SIRA Logo

AFL v QBE Insurance Australia Limited [2019] NSWDRS CA 138

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – collision – blind spot – competing versions of events – changing lanes
Legislation citedMotor Accidents Injury Act (NSW) ss 3.11, 3.28, 3.36, 7.36(4) & (5), Schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

N/A

Text citedN/A
Parties AFL - Claimant
QBE Insurance Australia Limited- Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

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

1.  This is a dispute between the Claimant and the Insurer as to whether or not the Claimant was either wholly or mostly at fault in respect of a motor vehicle accident which occurred on 23 April 2018.

2.  On 23 April 2018 at about 8:00 a.m. the Claimant entered onto the M4 motorway near Merrylands, via the Burnett Street on-ramp. The Claimant entered onto the M4 motorway which contained four traffic lanes for vehicles travelling in an easterly direction. A collision occurred between the Claimant’s vehicle and the insured driver’s vehicle shortly after the Claimant had driven onto the M4 motorway. There is a dispute as to whether or not the accident occurred when the Claimant’s vehicle attempted to enter in to the lane along which the insured driver was travelling, or whether it occurred as the insured driver had attempted to merge into that lane along which the Claimant was travelling. The versions given by each driver are conflicting and cannot be reconciled. Accordingly I determined that it would be of assistance to me in determining this dispute to have a face to face assessment conference which would permit me to question the Claimant and the insured driver as to the circumstances of the accident. I will refer to the lane in which the Claimant was travelling as the number 1 lane and the lane along which the Insurer driver was travelling as the number 2 lane.

3.  The Claimant was present at the assessment conference and was questioned by myself, Mr Jurisich and Mr Sofoulis concerning her version of the accident. Unfortunately the insured driver could not attend because of family matters involving her young child, however she was available by telephone, and was questioned over the telephone, and in particular by Mr Jurisich.

4.  The competing versions of each driver are broadly speaking as follows:

(i)  The Claimant said that she had proceeded down the on-ramp of Burnett Street and had merged into lane number one of the motorway and was proceeding along lane number one for a period of time when she saw the insured driver’s vehicle begin to merge from the number two lane to the Claimant’s right across into the Claimant’s number one lane. The Claimant said she had no time to react and the insured driver’s vehicle struck the front driver’s side corner of her vehicle near the front headlight causing damage.

(ii)  I have photographs of the damage to both vehicles and that photographic evidence depicts some damage to the front driver’s side corner of the Claimant’s vehicle, and to the front passenger side door of the insured driver’s vehicle. The damage to both vehicles appeared relatively minor. Both vehicles were driven from the scene of the accident. The insured driver’s vehicle was not repaired whereas the Claimant’s vehicle apparently was repaired, before being damaged in another subsequent accident which is not relevant for these reasons.

(iii)  The insured driver’s version is that she was travelling in the number two lane and she observed the Claimant’s vehicle entering onto the motorway from the Burnett Street on-ramp into the number one lane, when it also entered into the number two lane along which she was travelling, the result of which was a collision between the two vehicles.

5.  Other Relevant Matters

(i)  The Claimant’s evidence at the assessment conference was that she regularly travelled from her home to the University of NSW and travelled her usual route on the day of this accident. She was accordingly intending to travel on the motorway for a considerable distance. The Claimant said sometimes she would travel in the number one lane, at other times the number two lane, and so on depending on the traffic.

(ii)  The Claimant said that her vehicle was probably moving at roughly the same speed as traffic in the number two lane. Traffic conditions were relatively busy because it was morning peak hour traffic. The Claimant also said she did not observe any indicator from the insured driver’s vehicle indicating an intention to merge into the number one lane.

(iii)  Finally, the Claimant said that the point of impact was not in the immediate vicinity of the Burnett Street on-ramp but some distance further down the road towards the Church Street off-ramp.

6.  The insured driver said that it was her intention ultimately to take the Church Street off- ramp exit from the M4 motorway, and to do so she would have needed to cross from the number two lane into the number one lane. However the insured driver also says that as the accident occurred in the immediately vicinity of the Burnett Street on-ramp, she had no need to change lanes and was not intending to do so for a considerable distance.

7.  Ultimately the question to be decided by me is did the accident occur when the Claimant allowed her vehicle to enter the number two lane from the number one lane thus colliding the insured driver’s vehicle in the number two lane, or did the accident occur when the vehicle driven the insured driver attempted to merge into the number one lane from the number lane and accordingly collide with the Claimant’s vehicle.

8.  Neither driver shifted from their view as to the cause of the accident despite questioning by Mr Jurisich, myself, and Mr Sofoulis. Accordingly I need to consider what is the most likely scenario.

9.  Before doing so, I should indicate that there was some confusion in relation to the Claimant’s description of what happened, according to the Claim Form which she submitted to the Insurer. That Claim Form and the description of what the Claimant considered occurred in the accident is clearly erroneous. The version given by the Claimant in her Claim Form is in the following terms:

I was driving vehicle XXXXXX and had entered the M4 heading east from the Burnett Street on- ramp when vehicle YYYYYY struck vehicle XXXXXX on the rear driver’s side passenger door. I consider that the driver of vehicle YYYYYY was at fault for failing to stop or slow down to avoid the collision.

10.  This description of the accident appears different to the description of the accident provided by the Claimant before me. The act of negligence suggested by the Claimant’s evidence before me was simply that the other driver attempted to change lanes into the lane occupied by the Claimant and a collision occurred. It is difficult therefore to reconcile the version in the Claim Form with the with Claimant’s evidence before me. However it is apparent from the photographic evidence that the damage to the Claimant’s vehicle was in the front driver’s side corner of the vehicle and not the rear driver’s side passenger door.

11.  In respect of the insured driver’s evidence however I note that ultimately she would have needed to change lanes into the number one lane in order to exit at the Church Street off-ramp which was the next available exit although some distance from where either driver said the accident occurred. Although the insured driver says that she had not attempt to change lanes before the impact occurred, the damage to both vehicles would appear consistent with the insured driver attempting to change lanes whilst it was ahead of the Claimant’s vehicle, suggesting that the Claimant’s vehicle may have occupied the “blind spot” for a person in the position of the insured driver. Clearly the insured driver could not have kept the Claimant’s vehicle under observation despite her evidence that she had seen the Claimant enter onto the motorway from the Burnett Street on-ramp because the insured driver’s vehicle at some stage was travelling ahead of the Claimant’s vehicle. This is so because of the location of the damage caused to each vehicle according to the photographic evidence before me. It would seem odd that the driver of the Claimant’s vehicle would attempt to move into the second lane when it would be obvious to such a driver that the lane was occupied by the insured driver. Whereas the Claimant’s vehicle may not have been obvious to a driver in the position of the insured driver who was travelling ahead of the Claimant’s vehicle. It is therefore plausible that the accident could have occurred in the manner suggested by Jurisich, namely that the Claimant’s vehicle occupied the insured driver’s blind spot when the insured driver attempted to change lanes in order to exit the motorway at the Church Street off-ramp.

12.  There are accordingly theories posited by both the Claimant’s counsel and the Insurer’s solicitor as to how the accident could have occurred in the manner in which it did, despite the totally conflicting evidence of each of the persons involved in the accident.

13.  I find that I am simply unable to reconcile the two versions of events given by each driver and need to look to other available evidence to determine the issue.

Documents considered

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

Legislation

15.  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

Reasons

16.  I have considered the documents provided in the application and the reply and the oral evidence provided by the parties.

17.  It is not without some reservations that I have ultimately determined that the accident occurred due to the negligence of the Insured driver and do so for the following reasons:

i.  I accept the evidence of the Claimant who gave such evidence in a careful and considered way.

ii.  The Claimant’s evidence is supported in my view by the physical damage to both vehicles depicted in the photographic evidence.

iii.  Furthermore those photographs support the contention that the Insured driver attempted to change lanes when her vehicle was ahead of the Claimant’s vehicle and which was possibly unsighted by the Insurer driver.

iv.  The Insured driver needed to change lanes in order to exit at the Church Street off ramp.

Costs and disbursements

18.  I am satisfied that the Claimant is entitled to the payment of legal costs. and I allow costs in the sum of $1,633.00 plus GST.

Conclusion

My determination of the Miscellaneous Claim is as follows :

19.  For the purposes of section 3.11 the motor accident was caused by the fault of another person

20.  For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person

21.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST.

Colin Stoten
DRS Claims Assessor
Dispute Resolution Services