SIRA Logo

ADR v NRMA Insurance Ltd [2019] NSWDRS CA 095

Overview

Jurisdiction:  Miscellaneous Claims Assessment

Catchwords:  Statutory benefits – statutory income support benefits payable – contributory negligence – intersection – collision – police report – GIPA application – fair and reasonable – legal costs - contribution by claimant 20%

Legislation cited:  Civil Liability Act 2002 (NSW) s 5R

  • Motor Accident Injuries Act 2017 (NSW) ss 3.38, 7.36(5),7.41, 8.8, schedule 2
  • Motor Accident Injuries Regulation 2017 schedule 1 cl 3
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Cases cited:

  • Sibley v Kais [1967] HCA 43
  • Joslyn v Berryman [2003] HCA 34

Text cited:  N/A

Parties:

  • ADR– 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

View here

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.

Claimant

ADR

Insurer

NRMA Insurance Ltd

Date of Accident

18 May 2018

DRS Reference

10074280

Insurer Claim Number

NWRTP1801255

Date of Internal Review (1st)

13 November 2018

Date of Internal Review (2nd)

Failure to conduct an internal review under section 7.41(2) of the Act

DRS Decision Maker

Geraldine Daley AM

Date of Decision

6 March 2019

Conference date and time

Determined on the papers

Attendances for Claimant

Nilofar Rahmani of Law Partners on 9891 6650

Attendances for Insurer

Mei Khoo of the NRMA Insurance on 9088 9893

The findings of the assessment of this dispute are:

  1. For the purposes of section 3.38 of the Act, the insurer is entitled to reduce the statutory income support benefits payable in respect of the motor accident for the Claimant’s contributory negligence and I assess the Claimant’s contributory negligence at 20%.
  2. Effective Date: This determination takes effect on 6 March 2019.
  3. 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 ($1,633.00 + GST $163.30 = $1,796.00).

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

Geraldine Daley

Decision Maker

Dispute Resolution Services

Reasons

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)(g) of the Motor Accident Injuries Act 2017, about whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 (reduction of weekly statutory benefits after 6 months for contributory negligence).

  1. There is a dispute between ADR and the Insurer regarding whether the Insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the Motor Accidents Injuries Act 2017 (“the Act”).
  2. The Claimant seeks a referral to the Dispute Resolution Service (DRS) for the purposes of determining the dispute. The DRS Application was lodged by Law Partners on 9 January 2019. The Insurer’s Reply was lodged on 19 February 2019.
  3. The parties agree that the only dispute to be determined by me is whether NRMA Insurance is entitled to reduce the statutory benefits payable for contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act 2017. I agree.
  4. It is evident from the evidence before me that both drivers were familiar with the scene of the motor vehicle accident at the intersection of Victoria Road and Irvine Crescent, Ryde (refer [5] and [6] below).
  5. ADR says that on 18 May 2018 at about 7.30am he was on his way to work at Alexandria from his home in Parramatta. At [27] of his statement taken by M&A Investigations on 19 July 2018 (refer R9), the Claimant states “I was driving my normal way to work and that was straight down Victoria Road”.
  6. At [23] of his statement taken by M&A Investigations on 23 July 2018, the insured driver states “I was familiar with the location and had been there every year for a service”.
  7. I am satisfied on the evidence that both parties were familiar with the intersection at Victoria Road and Irvine Crescent, Ryde.

Issues in dispute

  1. Should there be a finding of contributory negligence against ADR?
  2. If there should be such a finding, what is the appropriate degree of contributory negligence?

The accident

  1. ADR was driving his motor vehicle at about 7.20am on 18 May 2018 approaching the intersection of Victoria Road and Irvine Crescent, Ryde NSW. He was travelling in a generally easterly direction on Victoria Road in a designated bus lane. He originally was travelling in the middle lane (lane 2) before he moved into the bus lane (lane 1) shortly before the intersection with Irvine Crescent. He says he adopted this manoeuvre to avoid a vehicle in front of him in the middle lane (lane 2) which had stopped and turned on its hazard lights.
  2. The insured driver was driving in a generally westerly direction on Victoria Road intending to turn right into Irvine Crescent. He was stationary on Victoria Road at the intersection of Victoria Road and Irvine Crescent. The insured driver commenced to make a right hand turn from Victoria Road into Irvine Crescent across the path of the Claimant’s oncoming vehicle. A collision ensued. The police report at R8 identifies the motor vehicle accident as a “major traffic crash”. Both ambulance and police attended the scene of the collision.
  3. The police crash summary details appearing in R8 are as follows:

“Between the nominated times, Veh 2 was travelling east along Victoria Road Ryde in the designated bus lane. This lane is lane 1 of 3. Vehicle 1 (sic) was travelling west along Victoria Road Ryde and stopped at the intersection of Irvine Street and was attempting to make a right turn. As lanes 2 & 3 were blocked with traffic, veh 1 (sic) has proceed to turn right and a heavy collision occurred between vehicles 1 and 2”.

Submissions

Claimant’s submissions

  1. Law Partners at [3] of A1, submits “that the Insured driver is solely responsible for the motor vehicle accident. This submission is consistent with the Police findings as to the insured driver’s negligent driving conduct”.
  2. ADR submits that the Insurer’s Liability Notice dated 15 November 2018 (refer R7) should be set aside and the Insurer should be directed to fully accept ADR’s statutory benefits claim after 26 weeks “with no or alternatively only a nominal assessment in respect of the Claimant’s contributory negligence in causing the accident” (refer [1c.] of A1).
  3. ADR submits at [5] of A1 that “it is self-evident that the insured driver failed to give way to the oncoming traffic at the intersection of Victoria Road and Irvine Crescent when turning right”.

Insurer’s submissions

  1. The Insurer submits at [36] of R1 that “the negligence of each party was a material cause of the accident and their comparative liabilities should be equally apportioned 50%”.
  2. The NRMA observes at [33] and [34] of its submissions at R1 that:

“The Claimant does not dispute that the vehicles in lanes 2 and 3 were stopped at the intersection with a gap to allow vehicles to make a turn. This should have put the claimant on notice that there was a possibility that a vehicle may make a right-hand turn across his path.

Moreover, he should have been aware that his vehicle would have been obstructed by the larger (and stationary) vehicles in lanes 2 and 3”.

Evidence

  1. At the relevant time the insured driver was driving a Kia Sorento station wagon. The Claimant was driving a Hyundai i20 Active motor vehicle.
  2. The Insurer engaged the services of M&A Investigations who obtained statements from the Claimant ADR, the insured driver, the witness Ms P and Senior Constable Adam Leahey. The M&A Investigations report is dated 20 August 2018 (refer R9).
  3. The Claimant relies on the statements provided to M&A Investigations for the Insurer, and the police report. He relies on a record of interview between Mark Hall acting on instructions from the NRMA and Senior Constable Adam Leahey of Eastwood Police Station. He relies on two (2) photographs of ADR’s damaged vehicle at Annexure 2 and a photo at A13. The photos appear to indicate severe damage to the driver’s front side of the Claimant’s vehicle.
  4. ADR relies on an email from his property damage insurer, the NRMA Insurance, sent to him on 22 October 2018. The NRMA Insurance determined to write off ADR’s vehicle and settle his claim as a total loss. There appeared to be no excess required to be paid by ADR. ADR confirmed that he was not asked by the NRMA Insurance to pay any excess. The property damage insurer NRMA did not find that ADR was responsible for the accident nor that he had contributed to the accident.
  5. The insured driver was issued with an infringement notice for his failure to give way to vehicles travelling in the intersection and to his right. The Claimant relies on the NRMA finding that its insured breached his duty of care by failing to give way to oncoming traffic when making his right-hand turn across Victoria Road into Irvine Crescent.
  6. The Insurer relies on the report dated 20 August 2018 of M&A Investigations (refer R9) and the material helpfully identified at [5] of A1.
  7. The Insurer relies heavily on the fact that the Claimant by his own admission was travelling in the bus lane. The insured driver in his statement provided to M&A Investigations on 23 July 2018 at [30] states that “the eastbound traffic is backed up and the traffic in lanes 2 and 3 were both stopped with traffic, and the intersection was clear, to allow traffic to turn right into Irvine Street”.
  8. The insured driver in his statement at [36] provided to M&A Investigations on 23 July 2018 admits that “I would not be able to see a small car in the bus lane”. At [37] of his statement the insured driver further states that “lane 1 is clear and I did not see any traffic there”.
  9. The insured driver at [45] of his statement admits “I did not see the other driver before the impact”. The insured driver at [47] of his statement says ADR “hit me in the front left hand passenger side. I think it was on the quarter panel, forward of the passenger door”.
  10. ADR says at [39] of his statement provided to M&A Investigations on 19 July 2018 that “I did not see the other car at all”.
  11. There appears to be a difference of opinion as to which vehicle hit which vehicle. The insured driver says ADR’s vehicle hit his vehicle. ADR submits that the insured driver hit his vehicle. The witness, Ms P, at [22] of her statement provided to M&A Investigations on 16 August 2018 says “the Hyundai has hit the front corner of the Kia and the Kia spun and the Hyundai stayed in the same direction”.
  12. The photos of the damage to the Claimant’s motor vehicle especially A13 appear toindicate that the Kiahit the Hyundai over the driver’s front wheel and the driver’s side section of the motor vehicle.

Documents considered

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

    Legislation

  2. 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 Injuries Regulation 2017
    • Motor Accident Guidelines 2017

    Reasons

  3. I have considered the documents provided in the application and the reply and any further information provided by the parties.
  4. Based on the evidence of ADR and the insured driver, I accept that neither driver saw the other vehicle before the collision. I accept on the evidence that both drivers were familiar with the intersection at Victoria Road and Irvine Crescent. I accept on the evidence that both drivers failed to take reasonable care when entering the intersection.
  5. I accept on the evidence of M&A Investigations that the gap in the median strip has since been sealed off and vehicles are no longer able to turn right into Irvine Crescent (refer page 3 of the M&A Investigations report at R9).

Should there be a finding of any contributory negligence?

  1. The principles that apply in the determination of whether the Claimant is contributorily negligent at all are the same as those that determine the question of the insured driver’s negligence. This requires the application of the general principles set out in section 5B of the Civil Liability Act. More particularly, section 5R specifically provides that the standard to be appliedin determining whether there is any contributory negligence is that of a reasonable person in the position of the Claimant on the basis of what he knew or ought to haveknown at the time. There is thus an objective test without regard to the subjectivesituation of the Claimant.
  2. Although neither party referred me to the High Court intersection case of Sibley v Kais [1967] HCA 43, it is relevant to the decision I am being called upon to make.
  3. Themajority in Sibley v Kais held:

The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to "reasonable care" is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.

  1. The Claimant relies on the High Court decision of Joslyn v Berryman [2003] HCA 34. McHugh J identified the correct legal question to be addressed in determining the issue of contributory negligence in accordance with section 5R is “whether a reasonable person in the position of the Claimant, i.e. having the knowledge which the Claimant had or ought to have had at the time of the accident, was negligent”.
  2. There is no evidence that ADR slowed down when he approached the intersection of Victoria Road and Irvine Crescent although he clearly admits that he was familiar with that stretch of the road and knew or ought to have known that cars were permitted at that time to make a right hand turn from Victoria Road into Irvine Crescent.
  3. In my view a reasonable person in the position of ADR, approaching an intersection in a busy part of suburban Sydney during peak hour would have taken greater care when entering the intersection.
  4. I find therefore that ADR should have taken greater care when entering the intersection of Victoria Road and Irvine Crescent especially as he was very familiar with that stretch of the road. He travelled it virtually every day to and from his work.

What is the degree of the Claimant’s contribution?

  1. The Claimant’s solicitor has correctly identified the test I must apply which is to consider the relative culpability of both ADR and the insured driver in terms of the degree of the departure from the standard of care and the relative importance of their acts in causing the collision.
  2. The insured driver says he was proceeding cautiously into the intersection and ADR says he was travelling at about 50kph in the bus lane. The insured driver says he did not see ADR’s vehicle because it was small and he was travelling in the bus lane which the insured driver says he was not expecting. The insured driver simply failed to see ADR proceeding in the bus lane. He should have considered the possibility of a car proceeding in the bus lane either with the intention of turning left into Irvine Crescent or proceeding straight ahead in the bus lane.
  3. The insured driver admitted that his view of the bus lane was obstructed by the presence of two large vehicles stopped in lanes 2 and 3 at the entrance to the intersection. I am satisfied on the evidence that the insured driver should have taken greater precautions and checked to see if there was a vehicle travelling in the bus lane as he was making his right hand turn especially bearing in mind that he could not see a vehicle in lane 1.
  4. ADR says he did not see the insured driver’s vehicle until the collision. His evidence is that he proceeded through the intersection at about 50kph without altering his speed and without taking any precautionary measures. I am satisfied that he should have taken more care when entering the intersection knowing that there was stationary traffic in lanes 2 and 3.
  5. I am satisfied that ADR should have anticipated, especially as he was very familiar with that stretch of the road, that someone may have been attempting to make a right hand turn from Victoria Road into Irvine Crescent. I am satisfied that ADR ought to have slowed his vehicle to a speed which would have allowed him to slow down or stop or otherwise avoid the collision with the insured driver’s vehicle.
  6. In my view the insured driver’s departure from the standard of care of a reasonable driver is far greater than ADR’s departure because the insured driver was attempting to make a right hand turn across a very busy main road at peak hour. They both should have been keeping a proper lookout but neither saw the other vehicle.
  7. In the circumstances of this claim, I am not persuaded by the Claimant’s submission that there should not be a finding of contributory negligence against him.
  8. Having carefully considered the circumstances of the accident and the relative culpability of the parties, I am satisfied that the insured driver’s contribution to the collision is 80% and ADR’s contribution is 20%.

Costs and disbursements

  1. The matter that has been referred to me is a ‘regulated miscellaneous claims assessment matter’ under clause 3(2) (g) of Schedule 1 to the Motor Accident Injuries Amendment Regulation 2017.
  2. There is a dispute between ADR and the Insurer in respect to recovery of legal costs under section 8.8 of the Act.
  3. The Claimant makes an application for costs of the assessment of this dispute dated 28 February 2019. Clause 3(1) of Schedule 1 provides that “the maximum costs for legal services provided to a claimant ….. in connection with an assessment ….. involving a dispute about a regulated miscellaneous claims assessment matter are $1,600.00 up to a maximum of $6,000 per claim”. The amount of $1,600.00 has been increased to $1,633.00 in accordance with the Motor Accident Injuries Amendment (Indexation) Regulation 2018.
  4. One (1) teleconference has been held during the course of the assessment and subsequent submissions made referable to the claim for costs.
  5. The Claimant claims $1,633.00 plus GST for professional fees and disbursements of $157.20 for police report $89.20; GIPA request $30.00; and clinical records Priority Medical Centre $38.00:
  • Professional fees incl GST                                   $1,796.30
  • NSW Police Force - report                                         $89.20
  • NSW Police Force – GIPA request                           $30.00
  • Priority Medical Centre – clinical notes request        $38.00
  • GST on Priority Medical Centre clinical notes             $3.80

TOTAL                                                                  $1,957.30

  1. The Insurer submits by email on 1 March 2019 that the Claimant’s DRS application “did not enclose or rely on any police material or records from Priority Medical Centre and therefore the claimed disbursements cannot be considered reasonable and necessary”.
  2. By email sent on 1 March 2019, Law Partners submitted that “disbursements such as clinical notes can be claimed under the guidelines and does not need to be served to claim this expense. Also, as this is a case regarding liability, we required the police report and GIPA application to rely and assist in our submissions regarding liability in this matter”.
  3. I am not persuaded by the Claimant’s submissions on disbursements. The NRMA attached a copy of the police report (refer R8) and the GIPA material (refer R9) to its Reply. There was no need for Law Partners to obtain a police report and make a GIPA application. Law Partners could simply have requested copies from the NRMA Insurance. I do not allow the cost of the police report or the GIPA application as fair and reasonable in the circumstances of this dispute.
  4. The clinical records of Priority Medical Centre were not relied upon by the Claimant and in any event I fail to see the relevance of the clinical records referable to the liability dispute before me. I do not allow the cost of the clinical records of Priority Medical Centre as fair and reasonable in the circumstances of this dispute.
  5. The Claimant’s solicitor prepared extensive submissions. I am satisfied that the Claimant’s solicitors should be allowed the maximum amount for professional costs of $1,796.30 incl GST.
  6. 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:

  1. For the purposes of section 3.38 the Insurer is entitled to reduce the statutory benefits payable in respect of the motor accident.
  2. Effective Date:  6 March 2019.
  3. 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.

Geraldine Daley

Decision Maker

Dispute Resolution Services