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AHN v GIO Insurance [2019] NSWDRS CA 201

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – cessation of weekly statutory benefits – no fault – single motor vehicle accident – motor cycle accident – police report – debris on road – onus of proof
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 1.4, 3.1, 3.11, 3.28, 5.1, 5.2, 5.4, 7.36(4), Schedule 2(3)(d) and (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 
Cases cited N/A
Text cited N/A
Parties AHN – Claimant
GIO Insurance – 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

Background

1.   This Determination relates to a miscellaneous claim, which is a reviewable decision under Schedule 2(3)(d)(e) of the Motor Accidents Injuries Act 2017 about whether the Claimant was wholly or mostly at fault.

2.   It is also a dispute pursuant to part 5 of the Motor Accidents Injuries Act 2017 in relation to the “no-fault” provision of the Act.

3.   AHN hereafter referred to as the Claimant, sustained injury in a single motor vehicle accident on 7 August 2018.

4.   According to his Certificate of Capacity/Certificate of Fitness completed by Dr Adam Jackel dated 13 September 2018, the Claimant was diagnosed as having suffered a fracture of the right occipital condyle, T1 and T5 fracture, right scapula fracture, rib fractures, large right pulmonary contusion and pneumothorax, undisplaced fractured T10 and transverse process fracture on the left involving L2/L3/L4.

5.   On 17 August 2018 the Claimant lodged a Personal Injury Benefits Form with GIO, third party Insurer of the motor vehicle involved.

6.   On 25 September 2018 GIO wrote to the Claimant accepting liability for statutory benefits during the first 26 weeks after the accident.

7.   On 15 November 2018 GIO wrote to the Claimant denying liability to make statutory benefit payments beyond the first 26 weeks on the basis that GIO had determined that he Claimant was wholly or mostly at fault for the accident. The Insurer relied on the police report dated 19 October 2018.

8.   The Claimant sought an internal review of the Insurer’s decision to cease payment of statutory benefits after 26 weeks. The internal review decision affirmed the original decision of GIO and this decision enclosing a Certificate of Determination and Statement of Reasons was forwarded to the Claimant on 12 December 2018.

9.   The Claimant then lodged an application with SIRA and I have been allocated that matter to determine the issues.

10.   I have read all of the documents provided in the application and reply and further documentations provided by both parties and oral submissions at a telephone conference. I have considered all of the evidence.

11.   In his application for Personal Injury Benefits Form the Claimant set out as follows at paragraph 3:

“I was riding north on Bumble Hill Road, Yarramalong. When negotiating a slight left hand bend and I saw tree debris on the roadway. I was unable to avoid this and as a result my bike lost traction and I was unable to recover control of my bike, resulting in me falling heavily to the roadway with my motorbike.”

12.   There were two police reports provided in this matter. The first police report is dated 18 October 2018 and the second police report is dated 13 December 2018.

13.   In determining liability for continued statutory benefits I note the Insurer relied on the earlier report dated 18 October 2018 only as it did not have the second report at that time.

14.   The police report dated 18 October 2018 notes as follows:

“Unit 1 was travelling north on Bumble Hill Road, Yarramalong in lane 1 of 1 at a stated speed of 60kph. Unit 1 approached a steep downhill sweeping bend to the left.

Driver 1 lost control of the vehicle and crossed over on to the northbound lanes and sliding on to the shoulder of the road. Driver 1 was ejected from the vehicle and also slid across the roadway coming to rest on the shoulder.

Driver 1 sustained numerous injuries to his back and ribs and was airlifted from the scene and conveyed to John Hunter Hospital.”

15.   The second report of the New South Wales Police Force is dated 13 December 2018 and notes as follows:

“Unit 1 was travelling north on Bumble Hill Road, Yarramalong in lane 1 of 1 at a stated speed of 60kph. Unit 1 approached a steep downhill sweeping bend to the left.

Driver 1 lost control of the vehicle and crossed over on to the northbound lanes and sliding onto the shoulder of the road. Driver 1 was ejected from the vehicle and also slid across the roadway coming to rest on the shoulder.

Driver 1 sustained numerous injuries to his back and ribs and was airlifted from the scene and conveyed to John Hunter Hospital.

It is suspected that debris blown on the road from trees lining the roadway has caused driver 1 to lose control and leave the roadway. Police are unable to establish prima facie re negligence.” (my emphasis)

16.   At a telephone conference on 27 February 2019 AHN, assisted by his friend Mr S, stated that he had provided the extra evidence to the police as he was unable to do so at the scene of the accident because of his injuries. The Claimant at the telephone conference maintained that there was debris on the road and that he had entered the bend at about 45kph in a 60kph zone and as he entered the bend, he was aware of the back wheel of his Harley Davidson losing traction as he hit the debris.

17.   At the telephone conference on 27 February 2019, issues in relation to the type of bend and speed limit were raised. I granted liberty to the parties to provide further evidence if required.

18.   The Insurer provided further Submissions by email dated 5 March 2019 maintaining that its allegation is that the Claimant is wholly or mostly at fault for the subject accident. The Insurer had obtained a scene canvas from its investigator dated 4 March 2019 attached to the updated Submissions. This document is signed by investigator Geoff Clark and dated 4 March 2019.

19.   There appears to be some confusion as to outside which property the accident occurred.

20.   In his Personal Injury Benefits Form the Claimant noted as follows:

“Question: Where did the accident occur?”

Answer: outside of 110 Bumble Hill Road, Yarramalong.”

21.   The Insurer in performing a search of the accident site noted at page 2 of its investigation report dated 4 March 2019 as follows:

“We are unable to locate this property and identify the accident location based on the description contained in the police report, being a left hand bend at the intersection of Yarramalong Road. At this location we advised the Claimant was riding down a constant decline towards Yarramalong. It noted as follows:

“The speed limit changes from 80kph to 60kph approximately 170 meters before the bend. There is also a suggested safe speed sign of 35kph prior to the bend.”

22.   The investigator provided certain photographs taken on Bumble Hill Road facing west taken near the accident location noting that the speed limit was 80kph zone. There are further photographs taken along Bumble Hill Road facing east allegedly showing the direction the Claimant was travelling and indicating that he was riding in a 60kph zone when approaching the accident site.

23.   Photograph 3 is taken on Bumble Hill Road facing west with a warning sign showing the area as being a winding roadway.

24.   Photograph 4 is a photograph facing east taken 200 meters from the accident location and showing the start of the sweeping left hand bend.

25.   Paragraph 5 allegedly is facing east taken 175 meters from the accident location and showing a 60kph sign.

26.   Photograph 6 is facing east taken 150 meters from the accident sign.

27.   Photograph 7 facing east taken 125 meters from the accident location and sweeping left hand bend showing a speed warning sign suggesting a 35kph on the bend.

28.   Photograph 8 is taken facing east about 100 meters from the accident location.

29.   Photograph 9 facing east taken 75 meters from the accident location.

30.   Photograph 10 facing east taken 50 meters from the accident location.

31.   Photograph 11 taken facing northeast taken 30 meters form the accident.

32.   Photograph 12 facing north at the accident location.

33.   Photograph 13 facing west taken at the bend where the accident allegedly occurred allegedly showing the direction the Claimant had travelled from.

34.   Map 1 shows the left hand bend on Bumble Hill Road near the intersection of Yarramalong Road as indicated by the police report.

35.   Map 2 depicts the intersection with Yarramalong Road as indicated by the police report and location of 110 Bumble Hill Road as indicated by the Claimant in his Claim Form.

36.   The above report does not set out to determine fault in this accident, but merely attaches a series of photographs indicating the bend and the recommended speed at each bend.

37.   The Claimant provided Submissions in reply to me on 10 March 2019. In those Submissions the Claimant alleges at paragraph 2 as follows:

“The location of accident as provided by the Insurer in its Submissions is inaccurate. It is evident they have no actual knowledge of the exact location of the accident site and therefore are unable to provide any further relevant information of the type or nature of the curve/bend, the warning signs displayed or other relevant details for consideration in these determinations.”

38.   The Claimant submits as follows:

“All information in the Insurer’s further Submissions relating to speed warning signs and their assessment that my speed was excessive due to the road’s specifications are all fundamentally flawed due to the incorrect location being nominated.”

39.   The Claimant provided a Google Map depicting the Insurer’s incorrect location and showing the actual location. The Claimant stated as follows:

“After impacting the roadway my motorcycle and myself came to rest on the concrete driveway of number 72 Bumble Hill Road.

Due to the acreage style lots on the stretch of roadway, the numbers of the properties on the eastern side of the roadway sequence immediately from number 110 to then number 72 Bumble Hill Road…the bend on which the accident took place is situated between number 110 and number 72 Bumble Hill Road. I note there are no other concrete driveways on the eastern side of the roadway on the approach to Yarramalong Road from the north.”

40.   A photograph of the driveway of number 72 approaching from the north has also been provided with photographs of the ambulance treating the Claimant on the driveway of number 72 Bumble Hill Road. There is also a photograph of the bitumen being scraped and gauged off the road surface outside number 72. The Claimant also provided street view imagery form Google Maps indicating position of the bend on Bumble Hill Road and the relative position of number 72.

41.   The Claimant provided satellite imagery from Google Maps displaying the accident site noting that there is no concrete driveway on the eastern side roadway matching the treatment scene.

42.   The Claimant has provided a Google Map and has circled the area of the accident location at 72 Bumble Hill Road and also shows a circle where the Insurer has specified the location, which in the Claimant’s Submissions, is the incorrect spot.

43.   Having viewed all these images and photographs, I am satisfied that the Claimant’s depiction of the accident scene is the correct depiction given the manner in which the acreage style lots on the stretch of roadway are sequenced. However, the Claimant’s photographs do not provide evidence of the speed limit or the recommended speed limit approaching the area where the Claimant submits the accident occurred.

44.   At the telephone conference on 27 February 2019 the Claimant stated that he was travelling in a 60kph zone and he entered the bend at about 45kph.

45.   The Claimant submitted that he has been a Harley Davidson rider for many years. He has been a rider for 50 years and has had no prior motor vehicle accidents. He has undertaken two courses dealing with technique in driving a Harley Davidson motorbike.

46.   The Claimant confirmed that he had not been charged with any driving offences in relation to this accident.

Summary

47.   The Insurer has paid statutory benefits of weekly payments for 26 weeks to the Claimant but has denied liability for any ongoing payment and relies on section 3.11(1)(a) of the Motor Accidents Injuries Act 2017 (wholly or mostly at fault) and the Insurer also relies on sections 5.1, 5.2 and 5.4 of the Act in relation to “no-fault motor accident”:

“Section 3.11 - Cessation of weekly payments to injured person most at fault or with minor injuries after 26 weeks
(1)    An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if:
(a)  The motor accident was caused wholly or mostly by the fault of the person or

(b)  The person’s only injuries resulting from the motor accident were minor injuries.

(2)  A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”

48.   Part 5 of the Act – recovery for no-fault motor accidents:

5.1  – Definition of “no-fault motor accident”

“no-fault motor accident” means a motor accident in the State 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.

5.2  – Liability in case of no-fault motor accident:

(1) The death of or injury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident is for the purposes of and in connection with any claim for damages or statutory benefits in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
5.4 – No coverage for driver who caused accident:
(1)    There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.

(2)    The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of section (1) even if:

(a)  the act or omission does not constitute fault by the driver in the use or operation by the motor vehicle, or

(b)  the act or omission was involuntary, or

(c)   the act or omission was not the sole or primary cause of the death or injury.”

49.   Division 1.2 – Interpretation:

1.4 Definitions

“Fault” means negligence or any other tort Part 3 – Statutory Benefits

Division 3.1 - Entitlement to statutory benefits

3.1 Statutory benefits payable in respect of death or injury resulting from motor accident.

(1)If the death of or injury to a person results from a motor accident in this state, statutory benefits are payable in respect of the death or injury as provided by this Part.

(2)Statutory benefits are payable (except as otherwise provided by this Part):

(a)  Whether or not the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle, or

(b)  Even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.

50.   The Act has included a number of sections referred to above where the Insurer having paid for the first 26 weeks regardless of fault, may seek to cease payments thereafter.

Evidence presented in this case

51.   The Claimant’s case is that he was travelling north on Bumble Hill Road, Yarramalong in lane 1 of 1 at a stated speed of 60kph.

As he approached a steep downhill sweeping bend to the left travelling at approximately 45kph, he lost control of the vehicle and crossed over onto the northbound lanes and slid on to the shoulder of the road.

52.   The Claimant told the police that it was suspected that debris blown onto the road from trees lining the roadway had caused driver 1 to lose control and leave the roadway.

53.   Police were unable to establish prima facie regarding negligence and the claimant was not charged with any driving or traffic offence.

54.   At the First Preliminary Conference the Claimant expanded on his interpretation of the debris to include leaves and twig type matter and general debris. He alleges such matter had caused his vehicle to lose traction and slide across the road.

55.   The photographs provided by both parties do show trees on both sides of the road where the accident occurred. The photographs do not depict the exact site of the skid so I cannot determine if there was any debris visible at the time of the accident. However, the Claimant’s evidence in relation to the debris was not challenged and I accept his evidence that there was debris of some nature on the road.

My findings

56.   Pursuant to Part 5 of the Act, I find that the motor accident was not caused by the fault of AHN as I am satisfied he approached the bend in the road with a cautionary approach at a speed of approximately 45kph which was an appropriate speed given the bend on the road.

57.   The Insurer bears the onus of establishing that the accident was “not caused by the fault of any other person”. The Insurer has provided no evidence in this regard given the Claimant’s assertion that there was debris on the road.

58.   The Insurer could have undertaken an examination of the alleged debris and investigated what caused the said debris to be on the road and ascertained if “any other person” was responsible for depositing the debris or alternatively responsible for not removing the debris. This could include the local council, road traffic authorities, or owners of nearby properties.

59.   I find that the Insurer has failed to discharge its onus under this section of the Act. I find therefore that this was not a no-fault motor accident.

60.   Pursuant to section 3.11 of the Act, I find that the motor accident was not caused wholly or mostly by the fault of AHN as I am satisfied he approached the bend with caution and did not cause the accident.

Legislation

61.   In making my Decision, I have considered the following legislation and guidelines:

  • Motor Accidents Injuries Act 2017 (NSW) (The Act).
  • Motor Accident Injuries Regulation 2017.
  • Motor Accident Injuries Regulation 2017.
  • Motor Accidents Guidelines 2017.

CONCLUSION

62.   My determination of the miscellaneous claim is as follows:

  1. For the purposes of 3.11 of the Act, I find that the motor accident was not caused wholly or mostly by the fault of AHN.
  2. For the purposes of 5.1 of the Act, I find that this was not a no-fault motor accident.
  3. For the purposes of 5.4 of the Act, I note that section 1 was amended and retrospective to claims from 1 December 2017 to delete the words “or statutory benefits” therefore this section does not apply to the present dispute before me.
  4. For the purposes of section 3.28 of the Act, I find that the accident was not a no-fault accident and I further find pursuant to section 3.11 of the Act, that the motor accident was not caused wholly or mostly by the fault of AHN.
  5. The Insurer is not entitled to cease weekly statutory benefits payable to the Claimant after 26 weeks from the date of the accident.
  6. The Claimant was self-represented and I make no order as to costs.

Helen K. Wall
DRS Claims Assessor
Dispute Resolution Services