driven from his employer’s premises along the Cumberland Highway and then entered the M4 motorway and was driving east bound towards the Church Street, Parramatta exit.  He says that at all times he drove within the left lane on the road which at that stage had a speed limit of 90kph.  The Claimant believes that at that part of the motorway there were four lanes for traffic heading east.

20. The Claimant says that he was driving at approximately 80kph and had remained in the far left lane as he intended to take the next exit which would be accessed from the left lane.  He says that he travels this same route every single day as part of his work.  He said at the time there were no vehicles ahead of him and he did not see any vehicles behind him.

21. He said where the accident occurred the road was straight and flat and the roadway was well lit.  He said he was continuing driving in the left lane when suddenly he felt something hit his vehicle from behind and his vehicle was rocked forward pulling to the left.  He says he immediately indicated to the left and merged into the breakdown lane and stopped.

22. When he got out of the vehicle he said he noticed a white coloured utility had stopped behind him and he noticed damage to the front near the left headlight.  He spoke to the driver of the other vehicle, now known to him as Mr K.

23. He says that when he looked at Mr K he appeared to be “somewhat strange” and the Claimant thought he might have been tired.  The Claimant believed that he may have fallen asleep.  The Claimant said he asked Mr K “what happened?”  He says Mr K turned away and did not respond and as a result the Claimant called the police.  He provided details of the accident to the police but as the vehicles were driveable and neither driver appeared to require an ambulance he was advised that the police would not attend.

24. He says he then exchanged details with Mr K and continued on his work so that he could finish his deliveries.  Returning from his employer’s premises about an hour and a half later and travelling the same road he noticed that Mr K and his vehicle were still at the accident scene.

25. The Claimant says that there were no passengers in either vehicle and no other witnesses and the damage to the van was on the rear right door and the back right rear corner.  In the Claimant’s view he did not contribute in any way to the occurrence of the accident.

26. The Insurer has provided a signed statement from its insured driver, Mr K, which is dated 27 January 2019.  Mr K is 35 years of age and had held a licence at the time of the accident for approximately six years.

27. Mr K says that he was driving a Holden Rodeo utility which belonged to his cousin’s wife.  He had driven this vehicle on a few short trips previously.  He had stayed at his cousin’s house the night before and had been offered the vehicle to return to his home.  He needed to be home early and that was the reason he was on the roadway at the time of the accident.

28. Mr K says that he also entered the motorway from the Cumberland Highway on-ramp and he had no passengers in his vehicle.  He says that he was also driving east bound, like the Claimant, and was not intending to exit the motorway until the end of it, at Concord.  He agrees that he speed limit was 90kph and he says that there were three lanes of travel for vehicles in that direction.

29. Mr K agreed that the roadway was straight and flat but that where the accident occurred there was a slight left bend but nothing difficult to navigate.

30. He says that after entering the M4 motorway he merged into the far right lane and was driving at about 90kph.  He said he noticed another vehicle to his left in the far left lane after passing the underpass of Coleman Street.  He said it seemed to be driving slower than the speed limit as he was making ground on it.  It says that he noticed that on a few occasions it seemed to drift to the right but never left its lane.  He says that he then noticed the vehicle merge into the middle lane but could not recall if there was any indication for this.  He says at that stage the other vehicle was still ahead of his by about two to five metres.  This was the Claimant’s vehicle.

31. He says the two vehicles were then navigating the bend and it was the final section of the bend where the accident occurred.  He says at that point the front bonnet of his vehicle was in line with the rear of the Claimant’s vehicle when suddenly the Claimant’s vehicle appeared to straighten and continue directly into his lane.  He says it did not completely enter the lane only the right side of the vehicle and the rear right corner of the Claimant’s vehicle collided with the front left corner of his vehicle.  He said that he never expected the Claimant’s vehicle to merge into his lane.

32. Mr K says the Claimant’s vehicle then returned back to the middle lane and  indicated to the left and both vehicles pulled over on the left side of the motorway.

33. Mr K agrees that he spoke with the Claimant and said to him “You hit my car.  Why did you cut into my lane, nobody was in front of us”.  He said the Claimant replied “Let the insurance sort it out”.  He agreed that the Claimant then rang the police and he said that both he and the Claimant then took photographs of the damage to the vehicles and exchanged particulars.  I should say that I have been provided with copies of these photographs which confirm the areas of damage mentioned by both drivers.

34. Mr K said he thought his vehicle was driveable but he realised it wasn’t and he decided to wait for his cousin.  He agreed that the Claimant left the scene after a few minutes.

35. Mr K believes that the Claimant was responsible for the accident, for entering his lane.  He thought he might have been sleepy but said that he did not notice anything about him at the scene that would imply that he was fatigued.  He described the lighting in the area as only low.

36. It is clear that the accident occurred when the front left side portion of Mr K’s vehicle collided with the rear driver’s side portion of the Claimant’s vehicle.  It is also clear that one or other vehicle must have altered its path and changed lanes for the collision to have occurred.  The question of course is which driver was wholly or mostly at fault for the collision.

37. I have not had the opportunity of an assessment conference from which I might form an impression of either driver.  As I indicated both parties agreed that this was a matter that could be determined on the papers.  I am left therefore with the statements from each driver.  The photographs of the damage to the vehicles would be consistent with either version.

38. For the reasons that follow I am satisfied on the balance of probabilities, that the accident occurred in the circumstances as described by the Claimant.  My reasoning for this is as follows:

a. The Claimant was travelling his normal route for work.
b. He was driving a vehicle with which he was very familiar.

c. There was no reason for the Claimant to have changed lanes from the far left lane, as he intended to leave the motorway at the next exit.
d. The Claimant says that he had had a full nights sleep and this was part of his usual routine commencing work just after midnight.
e. I accept the Claimant’s statement that Mr K looked somewhat strange perhaps because he was tired.
f.  It is unlikely that Mr K was driving in the far right-hand lane of the motorway, when he would know that the legal requirement was to keep to the left unless overtaking, as he had held a licence for approximately six years.
g.  It is unlikely that a driver with that experience would not alter his speed nor course, if he noticed the other vehicle changing lanes without indication and approaching his vehicle.  If that had been the case, then in my view it is more likely that Mr K would have slowed his speed or changed his lane to avoid the possibility that the Claimant’s vehicle would continue to merge right, given that it was just a short distance ahead of him.
h. Mr K does not say that he attempted to brake or steer away from the Claimant’s vehicle to avoid a collision, as would also be expected.
i.  Mr K’s description of the circumstances was in less than certain terms.  He says “the other vehicle appeared to straighten and continue directly into my lane”.

39. I am satisfied therefore on the material before me, that the accident occurred as described by the Claimant rather than as described by Mr K.  In those circumstances with a rear-end collision and when the Claimant’s vehicle remained within its lane, there cannot be said to be any fault on the part of the Claimant.

Costs and Disbursement

40. The parties have not made submissions about legal costs.  However legal costs for a Miscellaneous Claims Assessment of this nature are permitted by Section 3, Part 1 of Schedule 1 of the Motor Accident Injuries Regulation 2017.  The maximum costs for legal services provided to a Claimant in connection with an assessment under Division 7.6 of the Act involving a dispute about a regulated Miscellaneous Claims Assessment matter, is $1,633.00 (with indexation).

39. The Claimant has engaged legal representation and his solicitors have prepared and lodged his application including preparing submissions and taken part in three teleconferences.  In my view it would be appropriate to award the maximum amount plus GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

40. For the purposes of section 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person.

41. For the purposes of section 3.28 the motor accident was not caused wholly or  mostly by the fault of the injured person

42. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $,769.30 inclusive of GST.

Philip Watson
Claims Assessor
Dispute Resolution Service