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AHL v Allianz Insurance Limited [2019] NSWDRS CA 199

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – bus stop – statutory benefits – denied liability – unemployed – rear-end collision – minor injury – parked in the middle of the road – contributory negligence – failure to keep a proper lookout – hazard lights – tail lights – skid marks – median strip lane
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.3 7.36(4), 7.36(5), Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 
Cases cited N/A
Text cited N/A
Parties AHL – Claimant
Allianz Insurance Limited – 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(5) of the Motor Accident Injuries Act 2017

Background

1.   AHL was involved in an accident in the early morning of 31 May 2018. There is some uncertainty about the precise time but it would appear to have been shortly after 5.25am.

2.   AHL was driving his motor vehicle in Mingjungbal Drive, Tweed Heads towards a bus stop from which the Tweed Heads to Casino bus would be leaving at 5.25am. In the car with him was his wife and his mother. AHL’s mother (senior) needed to board the bus in order to get to Casino where she was intending to catch a train to visit her daughter). As AHL was approaching the bus stop he saw the bus heading towards him leaving on its way to Casino.

3.   AHL stopped his vehicle in the right-hand lane of a two-lane road to let his mother out so she could flag down the bus (on the other side of the road). As AHL recommenced his journey (to turn around and deliver his mother’s luggage she having successfully stopped the bus), his car was run into the rear by a motor vehicle driven by the Insured Driver who was insured by Allianz.

4.   AHL says he was injured in the accident and has made a claim for statutory benefits against Allianz. Allianz has admitted liability for the claim and has paid for AHL’s treatment and care for the first 26 weeks after the accident. The Claimant has received no income support benefits during this period because, at the time of the accident he was unemployed.

5.   Allianz has now denied liability to pay AHL any statutory benefits beyond the first 26 weeks. AHL disputes the Insurer’s decision and, following internal review of the decision by Allianz, he has referred his dispute with Allianz to the Dispute Resolution Service for determination and the dispute has been referred to me.

Legislative framework

6.   AHL’s claim arising out of this accident is governed by the Motor Accident Injuries Act 2017. Under that Act he may be entitled to make two claims, a claim for statutory benefits and a claim for lump sum common law damages. At this point in time AHL makes a claim for statutory benefits only.

7.   AHL’s claim for statutory benefits is made under Part 3 of the Act which provides for income support and treatment benefits to almost anyone involved in a motor accident regardless of whether they were at fault or not.

8.   Statutory benefits, depending on the nature of the injury sustained in the accident and subject to some exceptions, are payable for up to five years after the accident (for income support benefits) and for so long as they are needed (for treatment and care benefits).

9.   Sections 3.11 and 3.28 however provide that no statutory benefits are payable beyond the first 26 weeks after the accident if:

a.   The only injuries sustained in the accident were minor injuries; or

b.   If the Claimant was wholly at fault for causing the accident; or

c.   If the Claimant was mostly at fault for causing the accident.

10.   The phrase ‘mostly at fault’ is defined in both sections 3.11 and 3.28 to mean the Claimant’s contributory negligence is assessed at greater than 61%.

Insurer decision making

Original decision

11.   In a letter dated 12 September 2018 [R10], Allianz wrote to AHL advising him as follows:

You were mostly at fault in the accident. This means that we deny that the person driving the vehicle we insure was at fault.

As a result, contributory negligence does apply – 80%

12.   Allianz advised AHL that it would not pay any benefits after 29 November 2018.

Minor injury decision

13.   In the 12 September 2018 letter, the Insurer has also asserted that the Claimant’s injuries are minor injuries within the Act and the Regulations as follows:

The nature of your injury means that it falls within the legislation’s definition of “minor”. Whilst the legislation places your injury in this category, it is not to say that we believe that your injury has not been a significant event in your life.

14.   The Insurer’s minor injury decision was challenged by the Claimant and an internal review decision upheld the Insurer’s decision. I have been informed by the Dispute Resolution Service that a medical assessment will be arranged to determine whether or not the Claimant has more than a minor injury if I determine the dispute that is before me in AHL’s favour.

15.   Therefore, the Claimant’s benefits may still be terminated if I find in favour of the Claimant but the Medical Assessor determines the Claimant has only sustained minor injuries in the accident.

Internal review decision

16.   The Insurer’s internal reviewer, XXX issued a Certificate of Determination on 1 November 2018 [R12]. That Certificate affirmed the original liability decision and says:

In determining fault in a motor vehicle accident, it is necessary to consider the evidence of any negligence on the part of those involved in the accident. A driver is required to take reasonable care for the safety of other drivers and users of the roadway. In particular there are obligations on a driver to keep a proper look out and to maintain proper control of a vehicle.

I must have regard to the specific factual circumstances of the accident and whether the actions of the parties involved were reasonable and legal. In this instance, I am of the view that you acted negligently for the following reasons:

  • You have parked unsafely in the middle of the road when visibility was low;
  • You have failed to draw attention to your stationary vehicle by activating hazard lights;
  • You have failed to take the precaution of parking off the carriageway when this option was available to you; and
  • You have failed to keep a lookout for other vehicles on the road.
While I accept that the insured driver has also contributed to the accident by failing to keep a proper look out so as to brake in time, I am of the view that you were mostly at fault for unreasonably stopping while it was dark in an unsafe location. This view is supported by the police action and report in this instance who charged you with negligent driving.

17.   AHL has made a claim against the Insured Driver’s insurer on the basis that she is the at-fault driver. Allianz in the last paragraph have admitted she failed to keep a proper look out but alleged AHL was mostly at fault.

Teleconference Report

18.   At the teleconference held in this matter on 22 January 2019, Mr DC clarified Allianz’s position as to liability. He said that Allianz admits its insured driver was at fault, that is the Insured Driver was negligent and breached her duty of care towards AHL. AHL confirmed that in Allianz’s view AHL is guilty of contributory negligence and that his contributory negligence should be assessed at 80%.

19.   After discussion at the teleconference, AHL accepted that he made a mistake stopping his car where he did without his hazard lights on and that he had contributed to the cause of the accident but not to the extent of 80% as alleged by the Insurer. AHL, who was not represented by a lawyer at the teleconference, would not be drawn as to what percentage contributory negligence should be applied at that time however in his right of reply document he says the degree of his contributory negligence is 10%.

20.   While I had hoped the parties might be able to negotiate and resolve the issue of contributory negligence this has not occurred. The Insurer maintains its stance that AHL was contributorily negligent to the extent of 80%.

Issue to be determined

21.   As Allianz has admitted primary liability on the part of its insured and AHL has admitted he has contributed to the cause of the accident, the only matter for me to determine is the degree of AHL’s contributory negligence.

22.   If I determine his contributory negligence is greater than 61% then he will be found to be mostly at fault for causing the accident.

23.   In assessing his contributory negligence, I must decide what is just and equitable and consider the relative culpability or blameworthiness of the two parties in causing the accident.

Review of the evidence

Documentary evidence

24.   AHL has submitted the application for resolution of this dispute and attached to that application were a number of documents. Some of these documents are relevant to the medical issues raised by Allianz’s minor injury decision and have limited application to the matter before me.

25.   AHL has also submitted two USB thumb drives which I have reviewed. These include:

a.   A large number of photographs (over 200 by my count) four of which were taken on the day of the accident and many others taken in August, October, November and December 2018 and some taken in January 2019;

b.   Dash cam footage of a journey to the accident site taken on a date that appears to be 18 October 2018. This footage is divided into small ‘bites’ but in total the footage covers about 25 – 30 minutes;

c.    The Insurer’s investigator’s report and copies of all the statements from that report;

d.   The police report and details of the fine he received (and commentary about that).

26.   On USB drive 1 there is a 45-page document headed ‘for internal review of Car Accident on 31 May 2018’. In this document:

a.   AHL has expressed concern about the reliability of the evidence of both the Insured Driver and the independent witness Mr F.

b.   He denies Mr F’s evidence that AHL claimed he had his hazard lights on. He notes Mr F says there was someone in the back of the car and says this is untrue. He takes issue with Mr F’s evidence that the Insured Driver ‘hit the skids’ saying there were no skid marks. Later he takes issue with the Insured Driver who says she braked. AHL says she did not brake at all.

c.   AHL says he had started to move and therefore he had no brake lights on when Mr F must have gone past him.

d.   AHL says he never saw Mr F’s hazard lights and that he was checking his mirrors regularly.

e.   He queries why the Insured Driver was in the lane she was in and why she was not in the kerbside lane.

f.   He challenges the Insured Driver’s statement that there were streetlights but not many and that it was not a well-lit area. He says there was ‘a lot of streel lights and business lights working’ and refers to photographs.

g.   AHL denies he was stationary and that he was moving when he was hit.

h.   He takes issue with the accuracy of the police report and the investigator’s report and provides much detail about precisely where the accident occurred, where the car was when it was hit and where it ended up.

i.   He includes a number of photographs with commentary about those photographs.

27.   AHL has provided an additional 28-page document entitled ‘right of reply’ under cover of email dated 5 February 2019. This document:

a.   Again, covers many of the same issues covered by AHL in other documents (e.g. the alleged inaccuracies in witness statements);

b.   Raises issues outside my jurisdiction which are not relevant to the issues before me (e.g. an alleged breach of privacy by Ambulance personnel at the scene of the accident);

c.   Asks many questions and raises issues not relevant to my decision (e.g. the length of time the Insured Driver had been driving and how many times she had driven on Minjungbal Drive).

d.   Considers matters which should be the subject of expert evidence (e.g. the speed of vehicles and how far AHL’s car was shunted).

28.   Much of AHL’s material is not relevant to the matter before me, particularly in the light of the Insurer’s admission of fault on the part of the Insured Driver and AHL’s admission of his contributory negligence.

AHL’s evidence about how the accident happened

29.   AHL provided a statement to the Insurer’s investigator and an addendum statement 23 days later.

30.   AHL says that he left home at between 5.15am and 5.17am with his wife and mother in the car and that they were heading toward the South Tweed Sports Club where there is a bus stop with a view to getting his mother on the bus to Casino.

31.   He said he saw the bus after it had left the bus stop at about 5.25am. The bus was coming towards him and his mother wanted him to stop the car so he could flag it down. Although he appears reluctant to have done so, he did stop his car so his mother could get out. AHL says he looked for traffic and there was none so decided not to activate his hazard lights.

32.   He said while he was stopped he kept looking for traffic but saw none and he says that at no time while he was there was there any traffic.

33.   AHL said that although it was night time there were plenty of street lights and in fact he says ‘one right over the top of where I got hit’ and light from nearby businesses [paragraph 41].

34.   AHL said he had his headlights on low beam and his vehicle in neutral and that he had started moving when he was hit and so his tail lights which were working would not have been activated.

35.   He said again he checked his mirrors before starting off to turn right into Water Street and turn around and come back the way he was heading to drop off his mother’s luggage for her. He says he went forward for two to three seconds and was travelling at about 15 – 20 km an hour when he heard the bang of the impact.

36.   AHL recounts a conversation with the Insured Driver where she said several times she did not see him and she asked him why he was stopped. He says at some stage the Insured Driver said she was running late for work.

37.   There is the recounting of a conversation with a man in a Jeep. It is not clear whether this man is Mr F (who was driving a Range Rover) or some other person.

38.   AHL says [at 74]’ I was not aware that a car was coming up behind me until it hit us’.

39.   He says he did not her screeching and did not see skid marks and says the Insured Driver must therefore not have braked before the impact.

40.   AHL explained at the telephone conference on 22 January 2019 that he was driving in the median strip lane when he saw the bus approaching. He stopped but did not ‘park’ his car in that he still had his motor running. He said he saw his mother’s bus but did not see any other cars so he stopped. He said he stopped under a street light so that he could be seen. He said his mother crossed the road at a walk and that he sat in his car for 2 – 2.5 minutes and there was no traffic at any time.

41.   AHL could not explain how he did not see either Mr F or the Insured Driver at any time before the collision occurred despite his evidence that he was constantly looking in his rear view and side mirrors. It may be that AHL was, at some time or times looking at his mother as she crossed the road and waved the bus and had the conversation with the bus driver.

42.   AHL admitted that he had made a mistake and should not have stopped where he did and should have activated his hazard lights. I asked him why he did not move over to the left lane or move off the road at any time in the 2 – 2.5 minutes he was stationary while his mother approached the bus. He said because he had dropped his mother off many times before and knew at that time of the day there was no traffic. AHL has said in his statement and at the conference that at no stage did he see any other vehicles apart from the bus.

43.   He said that after his mother indicated the bus was going to let her on he ‘took off’. I asked him whether he took off suddenly or whether he moved off slowly. He said he eased up from first and was just about to get into second gear when he got hit. He estimated he was driving at 20 – 25 kmph when he got hit.

The Insured Driver’s evidence

44.   The Insurer relies on the police report [R3] and the fact that the Claimant was charged by police and has apparently paid the fine. While there may be inaccuracies in the police report (e.g. the time of the accident) what the police have recorded is not relevant to the matter as this is secondary evidence and I have better evidence (from the Claimant in particular) about the time of the accident before me.

45.   While the Claimant has challenged the action the police have taken, that is a matter over which I have no jurisdiction. What the police decide to do about a police matter (the driving charge) is a matter for the police and in any event, it is not determinative of the matter I have to decide (the degree of the Claimant’s contributory negligence).

46.   The Insured Driver has given a statement to the Insurer’s investigator. She recounts her journey from home. She says at one point she was in the kerb side lane but then changed to the median strip lane. She says she was following the witnesses’ car. She saw him move into the kerb side lane ‘to get out of the way and then I saw the car stationary in front of me’. She says the car looked like it had parked and was stopped without any hazard lights on.

47.   The Insured Driver talks about the tail lights and admits because the witnesses’ car was blocking her view she could not be sure the tail lights were on or not.

48.   She assumed the witness was simply changing lanes. She does not mention seeing Mr F’s hazard lights activated as he changed lanes.

49.   The Insured Driver says she saw AHL’s car with little opportunity to stop. She accepts her car did not skid but says she braked as soon as she saw (and reacted) to the presence of AHL’s car in front of her. She says she was travelling at 50 – 58 kms per hour, that her car was set to cruise at 60 kms per hour and that her car was fitted with active braking.

50.   She said her car bounced back and she did not think AHL’s car moved forwards.

51.   She says she saw AHL’s mother although she says she was ‘running … to the back of the bus’. The Insured Driver’s sketch (not to scale) is reproduced below. I accept there are some inaccuracies with it (e.g. the location of the accident compared to the Ford dealership premises) it is reproduced simply to show the placement of the three vehicles driven by AHL, Mr F and the Insured Driver.

AHL.jpg

Mr F’s evidence

52.   The sketch on the right is Mr F’s. Again, it is reproduced so to show the placement of the vehicles.

53.   Mr F has provided a statement to the Insurer’s investigator. He was driving his Range Rover (not a Jeep) behind AHL although some distance back. He suggests AHL was moving when he first saw him. He could see its headlights and the tail lights. However, as he approached it, ‘I noted that it was stopped’.

54.   He was aware of the presence of the Insured Driver’s vehicle as he approached AHL’s vehicle. He was concerned the Insured Driver might not see AHL’s vehicle and so, as he passed AHL he flashed his hazard lights. He then said he saw and heard the crash.

55.   He drove around, stopped on the opposite side of the road for a short conversation with those present and then came back the way he had originally been travelling and stopped his car. He said he did not notice any skid marks.

56.   Mr F’s evidence at paragraphs 45 and 46 confirm that in his view AHL’s vehicle was moving when he first saw the car up ahead.

Other Evidence

57.   AHL’s wife has provided a statement to the Insurer’s investigator dated 7 August 2018. She says they had stopped ‘for a couple of minutes’ so AHL’s mother could flag down the bus and get on it.

58.   She says that after her mother-in-law got out of the car ‘we started to move forward’ and then suddenly there was a collision without any warning and no screeching of brakes. She then says ‘As soon as AHL started to go forward the person slammed in the back of us really fast’. Later she repeats they were moving forward but cannot remember or does not know how far they had moved.

59.   She says the car was pushed forward.

60.   She says their headlights were on but not their hazard lights. She said the police did not come to the accident scene.

AHL’s mother’s evidence

61.   AHL’s mother provided a statement to the Insurer’s investigator dated 16 August 2018.

62.   AHL’s mother says she ran across the road ‘in front of the bus’. She turned to look as her son was ‘taking off’ and she saw the Insured Driver hit her son’s vehicle without slowing down. Several times she says her son was moving and that the Insured Driver did not slow at all.

63.   She says her son’s car was shunted forward.

64.   AHL’s mother recounts the Insured Driver saying she did not see AHL’s car and that she was late for work.

65.   AHL’s mother says it was dark but there were lights in the area.

Insurer’s submissions

66.   The Insurer has provided submissions attached to the reply and additional submissions in an email dated 30 January 2019.

67.   Allianz says the Claimant was stationary or ‘essentially’ stationary, that it was dark ‘with no natural light and very limited street lighting’, that the Claimant did not activate his hazard or brake lights and the Insured Driver attempted to brake once she became aware of AHL’s vehicle.

68.   The Insurer says the Claimant is mostly at fault for causing the motor vehicle accident. The Insurer refers to the three cases mentioned in the teleconference report and says the driver of the impacting vehicle should only be considered mostly at fault where there is ‘substantial [contributory] negligence in their driving of the vehicle such as speeding, distraction or inebriation’ and that AHL is ‘more culpable for failing to activate his hazard lights given the lighting conditions and parking in the middle of a main road, not, for example, a parking bay’.

My findings

69.   In a common law damages case where both sides were referring to distances, times, braking, lighting and speed, a decision-maker would normally expect evidence to be presented by both parties from one or more experts about these things. Similarly, in a common law damages case a decision maker would hold a hearing to take evidence from the Claimant, the Insured and all witnesses and their evidence would be tested by examination and cross examination before expert evidence would be presented. The decision maker would then be able to make fully informed factual findings based on the accepted evidence.

70.   This is not of course a common law lump sum damages claim but a claim for statutory benefits (income support and treatment). One of the objects of the Dispute Resolution Service is stated in s 7.3 of the Act, to provide a timely, independent, fair and cost- effective system of dispute resolution that is accessible, transparent and professional. I am required (also under s 7.3 of the Act) to assess this dispute fairly and according to its substantial merits ‘with as little formality and technicality as is practicable and to minimise cost to the parties’.

71.   I have considered all of the documentary evidence and the oral evidence given by AHL and I am satisfied that:

a.   AHL had stopped his car to let his mother out.

b.   AHL did not activate his hazard lights and his brake lights may not have been on at some stage when the car was in neutral.

c.   AHL had just started to move when the impact occurred.

d.   While it was night time and dark, there were street lights along the roadway and lights coming from the businesses on one side of the road.

e.   The Insured Driver was travelling at or close to 60 kms per hour immediately before she became aware of the presence of AHL’s vehicle.

f.   The Insured Driver took no action after Mr F moved to the left and she braked at or moments before impact.

g.   Mr F saw AHL’s car up ahead and moved to the left to avoid it.

h.   AHL may have been checking his mirrors but failed to see the approach of either Mr F or the Insured Driver’s vehicle.

What is the degree of AHL's contributory negligence?

72.   The facts and circumstances of every accident are different and therefore judicial decisions as to apportionment of liability are a guide only. While three cases have been cited by me and the Insurer on further consideration of them they do not assist me greatly as there are few circumstances in common other than a rear end collision with a vehicle that was parked somewhere where it was not expected to be.

73.   In assessing contributory negligence, I must consider the relative culpability of both drivers and arrive at an apportionment of their respective shares in the responsibility for the cause of the accident by comparing the degree to which they had each departed from the standard of care of the reasonable person and the relative importance of their acts in causing the accident.

74.   In that regard, my view is that the following matters are relevant:

a.   While it may have been dark, it would not have been completely black there being street lights and lights of businesses in the area switched on. The photographs taken on the day of the accident by the Claimant clearly show there were lights on in the area;

b.   Allianz have admitted primary liability, that is Allianz have admitted that the Insured Driver breached her duty of care not to injure the Claimant, was negligent and at fault;

c.   The Insured Driver failed to keep a proper lookout and was travelling too fast for the conditions, she being on notice of something untoward in that Mr F had moved to the left and activated his hazard lights.

d.   It is noteworthy in my view that Allianz have not taken any further statements from the Insured Driver to address the matters raised by AHL in his submissions and the evidence of Mr F in particular whether she saw Mr F’s hazard lights activated after he moved left;

75.   The primary cause of this accident in my view was the Insured Driver’s failure to see AHL’s vehicle before she did. It is important to note that Mr F saw AHL’s stationary vehicle and managed to avoid an accident.

76.   However, I am also of the view that AHL must bear a portion of the blame for causing this accident as he too has departed from the standard of care expected from a reasonable driver. The following matters are in my view relevant:

a.   AHL has admitted he made a mistake stopping where he did;

b.   At no stage did he activate his hazard lights, a simple step which he could have done considering, on his evidence, he was stationary for two to two and a half minutes.

c.   If what he says about how long he is stationary is correct then he too must not have been keeping a proper lookout because he failed to see the approach of Mr F or the Insured Driver and take appropriate action (such as activating his hazard lights, moving to the left and parking safely or taking off at a greater speed as opposed to easing up into gear).

d.   While I accept that he was moving off at the time of impact, a simple and reasonable precaution which would have reduced the risk associated with where he had stopped, would have been to have activated his hazard lights as he stopped and for a period of time after he commenced moving again until such time as he was moving at a speed at or near the limit for the area.

77.   In my view, a just and equitable apportionment of liability would be 60% blame to the Insured Driver and 40% to AHL.

Conclusion

78.   Having found AHL only 40% to blame for causing this accident, it therefore follows that he is not mostly at fault in causing the accident. The effect of this decision is that, if the Insurer’s minor injury decision is overturned, AHL can continue to receive statutory benefits, while any income support benefits might be reduced for contributory negligence, his treatment and care need are not.

79.   I note that this decision is not binding on the parties should AHL decide to make a common law claim for damages.

80.   As AHL has not, at any point in time been legally represented and therefore I have no legal costs to assess.

Belinda Cassidy
Claims Assessor
Dispute Resolution Service