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AEP v NRMA Insurance Limited [2019] NSWDRS CA 119

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Statutory benefits – statutory payments – at fault – wholly or mostly at fault of injured person – police report – police – independent investigation report – head on collision

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.36, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.438, 7.441

Parties:

  • AEP – Claimant
  • NRMA Insurance Limited– Insurer

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

Miscellaneous Claim Assessment Certificate

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Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017.

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter.

  • Claimant: AER
  • Insurer: Allianz Australia Insurance Limited
  • Date of Accident: 14 October 2018
  • DRS Reference: 10088977
  • Date of Internal Review: 19 March 2019
  • DRS Claims Assessor: Colin Stoten
  • Date of Decision: 29 May 2019

The findings of the assessment of this dispute are as follows

  1. For the purposes of Section 3.11 and 3.28 the motor accident was caused either wholly or mostly by the fault of the injured person.
  2. Legal Costs: The amount of legal costs assessed is NIL.

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

Colin Stoten
DRS Claims Assessor,
Dispute Resolution Service

Reasons for decision

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 wholly or mostly at fault in respect of the subject accident.

1. On 14 October 2018, the Claimant was involved in a serious accident on the Princes Highway near Dalmeny on the southern coast of NSW. It was a head on collision.

2. As a result of that accident, the Claimant suffered serious injuries as did the driver of the other vehicle.

3. The Claimant has been paid statutory benefits for the first 26 weeks, but the Insurer has by notice denied that it is liable to make further statutory payments on the basis that it asserts the Claimant was either wholly or mostly at fault in respect of the subject accident.  A finding of “mostly at fault” requires that I make a finding that the Claimant’s responsibility for the accident exceeded 61%.

4. The Insurer relies upon an investigation report obtained by a firm of investigators (AHL) and in particular a record of interview between the investigator and a police officer, Senior Constable Henderson taken on 21 December 2018.  There are also statements, made by way of interview, from both drivers involved and there were no other witnesses who were present at the time the collision occurred. A police report has been prepared and which contains a summary of the information apparently obtained by the police.

5. It is common ground that the collision occurred on the Claimant’s incorrect side of the highway which was a single lane for traffic traveling north and a single lane for traffic travelling in the opposite direction. I have the benefit of various photos depicting the general road conditions which were present at the time of the collision. The photos show an incline with a crest and sweeping right curve for traffic travelling in the direction of the Claimant.

6. The Claimant says in his police statement;

I would have been doing the speed limit of 100kmh or a bit under  ……..   I remember the back of my car sway a bit. It felt like I lost traction for a second then grabbed again. I tried to gain control. I’m not sure if I hit the accelerator in error instead of the brake. I just headed for the car coming the other way. There was nothing I could do”.

7. The other driver says he swerved a bit to try and avoid a collision but had little opportunity to do anything because of his limited vision due to the crest and curve of the roadway. The road surface was wet although it was not raining at the time of the collision. There were double unbroken lines separating the traffic lanes..

8. The other driver swerved from his lane onto the shoulder of the road which was a country road with no buildings in the vicinity. The accident occurred in daylight hours shortly after 10 am.

Documents considered

9. I have considered the documents provided in the application and the reply and further submissions provided by the parties in respect of the preliminary issue of “onus of proof”.

Submissions

10. The Claimant says that he was not at fault because the accident occurred in circumstances beyond his control. He says there have been a number of other accidents reported along the same stretch of road and this has been the subject of a newspaper report and is confirmed by the police officer who attended the scene. Speed was not a factor in the collision.

11. The Insurer says that the Claimant concedes the accident occurred on his incorrect side of the road and that he concedes he lost control of his vehicle.

Determination

12. Ultimately, I am required to be satisfied on the whole of the evidence as to the decision I make.  I am not required to do so on the basis of a standard of proof such as on the balance of probabilities, but rather be satisfied as to the correctness of the decision that I make in determining this dispute.  I will do so on the basis of all of the evidence provided.

13. I consider that the Claimant is either mostly at fault or wholly at fault for the following reasons:

  • The Claimant concedes he lost control of his vehicle momentarily, and sufficiently to cause his vehicle to cross onto his incorrect side of the road.
  • He says there is nothing the other driver did which caused or contributed to the collision.
  • Although the Claimant says there have been other accidents in the vicinity of where this accident occurred and this is supported by the attending police officer, and that road signs have since changed, and the roadway resurfaced the evidence is:

14. I accordingly conclude that the Insurer’s decision to decline payment of statutory benefits beyond the first 26 weeks on the basis that the Claimant was either mostly or wholly at fault has been made out.

Conclusion

My determination of the Miscellaneous Claim is as follows:

  • For the purposes of Section 3.11 and 3.28 the motor accident was caused wholly or mostly by the fault of the injured person.
  • Legal Costs: The amount of legal costs assessed is NIL.

Colin Stoten,
DRS Claims Assessor,
Dispute Resolution Service