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AHP v Allianz Australia Insurance Limited [2019] NSWDRS CA 203

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – collision – Hiro truck – single axle trailer – lanes – speed limit – witness statement – truck driver – credibility issues – disparity between parties
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.36(4), 7.36(5), Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.441
Cases cited

N/A

Text cited N/A
Parties AHP– Claimant
Allianz Australia 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

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 ('MAIA'), about whether the Insurer is, for the purposes of sections 3.11 and 3.28 of the MAIA, entitled to cease paying the Claimant statutory benefits on the basis that the motor accident was caused wholly or mostly by the fault of the Claimant.

1.   There is a dispute between the Claimant and the Insurer as to whether, for the purposes of sections 3.11 and 3.28 of the MAIA, the motor accident was caused wholly or mostly by the fault of the Claimant (i.e. the injured person).

2.  The Claimant alleges that she was injured in a motor accident on 29 January 2019 on the M4 Motorway at Minchinbury.

3.   The Insurer denies liability for the payment of statutory benefits beyond 26 weeks of the date of the motor accident on the basis that the accident was caused wholly or mostly by the fault of the Claimant.

4.  The Claimant lodged an application for internal review of the Insurer's decision to deny liability for the payment of statutory benefits beyond 26 weeks of the date of the motor accident. The Insurer's decision to deny liability was affirmed on review. The internal review decision was given on 2 August 2019. The Claimant subsequently lodged an application with the DRS for the resolution of the issue as to whether the motor accident was caused wholly or mostly by her fault.

5.   The dispute referred to me is of the type specified in Schedule 2, clause (3)(e) of the MAIA.

Documents considered

6.   I have considered the documents provided in the application and the reply. I have also considered the contents of the Claimant's email to me dated 2 December 2019 and two images depicting a Hino truck and single axle pig trailer said to be similar to the truck and trailer the insured driver was driving at the relevant time.

Submissions

7.  The Insurer submits that the motor accident was caused wholly by the fault of the Claimant. The Insurer submits that the Claimant was travelling in excess of the applicable speed limit and in that context lost control of her vehicle, such that her vehicle went into the lane being occupied by the insured driver's truck, resulting in a collision between the Claimant's vehicle and the trailer attached to the truck.

8.  The Claimant submits that the accident was not caused by any fault on her part. She submits that she was wholly within her lane when the trailer attached to the insured driver's truck collided with the rear left-hand side of her vehicle, causing her to lose control and collide with the trailer.

Legislation

9.  In making my decision I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

10.  Given the two diametrically opposed versions of the accident given by the Claimant and the insured driver, I decided to hold a face-to-face assessment conference in this matter.

11.  1 questioned the Claimant, as did Ms Allen.

12.   The insured driver, XXX, provided further information at the assessment conference by telephone. That information was provided in response to questions from me and from the Claimant.

Information provided by the Claimant

13.   On 24 April 2019, the Claimant provided a statement to a private investigator retained by the Insurer. In that statement the Claimant said that at about 6:30pm on 29 January 2019, she was travelling in an easterly direction along the M4 Motorway at Minchinbury in the number 3 lane at a speed of 90 to 100kph. The Claimant said that at the time the traffic flow was light in both directions on the motorway. There was daylight, the weather conditions were fine and the roadway was dry. The Claimant said that she was wearing a seatbelt and was not using her mobile telephone. She had the car radio on but was not distracted by anything. There was no one else with her in the vehicle.

14.   The Insurer has provided colour copies of two photographs showing the Claimant's vehicle on the motorway before it was towed. It is not in dispute that the photographs were taken shortly after the accident. In one of the photographs an ambulance can be seen. It is apparent from the photographs that there was still quite a bit of daylight at the time the photographs were taken.

15.   It is common ground that the section of the motorway where the accident occurred consists of three eastbound lanes. It is also common ground that at the time of the accident the Claimant was travelling in lane 3, which would otherwise be described as the median lane. The insured driver was travelling in lane 2, being the middle lane.

16.  The Claimant said in paragraph 20 of her statement to the private investigator that as she travelled along the roadway she was looking directly ahead and was driving alongside the truck that was in the middle lane, on her left-hand side. The truck had a trailer on it. The front of her vehicle was adjacent to a point halfway along the trailer. The Claimant said that she was driving alongside the truck and trailer for several minutes. The Claimant went on to say in her statement:... Everything happened very fast and I remember noticing something hitting the back of my vehicle. At this time I was the same lane being the number 3 lane and I was wholly within that lane (sic).

21. As a result of that impact with the rear of my vehicle my vehicle then started to fishtail. I do not know what hit the rear of my vehicle. My vehicle then went across the lane and then impacted with the trailer of the truck. I do not know what part of the trailer impacted with what part of my vehicle. After that impact I tried to gain control of the steering wheel but I could not and my vehicle then went further to the left. At this point the rear of the trailer had passed the front of my vehicle. I then slammed on the brakes and I pulled the steering to the right and then my vehicle spun around really fast and headed towards the barriers in the middle of the roadway. I screamed and then the front of my vehicle then collided with the cable barriers that separate the west and eastbound Janes. My windscreen shattered and the airbags were deployed and my vehicle came to a stop. I then noticed smoke coming out of the front of my vehicle."

17.   The Claimant attached a document to her DRS application form setting out her position in relation to who was at fault. The Claimant has said in that document that she has a very good recollection of events leading up to the first impact between the vehicles, such as the lane she was driving in and the position of her vehicle in relation to the truck. The Claimant posits in that document that the trailer swayed between lanes causing the initial impact with her vehicle that sent it fishtailing.

18.  In her email to me dated 2 December 2019, a copy of which the Insurer has, the Claimant said that she believed the reason her vehicle started to fishtail was because of the truck colliding with the rear left side of her vehicle,  pushing  her car on an angle which resulted in a secondary collision with  the  truck  where  her vehicle 's left front corner collided with the rear of  the  truck.  Further, in the email the Claimant says that the truck  was driving in close proximity  to her vehicle  and  for that reason she was trying to keep her vehicle on the right-hand side of the lane she was travelling in, away from the truck.

19.   At the assessment conference, in response to the questions from me, the Claimant confirmed that at the relevant time her vehicle was travelling at a speed of between 90 and 100kph. She was travelling alongside the truck and was intending to change lanes. The Claimant said that the truck had two trailers attached to it. The first impact occurred when the front of her vehicle was about in line with the connection between the two trailers. She heard a sound and felt the back of her vehicle being pushed away. The front of her vehicle went to the left, causing her vehicle to collide with the trailer. The Claimant said that she was in control of her vehicle up until the first collision.

20.  The Claimant also told me that up until the first collision she had been travelling alongside the truck for about three to five minutes and during that time she noticed the truck getting close to her vehicle at various points in time.

21.   Ms Allen showed the Claimant an image depicting a Hino truck and single axle trailer said to be similar to that being driven by the insured at the relevant time. The Claimant said to Ms Allen that there were two impacts between her vehicle and the truck. The first impact did not sound like an impact between two metal objects. The Claimant confirmed that at the time of the first impact the front of her vehicle was in line with the connection between the two trailers. The Claimant was shown a photograph of her vehicle in situ after the accident showing a rotation mark on the left-hand side. The Claimant said that she did not recollect seeing the rotation mark after the accident. The Claimant only recollects seeing the damage to the front of her vehicle, as shown in "photo 1"' included in the private investigator's report and attached to the Insurer's reply.

22.   It is common ground that the truck did not have two trailers attached to it. The truck had a single axle trailer attached to it. A copy of images depicting a similar truck and single axle trailer are attached to these reasons. These are images supplied by the Insurer.

23.   The single axle trailer had gates installed with canvas on the gates. It was not as depicted in the attached image. This information comes from the insured driver.

Ms D

24.   Ms D provided a statement to the private investigator on 2 September 2019. The relevant part of Ms D's statement is as follows:

12.   About 6:27pm on 29 January 2019, I turned from Roper Road at Colyton onto the M4 Mot01way and I was travelling to my home address from St Clair. I had my three children in the vehicle with me at the time. About 6:30pm, I was travelling in an easterly direction along the M4 Motorway at Minchinbury in the number 2 lane of 3 lanes at a speed of 90kph. At the time the traffic flow was medium in the same direction. At the time it was day and the weather conditions were fine and the roadway was dry.

13.  As I travelled along the roadway I was looking directly ahead. I saw a white truck bearing New South Wales registration number xxxxxx and this truck was travelling in my same lane being the number 2 lane and the truck was about four vehicle lengths in front of my vehicle and travelling at the same speed. That truck was wholly within the number 2 lane.

14.  I then saw to my right a 2010 champagne Nissan Tiida hatchback bearing New South Wales registration number yyyyyy. That vehicle was in the number 3 lane and about three vehicle lengths in front of my vehicle and that vehicle was travelling at a similar speed.

15.  I was looking directly ahead but it all happened quickly and then I saw the Nissan fishtail and spin around. At this time the truck remained wholly in the number 2 lane. I did not see an impact between the truck and the Nissan but I was looking around. I do not know what caused the Nissan to lose control. I did not see an impact with the rear of the truck but it may have occurred. I then saw the Nissan collide with the safety barrier that is in the middle of the roadway between the east and westbound lanes. At this time I am braking to avoid any collision with the Nissan. The Nissan has come to a stop facing the west in the area to the right of the number 3 lane."

25.   Ms D was not questioned at the assessment conference .

The insured driver - XXXX

26.   The insured driver provided a statement to the private investigator on 23 April 2019. In that statement he said that at the relevant time he was driving a white 2018 Hino FE truck with a single axle pig trailer attached to it. At the time of the accident the traffic flow was medium and there were three lanes in his direction of travel. The speed limit was 80kph due to roadwork. The insured driver  said that he  had 10 hours sleep the previous night and he was alert and not feeling fatigued. The insured driver then said the following in his statement:

"19.   About 6:45pm, I was travelling in an easterly direction along the M4 Motorway at Minchinbury in the number 1 lane at a speed of 75kph. At the time the traffic flow  was medium in the same direction  I was  travelfing and medium  in the other direction. At the time it was day and the weather  conditions  were fine and the roadway was dry. I was wearing a seatbelt.  I was  not using a mobile telephone. I did have the car radio on and was not  distracted  by anything. I was the only occupant in my vehicle .

20. As I drove along the roadway I was looking directly ahead and there were vehicles travelling both in front and behind my truck. I then looked into my right­ hand mirror and I saw a grey Nissan Tida bearing New South Wales registration number yyyyyy and this was driven by AHP (sic).  I  saw  that vehicle travelling eastbound in the number 2  lane and it was level with the  rear of the trailer. I then saw that vehicle then veer to its left and travel from the number 2 lane into the number 1 and co/fide with the  tyre  of the single axle of the trailer. I do not know why that vehicle left its lane as there were no other factor that caused it to leave the lane (sic).

2 1. At the time that the Nissan left its lane it was travelling around 75kph also. After the impact the Nissan lost control and then veered sharply to its right and then across the number 2 lane and into the number  3 lane and then collided  with the wire barrier that separates the east and westbound lanes .  I then saw the Nissan come to a stop. I also braked and I stopped on the side of the roadway about 100m further along. I am not aware of the names of any witnesses to the accident."

27.   Fortunately, -the insured driver was available to be questioned by telephone at the assessment conference.

28.   During questioning by me, the insured driver explained that the single axle trailer had gates installed that were covered with canvas. The insured driver said that the trailer was 2.45m wide and was essentially like a large box trailer. The trailer was attached to the truck via one pivot point, like a box trailer.

29.   I then questioned the insured driver as to whether the single axle trailer had on previous occasions moved from side-to-side or jumped around. The insured driver said that this only occurred when the trailer was fully laden and it was not at the time of the accident.

30.   The insured driver said that his practice at the relevant time was to check his side mirrors every 5 to 10 seconds. He explained that this was because of the erratic behaviour of some motorists.

31.   In response to questions from me, the insured driver said that when he noticed the Claimant's vehicle moving into his lane, he started to move the truck to the left to get away from the Claimant's vehicle. He said that in doing so he almost ended up in the breakdown lane, which he described as the fog lane. The insured driver said that despite him moving to the left, the Claimant's vehicle still ended up hitting the trailer.

32.   The insured driver's version as to how the accident occurred, given at the assessment conference, was prefaced with his statement that the relevant events occurred very quickly.

33.   The Claimant questioned the insured driver. The Claimant put to the insured driver that his truck was in fact in the middle lane, not lane 1, and the truck was travelling at a speed of about 90kph. The insured driver denied that his truck was in the middle lane and that he was travelling at a speed of between 75 to 80kph at the time of the accident.

Findings

34.   The credibility of the Claimant and the insured driver is an issue, given the disparity between their accounts as to how the accident happened.

35.   On the issue of the Claimant's credibility, Ms Allen submitted that there were inconsistencies in the Claimant's various accounts as to how the accident happened. The inconsistencies were not identified, but I assume that they are said to arise out of the various written accounts of the accident given by the Claimant and the information she provided at the assessment conference.

36.   In my view, the written accounts of the accident given by the Claimant, together with the information she provided at the assessment conference, are consistent in relation to important matters such as there being two impacts between her vehicle and the trailer, the lane she was travelling in before the first impact, the speed at which she was travelling and the position of her vehicle vis-a-vis the truck shortly before the first impact.

37.   The Claimant provided information at the assessment conference in a confident, honest and straightforward manner. There was no prevarication on her part in answering questions. Assuming that the applicable speed limit for the relevant section of roadway was 80kph, against her self-interest the Claimant said that she was travelling between 90 and 100kph. I note that Ms D said that she was also travelling at about the same speed.

38.   The insured driver also provided information at the assessment conference in a confident, honest and straightforward manner. However, there are several aspects of his account which cause me to doubt his reliability. These aspects are:

(a)  His assertion that his truck was in lane 1 instead of the middle lane. His assertion is at odds with the Claimant's account and the account given by Ms D. Nevertheless, at the assessment conference he firmly stood by his assertion that he was in lane 1.

(b)  At the assessment conference, the insured driver said that he saw the Claimant's vehicle veer into his lane and he took evasive action by starting to move to his left-hand side to "get away" from the Claimant's vehicle. That manoeuvre almost resulted in the truck ending up in the breakdown lane. In his written statement to the private investigator, the insured driver said nothing about attempting to take evasive action by moving the truck to the left.

(c)  The insured driver's assertion as to the speed his truck was travelling at is at odds with the evidence of the Claimant and Ms D. Both the Claimant and Ms D say that they were travelling at a similar speed, about 90 to 100kph. Importantly, Ms D has said in her written statement to the private investigator that she was in the middle lane behind the truck and travelling at the same speed.

39.   The Insurer submits that the account given by Ms D supports the account given by the insured driver. However, it is clear from a reading of Ms D's statement that her vision was not always fixed upon the truck and the Claimant's vehicle. She did not even see an impact between the truck and the Claimant 's vehicle. Ms D has said in her statement "I did not see an impact between the truck and the Nissan but I was looking around." She says that she did not see an impact with the rear of the truck but it may have occurred.

40.   The Claimant was adamant that there were two impacts between her vehicle and the trailer. I accept her evidence about this. As I have said above, I found the Claimant to be a credible witness and I accept her evidence where it conflicts with the evidence of the insured driver. This is not to say that the insured driver has given untruthful evidence as to how the accident occurred. In accepting the evidence of the Claimant concerning the first impact, I find that the insured driver did not see the first impact in his side mirror. What he saw was the second impact, which occurred after the Claimant's vehicle started to fishtail.

41.   On the evidence I find that:

(a)  The Claimant's vehicle was in the median lane (lane 1) and travelling at a speed of between 90 and 100kph.

(b)  The truck being driven by the insured driver was travelling in the middle lane (lane 2) at about the same speed as the Claimant's vehicle and Ms D's vehicle.

(c)  The Claimant's vehicle was driving alongside the truck and trailer for several minutes, probably three to five minutes as stated by the Claimant at the assessment conference.

(d)  At all times before the first impact between the Claimant's vehicle and the trailer, the Claimant's vehicle was wholly within the median lane. _

(e)  When the Claimant's vehicle was alongside the truck and trailer, there were occasions when the truck and trailer moved to the right side of the middle lane, causing the Claimant to move her vehicle to the right side of the median lane.

(f)   When the front of the Claimant's vehicle was about in line with the area between the truck and trailer, the trailer momentarily moved partially into the lane occupied by the Claimant's vehicle and part of the trailer impacted with the rear left side of the Claimant's vehicle1. I also find that at around this time the right hand wheel of the trailer impacted with the left front and passenger side of the Claimant's vehicle, evidenced by the rotation mark on that side of the Claimant's vehicle.

(g)  The first impact caused the Claimant's vehicle to lose control and fishtail to the left, which then resulted in the Claimant's vehicle colliding with the rear of the trailer.

(h)  The Claimant attempted to gain control of her vehicle but could not do so. She slammed on the brakes and pulled the steering wheel to the right. The Claimant's vehicle spun around and collided with the cable· barriers on the median strip.

42.   The Insurer's contention is that the accident was caused wholly by the fault of the Claimant in entering the lane being occupied by the truck and trailer and colliding with the trailer. Given my findings, I reject this contention. I find that the accident was not caused wholly by the fault of the Claimant.

43.   The Insurer did not put an alternative submission that the Claimant was mostly at fault, which for the purposes of sections 3.11 and 3.28 means that the degree of contributory negligence on the part of the Claimant was greater than 61%. Accordingly, although it is not strictly necessary to deal with the issue, on the evidence I find that the Claimant did not depart from the standard of care expected . of the reasonable  person in the Claimant's position.  The Claimant was travelling at the same speed as the insured driver and Ms D. The Claimant's vehicle was wholly within the median lane when the trailer impacted with her vehicle, causing her to lose control of her vehicle.

44.   As I have said above, the accident occurred when the trailer momentarily moved across into the Claimant's lane. Before the first impact occurred, the truck and trailer had on occasions moved to the right side of the middle lane, causing the Claimant to move to the right side of her lane. It was the driving of the truck by the insured driver which caused the trailer to momentarily move into the Claimant's lane, causing an impact between the trailer and the Claimant's vehicle, which in turn caused the Claimant to lose control of her vehicle .

Costs and disbursements

45.   The Claimant was unrepresented and is not entitled to the regulated amount for legal costs.

Conclusion

46.   My determination of the Miscellaneous Claim is as follows:

For the purposes of sections 3.11 and 3.28 of the MAIA, the motor accident was not caused wholly or mostly by the fault of the Claimant.

Adrian C. Canceri
DRS Claims Assessor
Dispute Resolution Service
9 December 2019

AHP

AHP 1