|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Wholly or mostly at fault – swerved to avoid animal - deny liability – blameless accident - witness – causative factor- legal costs|
|Legislation cited||Motor Accident Injuries Act 2017: Sections 3.28(1)(a), 5.2(1) Schedule 2 (3) (D) and (E)|
|Cases cited||Hossain v Mirdha  NSWDC 108|
Whitfield v. Melenewycz  NSWCA 235
Brooker v Allianz Insurance Ltd  NSWDC 248
|Parties||ACW – Claimant |
NRMA Insurance Limited - Insurer
|Disclaimer||This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.|
Miscellaneous Claims Assessment 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
|Insurer||NRMA INSURANCE LTD|
|Date of Accident||26 June 2018|
|Insurer Claim Number||NWRTP180135601|
|Date of Internal Review||11 September 2018|
|DRS Decision Maker||Claims Assessor Terence Stern|
|Date of Decision||4 March 2019|
|Date of Preliminary Conference||7 February 2019 at 3.30pm|
|Participating at the Preliminary Conference for Claimant||Clara Yoon|
|Participating at the PreliminaryConference for Insurer||Mei Khoo|
The findings of the assessment of this dispute are as follows:
1.For the purposes of s 3.28 (1) (a) of the Act, the motor accident was wholly 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 $1,829.30 inclusive of GST.
My reasons for this determination are attached to this certificate
DRS Claims Assessor
Dispute Resolution Services
Dated: 4 March 2019
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) (D) and (E) of the Motor Accident Injuries Act 2017 ('the Act') about cessation of statutory benefits pursuant to s.3.11 and 3.28 of the Act.
2. ACW is 31 years old. By a statement of 21 November 2018 ACW alleges that on 26 June 2018 he was injured in a motor vehicle accident after an impact with his vehicle which, at the time he understood, was caused by an animal but later was informed that his vehicle had hit a fox.
3. ACW received statutory benefits under the Act for 26 weeks but was on 18 July 2018 advised by the Insurer that it considered that ACW was wholly at fault and that it denied liability.
4. On 8 October 2018 ACW made an Application for Internal Review.
5. On 28 October 2018 the Insurer affirmed the decision to deny liability.
6. ACW submits that he was neither mostly nor wholly at fault and that he is entitled to continue to receive statutory benefits and has filed this Application seeking a determination of the dispute in his favour.
Material provided and considered
7. I have considered the following documents provided:
ACW completed an Application for Personal Injury Benefits. He said this in respect of the accident:
'l was driving on Oxley Highway in Walcha... ....1 saw a fox in the middle of the road and I braked heavily to avoid collision. My vehicle hit the fox and rolled 10 times.'
b. Liability Notice — Benefits up to 26 weeks
By letter of 18 July 2018 NRMA accepted liability for the payment of statutory benefits for a period of 26 weeks from the date of the accident.
c. Liability Notice Benefits after 26 weeks —4 September 2018
NRMA denied liability on the basis that ACW was deemed at fault for the accident.
d. Application for Internal Review
ACW lodged an Application for Internal Review on 8 October 2018.
e. Internal Review Decision
On 29 October 2018 NRMA affirmed the original decision of 8 October 2018 i.e. to deny liability.
f. ACW's Application to DRS
This Application includes his submissions, a statement of 21 November 2018, and a statement of SP also of 21 November 2018.
g. Insurer's Reply including:
h. Police Report 10 September 2018
8. I have already referred to what ACW said in his Application for Personal Injury Benefits.
9. In his statement of 21 November 2018 ACW says (taking the numbers as appear):
6. On 26 June 2018 was driving about 90km/h along Thunderbolts Way in Walcha at about 5.30pm. The sun had set but it was not completely dark.
7. Currently employed as a plasterer. Was travelling to Armidale for work.
10. While driving along Thunderbolts Way felt a large impact on the left side of the vehicle. Did not see what he had hit. Lost control and swerved to the right. Did not have time to brake or react after the impact. The accident happened very quickly.
11. Said he had hit a kangaroo because his English is poor and it is one of the only animals he knew the English name for. The impact was quite large so he assumed he had hit a kangaroo.
12. The car rolled 10 times.
Statement of SP - 21 November 2018
3. (read 5) — aware of kangaroos in the area where the accident occurred. Was keeping a lookout for kangaroos. Suddenly heard a big bang said to the driver "What happened". The driver shouted in shock then the car swerved.
4. (read 6) — the driver did not swerve and then hit the animal but hit the animal first and then lost control.
The police report - E 68590549
10. Crash Summary Details
11. I refer to the submissions on behalf of ACW by paragraph number:
6. Was interviewed at the ED. His English is very poor and experienced difficulty communicating with the police.
7. He did not see the fox before the accident. The collision with the fox was the cause of the accident.
8. Distinguishes Hossain v Mirdha  NSWDC 108 where a dog stepped out in the front of the vehicle and the driver swerved to avoid the dog colliding with a truck on the opposite side of the road. In the subject case ACW did not see the fox nor did he swerve to avoid it. Further, the case was decided before the Act and is not relevant decisions concerning statutory benefits.
9. Distinguishes Whitfield v Melenewycz. Again this case was decided before the Act and it is submitted that it is not relevant.
12. The Insurer's submissions, again I adopt the numbering:
3. Refers to the definition of a 'no-fault motor accident' in s.5.1 .
4. Cites 5.2(1) of the Act:
(2) The death or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if:
(b)the act or omission was involuntary, or
(c) the act or omission was not the sole or primary cause of the death or injury. '
21. The Claimant has provided inconsistent version.
24. Given the inconsistencies the version recorded by the police is the most reliable and the most contemporaneous.
25. The version in the Application form is inconsistent with the version in the statement. The statement alleges miscommunication with the police but does not address inconsistent version recorded in the Claim Form which the Claimant signed.
35. If the Claimant was the owner-driver at the time of the accident, he would be prevented from bringing a CTP claim.
36. If he was not the owner-driver the evidence fails the establish deemed fault. Refers to the Court of Appeal decision in Melenewycz.
13. ACW disputes the accuracy of the account in the Police Report. If this were the only matter one could readily understand the policeman drawing an inference that ACW swerved to avoid the animal and that inference may well have been affected by the language barrier given that ACW is said (and this is not being contradicted) to have poor English.
14. If this were the only matter than I would accept that ACW probably did not swerve and lost control of the vehicle as a result of the impact with the animal which was without warning and that this resulted in an understandable shock causing ACW to lose control of his vehicle.
15. The Police Report was in the usual way drawn from the police notebook and recorded the statement taken contemporaneously at the Emergency Department of the Walcha Hospital. It clearly refers to the policeman having noted that ACW attempted to avoid an animal and in doing so swerved partially to the right causing the vehicle to swerve across the road and enter an adjoining property and subsequently to flip over a number of times.
16. The problem for ACW, as I see it, is that on 29 June 2018 the Application for Personal Injury Benefits repeats this version:
17. This document was obviously not prepared in the handwriting of ACW who does not have good English but one can infer that a competent representative would have had it translated it to ACW.
18. There is no evidence which could explain this version as having resulted from the mistake of the representative or that the document had not previously been translated.
19. In the Claimant's submission reference is made to the Police Report and how the language barrier probably resulted in an error and that it was not correct that ACW saw the fox before the accident. The submission makes no reference however to what was written in the Claim Form nor is any explanation given in relation to that.
20. Hossain v Mirdha (supra) was a decision of Elkaim SC DCJ. The fact situation was that a plaintiff was injured in a motor vehicle accident. He did not allege the defendant was negligent but relied on the blameless accident provisions in the Motor Accidents Compensation Act 1999 as amended.
21. A separate hearing was held on liability.
22. A statement of agreed facts was put before the Court relevantly:
(2) The Plaintiff applied the brakes and steered the motor vehicle in an attempt the avoid hitting the (dog).. ..the vehicle collided with the rear.. ..of (a) stationary truck. '
The defendant submitted that the Plaintiff had performed an act which caused the accident. '
23. Elkaim DCJ referred to s.7E of MACA.
24. On the basis that there could be more than one cause of an accident the Defendant submitted that the act of the driver steering the motor vehicle to avoid the dog was an act of causation in itself notwithstanding that the dog running onto the road was also a cause.
25. The Defendant submitted that pursuant to s.7E(1) there was no entitlement to recover damages.
26. The Judge noted  the Plaintiff's submissions that it would be a somewhat unjust result if the Plaintiff could recover damages if he had not steered away from the dog but not because he had taken evasive action.
27. The Judge agreed that there was at least a perception of an unjust result in respect of that distinction but, in his view, the act of steering the vehicle away from the dog was an act of the driver which was the cause of the injury. It was not the sole or primary cause but nevertheless was an act which caused his vehicle to collide with the truck and accordingly he was not entitled to recover damages as a blameless accident by reason of s.7E.
28. This case was considered in the Supreme Court of New South Wales in Melenewycz v. Whitfield  a decision of Hamill J.
29. The facts were simple. In 201 1 the Plaintiff was riding his motorcycle towards Bourke when it was struck by a kangaroo.
30. The Plaintiff alleged a blameless accident, denied by the Defendant asserting that the Plaintiff rode his vehicle at excessive speed and failed to keep a proper lookout.
31. The Defendant relied on s.7E of MACA namely that the collision was caused by an act or omission of that driver.
32. His Honour considered a number of decisions in the District Court including Hossain, the second reading speech and the principles of interpretation.
33. Central to His Honour's decision in favour of the Plaintiff were the facts of the case which distinguish it from this case. In Melenewycz the kangaroo blended with the background and His Honour did not accept that the failure of the Plaintiff to take evasive action was a relevant cause of the accident. The speed of the motorcycle was not a causal factor and His Honour was satisfied that there was no act or omission on the part of the Plaintiff which caused the collision, as a result of which, the accident was blameless and s.5F did not disentitle the Plaintiff to damages.
34. This case is quite different because, on the balance of probabilities, ACW did swerve to avoid the fox and that was a causative factor.
35. In the Court of Appeal [Whitfield v. Melenewycz  NSWCA 235] the appeal was allowed, the Judgment was set aside with a decision for the Insurer. Meagher JA, Simpson JA and Sackville AJA concluded that s.7B(1) of the Act did not deem an owner of a vehicle to be at fault in the use or operation of the vehicle if there was no relevant act or omission of the owner that could be described as "in the use or operation of the vehicle", when in fact the owner had no such involvement.
36. Whitfield was considered in the District Court in Brooker v Allianz Insurance Ltd  NSWDC 248 a case which involved a tyre blow out on a truck as a result of which the driver lost control. The Insurer alleged excessive speed was a causal factor, a proposition which was not accepted by the Court:
37. The decision stands for the proposition that the statutory language supports the construction of s.7B(1) that limits its affect to deeming someone not at fault to be at fault rather than deeming someone who was not involved in the use or operation of the vehicle to be involved in that use or operation.
38. S.7E precluded the entitlement where the death or injury to the driver concerned was caused by an act or omission of that driver.
39. On my findings on the facts namely, that on the balance of probabilities, ACW saw a fox and swerved to avoid it, he is not entitled to rely on the proposition that the accident was a blameless accident.
40. I am satisfied that ACW is entitled to the payment of legal costs. I allow the Claimant's costs at $1 ,663.00 to which GST is added (under cl 35 of the Regulation) making the total awarded for costs $1,829.30 inclusive of GST.
DRS Claims Assessor
Dispute Resolution Service
Dated: 4 March 2019