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AHO v NRMA Insurance [2019] NSWDRS CA 202

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
CatchwordsCessation of statutory benefits – Uber driver – common area – car park – wholly or mostly at fault – collision of reversing cars – no independent witnesses – contributory negligence
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss  3.11, 3.28, 3.36, 7.36(4), 7.36(5), 8.8, Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017 Schedule 1 Clause 3(1)
Motor Accident Guidelines 2017 cl 7.441
Cases cited

N/A

Text cited N/A
Parties AHO – Claimant
NRMA 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

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3(e)) of the Motor Accident Injuries Act 2017, about the cessation of statutory benefits after 26 weeks to the Claimant most at fault or with minor injuries.

1.   Is the Claimant entitled to be paid statutory benefits beyond the first 26 weeks after the motor vehicle accident?

2.   There is a dispute between AHO and the Insurer in respect to the cessation of statutory benefits after 26 weeks to the Claimant considered by the Insurer to be wholly at fault or mostly at fault or with minor injuries under section 3.28 of the Motor Accidents Injuries Act 2017 ("the Act").

3.   The Claimant was an Uber driver on 6 August 2018 at about 5.10pm when he drove into an internal car park area off Stanmore Road in Newington College at Stanmore to pick up a customer. The Claimant stopped his vehicle in the common area, not in a designated car space. He waited for 4 to 5 minutes for the customer. The customer then contacted the Claimant and told him she was in another parking area. The Claimant intended to exit the car park area but could not go forward so he had to reverse.

4.   The Insured driver's vehicle was parked in a designated parking space in the car park area. He returned to his vehicle with the intention of exiting the car park area. He reversed his vehicle. The Claimant reversed his vehicle. The rear of the Claimant's vehicle collided with the rear offside of the Insured driver's vehicle. There was a collision.

5.   The issues in dispute are:

i.   Was the motor accident caused wholly or mostly, by the fault of the Claimant?

ii.   Are the Claimant's only injuries resulting from the motor vehicle accident, minor injuries?

6.   The NRMA conducted an internal review on 5 February 2019. The NRMA decided that the original decision dated 19 November 2018 should be affirmed to decline AHO's claim for statutory benefits after 26 weeks from the date of the motor accident on the basis that AHO is wholly at fault for the motor accident and his injuries (refer A1).

Documents considered

7.   I have considered the documents provided in the application and the reply and any further information provided by the parties.

Claimant's submissions

8.   The Claimant submits that he is not at fault for the motor accident and as such is entitled to be paid statutory benefits beyond the first 26 weeks from the date of the motor accident (refer DRS Application Form).

9.   The Claimant says he does not require the assistance of an interpreter (refer [7] of his statement dated 7 November 2018).

10.   The Claimant says at [3] of A2 Application for Personal Injury Benefits that "I was slowly reversing and sounding my horn when speedly (sic), quickly, suddenly and without warning the parked car reversed and cause the accident".

11.   The Claimant provided a statement to M&A Investigations on 7 November 2018:

22.   About 5.10pm, I drove into the car park from Stanmore Road. At the time ii was day and the weather conditions were fine and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did not have the car radio on and I was not distracted by anything. I was the only occupant in my vehicle. I drove into the car park and I found myself in a one way street. I stopped my vehicle but I was not stopped in a designated car space. The car spaces were to my right. The offside of my vehicle was about one and half metres from the parked vehicles.

23.   I was stopped and looking directly ahead and I waited for four to five minutes waiting for the customer. I then received a call from the customer and she asked me where I was and I told her and she was at a different car park. I told her that I would come but all of a sudden the job was cancelled. I then decided to leave the area. I looked around me and Stanmore Road was behind my vehicle. There was one gate where vehicles enter and a second gate where vehicles exit. I could not go forward and had to reverse. I then put my vehicle into reverse and I then looked over my left shoulder and did not see any vehicles behind me. I did not look in the rear mirrors because I did not need to. I then sounded my horn twice to warn others around me that I was going to reverse.

24.   I then commenced to reverse and reverse about five metres and it was slowly. I continued to look over my left shoulder and did not stop looking back. When I reversed to around the last vehicle that was behind me I then heard a bang and felt an impact. I then braked and I then looked and I saw that I had collided with grey Holden Cruze sedan bearing New South Wales registration number XXXXXX and this was driven by the insured driver. I am not aware of the names of any witnesses to the accident.

12.   The Claimant submits that the cause of the accident was the other vehicle reversing into his vehicle (refer [28] of the Claimant's statement dated 7 November 2018). This is contrary to [24] of the Claimant's statement where the Claimant states that "I then braked and I then looked and I saw that I had collided with grey Holden Cruze sedan bearing New South Wales registration number XXXXXX and this was driven by the insured driver".

13.   The Claimant's solicitors provided further submissions on liability by email on 8 July 2019. The Claimant submits at [1] "that, at the time of the collision, the claimant's vehicle was already present in the driveway in the car park whereas the insured vehicle was pulling out of the designated parking space. As such, the Claimant's vehicle should have a right of way and the insured vehicle, which was reversing out of the parking space, is likely to be the majority at fault in the accident".

Insurer's submissions

14.   The Insurer relies on a police report at R7 and the factual investigation report of M&A Investigations dated 7 November 2018 at R9 and the attachments to the report at R9.

15.   The Insured driver provided a statement to M&A Investigations dated 7 November 2018 at R9:

23. I turned the ignition on and I was intending to drive back home. I had to reverse my vehicle in order to drive out of the car parking area. I put my vehicle in reverse and I checked centre mirror and mirrors on both sides of my vehicle and did not see any vehicles or pedestrians. I then formed the opinion that it was safe to reverse my vehicle. I slowly reversed and I was looking over my right shoulder. I reversed out of the space and reversed about 3 metres and I stopped. I then looked to my left and I saw silver Hyundai sedan bearing New South Wales registration number XXXXXX and this was driven by AHO. When I first saw this vehicle it was about 3 metres away from my vehicle and that vehicle was facing towards the Oval. The rear of that vehicle was facing me.

24.   I then saw another vehicle that was parked in a designated car space in front that Hyundai and to the right of the Hyundai then puts its head lights on. At this time my vehicle is stationary. I then saw the Hyundai reverse and my vehicle remained stationary. The rear of the Hyundai then collided with the rear offside corner of my vehicle. It was a minor impact and the Hyundai then stopped. I am not aware of the names of any independent witnesses to the accident.

16.   Both the Claimant and the Insured driver say there were no independent witnesses to the accident.

17.   The Insurer provided further submissions on liability by email on 8 July 2019. The NRMA submitted  that  there is  no  dispute  that  both  vehicles  were  present  in  the common area of the car park prior to the collision.

Legislation

18.   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 Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

19.   To determine whether statutory benefits are payable after 26 weeks from the date of the motor accident, the decision maker must consider whether the injured person was wholly or mostly at fault for the motor accident in accordance with sections 3.11 and 3.28 of the Act.

20.   Section 3.11 of the Act states that:

Cessation of weekly payments to injured persons 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 it:
(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%.

Note. Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.

21.   Section 3.28 of the Act slates that:

Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries
(1)   An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred 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 and the person was over 16 years of age at the time of the motor accident, 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%.

(3)   Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.

22.   In line with the above, if an accident was caused wholly or mostly by the fault of an injured person, then the injured person is not entitled to the payment of statutory benefits.

23.   I have considered the documents provided in the application and the reply and any further information provided by the parties.

24.   As there are no independent witnesses, it is the Claimant's version of how the accident occurred up against the Insured driver's version of how the accident occurred.

25.   I prefer the evidence of the Insured driver over the evidence of the Claimant. I am satisfied on the evidence of the Insured driver that the Claimant's vehicle reversed into the rear off-side of the lnsured's vehicle. The Claimant's evidence is "and I saw that I had collided with grey Holden Cruze sedan bearing New South Wales registration number XXXXXX" (refer [11] above).

26.   I am satisfied on the evidence that the lnsured's vehicle was parked in a designated parking bay. I am satisfied on the evidence that the Claimant's vehicle was stationary in the common area, not in a designated parking bay. I am satisfied on the evidence that at the time of the collision, the lnsured's vehicle was stationary. I am satisfied on the evidence that the Claimant's vehicle reversed into the rear off-side of the lnsured's vehicle. I am satisfied on the evidence that the Claimant reversed his vehicle to allow another vehicle parked in a designated parking space to reverse. When he attempted this manoeuvre he reversed into the rear off-side of the lnsured's stationary vehicle thereby causing the collision.

27.   I find that the motor accident was caused wholly or mostly by the fault of the Claimant (refer sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017.

Costs and disbursements

28.   At the 3rd teleconference on 16 July 2019, I enquired of the Claimant's solicitor if the Claimant was claiming costs of the dispute. I directed the Insurer to provide its submissions on costs by COB on 17 July 2019. I directed the Claimant to provide his submissions on costs by COB on 24 July 2019. The Insurer provided its submissions on costs as directed on 16 July 2019. The Claimant did not and has not provided any submissions on costs at all (refer 3rd teleconference report dated 13 August 2019.

29.   There is a dispute between the Claimant and the Insurer in respect to recovery of legal costs under section 8.8 of the Act.

30.   The Claimant makes no claim for costs and has not provided any submissions at all relevant to costs.

31.   The Insurer submits that costs should follow the event.

32.   Clause 3(1) of Schedule 1 of the Motor Accident Injuries Amendment Regulation 2017 provides that:

The maximum costs for legal services provided to a Claimant or an Insurer in connection with an assessment under Division 7.6 of the Act involving a dispute about a regulated miscellaneous claims assessment matter are $1,600 (to a maximum of $6,000 per claim).

33.   The amount of $1,600 has been increased to $1,632.96 in accordance with the Motor Accident Injuries Amendment (Indexation) Regulation 2018.

34.   The Claimant has been unsuccessful in the dispute. I find that the Claimant is not entitled to costs in the circumstances of this dispute having regard to section 8.8 of the Act and Schedule 1, Part 1 Section 3 of the Regulation.

35.   I am not satisfied that the Claimant is entitled to the payment of legal costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

36.   For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person

37.   Effective Date: This determination takes effect on 16 August 2019.

38.   Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $NIL inclusive of GST.

Geraldine Daly                
DRS Decision Maker
Delegate of the Principal Claims Assessor
Dispute Resolution Service
16 August 2019