|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Statutory benefits – reduction of weekly benefits – contributory negligence – onus of proof – U turn – motorcycle – legal costs|
Motor Accident Injuries Act 2017 (NSW) ss 3.8|
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017
Civil Liability Act 2002 (NSW), section 5B
AHF – Claimant
NRMA – 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
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(g) of the Motor Accident Injuries Act 2017, about whether the insurer is entitled to reduce the claimant’s statutory benefits in accordance with section 3.38 (Reduction of weekly statutory benefits after 6 months for contributory negligence).
1. There is a dispute between the Claimant and the Insurer regarding whether his statutory benefits should be reduced for contributory negligence.
2. On 26 August 2019 the Insurer issued a Liability Notice declining the claim on the grounds the Claimant was wholly at fault for the accident.
3. The Claimant requested the Insurer undertake an internal review.
4. The outcome of the internal review was that on 11 September 2019 the Insurer substituted the decision of the original claims consultant and determined the Claimant contributed to the accident at an assessed rate of 50%.
5. The Claimant disagrees that his statutory benefits should be reduced by contributory negligence.
6. I held a teleconference on 2 December 2019.
7. At the teleconference I confirmed the only dispute I had to address was how much, if any, contributory negligence the Claimant’s statutory benefits should be reduced by.
8. The parties confirmed that the insured driver had not signed a statement, nor had the claimant.
9. I invited the Claimant’s legal representatives to make written submission in response to the insurer’s reply if he wished to do so. He declined, noting he could provide oral submissions.
10. The Claimant’s legal representative submitted that the insurer had failed to discharge its onus in relation to contributory negligence. Based on the papers before me, there is merit in that argument. I emphasised to the insurer’s representative that it is their onus to prove contributory negligence. The Insurer’s representative accepted that was the case.
11. I then invited the parties to advise if they wished for a face to face conference to be held.
12. The parties advised they were happy for my decision to be made on the papers.
13. I have considered the documents provided in the application and the reply and any further information provided by the parties.
14. The Claimant submits the Insured attempted to make a U-turn across his path, forcing him to lay his bike down. He subsequently came off his bike and sustained injury. He submits, in summary, that the Insured was the sole cause of the accident.
15. The Insured submits she commenced her U-turn when it was safe to do so and activated her blinker prior to commencing the turn. The Insurer says the Claimant was negligent to the extent of 50% for:
b. Failing to have due regard to his safety whilst in the process of overtaking to allow himself the time and space so as to enable him to avoid a collision with vehicles ahead undertaking unexpected manoeuvres such as a U-turn in the circumstances of this case;
c. Failing to keep a proper lookout;
d. Failing to exercise ‘greater care’ (insurer’s terminology) when attempting to overtake vehicles in the roadway.
16. 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
- Civil Liability Act 2002 (NSW)
17. I have considered the documents provided in the application and the reply and any further information provided by the parties.
18. I make the following findings of fact:
b. The speed limit was 70km/hr.
c. The Insured and the Claimant were travelling in a westerly direction.
d. It was peak hour.
e. Traffic was heavy and the vehicles were barely moving.
f. The Claimant was riding a motorcycle. He crossed over broken lines into the easterly lane which had no vehicles moving in it, in an attempt to overtake the stationary traffic.
g. The Insured commenced a U-turn and drove into the path of the motorcyclist, causing him injury.
h. The claimant was not speeding.
i. The claimant was legally allowed to be in the easterly lane for the purpose of the overtaking manoeuvre he was performing.
Breach of duty of care
19. No signed statement has been provided by the Insured. There is an Investigation Log dated 8 August 2109 (sic) where a Melanie Pavlovic of M & A Investigations notes a conversation was held with the Insured. This is hearsay but I note the record reveals the Insured told the investigator she made sure there was no oncoming traffic before commencing her U-turn.
20. The transcript of the record of interview between Melanie Pavlovic and Senior Constable Natalie Annunziata posits that the Insured’s statement in the police notebook stated ‘I waited until it was safe to perform a U-turn. There were no vehicles travelling east. I looked in my rear-view mirror and side mirror. I couldn’t see anything. I started to turn, and I got halfway, and I heard and felt a bang. I saw I’d hit a bike’. When asked at what point she notices the other driver her response was ‘When I felt the impact’.
21. I find that the insured breached her duty of care by failing to keep a proper lookout when commencing a U-turn. Had she kept a proper lookout she would have seen the Claimant on his motorcycle and a reasonable driver would not have commenced the U-turn.
22. The parties conceded in the teleconference that it is the Insurer’s onus to establish contributory negligence.
23. The Insurer submits, in summary, that the mere fact the Claimant had commenced to perform a (legal) overtaking manoeuvre and travel on the other side of the roadway is sufficient for me to find that he contributed to the accident. That is impermissible hindsight reasoning. Questions posed by section 5B (1) of the Civil Liability Act 2002 must be assessed prospectively and not with the wisdom of hindsight.
24. The Claimant was permitted to be in the eastern lane for the purpose of performing an overtaking manoeuvre.
25. I find it irrelevant as to whether or not the Insured had her right indicator activated. Even if she did, the Claimant was travelling under the speed limit and none of his actions caused or contributed to the Insured’s decision to commence a right-hand turn across his path.
26. I therefore find the Claimant did not cause or contribute to the accident.
27. As such, I find no contributory negligence should be found against the Claimant.
I find that the sole cause of the accident was the Insured’s failure to keep a proper lookout and give way to the Claimant. It find that the Insurer has failed to discharge its onus in proving that there was any negligence on the part of the Claimant that caused the accident. It follows that I therefore find the Claimant’s statutory benefits should not be reduced for contributory negligence.
Costs and disbursements
28. I am satisfied that the Claimant is entitled to the payment of legal costs. I allow the maximum regulated costs in the sum of $1,796.30 inclusive of GST.
My determination of the Miscellaneous Claim is as follows:
29. For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident
30. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.
DRS Claims Assessor
Dispute Resolution Services