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AEB v NRMA Insurance [2019] NSWDRS CA 105

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Statutory benefits – not wholly or mostly at fault – minor injury – police report – investigation report – failed to exercise reasonable care – collision – give way sign
Legislation cited Motor Accidents Injury Act (NSW) ss 3.11, 3.28, 7.36(4) & (5), Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

Manley v Alexander [2005] HCA 79
Kosinski v Snaith (1983) 1 DLR (4th) 170

Text cited N/A
Parties AEB - Claimant
NRMA 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 the 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

ClaimantAEB
InsurerNRMA Insurance
Date of Accident10 June 2018
DRS Reference10079243
Date of Internal Review13 March 2019
Decision MakerMargaret Holz
Date of Decision7 May 2019

The findings of the assessment of this dispute are as follows

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

2.   The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

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

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services
7 May 2019

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)(d) of the Motor Accident Injuries Act 2017, about whether, for the purposes of section 3.11 (cessation of weekly payments to injured persons most at fault after 26 weeks) and section 3.28 (cessation of statutory benefits after 26 weeks to injured adult persons most at fault) the motor accident was caused mostly by the fault of the injured person.

1.  On 10 June 2018 at approximately 7.30 pm, the claimant was driving along Woodville Road, Merrylands in the second of two lanes heading north when his vehicle came into collision with the insured vehicle which, shortly beforehand, had emerged from Lansdowne Street on the claimant’s left.

2.  The claimant says that he was injured in the accident and has lodged a claim for statutory benefits against the insurer of the vehicle with which he collided, NRMA. NRMA has accepted the claim for statutory benefits for the first 26 weeks.

3.  On 11 December 2018, Aman Vij, Personal Injury Consultant of NRMA wrote to the claimant declining liability for payment of statutory benefits after 26 weeks, on the basis that the claimant was wholly at fault for his motor vehicle accident and has a minor injury. This dispute concerns the liability determination.

4.  The documents relied on as a basis for declining the claim comprised the claimant’s Claim Form for Personal Injury Benefits, a Certificate of Capacity/Fitness, the clinical notes of his General Practitioner, a document completed by his physiotherapist, a statement given by the claimant to NRMA’s investigator and the police report. The only documents of relevance in relation to the liability dispute are the claim form, the statement given by the claimant on 3 October 2018 to NRMA’s investigator and the police report.

5.  In relation to the police report, I note that the accident was reported to police about six weeks after the accident by the claimant. It reflects his account of how the accident happened and does not contain any information that would point to any fault on his part.

6.  In relation to the claimant’s own statement, I note that the document attached to the insurer’s liability notice was a draft document, unsigned by the claimant. It differs somewhat from the signed document that the insurer has subsequently attached to its Reply to this application. Again, the document contains no information that would point to any fault on the part of the claimant.

7.  NRMA’s Personal Injury Consultant Mr Vij did not provide any reason at all for declining liability or any basis upon which the insurer could possibly assert that the claimant bore any responsibility for this accident, let alone that he was wholly at fault. There was a simple assertion, unsupported by any of the documents said to have been relied on, that the claimant was wholly at fault for the accident.

8.  It does appear that the insurer had in its possession at the time that Mr Vij made his determination a detailed report from its investigator attaching not only the claimant’s statement, which he amended and signed on 9 October 2018, but also a signed statement of the insurer’s insured driver, Google map printouts marked by each of the drivers noting the position of the vehicles on impact, other photographs showing the area where the accident occurred, a canvass log detailing the results of door knock enquiries to locate witnesses, a transcript of a conversation with a neighbour and a covering report from the investigator.

9.  The investigation report is more than 50 pages in length.  Only a draft statement was provided to the claimant with the liability notice, yet the whole of the investigation report must have been taken into account by Mr Vij in reaching his decision to decline liability, bearing in mind that the documents allegedly relied upon by him do not support his determination.

10.  The claimant sought an internal review of this decision and that was duly carried out by Maria Panagiotonakos, Specialist, Claims Resolution of NRMA on 13 March 2019. Ms Panagiotonakos stated in her decision that she had relied on those same documents provided by Mr Vij, but included on this occasion the statement of the insured driver dated 24 September 2018. Again, the entirety of the investigation report was not referred to or attached to this determination. Ms Panagiotonakos confirmed the original decision of Mr Vij, having extracted parts of the statements of both drivers and cited cases including a case of Kosinski v Snaith (1983) 1 DLR (4th) 170 from the Saskatchewan Court of Appeal, two cases from single judges of the Supreme Court of South Australia and an extract from the High Court’s decision in Manley v Alexander [2005] HCA 79.

11.  Ms Panagiotonakos stated in her decision that:

“Upon reaching the intersection of Lansdowne Street and Woodville Road, the insured indicated left and came to a complete (stop) whilst waiting for traffic to clear before turning left onto Woodville Road northbound in lane 2 of 2. After having travelled on Woodville Road for approximately 10 metres whilst indicating left, being almost directly across from his driveway, and having slowed down to about walking pace, the insured’s vehicle was impacted in the rear by AEB’s vehicle.”

She went on to say:

“AEB had a heavy duty to drive with care and had he paid proper attention to what was happening in front of him, he would have been aware of the insured’s vehicle in front of him slowing down and indicating left to commence turning into his driveway.”

12.  Ms Panagiotonakos found that the claimant had failed to pay proper attention to the road ahead and/or exercise reasonable care when driving to allow him to brake and stop in time to avoid a collision with the insured’s vehicle travelling in front of him. She also concluded that the claimant had failed to keep a safe distance behind the insured’s vehicle, thereby having insufficient time to effectively brake and avoid the rear-end collision which ensued.

13.  The claimant duly lodged this application for a determination in relation to liability.

14.  The insurer has attached to its Reply the entirety of the investigation report of which it has been in possession for more than six months, had obviously relied on in making its liability determination and had not disclosed.

15.  Mr Matthews, the claimant’s solicitor, had not seen the entirety of this report when preparing submissions in support of this application.  At the teleconference on 29 April 2019, he sought time to obtain a supplementary statement from his client and to prepare amended submissions.  I found that that was not necessary.

16.  I indicated at the teleconference that it was my view, having reviewed all the information lodged in this matter, that it was the insured driver and not the claimant who was at fault for this accident and that I would deliver my reasons in due course.

17.  My reasons are set out below.

Documents considered

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

Legislation

19.   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

Actions of the Claimant leading up to the accident

20.  At all relevant times, the claimant was proceeding north on Woodville Road in the second of two northbound lanes.  He says that he collided with the insured vehicle just on the northern side of the intersection with Lansdowne Street and outside 242 Woodville Road, which is on the corner.  The claimant’s diagram is consistent with this statement.

21.  The claimant says that he was proceeding at about 40km/h in a 70km/h zone, that traffic was light and that there were no other cars around on the road that night apart from the insured vehicle.  There were no parked cars on the left side of the road.

22.  The claimant says that as he approached the intersection with Lansdowne Street, he saw the insured vehicle as it was driving out onto Woodville Road and about 5 metres in front of him.  It appeared to him that the vehicle was about to turn right to head south on Woodville Road. He says that the vehicle drove straight out onto the intersection towards the southbound lanes of Woodville Road and then, at the last second, swerved to the left into lane 2 to proceed north on Woodville Road, which was in front of him.

23.  The claimant says that as soon as he saw the other car pull out, he slammed on his brakes, but it was too late.  He says that the insured driver proceeded less than a metre in lane 2 before the collision occurred. The claimant describes the collision as “heavy and significant”.  He says that the insured driver apologised to him after the accident and said that he had not seen the claimant coming.

The Insured's actions leading up to the accident

24.  The insured is a 79 year old gentleman who has lived in the same address in Woodville Road for most of his life.  His home is next door to the commercial building on the corner of Lansdowne Street. He says that he proceeded up Lansdowne Street, which is his usual practice whenever he returns to his home in Woodville Road, no matter where he had been.  He says that he came to a complete stop at the give way signs at the corner of Lansdowne Street and Woodville Road and he recalls that he waited there for about 30 seconds for traffic to clear and that there were a few cars passing on Woodville Road.  He says that traffic cleared, he could not see any vehicles at all to his left or right on Woodville Road and believed it was safe to move out.  He then “slowly and cautiously turned left and entered the northbound lane 2 of 2 on Woodville Road.  I always enter lane 2 of 2 as it is a fairly sharp left turn into my driveway.”

25.  The insured driver says he fully completed his turn onto Woodville Road and was in the centre of lane 2.  He turned on his indicator and proceeded about 10 metres, slowing down from the “20km/h maximum” he had been traveling at as he made his turn.  He says that he was almost directly across from his driveway and slowed down to “about walking pace” when he was hit.  He says that he never saw the other car approaching.

Consideration

26.  According to the submissions put orally to me at the teleconference by Ms Pleskach, the crux of the insurer’s case is that the insured driver had been in lane 2 for sufficiently long for the claimant to be required to slow down so as not to collide with the rear of the vehicle. There is a factual dispute as to whether the accident occurred outside 242 Woodville Road, which is on the corner of Lansdowne Street or next-door, outside the insured’s house.  I note that the insured’s driveway is on the right hand side of his house, away from Lansdowne Street.

27.  Whether the incident occurred outside the insured’s house and somewhere close to the entry to his driveway or further south towards the corner of Lansdowne Street, it does appear that the distances involved were very small.  In his statement, the insured driver says he had to make the turn into his driveway within 20 metres of the intersection. There is no independent evidence of the exact location of the impact, but, on the basis of the evidence, I find that it was somewhere between 10 and 20 metres from the intersection. The difference amounts to about 2 to 3 car lengths and, in the context of this collision is, in my view, insignificant.

28.  I find that the insured vehicle had been traveling in lane 2 of Woodville Road for between 10 and 20 metres at the time of impact. It was slowing during that short distance and was almost stationary at the time that the claimant collided with it.

29.  I accept that a driver following behind other traffic needs to make allowances for the movements of that traffic, particularly if it slows down.  In this case, however, the claimant was not ‘following’ the insured vehicle for other than a very short distance of somewhere between 10 and 20 metres and that vehicle was already proceeding very slowly, having emerged onto the roadway into the path of the claimant.

30.  In the circumstances of this case, I find that the claimant was not ‘following’ the insured vehicle, as contemplated in the caselaw cited, such as to require him to slow down to the speed being travelled by the insured vehicle when it slowed. To the contrary, the insured driver has emerged slowly from a side street, turned into the path of the claimant’s vehicle and has then slowed even further, while indicating to make a left turn. He was almost stationary at the time of impact. I am not satisfied that the insurer has established that the claimant acted negligently in failing to brake sufficiently to bring his vehicle virtually to a halt in such circumstances.

31.  I find that the party at fault for this accident was the insured driver. He has passed through a give way sign, seemingly without appreciating that the claimant’s vehicle was approaching from his right.  He says that he did not see the vehicle.  Had he checked properly for traffic at the give way sign, as he should have done, the claimant’s vehicle should have been obvious to him.  There is no indication of any obstruction or any reason that the claimant could not have been clearly visible to the insured driver. There is nothing to explain why the insured driver did not see the claimant’s approach. This accident occurred because the insured driver has failed to give way at a give way sign.

32.  A second cause of the accident, in my view, is the fact that the insured driver, when turning left, elected, as is apparently always his practice, to turn wide into lane 2 rather than into the kerbside lane of Woodville Road. Had he seen the claimant’s vehicle, he might have made his turn into the kerbside lane, allowed the claimant’s faster moving vehicle to pass and then moved right into lane 2 to make his turn into the driveway. In turning directly from Lansdowne Street into lane 2, the insured driver has placed himself directly into the path of the claimant’s vehicle.

33.  In my view, the responsibility for this accident lies solely on the shoulders of the insured driver.  There is no negligence on the part of the claimant.  I find that he is not the person wholly or even mostly at fault for the accident and the insurer is required therefore to continue to pay statutory benefits.

Costs and Disbursements

34.   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

35.  My determination of the Miscellaneous Claim is as follows

  • For the purposes of sections and 3.11 3.28 the motor accident was not caused mostly by the fault of the injured person
  • The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services