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ADV v AAMI Limited [2019] NSWDRS CA 099

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: At fault – wholly or mostly at fault – legal costs – independent witnesses – police notebook – RMS report

Legislation cited:

  • Civil Liability Act 2002 (NSW)
  • Motor Accident Injuries Act 2017 (NSW) ss 3.28, 3.36, 7.36, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • ADV – claimant
  • AAI Ltd trading as AAMI – insurer

Disclaimer: This decision has been edited to remove all unique personal identification including the name of the claimant.

Miscellaneous claims assessment certificate

ADV Certificate

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: ADV
  • Insurer: AAMI Limited
  • Date of Accident: 8 June 2018
  • DRS Reference: 10075334
  • Date of Internal Review: 27 December 2018
  • DRS Decision Maker: Colin Stoten
  • Date of Decision: 4 June 2019

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

  1. For the purposes of section 3.28 or 3.36 the motor accident was caused either wholly or mostly by 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 $nil.

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

Colin Stoten
Decision Maker
Dispute Resolution Services

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)(e) of the Motor Accident Injuries Act 2017, about whether the Claimant was mostly at fault.

1. The Insurer has determined that the Claimant was either wholly at fault or was mostly at fault. The Claimant has lodged an application to review that decision.

2. The Claimant was driving his car shortly after 5am on 8 June 2018 in a generally easterly direction along Norfolk Road Greenacre. He says he had a green arrow permitting him to turn from Norfolk Road onto Roberts Road and travel in a southerly direction.

3. The Claimant turned onto Roberts Road and as he did so his vehicle was struck by another vehicle travelling south in Roberts Road. That other vehicle then struck another vehicle also travelling south in Roberts Road.

4. The Insurer determined that the Claimant was wholly at fault in a determination made on 18 October 2018.  That decision was reviewed by the Claimant and the decision made by the Insurer’s internal dispute reviewer on 27 December 2018 was that the original determination was correct.

Documents

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

Submissions

6. I have held four teleconferences which have resulted in the provision of substantial further documentation and to permit the Claimant to obtain legal advice. The Insurer has obtained statements from the other two drivers travelling in Roberts Road, and the Claimant, who remains unrepresented for the purposes of this application, has obtained a traffic control sequencing report from the RMS.

7. The Insurer simply says both its Insured driver and the other independent driver say that they had a green light facing them as they proceeded along Roberts Road past the intersection with Norfolk Road. If that version is accepted then the Claimant must have proceeded through a red light and is accordingly solely responsible for the collision.

8. The Claimant says he had a green light facing him and he says that he was able to cross all the northbound lanes for traffic to his right  in Roberts Road without incident  and that the other drivers travelling south must have gone through a red light.

9. In making my decision/conducting my review I have considered the following legislation and guidelines:

Legislation

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017
  • Civil Liability Act 2002

Reasons

10 .I find that the Claimant was either wholly or mostly at fault for the following reasons:

  • The statements of the Insured driver and independent witness both state that they had a green traffic control light facing them as they travelled through the intersection of Roberts and Norfolk Roads.
  • If I accept that evidence then the traffic lights facing the Claimant must have been red assuming the lights were functioning correctly and there is no evidence to the contrary.
  • The police officer attending the accident records that the lights were working correctly.
  • The Claimant says he was able to make his turn from Norfolk Road and cross the four northbound lanes of Roberts Road safely and that therefore the lights for vehicles travelling north on Roberts Road must have been red and by inference therefore the lights facing the vehicle which struck his car must also have been red probably a phase D according to the RMS report. However this version is contradicted by two other witnesses who are independent of each other and in my view I must accept their evidence in this regard because they are independent, although one of them is the insured driver.
  • The versions given by the other drivers, one of which was recorded in the contemporaneous police note book support the version which appears in the police computer event reference E67552827 and which states:  


    At 5.20am on the 8/06/18 vehicle 1(the claimant’s vehicle) was travelling north on Norfolk Street Greenacre. Vehicle 1 attempted to turn onto Roberts Road and travel south however during the turn veh 1 collided with veh 2 which then collided with vehicle 3.

11. In my view therefore the weight of the evidence supports the position taken by the Insurer in regards to the issue of fault and I find that on the basis of the evidence available to me that the Claimant was either wholly or mostly at fault in respect of this accident.

Costs and disbursements

12. As the Claimant has been unsuccessful in this application and is unrepresented I consider the Claimant is not entitled to costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

  • For the purposes of section 3.28 or 3.36 the motor accident was caused either wholly or 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 $nil.

Colin Stoten
Decision Maker,
Dispute Resolution Service