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AHC v QBE Insurance (Australia) Limited [2019] NSWDRS CA 187

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsNo-fault accident – wholly or mostly at fault – natural disaster – wall of water – severe storm with heavy rain – waterlogged engine – police – witnesses – legal costs
Legislation CitedMotor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 5.1, 7.36(4), Schedule 2(3)

Motor Accident Injuries Regulation 2017

Motor Accident Guidelines 7.445

Civil Liability Act 2002 (NSW) s 43A, 45
Cases CitedAAI Limited v Singh [2019] NSWSC 1300
Text CitedN/A
PartiesAHC – 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 – MISCELLANEOUS CLAIMS ASSESSMENT

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)(e) of the MAI Act, about the insurer’s decision determining that the claimant was wholly at fault in relation to the motor accident.

1. The subject accident involved one vehicle only, that driven by the Claimant. The Claimant relies on Part 5 of the MAI Act. The insurer’s cessation of benefits is asserted to be pursuant to s3.11 of the MAI Act.

2. The insurer’s internal review notice of 12 July 2019 refers to s3.28 of the MAI Act and under the heading “Determination” states that “The original decision is maintained…You are wholly at fault in the motor accident on 20 January 2019.”

3. The insurer has rejected the claimant’s averment that the accident was a “no-fault motor accident” in accordance with s5.1 of the MAI Act.

4. The insurer has made conflicting submissions as to the position or liability of the Mid-Western Regional Council specifically in the context of s5.1 of the MAI Act and the effect of the recent decision of Fagan J in AAI Limited v Singh [2019] NSWSC 1300. The influence of this decision is dealt with in my reasons set out below.

5. An internal review was conducted on 12 July 2019 and it is against that decision that this application is brought

DOCUMENTS CONSIDERED

6. I have considered the documents provided in the application and the reply and further information provided by the parties, the last of which was received by me on 6 November 2019.

SUBMISSIONS

7. The claimant submits that the accident occurred in circumstances with no other participating vehicle but where the claimant was involved “in a natural disaster where there was no proper warning that the subject road would encounter flooding to the extent that it would cause a vehicle to stop.” On the assumption of a finding of a no-fault accident and as “the insurer has not properly satisfied that (sic) any other person is at fault, the applicant meets the definition of a no-fault accident.”

8. The insured submits that the accident was not a no-fault accident and maintains that its “primary submission is still that the actual circumstances of the accident are those reported by the Claimant to the police at the time of the accident where he says that (sic) purposely drove into the water having assessed it was safe to do so. In those circumstances, the Claimant is at fault and would be most at fault.” It is also put that the Claimant was “most at fault” in accordance with s311(1)(a) of the MAI Act.

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
  • Civil Liability Act 2002 (NSW)

THE EVIDENCE

10. There is but one source of the entirety of the total evidentiary material, that being Quantumcorp, who on instructions from the insurer provided it with two investigative reports dated 10 April 2019 and 9 May 2019 concerning the relevant accident.

11. There is no dispute as to the following.

a. The subject motor accident occurred at about 11.00pm on 20 January 2019.

b. The Claimant was driving a Toyota Tarago van, registered number XXXXXX in a southerly direction on the Castlereagh Highway heading towards Ilford, some 70- 80km south of Mudgee.

c. The accident occurred near to the intersection of the highway with Crudine Road at a point near to where a bridge spanned the Tabraducca Creek, some 70-80km south of Mudgee.

12. There are statements from three involved persons.

13. The Claimant, AHC was interviewed on 27 March 2019 by a Ms Penny Berman on behalf of Quantumcorp. At [27] he stated: “The day of the accident was Sunday 20 January 2019. The time was 11pm.” At [31] –“We were heading towards Coonabarabran. We stop at every town for a break. We were not in a hurry. We stopped at Walgett, where I checked all of the tyres, then stopped at Coonamble and had lunch and then headed toward Coonabarabran. We got there around 4pm. We stayed at Coonabarabran for about 3 hours….[32] It was raining in Coonabarabran so we waited for the storm to pass before we left….[37] We stopped in Mudgee and had dinner at McDonalds…[39] We left Mudgee at about 9.45-10pm.It was not raining when we left…I was driving from Mudgee.”

14. The previous paragraph is the background to the accident. At [42] and following the claimant stated – The accident happened about 70-80km after Mudgee, about 1 hour after leaving Mudgee…It started to rain about 30km after we left Mudgee. It was getting heavier the closer we got to Lithgow…[45] I suggested to YYY that we stop at Ilford and let the rain pass…Visibility was poor and getting worse as we got closer to Ilford…I had the wipers on the fastest speed…I had my headlights on high beam as it was dark and night time…There were no street lights on the road we were travelling near the incident…[58]We were travelling south at about 50km per hour and we were in 100km zone (sic). At [57]- I came around a left and (sic) bend. There is a second lane that starts which is a right hand turn into a road just after the bridge the road is called Crudine Road...[58] There is also an entrance to the left to a property.”

15. Significantly at [59] - [67] the claimant stated; As we came around the left hand bend we hit the water. There was no warning. There was no flood meter prior to the bridge. There was no warning about the creek flooding. There was nothing to war us the road was flooded…The car stopped suddenly after it hit the water. It was like hitting a wall. Our seatbelts caught us from lurching forward… [67] YYY could not open her door due to the water. The water from the creek was coming down on the left side of the car, flowing from east to west.

16. At [81] the claimant, obviously after the accident, stated: “I saw a couple of cars, about 1 every 5-10 minutes, travelling north toward Mudgee, stop prior to the water as they could see my hazard lights on my car. The cars just did a U-turn and drove away.”

17. On 10 February 2019, some 3 weeks after the accident the Claimant completed an “Application for personal injury benefits.” In answer to Q3 the claimant stated:

“Head home from holiday when a severe storm started. We came around a bend at about 50kph and hit a wall of water of flash flooding, more than waist deep, which was caused by debri (sic) blockage from a nearby creek. The car hit with such force it came to a sudden stop and the car started to fill with water…”

18. Both of the claimant’s written statements present a consistent story of the events of the night of the accident.

19. The claimant’s wife, YYY gave a statement on 2 May 2019 also to Ms Berman. She confirms the background statements of her husband. At [23]-[24] ML stated that they were driving in a southerly direction on Castlereagh Highway… The rain started and it was getting heavier and heavier.” At [32]-[34] the claimant’s wife states: “We were travelling at about 50km per hour. Due to the heaviness of the rain, AHC slowed down… The speed limit for the Highway is 100km per hour…We came around a sweeping left hand bend and drove into water. A wall of water that came over the bonnet”

20. It should not be overlooked that both the claimant and his wife at [1] of each statement contained an averment that the contents of the statement that each made was true and correct and carried a penalty of prosecution if established otherwise

21. The final witness evidence is not a statement but an 18 page unverified transcript of an interview dated 12 April 2019 between a Mr. Brad Leonard, ostensibly of Quantumcorp and Senior Constable of Police Joel Merchant. The constable, along with another member of the NSW Police force, a Senior Constable Kain arrived at the scene of the accident at 12.20am on 21 January. At A38 he stated that “when we showed up, the water had subsided substantially. There was none on the road. There was a lot of mud and silt left on the road. Also a few big tree logs”

22. From the constable’s answer at A38 it is apparent that he had a short conversation only with the claimant. At A57 the constable answered as to his recollection of any significant comments made to him by responding- “No. Basically, he just said he was driving, he didn’t see the water, he hit the water, and then his engine seized.”

23. The constable was asked why he hadn’t obtained (from the claimant) a version or a statement. At A61 he answered: “It was not a – it wasn’t classed as a police matter. I wasn’t going to investigate it.”

24. At A77 in recounting by way of recollection he recounted a short version said to be attributed to the claimant: “He – I think he said he saw a – small amount of water on the road, so he’s just gone and driven through it, and it was deeper than he thought, and his engine seized, and his car came to a stop. And that’s it.” There is a critical difference between the answers at A57 and A77 – in one he didn’t see any water, in the second he did. At A97 he confirmed the second recollection of A77. At A105 the constable stated that he had not made any contemporaneous notes in his notebook.

25. Relevantly in describing the highway at the site of the accident at A133 he stated – “Yeah- it’s a gradual bend. I don’t – I know there’s a hill somewhere pretty steep that you climb. I’m not if that’s on the flat here- on this corner, or it’s- yeah, a bit hilly.”

26. At Q140 the interviewer asked the constable to comment upon the claimant’s version of the incident contained in his claim form and replicated at [17] above. He answered at A140 – I guess that’s pretty consistent with what I saw, and what he told me. I, I don’t know about the speed. As I said I wouldn’t have a clue how fast he was going.”

27. The final written note of the constable’s recollection is a narrative note created by him at about 12noon on 21 January 2019, referred to at A187. The constable read out the note as follows: “On or about 11.30pm on Sunday the 21 January 2019 a driver driving the VOI southbound – the VOI being the blue Tarago XXXXXX on the Castlereagh Highway, Aarons Pass. At the time there was severe storm with heavy rain causing the Crudine River to swell and flood across the roadway. It was estimated that the water was over a meter deep. As the driver approached the location, entered the floodwaters but unfortunately didn’t make it through. Slowed down, proceeded through, only making a few meters before the VOI’s engine became waterlogged and stopped.”

28. The insurer infers from this narrative note that the claimant “purposely drove into the water having assessed it was safe to do so” In support of this position it relies on the claimant’s statement at [81] noted above. There are certain discriminating factors in relation to northbound traffic. Firstly we do not know of the approaches to the bridge from that direction, and secondly upon seeing hazard lights, it is eminently reasonable that the drivers of the approaching cars could see a dangerous situation, stop and turn around.  As to the submission at 9(a) (iii) I do not share the view that such an inference can logically be drawn from the evidence relied upon.

29. It is opportune to return to the evidence of Senior Constable Merchant. His discussion with the claimant at the scene of the accident was short. It was not a police interview for investigation purposes. The Constable did not make any notes at the time of the  accident. His interview answers as noted above are inconsistent as to the words used by the claimant in his short interview with the claimant. The constable was not interested in the detail of how the accident occurred otherwise he would have interviewed the claimant’s wife. As to the narrative noted at [27] above the words “slowed down” were used by the claimant in his statements the context of him reducing his speed to 50 kmh in a 100km zone by reason of the incessant rain. The claimant did enter the floodwaters of that there is no doubt. However the final two sentences of the narrative are ambiguous and cannot safely be construed as put by the insurer’s legal representative. There is a reason for such ambiguity – Constable Merchant was not interested in detail – it was not a police matter.

30. There is a part of the evidence which has been overlooked by the parties. Attachment 9 to the second Quantumcorp report contains 3 Scene photographs. Photograph 1 is taken about 50 metres northwest of the collision location. It can be seen that there is a sweeping left hand bend but also impeding the claimant’s forward and peripheral view is a hill, also noted in the evidence of Constable Merchant. In the context of heavy rain, fast moving wipers, darkness and a partially obstructed view it is in my view highly likely that the movement of water, from east to west across the highway in an unlit area at the site of the bridge over the creek, would not have been readily observable to the claimant from 50 metres away from the hypothetical site of the accident.

31. Photograph 2 is taken from 25 metres away from the hypothetical site. It is more likely, though not certain that the claimant would have considered himself out of the sweeping bend and seen the overflow, or wall of water from that point. The claimant’s evidence and that of his wife is that once out of the bend they were confronted with a wall of water.

32. A car travelling 50km per hour travels 13.9 metres per second. 50 metres will be travelled in 3.6 seconds. A more likely scenario, that encompassed by photograph 2 would have a vehicle travelling at 50km per hour traversing a distance of 25 metres in 1.8 seconds, hardly a period for a deliberated reaction.

CONSIDERATION

33. Before moving to an evaluation of the evidence in the context of submissions two sundry matters should be addressed. Firstly it should be noted that the insurer in its Internal Review of 12 July 2019 has unfortunately relied upon a misreading of the evidence. At no point did either the claimant or his wife state “that during the day you stopped several times for the bad weather to pass.” (emphasis).

34. Secondly, there were identified witnesses who were at the scene soon after accident.  The second Quantumcorp report identifies a Mr. BD who lived in Dubbo, who after some hesitation on 26 April 2019 telephoned Quantumcorp and informed a person with some knowledge of the matter that he was willing to make a statement. At the 5th dot point on page 2 of the report it was noted that inquiries to obtain a statement were continuing. No statement has been forthcoming. The farmers who almost immediately assisted the claimant and his wife and later gave them a bed for the night were not consulted, despite the claimant identifying in his statement where they lived – five minute drive north of the site of the accident heading towards Mudgee.

35. Now to the evidence. I am not satisfied that I can rely upon the hearsay evidence of Constable Merchant. He was in my view, although not being critical, inconsistent in his evidence. He was late at the scene and had no official police involvement in any investigation of the details of the incident. He spent a short time only with the claimant and did not make any contemporaneous notes during his short discussion with the claimant. His narrative note is partly explicable and definitely ambiguous. The transcript of his interview has not been signed by him as a true and correct record.

36. I accept the evidence of the claimant and his wife. Their statements are consistent, witnessed and signed. The claimant’s version is not inconsistent with the inferences drawn by me from an evaluation of the Quantumcorp scene photography. I reject the submission at [5] of the insurer’s final submissions of 5 November 2019. That the claimant had time to assess the scene as being safe, and then purposely drove into the flooding water a metre deep is in my view implausible both as to the likely time scenario but is also not in accord with my acceptance of the evidence of the claimant and his wife. Although the insurer submits that the versions of the claimant and his wife should be rejected, the insurer neither formally submits credit as an issue nor in such circumstances has it sought a face to face assessment conference. The claimant and his wife reside in Leichhardt, so their inconvenience was not an issue.

37. There is in my view no evidence from which a finding of contributory negligence can be drawn. The evidence from the Governance manager of the Mid-Western Regional Council, Mr.Tim Johnston in his email of 2 May 2019 stated that this was a flooding event resulting from several severe storms occurring over three weeks in the catchment area of the Tabraducca Creek. The accident occurred at 11pm and by 12.20am on the arrival of Constable Merchant the flooding across the road had subsided. This was a flash flood.

THE INVOLVEMENT OF THE COUNCIL

38. In its final submissions of 5 November 2019. The insurer submits that the aforesaid Council is partly to blame because they failed to clear debris causing the flooding. The insurer neither identifies any evidence of the council’s failure nor provides any evidence of how long the logs or debris were on the road or in the creek which caused the flood, I accept the explanation of Mr Tim Johnston at [37] above.

39. In the insurer’s latest submissions it was submitted that negligence “will likely be established against the Mid-Western Regional Council”. The submission does  not engage with the substantial statutory hurdles presented by sections 43A and 45 of the Civil Liability Act 2002 (NSW). It is also a submission which, in my view ignores the decision of Fagan J in AAI Limited v Singh {2019] NSWSC 1300 where at [18] His  Honour states:

“Section 5.6 is expressly engaged only for the benefit of a person whose liability is “deemed under this Part.” Therefore it only operates in relation to “no-fault motor accidents” for which there is, by definition “no person whose fault actually caused .injury” The apparently clear meaning of the definition of a “no-fault motor accident” has the  effect that the purported right of third-party recovery under s5.6 is illusory”

40. I am satisfied that this was a no-fault accident. Within the terms of s5.1, I am satisfied  that the motor accident was not “…caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”

41. COSTS AND DISBURSEMENTS

42. The Claimant submits that costs should be awarded at the maximum amount

43. The Insurer does not make any opposing submission.

44. I am satisfied that the Claimant is entitled to the payment of legal costs at the maximum allowable and accordingly I allow costs in the sum of $1,826.00 inclusive of GST.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:

45. For the purposes of section 3.11 the motor accident was not caused by the fault of another person.

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

47. For the purposes of Part 5 of the MAI Act the subject motor accident is a no-fault motor accident.

.
48. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826.00 inclusive of GST.

Richard F Buckley
DRS Claims Assessor Dispute Resolution Service
Dated: 21 November 2019