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AFR v NRMA Insurance [2019] NSWDRS CA 144

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
CatchwordsCease payments of statutory benefits – no-fault motor vehicle – rain and hail – aquaplaning – colliding with tree – negligence – wholly at fault – speed limit – police report – losing control of vehicle
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11(1)(a), 3.28(1)(a), 7.36(4), Part 5, Schedule 2(3)(d), (e) & (g1)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 7.445
Evidence Act 1995 s 144
Road Rules 2014
Cases cited N/A
Text cited N/A
Parties AFR – 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

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),(e) and (g1)of the Motor Accident Injuries Act 2017 (the “Act”), about the insurer’s decision to cease the claimant’s statutory benefits by determining that the claimant was wholly at fault in a one vehicle accident.

1.   The claimant maintains that the accident occurred as a result of a sudden rain and hail event causing an accumulation of water over the road that could not be foreseen and resulted in the claimant’s vehicle aquaplaning off the road and colliding with a tree causing the claimant to suffer personal injury. No other vehicle was involved in the motor accident.

2.   The insurer asserts that the claimant “lost control of his vehicle in inclement weather conditions impacting with a tree and the sole negligence of AFR was the material cause of the accident” The insurer’s position resulted in a cessation of the claimant’s statutory benefits as confirmed in an Internal Review decision dated 4 April 2019.

3.   It is submitted on behalf of the claimant that he was not guilty of any negligence whatsoever.

Documents considered

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

Submissions

5.   The insurer submits that it was entitled to cease statutory benefits due to the claimant being wholly at fault in the accident pursuant to sections 3.11(1)(a) and s3.28 (1)(a) of the Act.

6.   The insurer endorsed and relied upon the NSW police decision that the claimant drove without proper control of his vehicle. It was further submitted at [15] of the insurer’s submissions that, relying upon the relevant police report “the speed limit was 60kph and the claimant was driving in excess of the limit and at 70kph.”

7.   It was further put by the insurer that the claimant” should have slowed his vehicle to a speed that would have allowed his (sic) to slow down or stop or otherwise avoid his vehicle losing control of his vehicle.” Finally it was submitted that the claimant departed from the reasonable standard of care of a reasonable driver in the circumstances. In passing it should be noted that the only evidence of the circumstances at the time of the accident is that provided by the claimant.

8.   The claimant’s summary submission is set out at [1] above.

Legislation

9.   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 Injuries Regulation 2017
  • Motor Accident Guidelines 2017
  • Road Rules 2014 (NSW)
  • Evidence Act 1995 (NSW)

Evidence

10.  The claimant has provided three statements. The first was given to the attending police officer however the precise words are unavailable. Under the heading “Crash Summary Details” on page 4 of the report the following appears.

“About 0145 on Wednesday 7 November 2018, vehicle white coloured Ford falcon Utility was travelling north direction on Urana Rd Lavington. Vehicle approached Hillsview Rise about 70kph and when about 40(sic) south of intersection drove through water over the roadway. Fifty year old male driver aqua planed across the water causing a loss of traction and therefore control of vehicle….Voi (sic) spun around to the south side of the road, leaving the bitumen, before offside driver’s door collided with a tree.”

11.  At page 2 of the police report it was relevantly noted that the speed limit was 60kph.

12.  The claimant’s second statement is contained in his Application for Personal Injury Benefits dated 13 November 2018. At [3] he relevantly states that, “It was raining and hailing heavily I slowed speed to 70kph. At that time the back of the car spun out. The car did a couple of 360,…”

13.  In his formal statements, the first to the insurer’s investigator the claimant said as follows: “[11] As I was driving along Urana Road, as noted above, it was raining lightly and before that the rain was torrential along with hail. Urana road is sealed bitumen, there are no street lights and there is provision for two vehicles (one each way) on the road. The speed limit is 80km an hour and as I was approaching Highview Rise, it started to hail with torrential rain and at this point my motor vehicle started to spin around clockwise and ended up colliding into a tree located on the right side of the road.”

14.  At [12] the claimant went on to state that at “the time of the accident I was travelling at about 70km/h and I had no way of avoiding my motor vehicle being out of control because of the very heavy rain and hail.”

15.  In his second formal statement/submission dated 4 July 2019 repeats his version of the accident as at [13] above, and at paragraphs 5 to 7 provides second-hand but compelling evidence that the speed limit at the site of the accident was in fact 80kph. I note that my previous directions of 18 June last the insurer was directed, if it saw fit to respond to the claimant’s evidentiary material served on 5 July last. The insurer has not provided any evidence to refute the claimant’s statements as to the correct speed limit.

Consideration

16.  For reasons set out above I am satisfied that the prevailing speed limit was 80/kmph.. Further there is no submission from the insurer that I should not accept the veracity of the claimant’s written evidence. His versions have been consistent since first interviewed by the police.

17.  The claimant describes how when approaching Highview Rise the weather changed dramatically – “hail and torrential rain”. He decelerated to 70kph. The water was so deep on the road that his car started to aquaplane.

18.  The insurer notes that the claimant was charged. That was in the false context of the speed limit being 60kph. Although charged I was informed by Mr Cameron at the first telephone conference that the charge against the claimant had been withdrawn. This however he conceded was second hand information.

19.  It is put by the insurer that the claimant acted unreasonably in the circumstances. When suddenly confronted by torrential rainstorm, reducing speed or braking ostensibly were the only options available to the claimant. As a matter of general community knowledge within the terms of s144 of the Evidence Act 1995, in the very unusual circumstances confronting the claimant neither alternative was risk free. I am also satisfied that the claimant was not in breach of any provision made under the Road Rules – 2014 (NSW).

20.  I am satisfied that the claimant was neither wholly at fault nor negligent.

21.  I am further satisfied that the claimant has established that for the purposes of Part 5 the subject motor accident is a no-fault motor accident.

Costs and disbursements

22.  I am satisfied that the Claimant is entitled to the payment of legal costs and accordingly I allow costs in the sum of $1,796.26 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

23.  For the purposes of sections 3.11 (1)(a) and 3.28(1)(a) of the Act the insurer is not entitled to cease payment of the statutory benefits payable in respect of the motor accident.

24.  In accordance with Schedule 2 cl.3 (g1) for the purposes of Part 5 of the Act I determine that the motor accident is a no-fault motor accident.

25.  Effective Date:4 April 2019.

26.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.26 inclusive of GST.

Richard F Buckley
DRS Claims Assessor
Dispute Resolution Service
Dated: 18 July 2019