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ACS v NRMA Insurance Limited acting as agent for the Nominal Defendant [2019] NSWDRS CA 071

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Nominal Defendant – at fault – unidentified vehicle – contributory negligence – statutory benefits – police – sudden braking – traffic infringement notice – collision – contribution by claimant 75%
Legislation cited

Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 3.36, 7.36, schedule 2(3)

Motor Accident Injuries Regulation 2017

Motor Accident Guidelines effective 13 July 2018 cl 7.438, 7.441

Road Rules 2014 (NSW)
Cases cited Kosinski v Snaith (1983) 1 DLR (4th) 170.

Manley v Alexander [2005] HCA 79.

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

Mugford v Ames (2000) SASC 241
Text cited 
Parties ACS – Claimant
NRMA Insurance Limited – Insurer acting as Nominal Defendant
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

 
ClaimantACS
InsurerNRMA Insurance Limited
as Agent for the Nominal Defendant
Date of Accident16 March 2018
DRS Reference10061963
Date of Internal Review23 October 2018
DRS Decision MakerColin Stoten
Date of Decision10 January 2019
Determined on the papers

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

  1. For the purposes of section 3.11 and 3.28 the motor accident was caused mostly by the fault of the injured person
  2. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,320.00 inclusive of GST.

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

Colin Stoten

Decision Maker,

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.

1. This is a dispute between ACS and the Nominal Defendant regarding whether the managing Insurer (NRMA Insurance Limited) is entitled to deny liability for payment of statutory benefits in accordance with sections 3.11 and  3.28 of the Motor Accidents Injuries Act 2017 (“the Act”).

2. On 16 March 2018, the Claimant was driving her motor vehicle along Mamre Road, Kemps Creek, New South Wales when an unidentified vehicle suddenly pulled out from a side street on to Mamre Road, causing the vehicle in front of the Claimant’s vehicle to brake suddenly.  As a result of the sudden braking of the vehicle in front of her, the Claimant was forced herself to brake suddenly but unfortunately she collided with the vehicle in front of her.  The owner and/or driver of the unidentified vehicle cannot be established after due search and enquiry, and that is not an issue before me.

3. The Insurer, after considering the medical evidence and conducting a factual enquiry in relation to the circumstances of the accident, has declined to make payment of any statutory benefits beyond the first 26 weeks.

4. On 19 September 2018, the Insurer denied liability for any further statutory payments on the basis that the Claimant’s injuries were minor and that the Claimant was wholly at fault in respect of the accident.

5. The Claimant’s solicitors, by application made on 27 September 2018, sought an internal review.  That internal review took place and was determined on 23 October 2018.  The internal review determined that the original decision made on 19 September 2018 was correct and that no further statutory payments beyond 26 weeks would be made.

6. The Claimant brings this application for determination of the correctness of the Insurer’s position by application dated 12 November 2018.

7. I note that the application for determination of this miscellaneous claims dispute seeks to challenge the Insurer’s internal review in respect of both the issue of minor injury, as well as the issue of fault.  My decision in respect of this matter is only in relation to the issue of fault and not in respect of minor injury.

Documents considered

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

Submissions

9. The Claimant submits that the driver of the unidentified vehicle was clearly at fault because in entering on the roadway of Mamre Road in front of the vehicle travelling in front of the Claimant created a danger of collision, in circumstances where the driver of the unidentified vehicle was required to give way to traffic travelling on Mamre Road.  As a result of the actions of the unidentified driver the vehicle travelling in front of the Claimant was forced to brake heavily, creating a need on the part of the Claimant to also brake heavily in an attempt to avoid impacting the rear of the vehicle in front.  Although the Claimant’s vehicle did strike the rear of the vehicle in front, the actions of the Claimant in the circumstances were said to be reasonable and that any blame that is placed on the Claimant in those circumstances would be modest, and would certainly not lead to a finding that the Claimant was mostly at fault.

10. The Insurer concedes that the unidentified vehicle owed a duty of care of other road users to exercise care and skill in operating such vehicle, but says that the driver of the unidentified vehicle did not cause the accident which followed.

11. The Insurer further submits that the Claimant had seen the actions of the driver of the unidentified vehicle and that the Claimant ought therefore to be reasonably aware of the need to brake suddenly.  The Insurer points to the fact that the driver of the vehicle travelling in front of the Claimant (Ms S) was herself able to brake, though harshly, and to bring her vehicle to a stop before colliding with the unidentified vehicle.  The Insurer says that the police issued a Traffic Infringement Notice for negligent driving.  As a result, the Insurer says that the Claimant was wholly at fault in respect of the accident.  The Insurer submits that the accident was caused wholly by the fault of the Claimant, and relies upon the police investigation which led to the issue of a Traffic Infringement Notice to the Claimant for negligent driving.

12. The Insurer also relies upon Regulation 126 of the Road Rules 2014 (NSW) which requires a driver to travel a sufficient distance behind another vehicle so that if necessary the driver can stop safely and avoid collision with such vehicle.  The Insurer submits that the Claimant did not maintain a safe distance behind Ms S’s vehicle, because an accident took place.

13. The Insurer says that the Claimant had clear visibility of the intersection and the actions of the unidentified driver which took place in front of her.  Indeed it is said that the Claimant confirms that she was aware of the situation unfolding in front of her.  The insurer points to the decision of the High Court in Manley -v- Alexander [2005] HCA 79, which requires drivers to pay attention to observable dangers.

14. The Insurer submits that the actions of the Claimant were solely to blame for the ensuing collision.

Legislation

15.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

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

17. Dealing with the issue of the findings of the police and the issue of the Traffic Infringement Notice, I note that the opinion of police officers at the scene of accidents and the issue of Traffic Infringement Notices is not determinative of the issue of fault in respect of a claim made under the Motor Accidents Injuries Act 2017.  The utility of police reports is in the information gleaned from them, not what police subsequently determine.

18. The police report identifies that on 16 March 2018 at about 5:30 p.m. an accident occurred on Mamre Road near the intersection with Kerrs Road, Mount Vernon.  The road is described as straight and level, and that the speed limit was 80 kilometres per hour.  The report identifies the two vehicles involved in the collision, namely the vehicle driven by Ms S, and the vehicle driven by the Claimant.  The vehicle driven by Ms S is described as a red Mitsubishi 4x4 motor vehicle, and was said to have been travelling at 80 kilometres per hour.  The vehicle driven by the Claimant is described as a white Toyota Hilux utility, which was also apparently travelling at 80 kilometres per hour.  The circumstances of the accident are confirmed in respect of the observations made by the police officer as to the cause of the accident.  I place no weight upon the police officer’s opinion of who was at fault in relation to the accident as this, in my view, needs to be determined on the basis of the totality of the evidence before me.

19. The police officer’s notebook sets out the versions of the drivers involved in the accident, apart from the driver of the unidentified vehicle who did not remain at the scene of the accident.

20. Ms S told the police officer that she was travelling on Mamre Road and was about 30 metres from the intersection with Kerrs Road when a white hatchback motor vehicle pulled out in front of her to make a right hand turn into Mamre Road.  Ms S applied the brakes and skidded for around 20 metres to avoid a collision.  She then said that a while utility driven by the Claimant collided with the rear of her vehicle.  Ms S said she was travelling at 80 kilometres per hour along Mamre Road prior to the accident.

21. The Insurer engaged a firm of investigators, Maurice J Kerrigan, to investigate the circumstances of the accident.  Their report dated 16 May 2018 is before me.  That report essentially confirms the bare facts of the matter which are contained in the police report.  In addition to that material, the investigators interviewed Ms S and the police officer, and summarised their efforts in investigating the accident collision as follows:

(i) The vehicle which entered onto Mamre Road from Kerrs Road has not been identified.

(ii) A Traffic Infringement Notice for negligent driving was issued to the Claimant.

(iii) The Claimant was conveyed to hospital by ambulance.

(iv) The Claimant said that her vehicle which was fitted with a vehicle tracker recorded her pre-accident speed at 76 kilometres per hour; in other words, four kilometres per hour less than the speed limit.

(v) There are photographs and diagrams attached to the report indicating that the road along which the Claimant and Ms S were travelling is wide enough for only one lane of traffic travelling along Mamre Road in the direction that the Claimant and Ms S were travelling.

(vi) The police officer provided a copy of the statement he recorded from the Claimant about a week after the accident.  That statement says that the Claimant observed the lady in front of her slam on her brakes due to a white car which pulled out in front of her (Ms S) at the intersection of Kerrs Road.  She applied her brakes and her wheels locked up for about 24 metres and she collided with the vehicle in front.  She said she was unable to swerve to her right because of the existence of other traffic travelling in the opposite direction.  The Claimant said that she was travelling at about 76 kilometres per hour.

(vii) The statement from Ms S, and obtained by the investigator, indicates that Ms S was travelling at 80 kilometres per hour and hit the brakes when the other vehicle appeared in front of her.  Ms S said that she had been informed by the police that there was some 20 to 40 metres of skid marks from her vehicle.

(viii) The Claimant was subsequently interviewed by the investigator from Maurice J Kerrigan and she confirmed what she had already told the police, namely that she had to brake suddenly and sharply, and left some 20 to 40 metres of skid marks.  There is a photograph attached to the report from the investigator showing some skid marks which appear to be consistent with what occurred in the accident.  The Claimant suggested that Ms S had ample time in which to brake normally, to avoid impact, and appears to suggest that the actions of Ms S contributed to the accident, however I note that this is a claim brought solely against the nominal defendant.

Determination

22. I have determined that the driver of unidentified vehicle owed a duty of care to the Claimant, as I note that this is not disputed by the Insurer.  I further find that the driver of the unidentified vehicle breached his or her duty of care in attempting to enter upon the roadway of Mamre Road from the intersection with Kerrs Road when it was unsafe to do so, resulting in Ms S being required to brake suddenly and heavily in order to avoid an impact with that unidentified vehicle.  This finding is, in my view, supported by the evidence that I have reviewed, including the statements of both drivers to the relevant police officer.

23. The issue therefore for me to determine is the extent of contributory negligence of each of the drivers to the ensuing collision.  The Claimant’s solicitors suggest that the Claimant’s involvement was minor, whereas the Insurer submits that the Claimant was at fault either to the extent of 100% or at least to the extent of being greater than 61%, and therefore leading to a finding that the Claimant was mostly at fault.

24. In determining the issue of the respective contribution of each of the driver of the unidentified vehicle and the Claimant with respect to the issue of causation, I have had reference to a South Australian Supreme Court, Court of Appeal decision of Mugford -v- Ames (2000) SASC 241, also reported in the motor vehicle reports at 31 MVR 406:

(a) That was a case involving a collision by the Claimant, who was the rider of a Harley Davidson motorcycle which collided with the rear of a Mazda motor vehicle travelling in front of him.  The factual scenario in respect of that case was that a Holden motor vehicle braked heavily causing a vehicle travelling behind it, namely a Honda motor vehicle, to collide with the read of the Holden vehicle.  The driver of the Mazda collided with the rear of the Honda vehicle, and in turn the Claimant who was driving the Harley Davidson collided with the read of the Mazda vehicle.  The Trial Judge found that the rider of the Harley Davidson was negligent to the extent of 25% and the driver of the Mazda vehicle negligent to the extent of 75%.  On appeal, that apportionment was varied such that the ultimate finding was that the Harley Davidson rider was found to be 70% negligent and the driver of the Mazda vehicle 30% negligent.  The Supreme Court, Court of Appeal made a number of observations regarding chain collisions.  In my view, those observations are relevant to my determination of this claim.

(b) Firstly, the Court of Appeal referred to the observations of Justice Deane in the High Court decision of March -v- E & MH Stramare Pty Ltd (1991) 171 CLR 506.  Justice Deane referred to the relationship of proximity of road users which gives rise to a duty to take reasonable care to avoid foreseeable injury to other road users.  The relationship and duty of care are not confined to persons who are careful and sober, but also extend to all foreseeable road users including bad and inattentive drivers.

(c) The South Australian Supreme Court, at paragraph 38 of their decision, refer to the duty of drivers in a line of traffic to drive their vehicle in such a manner that, if so required, can bring their vehicle to a stop without danger to other vehicles.

(d) Although the factual circumstances of the matter before the South Australian Court of Appeal are somewhat different, in that the Court there made a finding that a vehicle travelling in front of another vehicle was negligent in colliding with the vehicle in front of it, whereas in the present circumstances we are dealing with an allegation of negligence against an unidentified vehicle which brought about the necessity for another vehicle to brake heavily, in my view the observations of the Court are applicable to the factual scenario with which I am dealing.  That is because it is was the actions of the unidentified driver which ultimately caused the harsh braking of the vehicle in front of the Claimant’s vehicle resulting in the Claimant in turn being required to take emergency action to prevent (ultimately unsuccessfully) a collision with the vehicle in front of her.

(e) Dealing with the issue of apportionment, the Court said that it was appropriate to have regard to the duty of drivers of following vehicles to drive with such care as to enable them to avoid colliding with vehicles in front when such vehicles are required to stop.  After making reference to a Canadian Court of Appeal decision  ( Kosinski v Snaith (1983) 1 DLR (4th) 170), the Court appeared to have adopted, with approval, the observations of the Canadian Court of Appeal which described the onus upon following drivers as a “heavy” one with approval, and cited the observations of that Court which stated that there is clear and well defined standard of care imposed upon drivers of a vehicle which follows another.  The driver must keep a reasonable distance from the rear of the vehicle ahead and must keep alert and keep a proper look out and proceed at a speed reasonably relative to the speed of the other vehicle.  Furthermore, the driver must anticipate that for whatever reason the vehicle ahead may stop.  The driver must proceed with care to enable him/her to avoid colliding with it.

(f) The South Australian Supreme Court said that as a matter of practicality the drivers of vehicles in a line of traffic must drive so as to enable them to stop quickly, if necessary, to ensure an orderly and safe flow of traffic.  The Court said that in view of the high standard of care imposed upon following drivers, a comparison of culpability and relative importance to the acts of the parties demonstrated that the rider of the Harley Davidson bore a greater responsibility for the collision.

(g) The Court then made findings as to the relative responsibility of each, which led to the finding of 70% contributory negligence on the part of the Harley Davidson rider.

25. Applying the observations of the Supreme Court, Court of Appeal in relation to the current claim before me, I am also of the opinion that the Claimant must bear the greater share of responsibility for the accident which occurred.  This is because:

(i) Although the Claimant considered that she was maintaining a safe speed and distances between her vehicle and the vehicle in front of her, ultimately the actions of the Claimant were insufficient to prevent the impact of the front of her vehicle with the rear of the vehicle in front of her.

(ii) The Claimant clearly had an open view of the road ahead of her and, in my view, would have had sufficient time to commence braking once the rear brake light of the vehicle in front of her become apparent.  The vehicle driven by Ms S was also travelling at a similar speed to that of the Claimant and braked over a considerable distance, said to be at or in excess of 20 metres.  This means that both the vehicle driven by Ms S and the vehicle driven by the Claimant were both braking at or about the same time, although there would clearly have been a delay due to the different reaction times of both drivers.

(iii) The vehicle driven by Ms S was able to avoid a collision with the unidentified vehicle which had entered upon Mamre Road suddenly.

(iv) In my view, a reasonably prudent driver in the position of the Claimant ought to have been able to bring her vehicle to a stop and avoid an impact with the vehicle in front.

(v) The position with which the Claimant here found herself in is to some extent less extreme than the position confronting the motorcycle rider in the South Australian case I have referred to.  In that particular instance the vehicle in front of the motorcycle had collided with the vehicle in front of it, coming to a sudden stop, which would have left a shorter braking distance for the motorcycle rider.

(vi) There is a heavy onus upon drivers of vehicles travelling behind other vehicles to be in a position to stop their vehicle suddenly if necessary.

26. For all of the above reasons, I am of the view that the contribution by the Claimant to the accident is to the extent of 75%, and that the actions of the driver of the unidentified vehicle, in creating a sudden and dangerous situation confronting the Claimant, to be 25%.

Costs and disbursements

27. Although the Claimant has been unsuccessful in relation to the ultimate objective in satisfying an entitlement to receive ongoing payments of statutory benefits, I am of the view that the position taken by the Claimant was not wholly without merit and is successful to the extent that it has established a finding that the Claimant was not wholly at fault in respect of the subject collision.  For these reasons, I am of the view, exercising my discretion in respect of costs, that the Claimant should be entitled to recover the amount of $1,200 plus GST for professional costs in respect of this application.

Conclusion

My determination of the Miscellaneous Claim is as follows:

28. For the purposes of section 3.11 the motor accident was caused by the fault of another person

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

30. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,320.00 inclusive of GST.

Date: 10 January 2019

Colin Stoten
Decision Maker,
Dispute Resolution Service