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ADW v QBE Insurance [2019] NSWDRS CA 100

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Statutory benefits –wholly or mostly at fault – contributory negligence – scooter – overtaking stationary vehicles – collision – t-intersection – GIPA report – police report – accident report form

Legislation cited:

  • Civil Liability Act 2002 (NSW) s 5R
  • Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.36, Schedule 2
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • ADW– Claimant
  • QBE Insurance– Insurer

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

Miscellaneous claims assessment certificate

View 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: ADW
  • Insurer: QBE Insurance
  • Date of Accident: 23 June 2018
  • DRS Reference: 10076121
  • Insurance Claim Number: 360005338201
  • Date of Internal Review: 7 January 2019
  • DRS Claims Assessor: David R Ford
  • Date of Decision: 16 April 2019
  • Conference date and time: Assessed on the papers

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

  1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person.
  2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person.
  3. Effective Date: This determination takes effect on 16 April 2019.
  4. Legal Costs: As the Claimant is unrepresented, no amount is assessed for costs.

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

David R Ford
DRS Claims Assessor
Dispute Resolution Services

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) (e) of the Motor Accident Injuries Act 2017, about whether for the purposes of Section 3.28 (statutory benefits after 26 weeks to injured and persons most at fault or to injured persons with minor injuries).

1. This is a dispute between ADW, the Claimant, and QBE Insurance, the Insurer, with respect to the payment of statutory benefits, pursuant to Sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).

2. The Insurer undertook an Internal Review and a Statement of Reasons is attached to the Application form and is dated 7 January 2019.

3. ADW seeks to challenge that determination.

4. On 23 June 2018 at approximately 6:00 pm, the Claimant was riding his motor scooter, west-bound upon McEvoy Street, Waterloo, at a speed of approximately 45 km per hour.

5. It then transpired the Claimant merged into the east-bound lane over broken lines to overtake stationary traffic on the west-bound lane.  As he was preceding to overtake the stationary vehicles in McEvoy Street, the driver of Mini Cooper S motor vehicle had engaged her indicator signal and commenced to make a right-hand turn from McEvoy Street into Morehead Street, Waterloo.

6. The motor scooter being driven by the Claimant then collided with the said Mini Cooper S motor vehicle at the intersection of McEvoy and Morehead Streets.

7. The Claimant was dislodged from his scooter, fell onto the roadway and sustained the following injuries referred to in his CTP Insurance Accident Report form:-

  • Broken left shoulder.
  • Left toe.
  • Right ankle.
  • Injured knees.
  • Chipped front tooth.

8. The Claimant was taken by ambulance to St Vincents Hospital.

9. The Insurer undertook an internal review and in their statement of reasons dated 7 January 2019, the Insurer considered the Claimant wholly or mostly at fault, and after 26 weeks, the weekly payments under sections 3.11 and 3.28 were ceased.

10. The Claimant submits that he was neither mostly or wholly at fault in the motor accident, and he is entitled to a continuation of statutory benefits.  He has now filed this Application seeking a determination a determination of the dispute with the Insurer.

Documents considered

11. I have considered the documents provided in the Application and the Reply and in addition I requested the Claimant to send to me and the Insurer photographs of the scene of the accident together with a description of each photograph.  These photographs were received by me and the Insurer, by email dated 6 March 2019.

12. By email dated 13 March 2019, I received the Government Information (Public Access) Act 2009 report (GIPA report) and a copy was also emailed to the Claimant.

Insurer submissions

13. The Insurer relies upon their “Reasons for Decision” in the Internal Review document dated 7 January 2018.  I refer to page 2 of the Internal Review Decision, wherein it is stated as follows:-

“On the claim form you list your own vehicle as the at fault vehicle in the accident.  On 25 July 2018, you submitted an Accident Report Form (ARF).  On the ARF you note ‘you overtook cars stopped at traffic lights in the right lane as the line are broken I didn’t observe V1 had their indicator on.  V1 turned from McEvoy Street towards Morehead Street hitting me’.  You record that you were charged by police with ‘overtaking right if vehicle turning right’.

The police report records that you were the unit responsible for the accident. The police report notes that you had ‘overtaken when unsafe to do so and collided the front of his vesper with the front offside of a white Mini Cooper S’.”

Furthermore, the Insurer also relies upon the following submission in their Internal Review on page 2:-

“On 3 October 2018, you provided Verifact with a signed statement regarding the accident.  In the written statement you record that ‘I paid excess to NRMA of about $750 and was paid out for the bike as this accident was my fault’.  You also state ‘I understand the accident is my fault and as I am not claiming any loss of income and just medical and thinking I would have healed faster than I have I have now had to lodge this claim to try and get some medical assistance and treatment’.”

I requested the Insurer as to whether they wished to serve a statement from the driver of the Mini Cooper S.  In response, I was asked to consider the statement of the said driver which is recorded in the police notebook.  The statement is as follows:-

“DRIV2 was driving up McEvoy Street, Waterloo towards Morehead Street.  Travelling at a speed if approximately 50 km/hr.  When the driver slowed down and indicated to turn right on Morehead Street, when a blue motorcycle scooter drove up on the right side of my car when I was swinging onto Morehead Street and the rider hit the right front side and wheel of my car.  The rider bounced off my car and came off his bike falling onto the kerb. I pulled over and spoke to rider and police and ambulance were called.”

Claimant submissions

16. The Claimant admitted was he was in the process of overtaking the stationary traffic in the east-bound lane of McEvoy Street, when he collided with the Mini Cooper S motor vehicle at the t-intersection with Morehead Street.  However, the Claimant has never admitted that he was wholly at fault or mostly at fault, with regard to the subject accident.

17. In the statement recorded to the police (GIPA report) the Claimant states as follows:-

“So I was going up McEvoy Street west from Bourke Street.  The lights were red at the intersection of Elizabeth and McEvoy Street.  I could see clearly all of the way up to the lights and there was no traffic on the opposite side of the road.  All of the cars were stationary in front of me in the left hand lane.

I indicated and drove up McEvoy Street in the right hand lane as there is broken lines.  I was travelling around 45 km/hr.  I was keeping an eye ahead of me and also the cars I was overtaking.  Then a car just came out.  I didn’t see an indicator and the turned in front of me.  I had no time to react and hit the front right hand corner side of the car.  I went up in the air and spun.  I landed on my right shoulder.”

18. I refer to the statement of the Claimant recorded by Mr Trent Southworth of Verifact Investigations Pty Limited dated 3 October 2018.  I refer to paragraph 35 of the statement:-

“35. I would have moved more back towards the left edge of the east bound lane as I approached the Morehead Street intersection as this was a safe thing to do.  At no stage did I see a vehicle and there (sic) right indicator on as I was probably more focusing on looking towards Morehead Street myself to make sure there was nothing coming out from there.

36. As I made it to the Morehead Street intersection a car has made a right turn from lane 2 towards Morehead Street and the front of there (sic) car has hit me on my left side and knocked me off my bike.  I slid towards the other side of the road on my left side and stomach and came to rest.”

19. I refer to paragraph 40 which states as follows:-

40. I understand the accident is my fault and as I am not claiming any loss of income and just medicals and thinking I would have healed faster than I have I have now had to lodge this claim to try and get some medical assistance and treatment.

41. I have given police a statement at the hospital and signed there (sic) notebook and I received a ticket in the mail and the constable called me and apologised for having to give me a ticket for ‘Not give way to vehicle making right turn’ or something similar to that. I have paid that ticket already. I was told by police that they had interviewed the car behind the car who made a right turn and hit me and that the female driver did have a right indicator on but I did not see this.”

20. I was assisted by the photographs taken by the Claimant at the scene of the accident and the descriptions provided.

Legislation

21. 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
  • Civil Liability Act 2002 (NSW)

Reasons

Was ADW wholly at fault in causing her accident?

22. I find the Claimant was entitled to carry out this manoeuvre of overtaking stationary vehicles in the east bound lane of McEvoy street.  It is apparent from the photographs sent by the Claimant that he had a clear view of the line of cars leading up to the intersection of McEvoy and Elizabeth Streets.

23. I further accept the Claimant’s statement he was keeping a look-out and the headlight of this motorcycle was turned on.  In his submission attached to the Application form, I note the following:-

“If I had checked properly before proceeding, they would have seen the headlight of Vespa as the light is automatically on when the engine is on.”

24. I also find the driver of the Mini Cooper S vehicle did have her right indicator on, signalling her intention to turn into Morehead Street, however, before carrying out this manoeuvre, I find it was incumbent upon the driver of the motor vehicle to check her rear-view mirror (side rear-view mirror) to ensure there were no other motor vehicles or motorcycles approaching from the rear.

25. When making such a right-hand turn, as happened in this case, the driver of motor vehicle attempting this manoeuvre, should be keeping a proper look out which includes not only looking towards oncoming traffic but also any traffic approaching from the rear.  If the driver had looked in her rear view side mirror, I accept that she would have noticed the Claimant on his motorcycle approaching towards the t-intersection and in such circumstances, could have allowed the Claimant to pass her vehicle safely before she attempted to make the right hand turn.

26. I therefore find the driver of the Mini Cooper S negligent in the driving of her vehicle as she had not kept a proper lookout, failed to look into her rear view side mirror for approaching traffic from the rear, and therefore, attempted to make a right-hand turn into Morehead Street when it was unsafe to do so.

27. I therefore find ADW was not wholly at fault in causing the accident.

Was the motor accident caused mostly by the fault of ADW?

28. The onus of proving contributory negligence rests upon the Insurer.

29. In deciding whether ADW was guilty of contributory negligence, I must have regard as to the standard of care set out in section 5R of the Civil Liability Act (NSW) 2002.

30. As stated above, I find the driver of the Mini Cooper S motor vehicle was not keeping a proper lookout and should have looked into her rear side view mirror before attempting to make a ride-hand turn into Morehead Street.  If she had done so, she would have seen ADW approaching on his motorcycle and allowed him to pass safely.

31. I further find that ADW was not keeping a proper lookout in the circumstances and should have seen the right indicator activated on the Mini Cooper S motorcycle which would have forewarned him of the intention of the said driver to make a right-hand turn into Morehead Street.  By his own admission, ADW was more focussed on looking out for traffic entering from Morehead Street into McEvoy Street.  If ADW seen the right-hand indicator, he may have slowed down his motorcycle or taken evasive action.

32. However, I do find that ADW was entitled to overtake the stationary motor vehicles in such circumstances and was not travelling at an excessive speed, being an admitted speed of 45 km per hour.

33. However, having regard to the fact, in my view, he was not keeping a proper lookout, I find he is guilty of contributory negligence as such, but I do not find his contributory negligence was greater than 61%.

34. During the Second Teleconference on 3 April 2019, both parties requested I make an assessment of contributory negligence.  I will therefore comply with their request and without determining the precise degree of contributory negligence of the Claimant, I find that it is more likely that each of the Claimant and the Insured driver were negligent to the extent of about 50%.

Findings

35. Therefore, I find the accident of 23 June 2018 was not caused wholly by the fault of ADW.

36. I also find the accident of 23 June 2018 was not caused mostly by the fault of ADW

Costs and disbursements

37. As the Claimant is unrepresented, no amount is assessed for costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

38. For the purposes of section 3.11 and 3.28 the motor accident was caused by the fault of another person.

39. For the purposes of section 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.

40. Effective Date: This determination takes effect on 16 April 2019.

41. Legal Costs: As the Claimant is unrepresented, no amount is assessed for costs.

David R Ford
DRS Claims Assessor
Dispute Resolution Services