|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Mostly at fault – dash cam footage – red traffic light – intersection – proper lookout|
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
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
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.
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:
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.
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
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%.
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.
DRS Claims Assessor
Dispute Resolution Services
Dated: 26 February 2019