SIRA Logo

ADI v Allianz Insurance Ltd [2019] NSWDRS CA 087

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly by the fault of the injured person – version of events-
legal costs
Legislation citedMotor Accident Injuries Act 2017: Section 3.11; Schedule 2(3)(d)
Cases citedN/A
Text citedN/A
PartiesADI – Claimant
Allianz Australia Insurance Limited - Insurer
DisclaimerThis 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

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) of the Motor Accident Injuries Act 2017, about whether the claimant was the person most at fault for the accident.

1 . There is a dispute between ADI and the Insurer in respect to whether the claimant was the person most at fault for the accident under Schedule 2(3)(d) of the Motor Accidents Injuries Act 2017 ("the Act"). Indeed, the insurer alleges that the claimant was wholly at fault and this assertion was confirmed at the internal review.

2.  The collision between the claimant's vehicle and the insured vehicle occurred on 19 April 2018 at the intersection of Captain Cook Drive and Willarong Road Caringbah.

3.  In his Motor Accident Personal Injury Claim Form, the claimant stated that he put on his indicator to turn left (from the second of four eastbound lanes in Captain Cook Drive) into Willarong Road and was struck by the insured vehicle, which had pulled out from the kerb (in Captain Cook Drive).

4.  The claimant lodged an application for statutory benefits and these were paid.

5.  On 18 July 2018, the insurer declined to make ongoing statutory benefits on the basis that the collision occurred wholly due to the fault of the claimant in failing to give way when changing lanes. The insurer, in making its determination of liability relied on the insured's statement that indicated that he drove in the kerbside lane for some considerable distance before the collision occurred.

6.  Mr Marcus de Courtenay, Internal Dispute Resolution Officer, reviewed and affirmed its decision on 14 November 2018, preferring the insured's sworn statement and alleging that the claimant failed to give way when changing lanes. He stated, "You stated in your Application for personal injury benefits that the other driver has 'pulled out from the kerb'. However, the evidence relevant to the nature of this road, including the photos of this area, indicates that the other driver was in fact parked in the far left lane and began driving along this lane without moving from the designated parking area to a lane of traffic".

7.  The claimant subsequently lodged this application seeking a determination that he was not the party wholly at fault for the accident. He relies on his own statement and a statement from his passenger, Mr C.

8.  The insurer relies on the claimant's application for personal injury benefits, a statement by the insured driver, the police report, photographs of the area taken by an investigator, the insurer's liability notice, the application for internal review and the certificate of determination on the internal review.

9.  Notably, the insurer does not attach a copy of its investigator's report which may have contained useful information, not readily apparent from the photographs relied on, concerning the positioning of street signs and the like. It is unclear to me from where the information came as to point of impact, as depicted with an arrow on photograph 2 of the M & A Investigations report. That depiction, incidentally, is entirely at odds with what is contained in the second statement from the insured driver.

10.  While the insurer's representative, Mr de Courtenay has submitted, in relation to this application, that it is appropriate for me to find that both parties contributed to the accident and that the claimant was the party mostly at fault, Mr Pena for the claimant argues that, given the disparity between the versions of events, this is a situation where I should find that either the claimant or the insured driver should bear all responsibility for the accident.

11.  Following the initial teleconference on 7 February 2019, further information was provided to me clarifying a number of matters that I had raised concerning the statements of the claimant, supported by his passenger, and of the insured driver. I also received additional material from the insurer comprising photographs and plans of the site of the accident and photographs of the damage to the insured vehicle, together with a quotation for the cost of repairs.

12. I note that the damage to the insured vehicle appears to comprise a small area of paint damage at the front of the offside wheel arch and some damage to the side of the wraparound bumper bar and headlight assembly. There is no damage to the front of the vehicle.

13.  Close-up photographs of damage to the claimant's vehicle indicate that the claimant's vehicle seems to have sustained paint damage. It is unclear whether there were any dents needing repair. I understand from the evidence that the damage was to the near side rear wheel arch and the side door of the van.

14.  At the second teleconference held on 18 March 2019, I heard extensive oral submissions from the representatives of both parties and at the conclusion of that conference, I reserved my decision in relation to this dispute.

15.  The parties agree that the collision between the claimant's vehicle and the insured vehicle occurred at the intersection of Captain Cook Drive and Willarong Road Caringbah. However, there is no agreement in relation to exactly where within the vicinity of the intersection the collision occurred. There is also an issue as to how long the insured vehicle had been in the lane of traffic, having pulled out from the kerb not long beforehand

The claimant's version of events

16.  In his Motor Accident Personal Injury Claim Form, the claimant stated that he put on his indicator to turn left into Willarong Road and was struck by the insured vehicle, which had pulled out from the kerb. He does not state that he was in the process of making a left hand turn at the time of the impact.

17.  The police report, compiled some days after the accident, records that the claimant was in the process of turning left and that the insured driver was "pulling away from kerb/entering traffic" at the time of the collision. It is unknown on whose version of events the report is based, that is, which of the parties reported the incident to the police. I note incidentally that the area of damage to the insured vehicle is incorrectly recorded in the police report as being to the front passenger side whereas it was on the driver's side.

18.  The claimant and his passenger Mr C provided statements of December 2018 in support of this application. Neither referred to being about to turn into Willarong Road. Mr C stated that their vehicle was in lane 2 and that the insured vehicle pulled out from the kerb and collided with it.

19.  On the basis of the statements of the claimant and his passenger, there appeared to me to be a discrepancy in the claimant's evidence as to whether or not the claimant's vehicle was about to turn left or whether it was proceeding straight ahead. A further statement was provided by the claimant on 27 February 2019. He repeated the version of events in his claim form that he had his indicator on prior to the collision. He clarified that he intended to turn left and was about to start his turn into Willarong Road when he heard a loud bang coming from the side door of his van. He did not indicate he had commenced to make his left hand turn.

20.  The claimant said in his initial statement that immediately following the accident, the insured driver kept saying, "Move the car, I'm in a hurry'. He denied that the insured driver said to him that he had turned in front of him. He said that the insured driver said, "l never saw ya". He said that, "The driver of the Dodge ute did not say that the collision was not his fault". He advised that the repair costs to his van were met by the comprehensive insurer of the insured vehicle.

21.  The claimant's passenger, Mr C, stated, "All of a sudden, a white Dodge ute pulled out from lane 1 and ran into the passenger side of the van. The Dodge ute had a big bull bar and the bull bar rammed into the sliding door (towards the back of the sliding door) and the panel above the rear wheel".

22.  AA stated that the claimant parked the van on the footpath on the opposite side of the Willarong Road intersection. He said that he heard the insured driver say words to the effect, "It's my fault. I didn't look. Let the insurance company work it out. I'm in a hurry can you hurry it up?"

23.  In his second statement, the claimant said, "The vehicle that hit me parked about five (5) metres west of the Roxy Café" I did question this statement during the course of the second preliminary conference as, on all the available evidence, the claimant had not seen the insured vehicle at any time prior to the collision. I was advised by Mr Pena that this was a "deduction" on the part of the claimant.

The driver's version of events

24.  The insured driver has provided a signed statement of 12 June 2018 that he was in the kerbside lane at the time that the accident occurred and that the claimant's vehicle cut in front of him and he hit it "square on".

25.  It appeared to me that the statement may be unreliable and that the driver's various estimates of distance were incorrect. He said, for example, that he parked, visited a café, Roxy's (which is on the corner of Captain Cook Drive and Willarong Road), returned to his vehicle and then drove 'about another couple hundred metres' in the kerbside lane before the accident occurred. The accident occurred outside or near to Roxy's. By inference, the insured driver had parked 200 metres from Roxy's, yet he said there were no vehicles parked in front of him and seemingly no reason why he could not park outside or at least much closer. There were several other instances where the insured driver had made an estimate of distance that I considered to be highly improbable. I also noted inconsistencies between his diagram and what appeared in his statement

26.  I sought clarification of exactly where the insured driver was parked. The insurer has provided a supplementary statement of its driver attaching a Google map on which he has marked the approximate location of where he parked his vehicle prior to the collision. According to the distance indicator on Google maps, this looks to have been about 30 metres from the corner. The driver acknowledges that his estimate of having parked 150 to 200 metres from Roxy's was incorrect and that he would "not walk that far to get a cup of coffee"

27.  The driver further states in his recent statement that, "The other driver hit me when I was halfway across the intersection with Willarong Road" and that, "At the end of the day, I was halfway past the corner. I am not sure what he means by this second comment except to place the point of collision well past the point where the claimant would have driven in executing a left turn into Willarong Road.

28.  The insured driver denied that he pulled out from the kerb and states that he was in lane 1 and his intended path was to continue to head east and to turn left another two streets further east.

29.  He said in his initial statement that he started off driving at 10 kph because he was just pulling away from a parked position but would have increased his speed 'a little bit' as he drove. He said, "l only drove about another couple hundred meters, I would have increased in speed a little bit I was not in any hurry". The driver denied that he said that the collision with his fault but he did concede saying to the claimant that he did not see him.

Documents considered

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

Submissions

31.  The insurer bears the onus of establishing that the claimant is not entitled to a continuance of his statutory benefits on the basis that he is wholly (or mostly) at fault for the accident.
Insurer's submissions

32.  The insurer's initial submissions were based on the insured driver's statement, since shown to be incorrect, that he had driven between 100 and 200 metres from where he was parked to the point of impact. The insurer submitted that the claimant had attempted to change lanes into lane 1 in order to turn left into Willarong Road and had collided with the insured vehicle. It submitted that the claimant should have given way to the insured vehicle and had breached section 148(1) of the Road Rules 2014. Section 148(1) relevantly states, "A driver who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travel/ing in the same direction as the driver in the marked lane to which the driver is moving"

33.  The insurer further submitted that the claimant failed to keep a proper lookout and maintain control of his vehicle in changing lanes without verifying that it was safe to do so, thus leading to a collision.

34.  At the second preliminary conference, after clarification had been received from the insured driver that his estimates of distance were inaccurate, Mr De Courtenay for the insurer maintained that the claimant had failed to give way to the insured driver who had been driving "for some time" in lane 1. He argued that the claimant was on notice of his presence and should have given way.

35.  Mr Courtenay argued that I should prefer the statement of the insured driver notwithstanding his concessions that he was inconsistent in his initial statement concerning distances.

Claimant's submissions

36.  Mr Pena submitted that the claimant's version of events had, at all times, been consistent although his initial statement could have been better expressed. His version, it was submitted, is consistent with what he wrote in the claim form completed four days after the accident, including that he had activated his indicated to turn left into Willarong Road and that the insured driver had admitted it was his fault, that he didn't look, didn't have time, had to go to work and that the insurance company could work it out. It was submitted that this version should be preferred to that recorded in an interview with the insured driver almost 2 months afterwards.

37.  At the second preliminary conference, Mr Pena submitted that the more recent version of events from the insured driver, that the claimant hit him when he was haftay across Willarong Road, should not be accepted. If the claimant was preparing to turn left into with Willarong Road, then it is inconceivable, it was submitted, that the point of impact could be halfway across Willarong Road.

38.  It was further submitted that the insured vehicle was parked immediately before the accident site and that the accident was caused when the insured driver suddenly pulled out from the kerb.

Legislation

39.  In making my decision 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
  • NSW Road Rules 2014

Reasons

40.  I have considered the documents provided in the application and the reply and any further information provided by the parties. There are a number of issues to be determined.
Where was the insured driver parked?

41.  The claimant submits that it is probable that the insured vehicle was parked as close as possible to the corner and outside Roxyls Café. There is some support for this from the insured driver's first statement that "Where I parked my car, it was legal'. The claimant's mark on the Google map seems to indicate that he was parked about 30 metres from the corner, although he does not in his second statement provide an estimate of distance. The investigator who took photographs of the street has noted on the photograph that the area where the insured was parked was 55 metres from the corner. I do not accept his annotation in preference to what appears from the insured driver's own marking on a Google map.

42.  In my view, it is highly likely that the insured driver parked his vehicle as close as possible to the corner and to Roxy's Cafe, where it was "legaT' for him to do so and very close to the "No Standing" sign preceding the corner. While the insured driver's indication on the Google map is that he parked 30 metres from the corner, I find that it was somewhat less than that, although I do not have a measurement of the distance from the "No Standing" sign to the corner. This is something that may well have been contained in the investigator's report which was not lodged with the insurer's Reply.

43.  I find on the available evidence that the insured vehicle was parked between 20 and 30 metres from the corner of Willarong Road.

Where did the accident occur?

44.  I accept that the claimant was preparing to turn left into Willarong Road at the time that the collision occurred. This can only mean that the point of collision was prior to the corner, or to the east of Willarong Road. I reject the insured driver's suggestion that it occurred halfway across the intersection or at a point past the corner.

45.  I do not accept that the insured vehicle hit the claimant's vehicle "square on", which I interpret to mean that the whole of the front of the vehicle collided with the claimants van. Although I am far from an expert, the absence of damage to the front of the insured vehicle and the fact that both vehicles were damaged at the sides suggests to me that this was a side on side impact, with the front offside corner of the insured vehicle impacting with the nearside rear part of the claimant's van.

46.  I find that the collision occurred in lane 1, very close to the left of the dividing line between lanes 1 and 2. The claimant would have needed to across from lane 2 into lane 1 in order to make his turn. Although he does not state that he had commenced to make his turn, I am satisfied that that was the case and that his vehicle was moving into lane 1 at the time that the collision occurred.

47.  There is a prohibition on parking for several meters leading up to any corner, just as there was a prohibition on parking outside Roxy's Cafe. I am satisfied that, at the time that the claimant commenced to move into lane 1, there were no parked vehicles in the restricted parking area outside Roxy's.

48.  I find that the insured vehicle was within lane 1 of Captain Cook Drive at all relevant times.

Findings on how this accident occurred

49.  I find that, immediately before the accident, the claimant was driving his van along Captain Cook Drive with the intention of turning left into Willarong Road.

50.  As he approached the intersection, there was no parked vehicle in the restricted parking area outside Roxy l s Cafe, leading up to the corner.

51.  As the claimant approached the corner, he started to move from lane 2 towards the left in preparation for making a left turn from lane 1.

52.  Shortly before the claimant's approach, the insured driver returned to his vehicle and pulled out from the kerb into lane 1. He started off, driving very slowly.

53.  I reject the suggestion, appearing in the internal review certificate of Mr de Courtenay, that "the other driver was in fact parked in the far left lane and began driving along this lane without moving from the designated parking area to a lane of traffic". The insured driver pulled out from the kerb and entered the first lane of traffic. In doing so, he changed direction. His vehicle ceased to be a parked vehicle and became part of the traffic proceeding along Captain Cook Drive.

54.  In the absence of any evidence that he did so, I find that the insured driver did not activate his indicator when pulling out from a parked position into traffic and that he did not check his mirrors or blind spots for traffic that might be about to turn left at the corner.

55.  I find that the insured driver continued forward in lane 1 for a very short distance, proceeding at a very slow speed, having pulled out from the kerb travelling at 10kph. In light of the short distance travelled, I find that the insured's speed at the time of collision was little more than 10 kph. As the insured driver entered the restricted parking area outside Roxy's Cafe, the claimant commenced to merge left. The vehicles collided side on side as described above.

56.  I am satisfied that the insured driver has been negligent in failing to activate his indicator, thus warning of his intention to move off from a parked position (in contravention of Road Rule 46 (3) which requires a driver to give a change of direction signal for at least five seconds before doing so) and in failing to check for traffic approaching from behind. The driver concedes that he stated at the scene that he did not see the claimant's vehicle. Had he checked his mirrors and blind spots, he would have observed the claimant's approach before pulling up from the kerb. He would have observed that the claimant was indicating an intention to turn left. He would have waited for him to pass. His failure to check his mirrors and blindspots was a significant failure on his part in circumstances where he was parked close to a corner where it could be expected vehicles may be turning left.

57.  I find that the claimant's actions in merging left into a vacant lane were reasonable and that, given the extremely slow speed that the insured vehicle was travelling and the fact that it had just pulled out from the kerb, the claimant had no opportunity to appreciate that the vehicle was moving and that it posed a danger to him. I am not satisfied that the claimant has failed to give way to the insured vehicle in the circumstances of this accident. To the contrary, I find that the insured driver should have given way to the claimant.

58.  I find therefore that the accident was caused wholly by the actions of the insured driver and that the claimant should bear no responsibility.

59.  Accordingly, the insurer has not satisfied me that the claimant was wholly or mostly at fault for the accident and the insurer is therefore obliged to continue to make statutory payments to the claimant past 26 weeks.

Costs and disbursements

60.  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 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person.
  • Effective Date: This determination takes effect on 5 April 2019.
  • 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 Services