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ADY v Allianz Australia Insurance Ltd [2019] NSWDRS CA 102

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Statutory benefits – contributory negligence – wholly or mostly at fault – collision – indicator – safe braking distance – witness discrepancies – live photos

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 3.28, 3.38, 7.36, Schedule 2
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441
  • Road Rules 2014 (NSW) reg 31

Parties:

  • ADY – Claimant
  • Allianz Australia 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 year

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

  • ClaimantADY
  • InsurerAllianz Australia Insurance Limited
  • Date of Accident7 February 2018
  • DRS Reference10077115
  • Insurer Claim Number37C000441
  • Date of Internal Review3 January 2019
  • DRS Decision MakerSusan McTegg
  • Date of Decision20 May 2019
  • Conference date and time29 April 2019 at 10am
  • Conference venue and locationLevel 21, 1 Oxford Street Darlinghurst
  • Attendances for ClaimantClaimant in person
  • Attendances for Insurer
    • Ms Frances Allen of Moray & Agnew Lawyers
    • Mr Marcus De Courtenay, Insurer Representative
  • Interpreter XXXXXXX

Reasons for decision

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

Introduction

1. This is a dispute as to whether for the purposes of section 3.28 of the Motor Accidents Injuries Act 2017 the motor accident was caused mostly by the fault of the injured person (the Claimant).

2. The Claimant alleges he was injured in a motor vehicle accident on 7 February 2018 (the accident).  He made a claim for statutory benefits against the insurer.

3. In a liability notice dated 23 October 2018 the insurer declined liability for payment of statutory benefits beyond 26 weeks from the date of accident on the basis the Claimant was wholly at fault in the accident.

4. The insurer undertook an internal review and issued a decision on 3 January 2019 confirming the decision the Claimant was wholly at fault in the accident.

5. The Claimant filed an application for determination disputing the decision made by the Insurer.

Documents considered

6. I have considered the following documents provided by the Claimant:

  • Statement of the Claimant dated 29 October 2018
  • Statutory Declaration of the Claimant dated 30 January 2019
  • Statement of the Claimant dated 2 April 2019 together with attachments
  • Diagram of accident
  • Diagram of damage to Claimant’s motor vehicle
  • Statement of the ADY’s partner dated 2 April 2019

7. I have considered the following documents provided by the insurer:

  • Police report
  • Statement of the insured driver dated 4 October 2018
  • Statement of witness
  • Investigation report of Verifact
  • Liability notice dated 23 October 2018
  • Certificate of Determination – Internal Review dated 3 January 2019
  • Application for personal injury benefits.

8. Having regard to the objection posed by the Claimant I have not considered the statement dated 5 October 2018 furnished  by the Investigator which purports to be from the Claimant noting the statement is not signed and the Claimant alleges it is inaccurate.

The relevant law

9. Section 3.28 of the Motor Accident Injuries Act 2017 states:

  • 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:
    • 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, or
    • the person’s only injuries resulting from the motor accident were minor injuries.
  • 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%.

10. Regulation 31(1) and (2) of the Road Rules 2014 state:

  • A driver turning right at an intersection from a road (except a multi-lane road) must approach and enter the intersection in accordance with this rule.
  • If the road has a dividing line or median strip, the driver must approach and enter the intersection from the left of, parallel to, and as near as practicable to, the dividing line or median strip.

The claimant's evidence

11. Landy Drive, Warila runs in a general south to north direction with one lane each way.  The accident occurred at an intersection where Chapman Avenue runs to the west of Landy Drive and Andrew Crescent runs to the east.  Landy Drive leading up to that intersection is a wide road with one lane in each direction divided by double unbroken centre lines.

12. At about 9am on 7 February 2018 the Claimant was driving his vehicle north in Landy Drive Warilla.  In the Application for Personal Injury Benefits the Claimant stated the taxi impacted with the driver’s side of his car as he attempted to turn right.

13. In his statement dated 29 October 2018 and adopting the numbering therein the Claimant states:

[26] I was driving along Lake Entrance Road, Barrack Heights at about 40kph when I indicated left and turned into Landy Drive and then indicated right to park my car on Andrew Crescent.

[27] Landy Drive travels north to south. Andrew Crescent exits to the right and Chapman Avenue exits to the left.

[28] I decided to make a right turn into Andrew Crescent so I indicated and slowed my speed.  I was travelling about ten kilometres per hour. There were no cars coming from the opposite direction.

[29] I began to make a right turn into Andrew Crescent.  As I was making my turn I was hit by another car from behind.  The front of that car collided with the driver side of my car as I turned.

[30] Both cars stopped in the middle of the road where the collision happened.  I was in shock.  I sat in my car for a few minutes and then my partner got out of the passenger side door.

14. In a statutory declaration dated 30 January 2019 and adopting the numbering therein the Claimant stated:

[4] I saw the witness from XX Andrew Crescent and note he was at least 100 metres away on my left side walking through the park.  I also noticed shrubs in front of him.  At this distance and as the park is set lower then where the cars were, I believe he would not be able to see properly.

[5] Both the taxi driver and the witness say I didn’t indicate right. However, I did.  I have provided you with photos which show the indicator is on. I believe if you review the taxi drivers photos you will see my indicator is on.  I believe the witness was too far away to see my indicator.  To clarify the right indicator was flashing right the whole time from when I indicated my intention to turn right, while the police, ambulance and rescue unit were there; I do not understand why they are saying I did not indicate.

[6] If the taxi driver is correct, then I believe he would have passed me without impact.

14. In a handwritten statement on 2 April 2019, the Claimant stated, inter alia,

While I was in the process of turning right, I was hit by the taxi in my back right side.  From the force of the impact, my car was turned 180°.

Once the cars came to a standstill, the taxi angrily ran over to me demanding my details and name of insurance company.  I was in pain and in shock and unable to respond to him.  He then moved away to the corner where the witness approached him and they were talking together.  They continued talking and after a while, I heard the witness say “Fucking wogs come here and can’t drive” and “Bloody wogs”.

The Claimant was questioned at the assessment conference.  I asked him to mark an aerial photograph which I labelled “A” with the position of the witness.  He said the witness was at least 100 metres away in a park on the northern side of Chapman Avenue towards the edge of the road behind a clump of trees.

Evidence of uninsurered driver

17. The driver of the insured vehicle, a taxi asserts, was driving north in Landy Drive at about 40 kilometres per hour.  He saw the Claimant’s vehicle a silver Jetta in front of his vehicle.  He states he was about 10 metres behind the Jetta and travelling at a similar speed.  Coming up to the intersection of Chapman Avenue the insured driver asserted the Jetta slowed down although the brake lights did not come on.  The insured driver slowed slightly and his vehicle closed to about 5 metres behind the Jetta.  At that time he was travelling at a speed of 25 kilometres per hour.

18. The insured driver asserts he saw the Jetta veer across to the left as it approached Chapman Avenue as if it was going to make a left hand turn into that street.  He states the Jetta did not display any blinkers and without warning it suddenly swung to the right and was at a 90 degree angle to his vehicle as if it was making a U-turn or a right turn into Andrew Crescent.

19. The insured driver asserted he did not deviate from his course of travel.  He did not try to overtake the Jetta and remained completely to the left of the double unbroken centre line.  The insured driver  braked but could not prevent the front of his taxi colliding with the driver’s door and rear door of the Jetta.

20. The insured driver provided a statement dated 4 October 2018.  Adopting the numbering contained in that statement he said

[24] I was driving north in Landy Drive at about forty kilometres per hour. I saw a silver VW Jetta driving in front of my vehicle.  I was about ten metres behind the Jetta and travelling at a similar speed to that vehicle.

[25] I was the only occupant of my vehicle.

[26] I saw the intersection of Chapman Avenue coming up ahead.

[27] I saw that the Jetta was slowing down although the brake lights didn’t come on. I slowed slightly and closed to about five metres and was travelling about twenty five kph behind the Jetta.

[28] I saw the Jetta veer across to the left as it approached Chapman Avenue, as if it were going to make a left turn into that street.  The car did not display any blinkers.

[29] I was still behind the car but didn’t really know what the driver was going to do.

[30] The Jetta suddenly swung to the right and was at a ninety degree angle to my vehicle as if it was making a u turn or a right turn into Andrew Crescent.  I did not see any blinkers operating on the Jetta.

[31] I had not deviated from my course of travel.  I did not try to overtake the Jetta.  I drove straight on the path I had been driving, I was still completely to the left of the double unbroken centre lines.  The collision was unavoidable.

[32] This happened really quickly and the Jetta was travelling about 25 kph.  It was a sudden move and caught me by surprise.

[33] I braked but could not prevent the front of my taxi colliding with the offside front and rear doors of the Jetta.  I pushed the vehicle across the road and we came to rest on the eastern side of Landy Drive at the northern edge of Andrew Crescent.

[34] My cab was facing north and the Jetta was now facing south. The front and offside of my car was in contact with the offside of the Jetta.

[35] I sat in my car and composed myself and then made an internet call to our taxi base in Wollongong and reported the incident and requested emergency services.

[36] I got out of my car and walked to the nearside of the Jetta and saw a lady sitting on the grass verge.  She was apparently from the passenger seat of the Jetta.  This was the first time I knew there was both a male and female in the car.

[37] I saw a male sitting in the drivers seat of the Jetta. I spoke to the women and told her that I had called for assistance.

[38] By this time some bystanders had turned up and someone asked me to move my taxi off the road.  I went back to the cab but couldn’t start it.  The driver of the Jetta was unable to get through his door because my cab was blocking the driver side door from opening.  The driver climbed out through the passenger side of the Jetta.

[39] I spoke to the driver and found that he had poor English. I then had a conversation with his passenger who I believed was the driver’s wife.  She had better English.

[44] I inspected the damage to the two vehicles.  I saw the damage to my vehicle was to the front portion and it was towed from the scene…

[45] I saw that the Jetta had damage to the offside rear and front passenger doors.. ….

[46] I was approached by a man named redacted who lives at redacted. He told me he had witnessed the collision.

Evidence of the unidentified witness

21. The witness whose name has been redacted from my copy of the statement provided a statement dated 11 October 2018.  Adopting the numbering therein he stated:

[9] About 9:20am on the 7 February 2018 I was walking in an easterly direction through the park in Chapman Avenue, Warilla.  I was walking towards my home at XXX Andrew Crescent, Warilla and it was only a short distance from where I was walking.

[10] The park is located on the northern side of Chapman Avenue and is to the west of Landy Drive.  The route I was taking through the park led me towards Landy Drive.

[15] As I was walking I was looking to the east towards the intersection.  Landy Drive is a very wide street and from where I was I could see the whole intersection and for some distance all around.  I was about one hundred metres from the centre of the intersection.

[16] At the time the weather was fine. Traffic was light. Visibility was good.

[17] In the twenty four hour period prior to this time I had not consumed any alcohol or any form of illegal drugs.  I was alert to what was occurring around me.

[18] I saw a small silver sedan coming down the hill on Landy Drive.  It was just driving normally.  I saw that there was a white taxi driving a few cars length behind it in the same direction…….Both vehicles were travelling at a normal speed for this location, perhaps 20 to 30 kph.

[20] As I watched I saw the silver car veer over to the left side of Landy Drive just before the intersection with Chapman Avenue and then veer around to the right across Landy Drive in a U turn.  It did this in one movement and didn’t stop on the side of the road first.  I didn’t see any blinkers being used on the silver car.

[21] I saw the front of the taxi crash into the driver side of the silver car.  I don’t think the taxi had any time to brake as this happened really quickly.

[22] The impact of the collision pushed both cars over towards the north eastern kerb of the intersection and the silver car came to rest facing south and the taxi facing north.  They were side by side and still touching each other.

[23] I have no doubt in my mind that the silver car was making a u turn and not making a right turn into Andrew Crescent.  If it had of been making a right turn it would have been positioned right over towards the centre of Landy Drive.

[24] I went over to where the cars came to rest and spoke to the occupants of the two cars.  There was only one passenger in the taxi and a man and female in the silver car.

[25] None of them appeared to be injured, maybe a little shaken up.

[26] I gave my details to the taxi driver and then walked to my home nearby.

22. The Claimant cast doubt on the veracity of the evidence provided by the witness on the basis the witness was standing at least 100 metres away and to the left of the intersection.

Evidence of the ADY's partner

23. A statement was also provided by the ADY’s partner dated 2 April 2019.  She was the front seat passenger in the vehicle driven by the Claimant at the time of the accident.  In that statement she said, inter alia

We wanted to view a house that my son suggested would be suitable for ADY and allow him to live nearer to his children.

We drove to the intersection of Captain Cook Drive and Lake Entrance Road, Barrack Heights and turned right onto Lake Entrance Road.  ADY then indicated and turned left into Landy Drive.  Once on Landy Drive, ADY indicated right to turn into Andrew Crescent.

The weather was good and visibility was also good.  As ADY was turning into Andrew Crescent, there were no cars in any direction.  I looked around at the surroundings and noticed someone in the distance – whether he was 100 metres or more away I can’t’ say.  He was walking on the side of the road near a grassy area.  It is my belief the witness would not have been able to see the accident as it happened from where he was.

After the impact, a car with a couple of women arrived on the scene.  They arrived moments after.  One of the ladies came and helped me out of the car, the other tried to get ADY out.  It took a few moments to get me out of the car with her help.  I had been thrown around in my seat and was in shocked. The lady that helped me took my phone to take photos of the accident.  However she was unable to as the lens on my phone had broken from the impact.  She then used her phone and took pictures and forwarded them to me…

I also have ‘live photos’ which show the indicator flashing.

After the accident, the taxi driver came over to ADY and yelled at him to give him his name, address, licence and name of his insurance company.  I remember the witness and taxi driver taking at length.  I also remember the witness saying, “Fucking wogs came out here and can’t drive”. Both the witness and taxi driver laughed.

Reasons

24. The Insurer submits that the Claimant is wholly or mostly at fault in causing the accident for failing to indicate properly and failing to perform a U turn in accordance with the Road Rules.

25. Section 38 of the NSW Road Rules 2014 states: A driver making a U-turn must give way to all vehicles and pedestrians.

26. The Insurer further submits that the Claimant failed to maintain proper control of his vehicle and failed to activate his turning lights, and , in doing so, has caused the dangerous situation which led to the accident.

27. The Claimant, the ADY’s partner and the insured driver all gave oral testimony at the assessment conference.

28. This was not without difficulty.  As the Claimant was self-represented, he was in a position where not only did he need to provide his own testimony, but also to question the witnesses.

29. The Claimant required the assistance of an interpreter.  However, he was particularly voluble and failed to allow the interpreter sufficient time to translate his comments.  Indeed, when the ADY’s partner was questioned by myself the Claimant, despite repeated warnings, was unable to restrain himself from attempting to direct her answers particularly where her testimony was at odds with his own.  Whilst arguably a denial of procedural fairness I felt I had little option other than to ask the Claimant to leave the conference room for a short period of time to enable me to hear the testimony of the ADY’s partner.  When the Claimant returned to the conference room, I outlined to him the evidence provided by the ADY’s partner and gave him an opportunity to question her.

30. Notwithstanding, those difficulties inherent in the process I was satisfied as to the veracity of the Claimant and both witnesses.

31. The Claimant provided a number of photographs which were apparently taken by the women who attended the scene of the accident.

32. I accept the testimony of the Claimant that the position of the vehicles at the point of rest is not indicative of the point of impact in circumstances where both of the vehicles had been pushed across the road.  I accept the testimony of the Claimant that the initial impact was to the drivers side rear door.

33. The Claimant was adamant that he had not veered to the left before turning right and that he was travelling in a straight line parallel to the centre line prior to commencing his turn to the right. However, assuming this were so, the Claimant appeared unable to explain why the impact from the taxi occurred on the drivers side passenger door and not to the rear of his vehicle.

34. The position of the witness is less clear.  The witness suggests he was walking at an angle in an easterly direction through the park in Chapman Avenue Warilla.  The taxi driver didn’t see the witness prior to the accident.  The Claimant states the witness was walking along the edge of the park in Chapman Avenue Warilla and at the time of the accident was behind a clump of trees.  The ADY’s partner suggested the witness was walking in a southerly direction at least 100 metres north of the intersection of Andrew Crescent on the grass verge.  She recalled the witness had a green goatee and was unsteady on his feet.

35. Both the Claimant and the ADY’s partner were adamant that the witness spoke to the taxi driver and said words to the effect “Fucking wogs came out here and can’t even drive”.

36. The ADY’s partner stated she saw the witness cross Landy Drive as the vehicle was spinning.  She marked the witnesses path in red on the aerial photo marked “A”.

37. The insured driver stated he had never met the witness before and had had no discussion with him since the accident.  He said the conversation he had with the witness was minimal.  The insured driver said the witness indicated he had seen the accident; he was prepared to be a witness and volunteered his telephone number.  He did not recall anything unusual about the witness and certainly had no recollection of a green goatee beard.

38. As Ms Allen for the Insurer submitted there is a possibility there was more than one witness, although there seems no doubt that the insured driver and a witness engaged in  conversation at the scene following the accident.

39. The Claimant and the ADY’s partner were also questioned about the Claimant’s intended path of travel.  It was suggested to the Claimant that he was, as suggested by the witness, making a u turn at the time of the accident with the intention of returning to Lake Entrance Road.  However, both the Claimant and the ADY’s partner were adamant that he was intending to turn right into Andrew Crescent with the intention of parking on that street.  Both the Claimant and the ADY’s partner confirmed the Claimant’s intention to look at a property at number 92 Lake Entrance Road.  Lake Entrance Road was described as a main thoroughfare without parking.

40. The Claimant was asked why he had not parked in Landy Drive prior to the intersection with Andrew Crescent.  He described the presence of a bus stop and thought there were already vehicles parked on Landy Drive.  He stated it was only a few minutes’ walk from where he intended to park in Andrew Crescent and Lake Entrance Road where arrangements had been made to meet a real estate agent.  This is consistent with the evidence of the ADY’s partner.  She believed cars were parked in Landy Drive and it was only a two minute walk back to Lake Entrance Road from where the Claimant intended to park in Andrew Crescent.

41. The insured driver conceded there was a bus stop in Landy Drive but stated no cars were parked on the left hand side of the road that day.

42. In any event whether or not there was parking available in Landy Drive, there is no basis for me to doubt the testimony of both the Claimant and the Claimant’s partner that it was his intention to turn right into Andrew Crescent for the purposes of parking and walking back to Lake Entrance Road.

43. More significant is the dispute as to whether the Claimant had activated the right hand indictor prior to commencing the turn and prior to the collision.  Both the Claimant and the Claimant’s partner are adamant  the Claimant had activated the indicator whilst the insured driver testified that at the time of the incident, he did not see any signal from the silver car in front.  The witness also stated the indicator had not been activated.

44. However, I had the opportunity to view the “live” photos on the insured driver’s phone.  It is clear from those photos that the right indicator on the Claimant’s vehicle was flashing after both vehicles had come to rest following the collision.  Ms Allen for the insurer conceded that the right hand indicator of the Claimant’s vehicle was flashing in the photos taken following the accident.

45. In light of the live photos showing the flashing indicator I accept the evidence of both the Claimant and the Claimant’s partner that the Claimant had indicated to turn right prior to commencing the turn from Landy Drive into Andrew Crescent.  There is no evidence before me to otherwise explain how the indicator came to be flashing after the vehicles came to rest.

46. The witness was not questioned at the assessment conference.  Having regard to the discrepancies between the various witnesses as to the placement of that witness at the time of the accident and noting his own concession that he was at least 100 meters away from the accident in a direction to the left of the accident I am not satisfied he would have been able to see clearly whether the Claimant had activated his right hand indicator.

47. Having regard to the damage to the Claimant’s vehicle I accept that the Claimant did veer to the left prior to commencing his right hand turn.  There is no evidence that either vehicle had crossed the double white lines at the time of the collision.  If the Claimant’s vehicle had not veered to the left prior to commencing the turn, then in all likelihood, the taxi would have collided with the rear of the Claimant’s vehicle and not where the point of impact occurred, on the rear right passenger door.

48. The Claimant submits that the taxi driver had not maintained a safe braking distance and/or was driving at excessive speed at the time of the accident.  The insured driver stated that after he turned left into Landy Drive from Lake Entrance Road the silver car in front of him was travelling at a speed of 40 kilometres per hour.

49. The insured driver stated when he first saw the silver car he was about ten metres behind it. After the silver car slowed down to about 20 kilometres per hour the insured driver also slowed down until he was about four to five metres behind the silver car.

50. He stated the silver car started to veer to the left when it approached Chapman Avenue but there was insufficient space to enable him to manoeuvre his vehicle between the silver car and the double white lines.  He said he thought he would go past the silver car but it then turned across his path.  He stated he applied his brakes but the accident was unavoidable, he could not stop.

51. The insured driver was asked “Assuming that vehicle was in position in front of you and then turned right would you have been able to avoid him?”.  He answered “No”.

52. The insured driver was then asked, “If he was still in front were you at such a distance to be able to avoid him?”.  The insured driver replied, “The obvious thing is to veer left to go around him if he was turning right”.

53. It is undoubtably correct that if the insured driver was aware of the Claimant’s intention to turn right and he wished to drive straight ahead then he would normally have veered to the left around the turning vehicle.  The fact he failed to do so suggests he really was unaware of the Claimant’s intention to turn into Andrew Crescent or that he was not keeping a proper look out.

54. It is difficult to avoid the conclusion that the insured driver was simply, and in all the circumstances, driving too close to the Claimant’s vehicle to be in a position to stop safely when something untoward occurred.

55. I have already indicated I am satisfied that the Claimant did veer to the left before commencing to make his turn to the right into Andrew Crescent.

56. However, I am also satisfied that the insured driver either failed to observe the Claimant’s right hand indicator or disregarded the indicator having regard to the path of the Claimant’s vehicle and having not maintained a safe distance was unable to brake in time to avoid a collision when the Claimant’s car, unexpectedly (to him), commenced to turn right. This is consistent with the insured driver’s own testimony that he would not have been able to avoid the silver car if it had been positioned directly in front of his vehicle before commencing to turn right.

57. The insured driver had an obligation to drive with reasonable care and to drive a sufficient distance behind the Claimant’s car so, he could, if necessary stop safely to avoid a collision.

My findings

58. Having reviewed all of the evidence I make the following findings:

  • It was the Claimant’s intention at all times to turn right into Andrew Crescent with a view to securing a parking spot in that street.
  • The Claimant activated the right hand indictor prior to commencing the turn into Andrew Crescent.
  • Prior to commencing the turn into Andrew Crescent, the Claimant’s vehicle veered to the left and did not enter the intersection from the left of, parallel to, and as near as practicable to, the centre line.
  • The insured driver did not see the indicator on the Claimant’s car or failed to take note of it because he thought the Claimant was intending to turn left into Chapman Avenue.
  • The insured driver was not maintaining a safe distance behind the Claimant’s car and when the Claimant’s car unexpectedly commenced the right hand turn was unable to brake in time to avoid a collision.

59. I find that the accident was caused as a result of the fault of both the Claimant and the insured driver.  I do not find the Claimant’s contributory negligence was greater than 61%.

60. I find pursuant to s.3.28(1) of the Act that the Claimant was neither wholly, nor mostly at fault in the accident.

61. There is no entitlement to payment of legal costs noting the Claimant was not legally represented.

Susan McTegg
DRS Claims Assessor
Dispute Resolution Service