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AGQ v AAMI Insurance [2019] NSWDRS CA 175

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – statutory benefits – minor injuries – personal injury benefits – traffic light – ambulance report – traffic phasing report – t-intersection – contributory negligence – conflicting statements
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.1, 3.11, 3.28, 7.36(4), 7.36(5), Schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.441
Cases cited N/A
Text cited N/A
Parties AGQ – Claimant
AAMI 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

Introduction

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 for the purposes of sections 3.11 and 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons mostly at fault or to injured persons with minor injuries) the motor accident was caused mostly by the fault of the injured person.

Background

1.   The claimant was injured in a motor vehicle accident on 9 September 2018 at the intersection of Old Windsor and Fitzwilliam Roads, Old Toongabbie. The accident occurred at about 5.00 pm when the claimant was on her way home. She was proceeding straight through the intersection on Old Windsor Road in the direction of Baulkham Hills and maintains that she had a green light facing her.

2.   The vehicle with which she collided, insured by AAMI, was heading in the opposite direction towards Parramatta along Old Windsor Road and intending to make a right- hand turn into Fitzwilliam Road. The vehicle turned across the path of the claimant’s car while making a right-hand turn. The driver of that vehicle maintains that she had a green arrow permitting her to turn right.

3.   The claimant lodged an Application for Personal Injury benefits on about 16 November 2018. The insurer accepted liability for statutory benefits during the first 26 weeks by letter dated 8 January 2019. However, on 1 March 2019, the Claims Advisor of AAMI, wrote to the claimant advising that payments would cease after 26 weeks on the basis that she was wholly or mostly at fault for the accident.

4.   The determination was said to be based on a statement from the insured driver of 4 October 2018, which was obtained by AAMI, not in relation to this claim, but in relation to a property damage claim. By letter of 4 September 2018, AAMI had made a claim against the claimant for recovery of the damage to their insured vehicle.

5.   The claimant sought an internal review of this decision and provided submissions in support. On 30 April 2019, the Internal Reviewer of AAMI, affirmed the decision of the AAMI claims team that the claimant was “considered wholly or mostly at fault” for the motor vehicle accident. The documents relied upon on the internal review included not only the insured driver’s statement of 4 October 2018, but an earlier statement given by her on the day of the accident, photographs of the accident, the record of the New South Wales Ambulance who attended at the accident, photographs of the claimant’s vehicle attached to the property damage file, photographs of the insured vehicle attached to the property damage file, interim factual reports from AAMI’s investigator dated 25 March 2019 and 8 April 2019 and a letter from New South Wales Police dated 27 March 2019 stating that no police report corresponding to the information provided could be found. I should add that the interim reports from the investigator were not reports at all, but merely emailed acknowledgments and little more.

6.   The insured driver’s statement of 3 September 2018 referred to in the internal review decision was not an annexure, but was extracted as something that the insured driver allegedly informed AAMI’s motor claims team (in relation to a property damage claim) on the day of the accident. On 13 September 2019, the insurer served a document containing this account by the insured driver. It is largely consistent with the claimant’s later statement of 4 October 2018.

7.   In effect, the only new information relied upon by the Internal Reviewer in conducting the internal review was an extract from the ambulance report which, in my view, does not assist the insurer at all. His decision seems to have been based entirely on the statements of the insured driver. The decision was communicated to the claimant on 2 May 2019.

8.   The claimant lodged an application for determination of the issue of liability on 8 June 2019 and it was referred to me for assessment on 27 June 2019. I conducted a teleconference on 8 July 2019 at which representatives for each of the parties advised that they wished to provide additional material including statements from the insured driver and from the claimant. There was reference to a statement to be provided by an independent witness. No independent witness has been identified. The only possible witness says that he heard a crash, but did not see what had happened.

9.   I duly received a lengthy statement from the claimant. At the second teleconference on 6 September 2019, I was informed that the insured driver could not be contacted, despite multiple attempts. I declined to allow further time for contact to be established.

10.   I expressed my concern that I had only unsupported and competing statements from the insured driver and the claimant as to who had a green light or arrow at the time of the accident. There was no CCTV footage available. I was informed that records from RMS indicated that a vehicle had gone through a red light at the relevant time, but, strangely, did not indicate which vehicle that was. There was no indication that either driver had been breached for disobeying a red light. There was no available police report, despite the accident being one of significance requiring the claimant to be conveyed to hospital by ambulance and the vehicles to be towed.

11.   The only additional piece of evidence I had was a report relating to the traffic light phasing at the intersection at the relevant time, this having been annexed to the insurer’s Reply. The insurer had included in its submissions in response to the claimant’s application for assessment a “summary” of the report, which I found unhelpful. I asked for submissions from the insurer analysing the various phases in terms of which vehicles were permitted to travel through the intersection on the particular phase and which vehicles were not. I also requested submissions in relation to costs of this Application.

12.   On 12 September 2019 I received, unexpectedly, an email from AAMI attaching a statement from the insured driver obtained the day before when she was finally contacted by the investigator. AAMI requested an extension of time for  the provision of submissions. That was not required as, on 13 September 2019 I received submissions from them. I also received 133 pages of the property damage file containing, for the first time, the account attributed to the insured driver under the heading “Incident description” and recorded at 5.30 pm on the day of the accident.  The balance of the 133 pages related to the damage to the claimant’s vehicle which was written off for insurance purposes and replaced and reference to correspondence with the insurer of the claimant’s vehicle who were intending to seek recovery of the damage to their vehicle.

13.   I also received from AAMI on 13 September 2019 a copy of a decision of DRS Assessor Yu in relation to whether the claimant’s physical injuries amounted to a minor injury. I was advised that this information was provided to me because reference had been made to it in the insurer’s further submissions. I should interpolate that I found both the DRS Assessor’s report and the submissions based on it to be irrelevant. The insurer’s further submissions dealt with both liability and costs. There were brief submissions relating to the phasing of the traffic lights.

14.   In response, I received brief submissions from the claimant in relation to costs.

Documents considered

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

The Claimant's version of events

16.   In her statement of 28 August 2019, the claimant states that at the time of the accident, she was driving a courtesy car provided by Blacktown Cumberland Ford, as her car was being repaired. The vehicle she was driving was a Ford Kluger, similar to her own vehicle. She had been driving it for a couple of weeks prior to the accident.

17.   She says she was travelling along Old Windsor Road towards the intersection with Fitzwilliam Road and in a north westerly direction. She had green traffic lights facing her and says that “a few metres before the intersection it came to my attention that a red Mazda CX5 was turning in front of me without the correct signal for them to turn.”

18.   She says she was travelling with the flow of traffic and within the speed limit and that when she realised the red Mazda was in front of her, she tried to slow down, but knew that there was not enough time to come to a complete stop. She says she braced herself as tight as she could onto the steering wheel.

19.   The claimant says that there were two lanes heading in a north-westerly direction, with her vehicle in the left lane and another in the right. She says:  “When the vehicle in the right lane saw the driver of the red Mazda CX 5 try to turn onto Fitzwilliam Road without the correct signal, the vehicle next to me in the right lane sped up to avoid being involved in the collision.” She adds that the car, having missed colliding with the turning vehicle, drove on.

20.   She maintains that the driver of the red Mazda either failed to give way or ignored the red arrow signal to allow her to turn right onto Fitzwilliam Road.

21.   She says that workers from a nearby auto centre told her that the driver of the red Mazda had failed to abide by the red arrow or failed to give way. I interpolate that a very brief statement from one of the workers does not support the claimant’s evidence. He did not witness the accident.

22.   The claimant says that she had been required by Blacktown Cumberland Ford to agree that if she were involved in a car accident and at fault, she would need to pay $2,000, as she was 21 years of age or under. Two weeks after the accident, she says she was advised by Cumberland Ford that they had found her not to be at fault for the accident and that the excess would be waived.

23.   The claimant says that police and ambulance attended at the scene and that she was conveyed to Westmead Hospital where she was treated and discharged. Police only asked her for her details. She denies being fined by police for any type of negligent driving. She says that she made enquiries to see if there was any way to obtain photographic evidence or video footage of the incident. She was told that there were no cameras on this intersection that could prove her innocence.

24.   She adds: “The only roads information that we were able to obtain was the light traffic report issued by the Roads and Maritime Services which stated that the sensor on that road had detected that somebody had run a red light, but it was unable to determine who had run the red light.” The balance of the statement deals with the claimant’s physical injuries and treatment.

The Insured Driver's evidence

25.   The statement given by the insured driver on the day of the accident, according to both the submissions and the property damage file says as follows:

“I was travelling towards Parramatta on Old Windsor Road in the right-hand lane. I was the first car in the line of traffic waiting for the light to turn green.  The turn arrow then changed to green and  I have proceeded to go. The traffic coming in the opposite direction on Old Windsor Road were not facing a red light bus [sic] as I was turning a black car has run the red light and hit me spinning me around into the bus.”

26.   As I understand it, the insured driver did not hit a bus at all.

27.   In her second statement of 4 October 2018 contained in a written document also in the property damage file, the insured driver said:

“I was driving on Old Windsor Road and was in the right turning lane and stopped as the right arrow turned red. I was the first car in the lane. The other cars driving towards Parramatta were also stopped for the red light. The lights went through the changes and I saw the right turn arrow go green for me. I saw the cars in the opposite lanes slow down to a stop and I began to turn right to Fitzwilliam Road. As I was turning right I saw a black car coming forward towards my car (i.e. towards Windsor on Old Windsor Road).  It didn’t stop for the red light. I ended up on the kerb. There was a bus stationary in the bus lane”.

28.   In her most read statement given on 11 September 2019, the insured driver says that she was stationary at red traffic lights waiting to turn right. On this occasion she said: “I am unsure of the vehicles, behind or to the sides of me.” She confirms that there are 7 lanes on the road including the right turning lane that she was occupying. She had her 4 year old niece in the back seat.

29.   She says that at the time she stopped, there was a red arrow facing her. When it turned green, she proceeded to make her turn. She was not proceeding fast. As she made her turn, a vehicle collided into the front nearside of her Mazda. She says: “It all happened very quickly and I do not recall seeing this vehicle approaching me, as such I did not have any time to take any evasive action to help try avoid the collision.” She adds: “I had first seen the Ford vehicle, seconds before it collided with me, I am unsure exactly.”

30.   Later, she adds: “I had the green light, and all other vehicles travelling north-westerly had stopped, except for the black Ford who collided with my vehicle.” She places the point of impact in the middle of the intersection after she had left lane 4. She confirms that she spoke briefly to police on the day of the collision, but did not sign a statement and has not since spoken with police.

31.   She confirms that she was not charged with any offence in relation to the accident. She believes that the accident was caused by the driver of the black Ford, the claimant, running a red light.

The ambulance report

32.   Ambulance officers recorded at the scene of the accident that the claimant said she was travelling at 60 to 70 km/h and had a frontal impact into another vehicle which had turned in front of her. She estimated that after braking her speed was 50 to 60 km/h. It was a significant impact with airbags being deployed.

The traffic phasing report

33.   I have received a very lengthy traffic phasing report concerning the intersection of Old Windsor Road and Fitzwilliam Road. It is a T-intersection. A short distance away, is a further T-intersection between Old Windsor Road and Oakes Road. Oakes Road runs in the opposite direction to Fitzwilliam Road. The phasing report deals with the intersections of both Oakes Road and Fitzwilliam Road with Old Windsor Road and is therefore not easy to comprehend. To further complicate matters, there are references in the report to a number of pedestrian crossings and a dedicated bus lane along Old Windsor Road.

34.   The insurer’s most recent submissions in relation to the traffic phasing report are, in my view, of limited assistance. It is submitted that “It is more than likely that at the time the subject motor vehicle accident occurred, the traffic light phase was in the A phase.” A number of reasons are given why the other phases would not be applicable.

35.   On my reading of the traffic phasing report, the ‘A’ phase permits vehicles travelling along Old Windsor Road towards Baulkham Hills (as the claimant was) to proceed unimpeded. It prevents vehicles proceeding towards Parramatta (being the direction of the insured driver) from making a right-hand turn, because there is a red arrow.

36.   I suspect that the insured claims officer is mistaken in adopting the ‘A ‘phase as being the prevailing phase at the time that the accident occurred. If the lights were in the ‘A’ phase at the time of the accident, then this entirely supports the claimant’s evidence and the insured driver has disobeyed a red turning arrow.

37.   The insurer then submits: “It is more than likely that the claimant has attempted to  at speed drive through the intersection that had transitioned from the yellow light to the red light.”

38.   It seems to me that, if this were the case, then the insured driver has commenced her right-hand turn without waiting for the green arrow. The green arrow appears only after traffic in the opposite direction has had a red light for some short time. That short time may be extremely brief, but it certainly would be insufficient for the insured driver to commence her turn from a stationary position and to travel halfway across a three- lane highway before being struck. The thesis about going through a red light immediately after it changed from yellow does not hold water. The claimant would have had to drive through the intersection some seconds after the lights facing her had turned red in order for the insured driver to be in the position she was at the time of the impact.

39.   It is also significant that in ‘A’ phase, traffic travelling through the intersection towards Parramatta in the lanes beside the insured vehicle would be travelling unimpeded. The insured driver said in her second statement that that traffic was stationary. The only phase that would match the insured driver’s description is Phase ‘C’ which would have all Parramatta-bound traffic stationary. It would all commence to move in Phase ‘D’. However the insurer submits that the accident could not have occurred when the lights were in Phase ‘D’ which is only introduced when a vehicular or pedestrian demand is received.

40.   Overall, I am not much assisted by the traffic phasing report and, in particular, by the insurer’s interpretation of it. I am therefore left with two conflicting statements as to which of the parties had a green light. There is no other independent evidence to assist.

Legislation

41.   In making my decision 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

42.   Section 3.1 of Part 3 of the Motor Accident Injuries Act provides that persons injured in a motor accident are entitled to statutory benefits. Section 3.11 and Section 3.28 permit insurers to cease weekly payments and payments of statutory benefits to injured persons after 26 weeks if the motor accident was caused wholly or mostly by the fault of the person. “Mostly at fault” is defined to mean that the person contributed to their accident by more than 61%.

43.   There is one submission from the insurer suggestive of an allegation of contributory negligence, but essentially the insurer says that the accident was wholly the fault of the claimant for going through a red light, a position from which the insurer has not deviated. The insurer’s submission that "a reasonable person in the position of the claimant ought to have seen the insured vehicle making the turn and would have stopped at the red traffic light signal” is not in, in my view, a concession by the insurer that its insured has done anything wrong or that liability could be, in some way, apportioned.

44.   In order to disturb the claimant’s entitlement to ongoing statutory benefits as set out in Section 3.1, the insurer must establish that it is entitled to cease payments. If it fails to disprove the claimant's entitlement to ongoing statutory benefits, then those benefits continue past 26 weeks. In other words, it is the insurer that bears the onus of establishing that the claimant was wholly or mostly at fault in a claim for statutory benefits.

Reasons

45.   Having regard to the conflicting statements of the two drivers and the unhelpful traffic phasing report, I am left in a position where I cannot be satisfied that one version of events should be preferred over the other. There is insufficient evidence for me to come to a determination as to who is to be believed, especially in the absence of any face-to-face conference which might have enabled me to assess each driver’s credibility. I have mentioned above one aspect of the insured driver's evidence where there appears to be an inconsistency, that relating to whether the vehicles beside her were stationary as she waited for the light to turn green. There seems also to be a possible inconsistency in whether or not she saw the claimant's vehicle approaching prior to the collision.

46.   As indicated above, the insurer bears the onus of establishing that the claimant was wholly or mostly at fault. I am not satisfied that the onus has been discharged having regard to the evidence as it has been presented and the submissions of the parties.

47.   Accordingly, I am not satisfied that the claimant has been wholly or mostly at fault  for the accident and the claimant succeeds in this application.

Cost and disbursements

48.   I am satisfied that the Claimant is entitled to the payment of legal costs. I am further satisfied that her legal costs should be paid in accordance with the Motor Accident Injuries Regulation 2017 at the maximum statutory rate of $1,660 plus GST.

Conclusion

49.   My determination of the Miscellaneous Claim is as follows:

  • For the purposes of sections 3.11 and 3.28 the motor accident was not caused wholly or 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 $1,826.00 inclusive of GST.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services
4 October 2019