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ADE v Allianz Insurance [2019] NSWDRS CA 083

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsMostly at fault – pedestrian – cessation of statutory benefits – disability pensioner – contributory negligence – police report – hospital notes – ambulance report – mental health issues – unidentified witnesses – hearsay evidence
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.1, 3.28, 3.36, 7.36(5), Schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.441
Cases cited N/A
Text cited N/A
Parties ADE – Claimant
Allianz Insurance – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

Reasons for Decision

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

Introduction

1.   This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 (cessation of statutory benefits after 26 weeks to adult injured persons most at fault) the motor accident was caused mostly by the fault of the injured person.

2.   There is a dispute between ADE and the Insurer in respect to whether the claimant was the person most at fault for the accident under Schedule 2(3)(e) of the Motor Accidents Injuries Act 2017 ("the Act").

3.   On 22 January 2018 the claimant was in the process of crossing Redfern Street near Chalmers Street, Redfern, when he was struck by a motor vehicle. At the time, the claimant was a 59-year-old disability pensioner. He fell and suffered two broken wrists in the accident and lodged a claim for statutory benefits with the insurer of the relevant vehicle, Allianz. The insurer accepted responsibility for the claimant's medical expenses for the first 26 weeks, but thereafter advised that no further payments would be made, on the basis that the insurer had determined that the claimant was mostly at fault for the accident, with his contributory negligence being assessed at 75%.

4.   The claimant sought an internal review of the insurer's decision and this was carried out on 15 November 2018, with the insurer affirming its original position. The claimant subsequently lodged this application seeking a determination in relation to whether he was mostly at fault for the accident

5.   In making its determination of liability and, later, in carrying out its internal review, the insurer relied on only one document, according to its liability notice and subsequent Certificate of Determination on the internal review. That document was a police report.

The Law

6.   Pursuant to Section 3.1 of the Motor  Accident  Injuries  Act 2017,  the claimant is prima facie entitled to receive statutory benefits if he is injured in a motor accident. With minor exception, such statutory benefits are  payable indefinitely, unless the injured claimant is determined to be the person most at fault for the accident or the injuries are classified as minor injuries. In either of those cases, the insurer is entitled to cease payment of statutory benefits after 26 weeks.

7.   The issue of minor injury does not arise in this case and it is assumed that the insurer concedes that the claimant's  injuries are not minor.  Here, the insurer is asserting that the claimant was "most at fault" for the accident, which is defined to mean, in accordance with Section 3.28(2) that "that person's contribution to the accident was greater than 61%". In relation to the allegation that he was most at fault, the insurer, in seeking to dislodge the prima facie assumption that the claimant is entitled to statutory benefits, bears the onus.

The evidence and submissions

8.   The insurer relies primarily on the police report of the accident and, more recently, on a very large bundle of hospital notes from which it has extracted a copy of the ambulance report and two entries made by social work staff. I will refer to those below.

9.   It is apparent from its Reply that the insurer has had the accident investigated by MJM Corporate Risk Services. There is no investigation report attached to the Reply and the only documents I have from MJM Corporate Risk Services are a number of photographs of the accident site and some correspondence to the claimant's solicitor. Clearly, an investigation report of some description is  in existence and it may be inferred that the insurer, in reaching its determination on liability, would have relied upon it.

10.   As indicated, the insurer has attached to its Reply a number of photographs of the street where the accident occurred, but there is nothing in the photographs to identify where the impact occurred, where the claimant  came from, where he was when he was struck or, most importantly, what the insured driver was doing prior to the accident.

11.   Instead, the insurer relies on the police report which, given that the police officer who compiled the report was not present and was not an eye witness to the incident, can only be hearsay evidence. The insurer submits that the document should be admissible as an exception to the hearsay provisions of the Evidence Act. There is no issue regarding the admissibility of the document. The insurer is of course entitled to lodge the document as evidence and in any event, the rules of evidence do not apply in proceedings before the Dispute Resolution Service. However, the report, being hearsay, has limited weight. It cannot have the weight or replace the direct testimony of those actually present.

12.   The insurer further relies on information obtained from the ambulance report, which also contains reference to unidentified witnesses who provided information concerning the claimant's movements and the speed of the car. This is also hearsay evidence which suffers the same deficiency as that referred to in relation to the police report - namely that the persons referred to by the author of the report are unidentified, their versions have not been recorded in any detail and therefore cannot be tested.

13.   Finally, the insurer relies on entries made by social work staff in the hospital notes, which the insurer has attached to its Reply. Among the 235 pages of clinical notes are two entries as follows:

a.   Pt explained he was j-walking across road because he was starving. Stated he was at fault...

b.   Was walking across traffic today when a car coming at ~ 50kmph clipped him from the ?right side.

14.   I note from the hospital notes that the claimant suffers some mental health issues and was noted on one occasion to be tangential throughout the interview with the social worker and difficult to obtain information from. This does raise the issue of whether the recorded entries in the hospital notes reliably reflect the claimant's version of events.

15.   I have recently received a written statement from the claimant, obtained through his solicitor. In that he says: "Prior to crossing the road, I looked both left and right and did not notice any oncoming traffic. As such I formed  the view that it was safe to cross." He goes on to say that he was about three­ quarters of the way across the road, having traversed 3 of 4 lanes  of traffic and attempted to step out onto the footpath before he was struck.

16.   The insurer submits that this version is incredible as it is inconsistent with what was recorded by hospital staff. While there appear to be inconsistencies, both versions record that the claimant was walking when crossing the road, which contrasts with the version in the police report.

Consideration

17.   The insurer bears the onus of establishing not only that the claimant  was partly at fault for the accident (and I infer that the insurer, in alleging that the claimant was 75% at fault, concedes some negligence on the part of  its insured driver) but that he was more than 61% at fault. Its evidence comprises the hearsay evidence from the police and ambulance reports, some photographs and the entries recorded in the hospital records.

18.   1 have no statement or any other document from the insured driver. This is not, as seems to be the insurer's position, a case similar to one involving an unidentified vehicle. Here, we know who the insured driver was. We know where she lived. An investigator has been despatched, presumably, to investigate the accident and to take a statement from her and from any witnesses. However, the insurer has produced from the investigator nothing other than a number of photographs of the area around the accident site and a copy of some correspondence, all of which are of no real assistance to me in understanding what occurred in the accident.

19.   Further, there are some aspects of the police report that cause me concern  and which, in my view, diminish the weight to be given to the document. To give an example, the report refers to the accident having occurred at an intersection but later, to the claimant "running" across the road "near'' an intersection. There is also reference to the claimant proceeding "against a red pedestrian signal'. If the claimant was not  crossing  at the intersection,  but only somewhere near it (and it is unknown just how far he was from the crossing), then his passage across the roadway would not have been  governed by the pedestrian lights at the intersection. That does not mean, of course, that he was entitled to cross anywhere he liked.

20.   Police have also referred to witnesses stating that the driver had a green light at the intersection, but this statement seems to me to have two problems - firstly that the accident did not occur at an intersection, but only somewhere near it and hence the green light governing the insured's passage through the intersection may be irrelevant and secondly, that the three alleged witnesses are unidentified.

21.   Having regard to all of the evidence including the hearsay evidence, I have little doubt that the claimant has contributed to his accident  to some degree. At the least, he has failed to utilise an available pedestrian crossing. However, I am required to balance out his actions against those of the insured driver. I have some information about his actions but I have little knowledge at all of those of the insured driver apart from her stated speed of 30 kmph, as recorded in the police report.

22.   I have no evidence about the state of traffic, of the degree to which the claimant was visible to the driver before impact, whether she braked or swerved and how it is that her vehicle struck him. It is conceivable that she may have been using her mobile phone or otherwise distracted so that she did not see the claimant. The insurer's photographs of the accident site show remarkably little traffic. It is unknown whether the insured driver's vision of the claimant was obscured by traffic in the adjacent lanes or whether there was no traffic there and therefore no impediment.

23.   As indicated, I have little doubt (and I suspect that he would not dispute) that the claimant's actions have contributed to his accident. However the insurer has not satisfied me that the degree of the claimant's contribution to his accident exceeds 61%, as is required in order for the insurer to be released from its obligation to make continuing payments of statutory benefits past 26 weeks.

Legislation

24.   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

Costs and disbursements

25.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 3.28 the motor accident was not caused mostly by the fault of the injured person
  • 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