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AGS v NRMA Insurance [2019] NSWDRS CA 177

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Wholly or mostly at fault – statutory weekly payments – treatment and care experiences – negligence – legal costs – blue metal – no fault accident – tyre puncture – tyre blow-out
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 5.1, 5.2, 7.36(4), 8.10, Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017 Schedule 1
Motor Accident Guidelines 2017 (as amended on 15 January 2019)
Cases cited AAI Ltd v Singh [2019] NSW SC 1300
Whitfield v Melenewycz [2016] NSWCA 235
Text cited N/A
Parties AGS – 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

1.   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 cessation of statutory benefits pursuant to Sections 3.11and 3.28 of the Act.

2.   This is a dispute between AGS, the claimant and NRMA Insurance, the insurer, with the respect to cessation of statutory benefits pursuant to Sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).

3.   The claimant sustained injuries in a single vehicle accident on 15 December 2018. The insurer paid for statutory weekly payments and treatment for 26 weeks and declined liability thereafter.

4.   The claimant sought a review of the decision of NRMA and the internal review decision dated 8 May 2019 upheld the earlier finding.

5.   I have been asked to determine whether the injured person was "Deemed wholly at fault for the motor accident" - paragraph 3 of internal review document dated 8 May 2019. As part of that determination the insurer at page 2 of that document noted as follows;

"To determine whether statutory benefits are payable after 26 weeks from the date of the motor accident, the decision maker must consider whether the injured person was wholly or mostly at fault for their motor accident in accordance with Section 3.11 and 3.28 of the Act."

6.   Section 3.11 of the Act states that:

"Cessation of Weekly Payments to Injured Persons Most at Fault or with Minor Injuries after 26 Weeks

(1)  An injured person is not entitled to weekly payments of statutory benefits under this division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if;
(a)   The motor accident was caused wholly or mostly by the fault of the person or

(b)   The persons only injuries resulting from the motor accident were minor injuries

(2)  A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in Section 3.38) was greater than 61%.

Note Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the  person not mostly at fault."

7.   I note that Section 3.28 of the Act referring to cessation of treatment and care expenses after 26 weeks, notes as follows;

"(1) An injured person is hot entitled to statutory benefits under this division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if:
(a) The motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or

(b) The person's only injuries resulting from the motor accident were minor injuries.

(2) A motor accident was caused mostly by the fault of the person if the contributory negligence of the person in relation to the motor accident (as referred to in Section 3.38} was greater than 61%."

8.   The above quote is from page 2 of the internal review by NRMA Insurance.

9.   The insurer also in its internal review referred to the no fault provision under Section 5.1 of the Motor Accident Injuries Act 2017.

10.   At a preliminary conference held on the 10th of October 2019, the parties having had time to review the Supreme Court decision of AAI Ltd v Singh [2019] NSW SC 1300 were asked to submit on that case in relation to whether part 5 of the Act refers to statutory benefits.

11.   Mr Michael Schwab solicitor for the claimant submitted that part 3 of the Act applies but part 5 does not apply as set out at paragraph 25 of the decision of Fagan J.

12.   The insurer did not submit on this issue.

13.   Fagan J in the above matter noted at paragraph 25 as follows;

"An aspect of the scheme of Part 3 is that fault in causing the accident is the criterion for terminating statutory benefits at 26 weeks. That scheme would be subverted if a section located in Part 5 (dealing with accidents not caused by any_one's fault) should operate to deem fault in the causation of the accident for the purposes of the limit on statutory benefits. In my view, Section 5.2 (1) does not so operate. Section 5.8 reinforces this conclusions. Part 5 has no bearing upon Mr Singh's entitlement to statutory benefits. It provides no basis/or them being terminated after 26 weeks."

14.   Having read the above section I agree with the submissions of the claimant's solicitor in this matter that part 5 is not applicable in my determination of denial of statutory benefits for weekly payments and care and treatment. I therefore determine whether the motor accident was caused wholly or mostly by the fault of the claimant set out in Section 3.11 and Section 3.28 of the Act.

The Claim

8.   The claimant in his statutory declaration dated 9 October 2019 noted as follows;

9.   On 15 December 2018 the claimant was driving a Mercedes Benz E320 sedan motor vehicle registration number XXX XXX, from Mudgee to Bathurst.

10.   The speed limit where the accident occurred was 100kph.

11.   He noted that the speed limit reduced to 80kph as he approached Bathurst so he slowed down to about 75kph in anticipation of the reduced speed limit.

12.   He noted that an accident occurred just after a slight right hand curve when he was travelling in a generally southerly direction. He noted that he had driven this part of  the road many times before  the accident. He did not see any debris of any kind on the road way as he approached through the first slight right hand curve.

13.  (Paragraph 15) "Suddenly and without warning, I heard a very loud thump or bang from the rear passenger side of the vehicle. This occurred just as I was driving out of the first slight right hand curve. I was travelling at about 75kph at the time, well below the sign posted speed limit of lOOmk/h. At the time I felt the sound indicated that there was a problem of some kind with the rear passenger side tyre. My impression was subsequently confirmed to me when I inspected that tyre after the crash."

14.  (Paragraph 16) "As soon as I heard the thump or bang sound I felt the vehicle suddenly move hard to my left towards the gravel shoulder of the road. The sensation I experienced was that of losing traction on the passenger side. I explained this experience to the police officer, who subsequently took a statement from me as the rear passenger side tyre of the vehicle letting go. By this expression I meant that I had no traction on that side and no control over the vehicle...

15.  (Paragraph 19) "I immediately attempted to correct the movement of the vehicle to the left and onto the shoulder by carefully steering the vehicle to the right back onto sealed roadway and by gentle applying the brakes to slow the vehicle. However, the vehicle did not respond to my attempt to correct the path of the vehicle to reduce its speed. It was not responding at ail to my efforts to control the vehicle. The vehicle veered strongly to the right and out of control. The vehicle sharply moved from the road shoulder on my side across my lane and across the north-bound lane. When the vehicle crossed the middle of the sealed road I felt the rear passenger side was sagging and there was the sensation of a rough drag on that side. The vehicle then ran over the shoulder of the north-bound lane and through the ditch or culvert on that side and then into an embankment which the vehicle mounted and then collided with a fence line on the other side of the road. The vehicle travelled a length of the fence line, flattening a portion of it and collided with a fence post which spun the vehicle around, with the rear of the vehicle ringbarking a tree and then rotating into direction of Bathurst. It then struck a number of small trees and dead branches between the road and the fence line before coming to a sudden stop facing Bathurst."

16.  The police report having spoken with the claimant at Bathurst Base Hospital, and he having provided a similar history to the above Statutory Declaration, noted as follows at page 3;

"The version supplied by the driver matches what was observed by the police at the scene. There was a section of loose gravel and rocks where the road and the dirt have joined at the side of the road and there are skid marks leading from this point.11  The officer in charge believes the driver was travelling at a reasonable speed and has not done anything a reasonable and prudent person would not have done. Police are of the opinion that road conditions are the at fault factor in this accident. As such police do not feel it is appropriate to take action."

17.  The claimant in his Statutory Declaration referred to above and noted as follows;

18.  At paragraph 4 "Some years ago my company purchased a 1998 Mercedes Benz E320 sedan motor vehicle.... The vehicle had a number of fitted options and it was in excellent condition when it was purchased with low kilometres for its age. I regularly had this vehicle serviced and maintained since it  was purchased.

19.  At paragraph 8 "On about 18 October 20171 arranged for 4 new Pirelli tyres to be fitted to the vehicle by Jax Tyres of Unit 1, 160 Station Street Penrith."

20.  At paragraph 9 the claimant noted "On about 27 November 20171 had the vehicle serviced by M&K Smith Pty Ltd trading as Town and Country Mechanical Repairs of 8 Sydney Road, Mudgee. The work done was to the front wheels and included fitted new brake callipers, disc rotors, brake pads, wear sensors and both lower ball joints. This was done as part of the routine maintenance of the vehicle.11

21.  The claimant initially alleged that the cause of the accident was that the passenger side left tyre suffered a blow out as the claimant was taking the bend on the said road.

22.  The insurer relies on a report from Mr Bob Allen recording an interview between himself and Senior Constable Joshua Urbaniak taken on 19 February 2019 (R4) record of interview between Bob Allen and the claimant taken on 5 March 2019 (RS) Report from AHC Investigations Factual Investigations (R6) and photographic log (R7).

23.  The insurer in its correspondence dated 8 May 2019- decision made in relation to the internal review, relied upon the above documents. In the internal review determination, the insurer has denied ongoing entitlements on the basis of Section 5.1 and 5.2 of the Act. The insurer also referred to the Court of Appeal decision of Whitfield v Melenewycz [2016] pre dating the relevant 2017 Act.

24.  The insurer at page 4 of its internal review noted as follows; "Based on the above information, I consider that there are two possible causes of the accident. With consideration to the contemporaneous material provided to the NSW Police and the Ambulance Officer, the first is that the accident has occurred wholly due to your own negligence in failing to drive safely in avoiding the blue metal, or proceed at a slower speed to avoid losing control of the vehicle travelling over the blue metal."

25.  At page 5 "Alternatively, if the accident did result from a tyre blow out, then this accident can be considered a no fault accident. However, pursuant to Section 5.2(1), you are deemed to be at fault because you were the driver of the vehicle. In other words, drivers who are injured in circumstances where no one is at fault are assumed to be the person at fault in the accident."

26.  The claimant in his Statutory Declaration paragraph 20 objectively comments on the sketch plans prepared by Mr Bob Allen of AHC Investigations. The claimant noted that only the passenger side of his vehicle moved off the sealed road way and on to the gravel shoulder, whereas the plan marked by the investigator has the whole of his vehicle on the gravel shoulder.

27.  At paragraph 18 "I heard the sound of a lot gravel or blue metal showering the undercarriage of the vehicle. The sound of the gravel or blue metal was very loud. I believe at the time that the passenger side tyres of the vehicle had moved onto the gravel shoulder and were spraying up gravel, or what I refer to as blue metal/ striking the undercarriage. I did not cause or allow the vehicle to run off the sealed portion of the road way and onto the shoulder. The driver side tyres did not leave the sealed part of the road until the vehicle had crossed the other side of the road out of control."

28.  The claimant provided an expert report from a civil engineer- Mr Andrew Brown dated 30 September 2019.

29.  Mr Brown was provided with the report of the AHS investigations dated 13 March 2019 and all other documents including the police report in this matter.

30.  Mr Brown was asked to address the following issues;

i.  The apparent condition of the tyres of the vehicle at the date of the accident

ii.  What was the likely cause of the crash

iii.Whether the behaviour of the vehicle during the accident was consistent with the failure of the rear, passenger side tyre and, if so, please explain why the vehicle in that circumstance would behave that way.

31.   Mr Brown concluded as follows;

i.   Page 14, Paragraph 8 (8.3)- "All of the vehicle tyres were in good structural condition at the time of the accident. The passenger, side rear tyre was unseated as a result of the accident and was likely partially deflated before the accident. The other three tyres  were  fully inflated ...

ii.   8.4- "This likely cause of the accident was the vehicle running wide on exit of the subject corner. This was due to reduced cornering stiffness on the partially deflated, passenger side rear tyre. The condition of this tyre is likely due to a puncture occurring during the trip...

iii.   8.5- "The accident is not consistent with driver inattention or excess speed for the condition, as these circumstances would have resulted in the vehicle running off the road to the left....

iv.   8.6-"The accident is not consistent with a blow-out or other sudden failure of the passenger side, rear tyre."

32.   The insurer in its submissions (Rl) submits that "There was no evidence of a tyre blow-out and therefore it was evident that the accident was caused wholly as a result of the fault of the claimant for his negligence in failing to proceed at a lower speed to avoid losing control of his vehicle whilst travelling over blue, metal fragments on the roadway."

33.   I note that Mr Bob Allen is an investigator. I note that Mr Andrew Brown is a civil engineer and more qualified to assist me in determining the issues before me. I accept Mr Brown's opinion over that of Mr Allen.

34.   As set out in Mr Brown's report at Paragraph 8.4, Page 14 I note as follows; "This likely was the vehicle running wide on exit of the subject corner. This was due to reduced cornering stiffness on the partially deflated passenger side, rear tyre. The condition of this tyre is likely due to a puncture occurring during the trip."

35.   I accept the claimant's evidence unchallenged in his statutory declaration that the blue metal gravel had been sprayed from the gravel shoulder and not from the roadway itself.

My findings

36.  Based on the police report referred to above and the report of Mr Andrew Brown, I find that on balance of probability this accident was caused, by a puncture to the passenger side, rear tyre, occurring during the trip, causing the vehicle to run wide on exit of the subject corner.

37.  I find that the motor accident was not caused wholly or mostly by the fault of the claimant and therefore sections 3.11 and 3.28 do not apply to allow the insurer to cease statutory benefit payments to the claimant.

Costs and disbursements

38.  The claimant submitted that if he successful in this application he should be allowed costs. The insurer did not oppose that submission.

39.  Part 8 of the Act relates to costs and fees. Section 8.10 provided for the recovery of costs and expenses in relation to claims for statutory benefits, subjects to the provisions of  The  Motor Accident Injuries Regulation.

40.  Section 1 to the Regulations provides, at Section 3(point1), that the maximum legal costs for services provided to a claimant in connection with the assessment of a dispute about a regulated, miscellaneous claims assessment is to be an amount of $1633.00 + GST. I so allow.

Conclusion

41.  My determination of the miscellaneous claim is as follows;

42.  For the purposes of section 3.11- the motor accident was not caused wholly or mostly by the fault of the claimant.

43.  For the purposes of Section 3.28- the motor accident was not caused wholly or mostly by the fault of the claimant.

44.  I allow legal costs to the claimant in the sum of $1,633.00 + GST + $1,024.20 ($2,820.50 incl GST)

Helen K. Wall
DRS Claims Assessor
Dispute Resolution Services