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ACH v GIO Insurance [2018] NSWDRS MR 060 – DECISION UPHELD BY SUPREME COURT

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – cessation of payments – fault of the injured person – whether accident is motor vehicle accident – no-fault accident – blameless accident – accident during course of employment – workers compensation claim – truck driver – shipping container – self-represented Claimant – costs for a self-represented Claimant
Legislation citedMotor Accidents Injury Act (NSW) ss 1.4, 3.1, 3.11, 3.28, 5.1, 5.2
Cases cited

Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26

Text citedN/A
Parties ACH- Claimant
GIO Insurance Ltd - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

ACH Certificate

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

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantACH
InsurerAAI Limited trading as GIO
Date of Accident29 April 2018
DRS Reference10057535
DRS Decision MakerBelinda Cassidy
Date of Decision13 February 2018

The findings of this assessment are:

  1. For the purposes of section 3.11 of the Act, the motor accident was not caused by the fault of ACH.
  2. For the purposes of section 3.28 of the Act, the motor accident was not caused by the fault of ACH.
  3. As the Claimant was not legally represented there are no professional legal costs or disbursements to be assessed.

Belinda Cassidy Claims Assessor

Dispute Resolution Services

Reasons for Decision

Introduction

1.   ACH was injured in an accident on 29 April 2018. He was driving a truck, towing a trailer upon which had been loaded a shipping container. The truck and its trailer tipped over causing ACH injury.

2.   ACH has made a claim for statutory benefits under Part 3 of the Act. The claim is made upon GIO, the third-party insurer of the truck he was driving and ACH has received income support and treatment benefits for the first 26 weeks after the accident but the Insurer has denied liability to pay statutory benefits to ACH beyond that first 26 weeks.

3.   ACH made a claim against GIO General Limited the third-party insurer of the vehicle he was driving.

4.   On 3 August 2018 ACH was notified by GIO that it was cutting off ACH’s statutory benefits. ACH disputed that decision and sought internal review. The internal review confirmed the Insurer’s original decision and ACH has now lodged an application for determination of the dispute with the Dispute Resolution Service 21 October 2018. The dispute has been allocated to me for assessment.

Background

5.   ACH’s claim for statutory benefits is made under, and governed by, the provisions of Part 3 of the Motor Accident Injuries Act.

6.   Noting that ACH was at work on the day of the accident, I asked the parties at the first teleconference whether s 3.35 of the Act applied (no benefits if workers compensation payable).

7.   I was advised that this issue had been raised by the Insurer with ACH, but that after investigations by the GIO, the Insurer was satisfied that ACH did not have a workers compensation claim.

8.   I have held three teleconferences in this matter (on 5 and 13 December 2018 and 11 February 2019) mainly because of the complexity of the arguments raised by the Insurer and as ACH had indicated that he would like to obtain legal advice. ACH has had difficulty obtaining that advice.

9.   After the first teleconference, the Claimant provided me with photographs of the accident scene and two of those photographs are reproduced below.

Insurer decision making

10.   The Insurer’s reasons for denying liability to ACH have varied over time. This is because the Insurer’s categorisation of the accident, the cause of the claim, has varied over time. This appears to be because the Insurer has not yet undertaken any investigation into the accident other than requesting the police report.

11.   The Insurer has communicated to ACH:

a.   He was wholly at fault (original decision)

b.   His accident might be a no-fault accident and therefore he may be deemed to be at fault (internal review decision)

c.   His accident is not a no-fault accident (first submissions)

d.   His accident is a no-fault accident (further submissions and final submissions)

Original decision

12.   In its original decision dated 3 August 2018, Melanie Clayton advised ACH that GIO denied liability to pay statutory benefits beyond the first 26 weeks after the accident because:

In making our decision regarding liability we must consider whether:
  • the person insured owed you a duty of care; and
  • the person insured breached that duty of care; and
  • the person insured was most at fault; and
  • you suffered injury, loss or damage as a result of our insured person's negligence.

We have considered the following information in relation to the accident:

  • Single vehicle accident with loss of control of vehicle
  • In accordance with the Motor Accidents Injuries Act, the driver of the at fault vehicle is not eligible for statutory benefits after 26 weeks.

We have considered the following information in relation to your injury/s:

  • Minor Injury decision dated 03/08/2018 assessing the injury as Non-Minor

Based on that information we deny liability for your claim for statutory benefits following the first 26 weeks after the accident.

13.  GIO’s letter appears to be denying liability under s 3.11 and 3.28 of the Act because the accident was a single vehicle accident and the Insurer is of the view that the driver of the at fault vehicle is not entitled to payments beyond the first 26 weeks. It would appear the Insurer was alleging ACH is wholly at fault for causing this accident.

Internal review decision

14.  The Insurer’s reasons for its internal review decision were written by Mar-lize Crawford. She says:

The writer notes at time of the subject motor vehicle accident you were the driver of a truck, your vehicle was the only vehicle involved in the subject motor vehicle accident.

You reported you were stopped at red lights. When the lights turned green, you proceeded to turn Right at a speed of less than 10km/hour. The truck rolled over badly.

The NSW Police report found you to be responsible for the subject motor vehicle accident. The Police report stated as you turned right onto Kent Road, while passing through the intersection, your vehicle flipped on its near side. It was unknown at that stage if the load was secure within the trailer.

Do the ‘no fault’ provisions apply?

Part 5 of the Motor Accident Injuries Act 2017 allows for ongoing coverage for injured people where the accident is 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.

You reported your vehicle rolled over when you proceeded to turn right. As the driver of the vehicle it is your responsibility to safely control the vehicle. You failed to do so, resulting in the vehicle rolling over when you executed the right turn. The writer does not consider the circumstances of the accident to fall under the definition of a no-fault accident.

Even if the circumstances of the accident did fall under the definition of a no-fault accident, the writer further notes: Section 5.2 deems you, as the driver, to be at fault. Section 5.4 operates to exclude drivers at fault and states a driver has no entitlements if the motor accident concerned was caused by an act or omission of that driver. The act or omission need not constitute fault, can be involuntary, and need not be the sole or prime cause of injury. The writer considers your act of driving the vehicle, and your omission to safely control the vehicle, to satisfy Section 5.4.

Accordingly, even if circumstances of the accident fell under the definition of a no-fault accident, Sections 5.2 and 5.4 operate to exclude your claim.

With reference to the above, the writer affirms the decision of GIO’s Claims Team that you are wholly or mostly at fault for the accident. This means you are not entitled to statutory benefits past 26 weeks after the motor vehicle accident.

15.  This decision for the first time raises the question of whether the accident was a no-fault accident and takes issue with the manner of ACH’s driving.

Insurer’s submissions with the reply form

16.  The original submissions lodged with the application to DRS again raise concern with ACH’s driving and now dismiss the question of whether the accident was a no-fault or blameless accident:

The Insurer has reviewed the contents of the internal review documents dated 12 October 2018. The Insurer reiterates and affirms the findings and conclusion made that the Claimant is at fault for the subject motor vehicle accident.

GIO is the Insurer of truck, which was the only vehicle involved in the motor vehicle accident.

The Claimant was responsible for safely navigating the right-hand turn and failed to do so, resulting in the accident. The Claimant states the load was unsecure and this caused the

accident. As the driver of the vehicle, it is the Claimant’s responsibility to ensure his load is secured and ensure his vehicle and trailer are fit to be driven on the road.

The NSW Police stated it was unclear if the load was secured.

If the Claimant considers another person at fault for the accident (such as for the unsecured load), the Claimant should consider legal action against that person rather than the CTP Insurer of the truck.

The Insurer does not consider Part 5 of the Act to apply. The Insurer does not consider the circumstances of the accident fall under the definition of a no-fault accident. It has not been asserted that the accident is a no-fault accident, and there is no available evidence to suggest the accident is a no-fault accident.

Insurer’s further submissions

17.  The Insurer’s further submissions revert to the position that ACH’s accident is a no- fault or blameless accident and state that:

a.   For a Claimant to continue to receive statutory benefits beyond the first 26 weeks, the Claimant must not be wholly or mostly at fault and someone else must be wholly or mostly at fault;

b.  The Insurer says it is unclear whether the Claimant alleges the accident is blameless and that if the accident is a blameless accident, the Insurer argues that by operation of s 5.2, the Claimant is deemed to be wholly at fault.

c.   The Insurer says at [14] that the Claimant needs to prove fault on the part of the owner or driver of a vehicle in order to continue to receive benefits.

d.  The Insurer submits at paragraph 20 that fault is defined in s 1.4 to include negligence and that negligence must involve the use or operation of the vehicle and must satisfy the causal and temporal requirement of the definition of a motor accident.

e.   If the accident was caused by the ‘owner’s negligence or tort’ in its failure to properly secure the load then that is not negligence within the use or operation of a motor vehicle [22].

f.  At [24] the insurer appears to be saying that there has to be some person other than the Claimant to blame for this accident in the use or operation of the vehicle.

g.   The Insurer at [27 – 29] and [36] says that the Claimant may have other rights under the workers compensation scheme or under the Civil Liability Act and he should exercise those rights.

h.  The Insurer says it is up to the Claimant to decide whether he makes a no-fault accident claim under Part 5 of the Act and if he does not make such a claim then he must be wholly at fault because there is no one else who used or operated the vehicle who was at fault.

i.   At 33 the insurer says that if the Claimant establishes fault on the part of the owner then the insurer reserves its right to investigate the accident further.

j.   The Insurer refers to section 5.4 which I note has been amended and is effective on 8 Jan 2019 for all accidents after 1 December.

18.  The Insurer sent further submissions on 12 December 2018. The Insurer restated its view that the accident is a no fault (blameless accident because):

a.   The Claimant is not wholly or mostly at fault for the accident and that

b.  No other person is identified that can be wholly or mostly at fault for the accident.

19.  The Insurer said that s 3.11 and 3.28 permit the Insurer to terminate the Claimant’s statutory benefits because the Claimant is deemed to be wholly at fault.

The second teleconference and the evidence

20.  In an email to me dated 28 November 2018, ACH explained that he was working as a sub-contractor with XXXXX XXXXXXXX which was contracted to XXXX (XXX). XXXX provides container services to XXXX. He says at XXXX’s yard in Mascot the container was loaded onto his truck with a forklift and that the container was sealed. He said drivers are not allowed to break the seal and check the container from the inside. He said a driver’s responsibility is only to check the ‘twist locks’ and that it is XXXX or XXXX’s responsibility to check the load from the inside.

21.  Further on in that email ACH says ‘The load was unsecured, that’s why it happened. They didn’t load properly from inside’.

22.  At the second teleconference on 13 December 2018 I asked ACH a number of questions about how the accident happened and his evidence is reproduced below:

a.   ACH had been driving trucks for XXXXXX for 1 year and before that 5 or 6 years with a different company.

b.  He had driven the same way about 10 times in a day – he said it was very near from the yard (where he collected the containers) to Botany.

c.  He had never had a truck tip over – he had not had a single accident, nothing was on his record, ‘I have had zero accidents’.

d.  He did not have a co-worker in the cab, he was on his own.

23.  ACH provided me with four photographs of the accident and its aftermath which had been provided to him by other drivers.

24.  I asked ACH about the trailer twist locks. ACH did not think that any of the photographs showed the trailer twist locks. He said these twist locks, lock the container on to the trailer. Normally there are 4, but if there are two containers there are 8 twist locks. ACH said on the day of the accident he recalled locking the twist locks. He said there is no independent person who checks that the twist locks are locked.

25.  Also, in his email of 28 November is reference to the container seals. He said it is the responsibility of the person who owns the cargo inside the container to apply the seals. Seals are applied to ensure the contents of the container are secure and cannot be interfered with during transport and eventual export. ACH said none of the photographs showed the container seals.

26.  The parties agreed that photograph 1 (on page 3 of these reasons) shows the cab of the truck and the container but the trailer cannot be seen. ACH that he was the person in the safety vest lying on the top of the cab and that the other people are co-workers or people who lived nearby. The parties agreed that photograph 2 shows the underside of the truck and the trailer tipped over.

27.  Mr Campbell agreed that when he considered the two photographs they show the container is still on the trailer and the trailer is still attached to the prime mover.

28.  ACH said that the police attended the accident scene along with rescue personnel who got him down from the cab of the truck and into the ambulance.

29.  ACH said he was not charged by the police with anything. He is not aware whether anyone else was charged but he recalled giving a statement to the police some weeks after the accident. Mr Campbell confirmed GIO had not requested any further police records or reports.

30.  ACH did not think that anyone else had investigated the accident, such as Workcover.

31.  Mr Campbell agreed that the evidence provided by ACH indicated that the accident did not occur as a result of the container coming off the trailer and that at all times the trailer was affixed to the container and that therefore it was not the twist locks that had failed.

32.  I asked ACH to confirm whether, on the basis of the evidence he had given to me and what he said in his claim form, the application to DRS form and in his email of 28 November, he submits that this accident occurred because the load inside the sealed container was unsecured, the load shifted when he turned the corner and that caused the truck and the trailer to tip. He agreed that was so.

33.  Mr Campbell agreed with that statement at first clarifying that there may be other acts or omissions that contributed to the accident for example he said that ACH says his speed was 10 kms in the claim form but the police say 20 kms. ACH did not know where the police got the figure of 20 kms per hour from as he was sure he was doing 10 kms per hour.

34.  I asked Mr Campbell whether it was the position of GIO that it now abandons any suggestion that ACH was actually wholly at fault. Mr Campbell agreed and said that it was GIO’s position that there was no actual fault on the part of ACH.

35.  Mr Campbell said that he agreed that the cause of the accident was the incorrect loading of the cargo inside the container ACH was transporting. Mr Campbell said that the person who loaded the container was at fault but this was not fault in the use or operation of the vehicle and therefore GIO was not liable. Mr Campbell and GIO have previously asserted ACH may have common law rights against the entity responsible for loading the container and that he should pursue those rights.

36.  Mr Campbell said that that GIO asserted the accident was a no-fault accident because ACH was not at fault and no-one else was at fault in the use or operation of the vehicle.

37.  Because the accident is, in the GIO’s view a no-fault accident, Mr Campbell said that by operation of s 5.2(1), ACH is deemed or taken to be wholly at fault and that s 3.11 and s 3.28 permit the insurer to terminate a person’s statutory benefits when they are actually wholly at fault or when they are deemed to be wholly at fault.

What are the issues in this matter?

38.  The submissions raised by the Insurer identify the following issues:

a.   Is ACH’s accident a motor accident within the meaning of s 1.4?

b.  Is his accident a no-fault or blameless accident within the meaning of s 5.1?

c.   Is ACH wholly at fault?

Is ACH's accident a motor accident?

39.  Section 1.4 defines a motor accident as ‘an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person whether the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during the driving of the vehicle, a collision, the vehicle running out of control or a dangerous situation caused by …’.

40.  This definition does not include the word ‘fault’.

41.  ACH’s accident was, in my view, an incident or accident involving the use or operation of a truck towing a trailer designed to carry shipping containers and loaded with a shipping container bound for Botany Bay. ACH was driving the vehicle which is a form of ‘use or operation’ of the vehicle. It was during the driving of the vehicle around a corner which Mr Campbell agrees has caused the accident and ACH’s injury.

42.  I am satisfied ACH’s accident is a ‘motor accident’ within the meaning of the Act.

Is ACH’s accident a no-fault/blameless accident?

43.  GIO say that ACH’s accident is a no-fault or blameless accident. Section 5.1 defines a no-fault accident as ‘a motor accident … not caused by the fault of the owner or driver of any vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person’.

44.  I have some doubt that section 5.1 applies to ACH’s claim as he is making a claim under Part 3 of the Act for statutory benefits and section 3.1 of the Act suggests the payment of those benefits are regulated only by Part 3. Section 5.1 is in Part 5 and not Part 3 of the Act.

45.  ACH does not declare that his accident is a no-fault accident. He clearly states that the cause of this accident was due to the faulty loading of the contents of the container placed on the trailer he was towing.

46.  The Insurer has agreed that the cause of ACH’s accident was the loading of the container that was placed upon the trailer that ACH’s truck was towing. GIO is now arguing that section 5.1 should read that a no-fault accident is ‘a motor accident not caused by the fault of the owner or driver of any vehicle in the use or operation of the vehicle and not caused by the fault of any other person in the use or operation of the vehicle’. The Insurer says that while there is fault in the loading of the container, loading the container is not the use or operation of the vehicle.

47.  I do not agree with the Insurer’s interpretation of section 5.1. The legislation is clear a no-fault or blameless accident is an accident where no one was at fault that is no one who used or operated any of the vehicles involved in the accident was at fault and neither was anyone else. In ACH’s matter, the Insurer agrees with him that the cause of his accident was the loading of the cargo inside the container. While we do not know who that person was who loaded the cargo and whether it was someone employed or contracted by XXXX or XXXX, in my view that is not necessary.

48.  If I am wrong then I note the Insurer refers to the case of Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26. This was a case dealing with the 1988 legislation and a common law scheme with very different definitions of injury and motor accident and is therefore of limited utility.

49.  In my view, the loading of the container is, in the facts and circumstances of this particular case ‘use or operation of the vehicle’. The container was loaded with a view to placing it on a trailer to be towed on a truck to Botany Bay. There was no other means of getting the container to Botany Bay. There is therefore a close causal connection between the loading of the container, the use of the truck and ACH’s injury.

Is ACH wholly at fault?

50.  The Insurer agrees that ACH is not actually at fault. GIO however says that he is deemed to be at fault by operation of section 5.2.

51.  Section 5.2 only applies if ACH’s accident is a no-fault accident and I have already found that ACH’s accident is not a no-fault accident. In any event section 5.2 is the mechanism by which a no-fault claim is paid (because the terms of the third-party policy refer to fault) and because ACH’s statutory benefits claim is made under Part 3 and only the provisions of Part 3 apply to it. Section 5.2 is found in Part 5 of the Act.

52.  The Insurer at the second teleconference agreed that there was no actual fault on the part of ACH.

53.  I am satisfied on the evidence and noting the agreement between the parties that the cause of ACH’s accident was the way in which the cargo was loaded inside the container that his truck was transporting to Botany Bay. As ACH turned the corner at the exit of the XXXX yard at Mascot, the load shifted and the truck and its trailer tipped.

54.  The GIO alleged in its earlier submissions that ACH had to be at fault because there was no other driver involved in the accident and there must be an at fault driver somewhere. This argument appears to ignore s 3.1 which provides that statutory benefits are payable whether or not a motor accident was caused by the fault of the owner or driver of a motor vehicle. In my view there does not have to be a vehicle at fault in order for statutory benefits to be paid. As long as the accident comes within the definition of ‘motor accident’ and there is no disentitling conduct (serious driving offence) or circumstances (a workers compensation claim), statutory benefits flow until such time as the insurer can lawfully terminate them.

Can GIO terminate ACH’s statutory benefits?

55.  Section 3.11 and 3.28 provide that ACH is not entitled to statutory benefits (income support and treatment and care) beyond the first 26 weeks after the accident:

a.   If his only injuries are minor injuries

b.  If he was wholly at fault for causing the accident or

c.   If he was mostly at fault for causing the accident.

56.  ‘Mostly at fault’ is not an issue as there has never been any issue of contributory negligence raised by the insurer at any stage in this matter. As ACH had, on his unchallenged evidence, no way of checking the inside of the container loaded onto his truck and there is no evidence his driving in any way contributed to the accident, it is highly unlikely there could be a finding of contributory negligence made against him in any event.

57.  GIO accepts that ACH was not actually at fault and there is no issue of the deeming of fault as I have found ACH’s accident was not a no-fault accident.

58.  It follows therefore that GIO cannot terminate ACH’s statutory benefits and that he should have those benefits reinstated.

Costs

59.  ACH has never been legally represented and therefore there are no legal costs for me to assess. Had he been represented I would have assessed those costs and the Insurer would have be required to pay those assessed costs.

Belinda Cassidy
Claims Assessor
Dispute Resolution Service