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AFN v GIO General Limited [2019] NSWDRS CA 140

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
CatchwordsStatutory benefits – wholly or mostly at fault – collision – conflicting evidence – merge lanes – medical assessment service
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 3.36, 7.36(4), 7.36(5), Schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 7.441
Cases cited N/A
Text cited N/A
Parties AFN – Claimant
GIO General Limited – Insurer 
Disclaimer This 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 16 May 2018.

2.   On 16 May 2018, the Claimant was driving his motor vehicle with his wife as passenger when that vehicle was involved in a collision with a motor vehicle travelling in the same direction, but in the adjacent lane, on Treves Street, Merrylands.

3.   The Claimant and the insured driver have both provided statements which give conflicting evidence as to how the accident occurred. In essence, the insured driver says that the Claimant attempted to merge into his lane, whereas the Claimant says the accident occurred when the insured driver had attempted to merge into his lane. The Claimant’s wife has also provided a statement. Not only are there issues as to how the accident occurred, but also as to the discussions which took place at the accident scene between the insured driver and the Claimant.

4.   The Insurer made a preliminary determination that the Claimant was either wholly or mostly at fault in respect of the accident such that he was no longer entitled to receive statutory benefits after the first 26 weeks from the date of accident. The issue of fault was the subject of an application for internal review, and by way of an internal review decision made on 19 November 2018, the Insurer determined that the original decision made by that Insurer was correct.

5.   I have before me the internal review document submitted by the Insurer as part of its reply. That internal review decision refers to the evidence submitted by both parties, but in particular the statement obtained by the Insurer from its insured driver which is summarised as follows:

Insured driver turned left into Treves Street.

Claimant travelling in the left lane and insured driver in the right lane.

After both vehicles had negotiated a left hand curve in the roadway, the Claimant came into the insured driver’s lane and pushed the insured driver’s vehicle into the kerb.

6.   A diagram of the accident was provided by the insured driver confirming his version of the accident.

7.   Photographs have been submitted by the insured driver apparently showing some damage to the passenger side front wheel.

8.   The Insurer’s determination also refers to an email submitted by the insured driver in which he again asserts that the Claimant’s vehicle came into his lane and that if the accident had occurred in the manner stated by the Claimant, then the Claimant’s vehicle on its passenger side would have hit the kerb on that side, which did not happen.

9.   The insured driver further alleged that after the accident his vehicle was pushed over the kerb (concrete median strip) which was present in the middle of the road. There were also other comments made as to apparent physical evidence which it is said did not support the Claimant’s version.

10.  The Insurer obtained a report from Motor Accident Claims Services Pty Limited by way of a factual investigation dated 9 August 2018. That report concluded that the impact occurred 20 metres North of the intersection and that there are two marked lanes for traffic travelling in a Northerly direction. An interview occurred with the insured driver in which he again confirmed his version of events and the minor nature of the impact. It is again alleged that as a result of the impact the insured driver’s vehicle was forced up over the concrete median strip present on the driver’s side of the insured vehicle. The report made reference to some minor front near side wheel/tyre damage above the wheel arch of the insured driver’s vehicle.

11.   Submissions were made by the Claimant’s barrister, which are referred to in the internal review document.

12.   Ultimately, the internal reviewer accepted the version provided by its insured driver.

Other Relevant Matters

13.  I have held four telephone conferences in relation to this matter, and although a face to face assessment was initially requested and arrangements made for it to occur, at the request of both parties I vacated that assessment on the basis that the issue of “minor injury” was to be determined first as this may have avoided the necessity for me to determine the issue of fault.

14.  Ultimately, there was a determination made by the Medical Assessment Service, which was against the interests of the Claimant and regarding which an application for review was made and refused, however the Claimant has indicated through his barrister that he now wishes to pursue an application for further assessment.

15.  I indicated at the last teleconference that the Claimant will otherwise be able to lodge a claim for damages if he were able to overcome the minor injury issue, in about five months’ time, and that the Claimant would not be bound by my decision in respect of economic loss issues because my findings are not binding on the parties in respect of the claim for damages.

16.  Furthermore I indicated that as a result of reviewing the statements that have now been obtained from the Claimant and the Claimant’s wife, that I was of the view that I had sufficient information in order to reach a determination of the fault issue without the necessity of a face to face conference.

17.   The Claimant’s barrister indicated he would prefer that a face to face assessment conference take place, whereas the Insurer indicated it was no longer of that view. I determined therefore that I could deal with the matter on the basis of the documentary evidence I now have available to me.

18.   That additional documentary material takes the form of an additional statement of the Claimant dated 31 March 2019 and an earlier statement which is undated, together with a statement of AFN’s wife, also undated.

19.   The statements of AFN confirm that he was driving from Fairfield to Paramatta with a view to having dinner at Criniti’s located in Church Street, Parramatta. He confirms that he turned left into Treves Street, Merrylands and continued driving in a Northerly direction. He became aware of the presence of the other vehicle because his warning system on his vehicle indicated the close presence of another vehicle. He said that the other vehicle suddenly veered left and collided with his vehicle. The collision occurred on the driver’s side of the Claimant’s vehicle just behind the front wheel arch. He said the impact occurred about 50 metres North of the intersection with Merrylands Road. He said he got out of his vehicle and saw some damage and waved to the other driver to return to the scene. He said the other driver then reversed his car and parked on the Western kerb immediately in front of his own vehicle and a conversation took place. There was then a discussion that occurred between the drivers, and suffice to say, the versions of such discussions given by either driver are conflicting statements in which each driver has provided a version to support their opinion as to how the accident occurred.

20.   The statement given by the Claimant’s wife said that although she was not paying attention to her husband’s driving, she was aware of a collision and that she had noticed that the other driver had not stopped at the point where the accident took place. Of significance is that the Claimant’s wife observed the direction taken by the other driver’s vehicle after the collision, which was that it continued proceeding in a Northerly direction along Treves Street and past the intersection with MacFarlane Road. This is significant because the insured driver claims that he was intending to make a right hand turn into MacFarlane Road and had no reason to change traffic lanes.

21.   It is obvious that it is not possible to reconcile the versions given by the insured driver with the version given by the Claimant, and I must conclude my preference for one of the versions provided.

Documents considered

22.   I have considered the documents provided in the application and the reply and the additional statements provided on behalf of the Claimant and his wife.

Legislation

23.   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

24.   I have considered the documents provided in the application and the reply, as well as the additional statements provided by the Claimant and his wife.

25.   Based upon my analysis of the documents provided, I am of the view that the Claimant was not wholly or mostly at fault. Indeed, I have reached the conclusion that I should prefer the evidence of the Claimant and his wife in respect of the circumstances of this accident, and having done so, I consider that the accident was caused solely by the fault of the insured driver for the following reasons:

(i)   Both the Claimant and his wife confirm that, contrary to his statement, the insured driver did not make a right hand turn at the intersection with MacFarlane Street as he alleges, but rather continued on in a generally Northerly direction along Treves Street.

(ii)   Having accepted the Claimant and his wife’s evidence in relation to the direction of travel of the insured driver after the accident, it seems to me consistent with the Claimant’s evidence that the insured driver would attempt to merge into the lane occupied by the Claimant’s vehicle for the purpose of continuing North along Treves Road.

(iii)   There was no reason for the Claimant to attempt to merge in the lane immediately adjacent to him because he had no intention of making a right hand turn into MacFarlane Street.

(iv)   The tyre mark on the Claimant’s vehicle on the driver’s side near the wheel arch is consistent with a wheel having turned in the direction of the Claimant’s vehicle indicating that there was some sideway movement of the insured driver’s vehicle towards the Claimant’s vehicle. I note I had previously taken the view that the existence of the tyre mark was not something which would be of assistance without expert evidence. However upon reflection whilst it is not conclusive of the issue in dispute it does provide some evidence of a tyre coming into contact with the Claimant’s vehicle, indicating some part of the front passenger’s side tyre of the insured driver’s vehicle had been turned outwards and beyond the wheel arch of that vehicle.

(v)   The Claimant’s version of events is supported to a degree by his wife insofar as the position of the Claimant’s vehicle on the roadway immediately after the impact and the Claimant’s conversation with the other driver after impact when the Claimant’s wife indicated her husband had said words to the effect “look what you have done to my car”.

Costs and disbursements

26.   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:

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

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

29.   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