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ADJ v NRMA Insurance Ltd [2019] NSWDRS CA 88

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords:  Wholly or mostly at fault – legal costs – witness – reversing - intersection – rear end collision- road rules – inconsistencies in the statement – version of events

Legislation cited:

  • Motor Accident Injuries Act 2017, sections: 3.28, Schedule 2(3)(e), Part 3, Part 5
  • Motor Accident Injuries Regulation clause 35
  • New South Wales Road Rules 170 (3)

Cases Cited:  N/A

Text Cited:  N/A

Parties:

  • ADJ – 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

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Issued in accordance with section 7.36(5) 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.

Claimant

ADJ

Insurer

NRMA Insurance Limited

Date of Accident

11 January 2018

DRS Reference

10072089JD

Date of Internal Review

15 November 2018

DRS Claims Assessor

Helen K. Wall

Date of Decision

18 February 2019

On the papers by

DRS Claims Assessor Helen K. Wall

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

  1. For the purposes of section 3.28 of the Act, the motor accident was not caused wholly or mostly by the fault of the Claimant.
  2. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST totalling $1,796.00.

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

Helen K. Wall

DRS Claims Assessor

Dispute Resolution Services

Dated: 18 February 2019

Reasons for decision

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

Background

1. This Determination related to a miscellaneous claim, which is a reviewable decision under Schedule 2 (3) (e) of the Motor Accidents Injuries Act 2017 in relation to cessation of statutory benefits pursuant to second 3.28 of the Act.

2. The Claimant alleges that she sustained injuries in a motor vehicle accident on 11 January 2018.

3. The Claimant was paid statutory benefits by NRMA Insurance for 26 weeks and thereafter she was notified on 3 October 2018 that liability for statutory benefits was denied as the Insurer had considered the Claimant to be wholly at fault for the accident.

4. The Claimant sought an internal review of the above decision and that Certificate was issued on 15 November 2018 upholding the original decision to deny liability for statutory benefits after 26 weeks.

5. The Claimant lodged an application to the Dispute Resolution Services contesting the internal decision of NRMA. This matter was allocated to me.

Background

6. Having read the Application, Reply, subsequent Statements and Submissions from both parties, I note as follows.

7. In the Statement of the Claimant ADJ dated 23 October 2018, she notes as follows:

At paragraph 2:

“On the day of the accident I was going to Chester Hill to my mother -in law’s house to pick up my daughter X…I was not in a rush…I had been travelling down Sackville Street and was behind a white Mazda BT50. This vehicle appeared to be a work vehicle and had Optus stickers on it. I continued behind this vehicle on Sackville Street and followed the Mazda as it turned right into the avenue. I continued behind the Mazda staying approximately 3 to 4 car lengths behind it on its way up towards the intersection on the avenue in Railway Parade. It was my intention to turn left into Railway Parade and continue on my way to Chester Hill.  

As the Mazda approached the intersection with Railway Parade, I noticed its left indicator turn on and pull in towards the corner towards the edge of The Avenue at the very end of The Avenue as if it was going to turn left into Railway Parade. I stopped behind the vehicle approximately one to one and half car distances behind the Mazda and put my left indicator on intending to turn left behind the Mazda. However, suddenly without warning the Mazda began reversing at speed. I pushed my hand up on the horn and sounded a long loud horn sound but the vehicle kept coming and smashed into my stationary vehicle…

I dispute that I am at fault in the accident. The driver of the Mazda gave all indications that he was going to turn left into Railway parade but then all of a  sudden decided to reverse. If he was intending to park, there was no reason why he could have driven head first into the edge of the kerb and would not have needed to reverse as there was sufficient room for him to park. The driver’s decision to park appeared to me to be a last second decision. My vehicle was stationary at the time he began reversing and I had not approached him fast as I had followed him the whole way up The Avenue…what appears bizarre to me is if he was going to the mechanics as he said he could have simply turned the corner into Railway Parade and gone into the driveway of the mechanics where there is sufficient car parking for customers. I entirely dispute the driver of the Mazda’s events contained in his Statement dated 17 August 2018. I did not approach him and he was not stationary. My vehicle was stationary and he reversed into my vehicle at speed.

8. A Statement of the insurer driver, Mr Y, dated 17 August 2018, noted as follows:

From paragraph 15 onwards:

At the time of the accident on 11 January 2018 I was driving my work vehicle. This is a white Mazda BT50. I have had use of that vehicle since August 2017…prior to the accident on 11/1/2018 I was driving from my work at 6 Columbia Way, Baulkham Hills and I was going home.

I had gone to The Avenue, at Canley Vale, and I was going to stop there and go and speak to the mechanics who were there, to speak to them about the costs of a servicing. I was also going there to book my work vehicle into the car wash for a clean-up. This is the way I go home so I knew where I could park and I had been going there every month.

I am driving on The Avenue and I am driving towards the railway line.

I was approaching the intersection with Railway Parade.

I was about 6.0 meters from the intersection and there was a carpark there at the corner so I thought I would drive forward a bit more and then reverse back into the spot. I have come to a stop and I am about 6.0 meters from where the stop line would be at Railway Parade, and it would be about 2 car lengths back from the stop line.

There are no marked lanes there and it is a wide road there and I am about 1200 mm off the kerb there and I had slowed down and veered in a little bit, and I had the left hand blinker on and then the car was in reverse. My car is a manual.

I checked my rear view and my side mirrors, both, and I turned my head to the left and right and it was all clear and no one was coming and I started to reverse and I had eyes on both side view mirrors, checking both sides, and I have reversed back about 30cm, and that is when I see in the right side view mirror somebody fast approaching, and I had seen that in the driver’s side mirror and I then looked into the internal view mirror and as soon I notice that car, I straight away stopped. I used the clutch and brake and did not take it out of gear. It is still in reverse gear and that means the reversing lights are still on. There is no reversing camera. My foot remained on the brake.

The left blinker is on and the reverse lights are still on.

I recall slamming on the brake and the impact happened within milliseconds. I had braked and straightway I put the brakes on, and I was stopped, and then bang and that is how quick it was, and I was pretty confident I was not reversing as I was stopped.

It was a bit of a hit and it is a larger vehicle and I felt that jolt.

When I got out I had not thought it was that big of a collision but then I saw the damage to her car.

I had not moved my car before I got out…once it was ok, I moved my vehicle and she was ok with that and I moved my car around and I stayed there for about 15 minutes to see if I could do anything to provide any support and she said her partner was coming and a tow-truck was organised…we had some chit chat and I told her that I had the reverse light on and the blinker on and asked why did she not see me. She responded that she said she was in hurry to go somewhere and she said I was reversing and I told her that I would to deny liability and I would raise this as an insurance issue with my company…I also left my car there, in case she wanted to take anymore photos…the police were not called…we have been told to deny liability, write your statement and let the Insurance company deal with it…I had no contact from police…there was a man, Mr Z, and he came over and he said that he was in the carwash and he said to me he saw the incident and he said he was happy to be a witness, for both of us, and predominately he said that to me. I asked him who is at fault and he said her, and he said I was stopped and she hit me. He offered his details to her, but in the time I was there, she did not take any details from him.”

9. There is no Statement from the alleged witness before me in this application, I note that there was no objection to the hearsay evidence of the insured, but in the absence of any corroborating evidence, I give very little weight to the alleged conversation of the witness to this event.

10. I have been provided with photographs of the vehicles following the accident. It is clear that the insured driver’s car is no more than about two to three metres from the give way sign at the intersection where the accident occurred. This is in contrast to his allegations that he was about six meters from the intersection when he decided to park.

11. A subsequent Statement of the Claimant undated but provided to me on 29 January 2019 noted as follows:

“After the collision I did not move my car because it was too damaged. Also there was fluid leaking from underneath so I didn’t think it was safe to drive. My car was not moved until the tow-truck came and towed it away.

So the photos that I took after the collision show where my car was at the time of the collision.”

12. I note that the insured alleges he moved the car sometime after the impact.

13. The photographs contained in the application show fairly extensive damage to the front and bonnet of the Claimant’s car.

14. The insured provided a subsequent Statement dated 30 January 2019 in which he stated that as he approached the intersection, he looked in the rear view mirror and did not see any cars and then he commenced reversing into the car space. He stated that the first time he saw the car behind him is when he looked in the rear view mirror and he could see it coming from a  distance and he looked up to the rear view mirror and clearly recalls saying to himself “that car is approaching quickly behind me and they have not slowed down enough”…he stated:

“It is at least 4 seconds from when I stopped, blinker on, checked the mirrors and then stop again and that is at least 3-4 seconds and I do not see a car behind me. If I had have seen it I would have stayed stationary…I have only gone 50cm when I see that car then I stop my car…at the point of impact, even before the point of impact I am stationary…I do not agree that her vehicle was stationary at the time of the impact.”

15. The Claimant relies on the New South Wales Road Rules 170 (3) – driver must not stop on a road within 10 meters of an intersection.

16. The Claimant submits that the insured driver clearly has parked within 10 meters of the intersection given the photographs taken immediately after the accident. The Insurer submits that this would mean that the insured would have to reverse at least 8 meters to park legally. The Claimant submits that the insured’s actions are more consistent with the Claimant’s version in that the insured gave every indication he was going to turn left into Railway Parade and that the decision to reverse park was made later. Further the Insurer submits that the insured vehicle had its left indicator on which the Claimant understood to be an indication that the insured vehicle was going to turn left at the intersection and he decided to change his mind at the last minute and reverse into a parking space.

17. Further the Claimant submits that on photograph 5 of the M&A Investigation report, there are no tyre marks on the road behind the Claimant’s vehicle. The Claimant submits that arguably this means that the Claimant did not apply her brakes suddenly in order to avoid colliding with the insured vehicle. It further submitted:

“If the insured is believed and he saw the Claimant fast approaching and if the Claimant didn’t apply the brakes, then she would have hit the insured’s vehicle at speed. If this was the case, the damage to both vehicles and the injuries to the occupants would have been much worse.”

18. The investigation report refers to a witness, Mr Z, but I note Mr Z heard the collision before turning towards it. Therefore, I am not swayed by any hearsay evidence from Mr Z.

19. The Insurer’s further Submissions rely on the further Statement of the insured driver of 30 January 2019, noted as follows at paragraph 3:

“It is confirmed that the photographs provided by the Claimant and the insured driver show the resting positions of the vehicle following the collision. However, the versions of event provided by the Claimant and the insured driver remain inconsistent.”

20. Dealing with the inconsistencies in the Statement, the Insurer submits that I would accept the insured driver’s version of events as his version of events has remained consistent and is completely plausible. The insurer submits as follows:

“On the other hand, the Claimant alleges that her vehicle was stationary when the insured vehicle suddenly without warning commenced to reverse into her car. She alleges that the insured driver did not check his mirrors, yet this allegation can be no more than just a speculation at best. The insured driver has consistently maintained that he checked his mirrors and only commenced the act of reversing when he did not see the vehicle.”

21. The Insurer further submits that the Claimant who is approaching the insured’s vehicle ought to have seen the left indicator was activated and the reverse lights were on. It is submitted that the Claimant failed to keep a proper lookout and collided with the insured’s vehicle on her approach.

22. On the evidence, the Insurer submits that the accident was caused wholly by the fault of the Claimant.

23. My determination in this case turns on which version of events I accept.

24. I have not been provided with any engineers report on the more likely scenario of this event. I do not say that by way of criticism of either party as these reports are extremely expensive.

25. There is no witness to the accident.

26. On viewing the photographs immediately after the accident, I am satisfied that the insured driver’s vehicle is no more than 2 meters from the intersection.

27. If it was his intention to park in that area, then he was within the 10 meter zone where it is illegal to park.

28. I am satisfied based on both reports that the insured had his left indicator activated at the time of impact. His version of events is that he had activated the left indicator and put on his reversing lights to park in that area. The Claimant’s version of events is she understood he had his left indicator on to turn left at the intersection.

29. The road is a straight stretch of road and even if the insured vehicle had intended to park in the 10 meters from the intersection, on reasonable checking of both side mirrors and his rear view mirror, he should have seen the Claimant’s car approaching and taken action either not to park in the zone, or not to become stationary in the zone on the basis that there was another vehicle immediately behind him.

30. The parties in their Submissions have referred me to a number of case law, but mainly dealing with cases where there are rear end collisions when both parties were driving in a forward direction.

31. The dispute before me is one of a factual dispute based on the different versions of how the accident occurred.

32. Section 3.28 of the Motor Accident Injuries Act 2017 notes as follows:

“Cessation of statutory benefits after 26 weeks to an injured adult person most at fault or to the injured person with minor injuries.

(1)  An injured person is not entitled to statutory benefits under this division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if (a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident…

(2)  A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”

33. In the Insurer’s decision on liability in its letter to the Claimant dated 3 October 2018 NRMA noted as follows:

“On reviewing this information we consider you:

Are wholly at fault for your motor vehicle accident and your injuries. This decision is based on you failing to keep a sufficient distance to avoid a collision with our insured’s reversing vehicle.”

34. In its internal review dated 15 November 2018, the Insurer affirmed the earlier decision and considered the Claimant to be wholly at fault.

35. I note paragraph 20 of the insured’s Statement of 30 January 2019 states “that at the point of impact, even before the point of impact I am stationary.” This would appear to be contradicted by the Insurer’s allegation that the Claimant failed to avoid impact with the insured vehicle which was reversing.

My Finding

36. Having reviewed all of the evidence but more in particular the photographs of the vehicles taken after the accident, I note the damage to the insured vehicle is on the rear right hand side, whereas the damage to the Claimant’s vehicle is significant damage to the whole front of her car and a creased bonnet.

37. The insured car has a tow bar protruding from the back of his vehicle.

38. I find the more likely scenario is that the insured driver made a sudden decision to park on the side of the road before the intersection and in so doing, reversed without due care.

39. I accept the Claimant’s version of events on how the accident happened, over that of the insured driver’s version given the inconsistency in the driver’s Statement and the photographs and placement of the cars immediately after the accident.

40. I note that the Insurer’s Submission are to the effect that the Claimant was wholly at fault. As noted above section 3.28 refers to the motor accident being caused wholly or mostly by the fault of the injured 40. person.

41. I find pursuant to section 3.28 (1) of the Act that the Claimant was neither wholly, nor mostly at fault in the motor vehicle accident collision.

Costs and disbursements

42. The parties provided me with detailed Submissions on costs, but essentially they agreed that if I found in the Claimant’s favour then costs would follow the event. I therefore allow the Claimant’s costs in the sum of $1,633.00 plus GST (under clause 35 of the Regulations) making the total award for costs at $1,796.30.

Conclusion

43. The findings of assessment of this dispute are as follows:

  • For the purposes of section 3.28 (1) (a) of the Act, the Motor Accident was not caused wholly or mostly by the fault of the injured adult person.
  • The Claimant’s costs be paid by the Insurer in the sum of $1,796.30.

Helen K. Wall
DRS Claims Assessor
Dispute Resolution Services