AHM v Allianz Insurance Limited [2019] NSWDRS CA 200

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction	Miscellaneous Claims Assessment
Catchwords	Mostly at fault – dash cam footage – red traffic light – intersection – proper lookout
Legislation cited	Motor Accident Injuries Act 2017 (NSW) ss 3.28(1), Schedule 2(3) Motor Accident Injuries Regulation 2017 Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.445
Cases cited	N/A
Text cited	N/A
Parties	AHM – 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(4) of the Motor Accident Injuries Act 2017

Introduction

1. AHM claims to have sustained injury in a motor vehicle accident on 15 June 2018.

2. AHM made a claim for statutory benefits.

3. On 5 October 2018 the Insurer issued a liability notice to the effect that AHM was mostly at fault.

4. On 5 November 2018 AHM made an Application for Internal Review.

5. On 26 November 2018 at Internal Review the Insurer affirmed the decision that AHM was wholly at fault.

Background

6. The dispute between AHM and the Insurer is as to whether the motor vehicle accident was caused or wholly by the fault of AHM.

7. AHM has by a Statutory Declaration made 12 November 2018 stated:

5. On or about 15 June 2018, at around 12.35pm, I was a driver wearing a seatbelt in a motor vehicle registration 'XXX XXX' with my two sons, as passengers. I was driving along Pine Road in an easterly direction and stopped at a red traffic light at the intersection with Beech Road in Prestons. When the traffic light turned green, I proceeded straight along Pine Road in an easterly direction at about 20 to 25km/h, when suddenly and without warning or indication, motor vehicle bearing registration number 'YY YYYY' which was traveling southerly along Beech Road ran a red light and collided into the nearside of my motor vehicle which was pushed sideways several metres and into a traffic light pole situation on the south-east kerb of the intersection ('the Accident'). My motor vehicle sustained significant damages and was completely written off (see annexure 'A').

8. The Insurer relies on dashcam footage. I have been provided with a copy of the video which clearly shows that at the time of the incident the insured vehicle was proceeding through the intersection with a green light in its favour.

9. AHM alleges that, in fact, he had a green light in his favour.

Relevant legislation

10. 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

Consideration

11. I have considered all of the evidence including the Declaration of AHM, the Police Report and the dashcam footage. The dashcam footage shows that the driver of the insured vehicle had a green light in his favour. He was fairly close to the intersection when AHM proceeded through the intersection and, on the balance of probabilities, through a red light.

12. Although the driver of the insured vehicle, had he been keeping a proper lookout, would have seen AHM some time before the impact and may have been able to avoid the collision, this is not a situation where one could reasonably say that each party was at equal or near equal fault. AHM clearly failed to keep a proper lookout when he proceeded through the intersection and, in addition, would appear to have gone through a red light.

13. On the balance of probabilities, this was a case where AHM was mostly at fault in that the degree of culpability on his part probably exceeded 61%.

Legal Costs

14. The Insurer has made a submission with respect to legal costs arguing that no provision should be made for costs as AHM had no reasonable prospect of success. I agree.

Terence Stern
DRS Claims Assessor
Dispute Resolution Services
Dated: 26 February 2019