Aay v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAY v QBE Insurance (Australia) Limited [2021] NSWPIC 142
APPLICANT:	AAY
RESPONDENT:	QBE Insurance (Australia) Limited
MEMBER:	Mr Anthony Scarcella
DATE OF DECISION:	24 May 2021
CATCHWORDS:	MOTOR ACCIDENTS-Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; merge into lane 2 because there were parked cars; collision between the two vehicles; Insured Driver was travelling at about 80 km/h; crash into a tree and then into a power pole; driving her children to school; Insured Driver kept tailgating her; three passengers; husband and two sons; ambulance; airbags deployed; verbally abused her; COPS report; claimant lost control of her vehicle; excessive speed; engaged in a kind of duel; both vehicles being driven in an aggressive and dangerous manner; Held- each driver had some responsibility for the collision; not satisfied that the insurer has discharged its onus; legal costs.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017, the motor accident was not caused wholly or mostly by the fault of the Claimant. 2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017, the motor accident was not caused wholly or mostly by the fault of the Claimant. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,652 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

BACKGROUND

The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, Clause 3 (d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act), about whether the injured person was wholly or mostly at fault within the meaning of sections 3.11 and 3.28 of the MAI Act.
On 27 March 2019 at about 8.40 am, AAY (the Claimant) was driving her motor vehicle along the kerbside lane (lane 1) of Luxford Road, Tregear. CR (the Insured Driver) was also travelling in the same direction on Luxford Road, Tregear in lane 2. The Claimant moved from lane 1 into lane 2 to avoid a parked motor vehicle ahead of her in lane 1 on Luxford Road, Tregear. A collision ensued between the Claimant’s vehicle and the Insured Driver’s vehicle.
On 10 May 2019, the Claimant lodged an application for personal injury benefits with the relevant compulsory third party insurer, QBE Insurance (Australia) Limited (the Insurer).
The Claimant received statutory benefits in the form of weekly payments and treatment and care expenses following the motor accident.
On 17 November 2019, the Insurer notified the Claimant that it had decided that the Claimant was wholly at fault in the subject motor accident and ceased payments of statutory benefits (weekly payments and treatment and care related expenses) from 5 December 2019.
On 27 November 2019, the Claimant made an application for internal review of the said decision.
On 19 December 2019, the Insurer conducted an internal review and issued a certificate of determination varying its original decision and certifying that the Claimant was mostly at fault in the subject motor accident.
On 6 February 2020, the Claimant lodged the Dispute Resolution Application form and supporting documents currently before me (the Application). On 28 February 2020, the Insurer lodged the Dispute Resolution Reply form and supporting documents (the Reply).
At the teleconference on 19 March 2020, the parties agreed that the issue in dispute is whether the Claimant was wholly or mostly at fault in the subject motor accident under sections 3.11 and 3.28 of the MAI Act.
The parties agreed that the Insurer bears the onus of proof in this dispute.
The matter was set down for an audio visual assessment conference on 6 July 2020. However, the Claimant failed to appear and the assessment conference was vacated.
The matter was set down for an audio visual assessment conference on 21 September 2020. However, the Claimant’s husband, who was to be a witness in these proceedings, sustained a serious injury and the assessment conference was again vacated.
The matter was eventually set down for an audio visual assessment conference on 23 November 2020 and proceeded on that date. Mr Mark Cleary of counsel appeared for the Claimant, instructed by Ms Marie-Therese Sahade, solicitor. Mr Brendan Jones of counsel appeared for the Insurer, instructed by Mr Ian Jones, solicitor. Also present was MK, the Insurer’s claims officer.
The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, schedule 1 to the Personal Injury Commission Act 2020. I am a General Member of the Motor Accidents Division of the Commission and clause 14B(1) of the Personal Injury Commission Regulation 2020 designates this DRS application as pending proceedings and clause 14B(3) empowers me to assess the claim.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)The Application dated 6 January 2020 and attached documents.
(b)The Reply dated 28 February 2020 and attached documents.
(c)CCTV footage of the motor accident submitted by the Insurer.
(d)The relevant entries in Constable Scott Williamson’s police notebook produced in response to a direction under section 7.43 of the MAI Act on 2 July 2020.
(e)Mr AAY’s (the claimant’s husband) signed but undated statement in respect of the motor accident, the substantive contents of which were identical to an email he forwarded to the Claimant’s lawyer dated 24 July 2020.
(f)Three Google Maps photographs of the motor accident scene printed on 9 June 2020, together with six colour photographs taken at the scene soon after the motor accident, submitted by the Insurer.
(g)Mt Druitt Local Court Order Notice dated 22 October 2020.

Oral evidence

Oral evidence was adduced from the following persons at the audio visual assessment conference:
(a)    The Claimant.
(b)    Mr AAY.
(c)    The Insured Driver.

The Claimant’s evidence

In evidence, there is a signed statement by the Claimant recorded by Constable Williamson in his police notebook on 4 April 2019 at Mount Druitt Police Station in respect of the motor accident. I will now refer to the relevant parts of that statement.
The Claimant did not provide a statement to Constable Williamson at the scene of the motor accident because she had to accompany one of her sons, who had been injured in the accident, to hospital.
The Claimant stated to Constable Williamson that the motor accident occurred at about 8.45 am on Wednesday, 27 March 2019 in Luxford Road, Tregear.
The Claimant stated that she was driving along Luxford Road in lane 1. As she approached Palmyra Avenue, she observed a heavy build-up of traffic in lane 2. She needed to merge into lane 2 because there were parked cars ahead of her in lane 1. She observed the Insured Driver’s vehicle in lane 2 and both vehicles were stationary at the intersection of Palmyra Avenue. As the traffic started to flow, she saw a gap appear in lane 1 and she “sped up a little”.[1] The Claimant estimated that she was travelling at approximately 50 km/h to 60 km/h. She observed a couple of vehicles in lane 1 ahead of her, so, she needed to merge into lane 2. As she merged into lane 2, she noticed the Insured Driver speeding towards her and come really close behind her. She was watching the Insured Driver in her rear-view mirror.
[1] Constable Scott Williamson's notebook entry at page 70
The Claimant stated that she then noticed another opening in lane 1. She merged back into lane 1 and immediately observed another parked vehicle about 200 metres ahead of her, near the intersection with Ellsworth Drive. She activated her right indicator, looked into her rear-view mirror and checked her blind spot. She observed that the Insured Driver was about three car lengths behind her. As she merged into lane 2, she observed the Insured Driver’s vehicle “flying up the right lane”.[2] She estimated that the Insured Driver was travelling at about 80 km/h. The Claimant stated that she needed to accelerate to “make it into the right lane”.[3]
[2] Constable Scott Williamson's notebook entry at page 72
[3] Constable Scott Williamson's notebook entry at page 72
The Claimant stated that as she was merging, she felt her vehicle collide with the Insured Driver’s vehicle. The collision caused her vehicle to crash into a tree and then into a power pole. The impact with the power pole caused it to fall over. She stated that her vehicle was “completely totalled”[4] and that the Insured Driver’s vehicle sustained minor damage to its front end.
[4] Constable Scott Williamson's notebook entry at page 73
In evidence, there is the Claimant’s application for personal injury benefits dated 10 May 2019[5] in which she provided a description of the motor accident. I will now refer to the relevant parts of her description of the motor accident.
[5] A1
The Claimant stated that she was driving her children to school when the Insured Driver kept tailgating her, driving in and out of her lane and speeding through a school zone. The Claimant moved into lane 1 and observed a parked car 150 metres ahead of her. She observed that the Insured Driver was 200 metres behind her. She activated her right indicator, checked her rear vision mirror, side mirror, looked over her shoulder and proceeded with caution. Once she had commenced to merge, she checked her mirrors again and observed the Insured Driver approaching her at speed. She felt “a massive hit and bang”.[6] The Claimant stated that her vehicle had been hit by the Insured Driver’s vehicle.
[6] A1 - application for personal injury benefits at page 3
The Claimant opined that the Insured Driver was unable to slow down in time to avoid the collision because of the speed at which she was travelling.
The Claimant stated that the collision forced her vehicle up the gutter and into a tree. The vehicle then “power planed off the tree, across the other lane into a fence and a power pole”.[7] The power pole was brought down in the collision and the Claimant’s vehicle bounced off it and became stationary at a 90° angle across lanes 1 and 2 of the roadway. The vehicle’s airbag went off and the car shutdown.
[7] A1 - application for personal injury benefits at page 3
In evidence, there is a signed statement by the Claimant dated 6 August 2019 taken by an investigator from QuantumCorp engaged by the Insurer.[8] I will now refer to the relevant parts of that statement.
[8] The Application at A5, attachment 1
The Claimant described herself as a 41-year-old woman who, at the time of the motor accident, was employed as a sales assistant. She stated that she had been driving since the age of 26 years and held an unrestricted NSW class C licence. She stated that she drove, on average, 10 to 20 hours per week.
The Claimant stated that at about 8.40 am on 27 March 2019, she was involved in a traffic collision in Luxford Road, Tregear. At the time of the motor accident, she was driving a blue Holden Astra automatic hatchback of which she was the registered owner. At the time of the motor accident, the Claimant had three passengers in her vehicle, namely, her husband, Mr AAY and her two sons aged ten and eight years respectively. She was driving her car from home for the purpose of taking her children to school at Mount Druitt.
The Claimant stated that, at the time of the motor accident, the weather was fine and the bitumen roadway was dry, straight, flat and in good condition. Visibility was good and the roadway was lit by natural daylight. Luxford Road ran north to south. The closest side street to the collision was Ellsworth Drive, which was about 50 metres to 100 metres south of the accident site. The collision occurred in the two southbound lanes of Luxford Road outside 330 Luxford Road, Tregear. The lanes were marked by single white painted broken lines. The speed limit at the accident site was 60 km/h. The Claimant stated that she was very familiar with the roadway because she drove along it on a daily basis. The Insured Driver was driving a white Mazda 3 hatchback. She described the Insured Driver as a young female in her 20s. There were no passengers in the Insured Driver’s vehicle.
The Claimant stated that, initially, she was driving along lane 2 on Luxford Road. She first noticed the Insured Driver outside Shalvey High School. School zones were in force and the Claimant was travelling at about 40 km/h. She observed the Insured Driver approaching her from behind in lane 2 at speed and gaining distance on her at a fast rate. The Insured Driver moved into lane 1, overtook the Claimant very quickly and then moved in front of her in lane 2 very quickly, leaving only about half a car space from her car. The Claimant estimated that the Insured Driver was travelling at about 60 km/h in the school zone. Further, the Insured Driver did not indicate when merging.
The Claimant stated that the Insured Driver stopped at the red traffic lights at the intersection of Palmyra Avenue in lane 2. The Claimant merged into lane 1 and pulled up at the red traffic lights next to the Insured Driver. The Claimant described what occurred next as follows:
“I put my window down and wanted to have a chat to the driver of the Mazda. She looked over but didn’t talk to me. I said to her that she is an idiot for speeding in the school zone.”[9]
[9] The Application at A5, attachment 1 at [41]
The Claimant stated that when the traffic lights changed to green, the Insured Driver took off very fast. As the Claimant approached the Bougainville Road intersection with Luxford Road, she observed some traffic “bunched up”[10] in lane 2 to turn right. Between Palmyra Avenue and Bougainville Roads, the Insured Driver had to slow down due to the traffic that had banked up to turn right and the Claimant, who was still in lane 1, drove past the Insured Driver. The Claimant continued driving for another couple of hundred metres south towards Ellsworth Drive. She then observed a Toyota Rav 4 parked in lane 1, outside 330 Luxford Road. At this point, she was travelling at about 62 km/h to 65 km/h and she was about 200 metres to 300 metres north of the parked Toyota Rav 4.
[10] The Application at A5, attachment 1 at [43]
The Claimant stated that, when she was about 50 metres from the parked vehicle, she indicated her intention to merge into lane 2, checked her mirrors and blind spot and concluded that there was no traffic to her right in lane 2. She slowly commenced merging and when the vehicle was on an angle and about three quarters of the way into lane 2, she observed the Insured Driver in her mirror. The Insured Driver was in lane 2 on Luxford Road and speeding up behind her. The Insured Driver’s vehicle was only about 10 metres or so from the Claimant’s vehicle. The Claimant was unable to swerve back to her left because of the parked car which, by that stage, was only about 20 metres or less away from her.
The Claimant estimated that shortly prior to the motor accident the Insured Driver was travelling at, at least, 80 km/h. The Claimant estimated that she was travelling at about 60 km/h at the time of the collision. The Claimant believed that the Insured Driver did “brake a little just before impact”[11] and that the Insured Driver was travelling at about 70 km/h at the time of the collision.
[11] The Application at A5, attachment 1 at [50]
The Claimant stated that the front passenger side bumper bar of the Insured Driver’s vehicle collided with the rear driver’s side end of her vehicle. The Claimant’s vehicle was pushed forward and mounted the median strip striking a tree forcefully. After hitting the tree, the Claimant’s vehicle shot off to the left and power planed across both lanes, colliding head-on with a power pole on the nature strip outside 330 Luxford Road. The Claimant’s vehicle bounced off the power pole and came to rest in the centre of both lanes facing west. The airbags in the Claimant’s vehicle deployed. The Insured Driver’s vehicle came to a stop behind the Claimant’s vehicle.
The Claimant stated that she and her two sons left the scene of the motor accident by ambulance about 20 minutes after the collision. The Claimant provided a statement in respect of the motor accident to a police officer at the Mount Druitt Police Station about a week or two later. She stated that she received an infringement notice in the mail in relation to “merging from the left lane to the right lane”[12] and that she intended to dispute the infringement notice in court. She was informed by police that the Insured Driver would be issued with an infringement notice for speeding.
[12] The Application at A5, attachment 1 at [77]
The Claimant stated that her motor vehicle was comprehensively insured with QBE Insurance (Australia) Limited. The vehicle was deemed to be a total loss and the Claimant received a payout from QBE Insurance (Australia) Limited.
At the commencement of her oral evidence at the assessment conference, the Claimant confirmed that the contents of her written statements were accurate.
The Claimant’s relevant oral evidence at the assessment conference may be summarised as follows:
(a) The Claimant stated that the Insured Driver’s vehicle was four car lengths away when she started to merge from lane 1 to lane 2 in Luxford Road.
(b) The Claimant confirmed that she activated her right indicator before she commenced to merge from lane 1 to lane 2 in Luxford Road.
The Claimant’s relevant responses to questioning by the Insurer’s counsel in oral evidence at the assessment conference may be summarised as follows:
(a)    The Claimant agreed that there had been no damage to the rear of her vehicle in the motor accident. The only damage her vehicle sustained was to the right rear passenger door.
(b)    The Claimant denied having “switched off” her attention because she was familiar with the roadway.
(c)    The Claimant stated that her husband had provided a statement to police at the accident scene.
(d)    The Claimant stated that the motor accident occurred at about 8.40 am on 27 March 2019 whilst she was driving her children to school. School commenced at 9.00 am and she usually dropped the children off at the front gate of the school. They were not in a rush as they were not running late. The two children were sitting in the back seat. They were not talking or playing. They were listening to the car radio. The Claimant’s husband was sitting in the front seat next to her. They were chatting and listening to the radio.
(e)    The Claimant admitted that when they stopped at the traffic lights at the intersection of Palmyra Avenue, she was annoyed with the Insured Driver because she had been speeding in a school zone and she was driving erratically. The Insured Driver had been weaving in and out of the two lanes on Luxford Road and had tailgated her. The Claimant was concerned about the safety of her passengers and other people on the roadway. When the Claimant wound her window down to speak to the Insured Driver at the traffic lights, she called her “an idiot” and swore at her.
(f)    When it was put to the Claimant that there was no reference to her interactions with the Insured Driver at the Palmyra Avenue intersection in the police notebook statement taken about one week after the motor accident, she responded that she thought that she had mentioned it to the police officer.
(g)    The Claimant confirmed that she drove along Luxford Road frequently and that she was aware that, on occasions, there were cars parked in lane 1.
(h)    The Claimant stated that because the Insured Driver had been tailgating her, she moved into the left lane to try to get past her when she reached the traffic lights at the Palmyra Avenue intersection.
(i)    The Claimant stated that the vehicles turning right from lane 2 in Luxford Road into Bougainville Road were moving. The Claimant was in lane 1 and the Insured Driver was in lane 2. The Claimant passed the Insured Driver whilst the latter was behind the vehicles making a right-hand turn.
(j)    The Claimant stated that, after the Bougainville Road intersection, there were no vehicles immediately to her right and she observed a parked motor vehicle ahead of her. She travelled about 100 metres to about 110 metres before she commenced to merge. In any event, it was not less than 100 metres. She activated her indicator, checked her right mirror, rear mirror and performed an over the shoulder check. At that point, the Insured Driver was not there. She then merged and the collision occurred.
(k)    When it was put to the Claimant that, in her application for personal injury benefits dated 10 May 2019, she stated that the Insured Driver was 200 metres behind her when she commenced to merge and that in her police notebook statement, she estimated that the Insured Driver was three car lengths behind her, she responded that she had miscalculated.
(l)    The Claimant denied that the Insured Driver was next to her at the time she commenced to merge from lane 1 to lane 2. The Claimant denied that she had tried to speed ahead of the Insured Driver and cut in front of her.

Mr AAY’s evidence

There is no evidence that Mr AAY provided a statement to police in respect of the motor accident, apart from the Claimant’s statement that he had spoken to the police at the accident scene.
In evidence, there is a signed but undated statement by Mr AAY in respect of the motor accident, the substantive contents of which were identical to an email he forwarded to the Claimant’s lawyer dated 24 July 2020. The email was also in evidence before me.
Mr AAY stated that, at the time of the motor accident, he and his wife were taking their children to school. The Claimant was driving behind the Insured Driver’s vehicle through a school zone on Luxford Road, near Shalvey High School. The Insured Driver had begun to speed through the school zone. The Claimant had to merge behind the Insured Driver’s vehicle after the school zone, whereupon the Insured Driver started “tail braking” the Claimant.
Mr AAY stated that the Claimant then overtook the Insured Driver on the left (the kerbside lane) and got about 60 metres in front of her. As the Claimant approached parked cars, she indicated her intention to change lanes and checked to see if she could move over. It was safe to do so. The Claimant’s vehicle was about three quarters of the way in the right lane, when the vehicle in which they were travelling was hit “in the back right hand side”[13] by the Insured Driver’s vehicle. Mr AAY stated:
“This caused us to clip the tree and spin out in the centre medium of the road then forcing us into a power pole and fencing making the power pole come down just before hitting our car.”[14]
[13] Mr AAY’s undated statement at [3]
[14] Mr AAY’s undated statement at [4]
At the commencement of his oral evidence at the assessment conference, Mr AAY confirmed that the contents of his written statement were accurate.
Mr AAY’s relevant oral evidence at the assessment conference may be summarised as follows:
(a) Prior to the collision, Mr AAY had observed the Insured Driver’s vehicle tailgating vehicles and moving in and out of the lanes on the roadway.
(b) Mr AAY had 15 to 20 years driving experience and estimated that, just prior to the collision, the Claimant’s vehicle was travelling at a speed of 60 km/h to 65 km/h.
Mr AAY’s relevant responses to questioning by the Insurer’s counsel in oral evidence at the assessment conference may be summarised as follows:
(a)    At the time of the motor accident, the Claimant was in the process of dropping their children off at school. He denied that he or the Claimant were in a rush on the morning of the motor accident.
(b)    Mr AAY agreed that he had spoken to the Claimant about the motor accident prior to the assessment conference. He stated that he had prepared his written statement without assistance.
(c)    Mr AAY agreed that the Claimant and the Insured Driver had an exchange through their car windows at the traffic lights shortly prior to the motor accident. He stated that he had forgotten to refer to the exchange in his written statement.
(d)    In relation to the reference in his written statement to the Claimant’s vehicle having travelled about 60 metres in front of the Insured Driver’s vehicle after having overtaken her, Mr AAY stated that it could have been more than or less than 60 metres.
(e)    Mr AAY stated that he did not check to see where the Insured Driver’s vehicle was at the time the Claimant merged from the kerbside lane into the adjacent lane. He observed the Claimant activate her indicator, check her rear vision mirror and perform an over the shoulder check, prior to commencing to merge.
(f)    Mr AAY estimated that the Claimant was seven or eight car lengths from the parked vehicle in front of her when she commenced to merge into the adjacent lane. He had no concerns about the manoeuvre and added that “it does not take long to merge.”

The Insured Driver’s evidence

In evidence, there is a signed statement by the Insured Driver recorded by Constable Williamson in his police notebook on 27 March 2019 at the scene of the motor accident. I will now refer to the relevant parts of that statement.
The Insured Driver stated to Constable Williamson that the motor accident occurred at about 8.45 am on Wednesday, 27 March 2019 in Luxford Road, Tregear.
The Insured Driver stated that, at the intersection of Luxford Road and Bougainville Road, she was in lane 2 and the Claimant was in lane 1, when the latter wound down her car window to verbally abuse her because the Insured Driver had overtaken the Claimant. The Insured Driver “took off”[15] from the intersection because she did not want to argue with the Claimant.
[15] Constable Scott Williamson's notebook entry at page 57
The Insured Driver stated that, after she had taken off from the intersection, she continued driving along Luxford Road when she observed that the Claimant needed to merge from lane 1 to lane 2 because of a parked car in lane 1. The Insured Driver gained speed in order to get away from the Claimant. At that time, the Insured Driver was travelling at about 65 km/h to 70 km/h. The Insured Driver checked her rear view mirror and observed the Claimant to be about 30 metres behind her. The Insured Driver opined that the Claimant was speeding and estimated that she was travelling at about 70 km/h. Suddenly, she observed the Claimant merge behind her. The Insured Driver applied her brakes and she observed the Claimant immediately merge back into lane 1 to overtake her. The Insured Driver accelerated and as both drivers approached Ellsworth Drive, she observed a parked vehicle in lane 1 ahead of them. She then observed the Claimant speed up to get in front of her and, as she merged from lane 1 into lane 2, “the front end”[16] of the Claimant’s vehicle “crashed into the front left”[17] of the Insured Driver’s vehicle.
[16] Constable Scott Williamson's notebook entry at page 59
[17] Constable Scott Williamson's notebook entry at page 59
The Insured Driver stated that the collision caused minor damage to her front bumper. She came to a complete stop. She observed the Claimant lose control of her vehicle and end up blocking the two lanes on the roadway.
The Insured Driver stated as follows:
“This all initially started because I think the other driver thought I was tailgating her but I wasn’t.”[18]
[18] Constable Scott Williamson's notebook entry at page 60
In evidence, there is a signed statement by the Insured Driver dated 5 August 2019 taken by an investigator from QuantumCorp engaged by the Insurer.[19] I will now refer to the relevant parts of that statement.
[19] The Application at A5, attachment 9
The Insured Driver described herself as a 22-year-old woman who, at the time of the motor accident, was employed as a hairdresser. She stated that she had been driving since the age of 17 years and held an unrestricted NSW class C licence. She stated that she drove, on average, 10 to 20 hours per week.
The Insured Driver stated that the motor accident occurred in Luxford Road Tregear on 27 March 2019 at about 8.40 am. At the time of the motor accident, she was driving a white Mazda 3 hatchback of which she was the registered owner. At the time of the motor accident, the Insured Driver was on her way to work from home.
The Insured Driver stated that, at the time of the motor accident, the weather was fine and the bitumen roadway was dry, straight, flat and in good condition. Visibility was good and the roadway was lit by natural daylight. Luxford Road ran north to south. The closest side street to the collision was Ellsworth Drive, which was about 50 metres to 100 metres south of the accident site. The collision occurred in the two southbound lanes of Luxford Road outside 330 Luxford Road, Tregear. The lanes were marked by single white painted broken lines. The speed limit at the accident site was 60 km/h. The Insured Driver stated that she was very familiar with the roadway because she drove along it on a daily basis.
The Insured Driver stated that the other vehicle involved in the motor accident was a blue Holden Astra hatchback. The Claimant was driving. There was an adult male sitting in the front passenger seat. There were two primary school aged boys sitting in the rear seats.
The Insured Driver stated that she was travelling in a southerly direction on Luxford Road and came to a stop at traffic lights at the intersection of Palmyra Avenue about one car space behind the Claimant’s vehicle in lane 1. When the traffic lights changed to green, the Insured Driver began to move forward. The Claimant’s vehicle did not move and the Insured Driver’s vehicle had to stop very close behind her. She observed the Claimant looking in her mirror at her. She believed that the Claimant thought that she was tailgating her. The Claimant then drove her vehicle forward out into the intersection a few metres. The Insured Driver started to move off again but the Claimant suddenly slammed on her brakes and came to a stop. So, the Insured Driver had to stop behind her again. The Insured Driver concluded that the Claimant was brake checking her.
The Insured Driver stated that she continued to drive along Luxford Road, moved into lane 2 and went to overtake the Claimant’s vehicle. Both vehicles stopped next to each other at the traffic lights at Bougainville Road. The Insured Driver could see the Claimant in the corner of her eye. She kept her doors locked and windows up. She could hear the Claimant yelling and abusing her. The Insured Driver stated that she did not react.
The Insured Driver stated that when the traffic lights turned green at Bougainville Road, she sped off in the right lane in an attempt to get away from the Claimant, accelerating to about 70 km/h to 75 km/h. She estimated that she got, at least, 200 metres ahead of the Claimant before she began braking and slowing down to about 50 km/h. She observed parked cars in lane 1 and stated that she knew that the Claimant would have to get into lane 2 behind her at some time. When the Insured Driver passed the intersection of Hatherton Road, she looked in her mirrors and observed the Claimant’s vehicle approaching her from behind in lane 2 and picking up speed very quickly. She then observed the Claimant move back into lane 1, which was clear for about 300 metres, where there was a parked car that was clearly visible outside 344 Luxford Road.
The Insured Driver stated that the Claimant, travelling in lane 1, then sped up alongside her. The Insured Driver, travelling in lane 2, increased her speed to about 60 km/h. The Claimant’s vehicle was alongside her for about 250 metres to 300 metres up to the parked car. The Insured Driver concluded that the Claimant was trying to abuse her whilst alongside her for that distance. The Insured Driver did not look at the Claimant and just wanted to get away from her.
The Insured Driver stated that about five metres or less before reaching the parked car, the Claimant swerved to avoid hitting it but collided with the Insured Driver’s side bumper. The parked car was a Toyota Rav 4.
The Insured Driver stated that the Claimant’s vehicle only just clipped/scraped her vehicle. The impact was very minor. There was a tiny scuff on the front passenger side bumper. The Insured Driver slammed on her brakes immediately. The Claimant lost control of her vehicle, clipped a tree on the centre median strip and spun out of control colliding head-on with a power pole outside 330 Luxford Road. The Claimant’s vehicle then jumped and spun to the right and came to rest between lanes 1 and 2 facing westbound. The Insured Driver opined that the Claimant was completely at fault for the motor accident.
The Insured Driver stated that, prior to leaving the accident scene, a lady from a house near the scene advised her that she had CCTV footage of part of the incident. The footage was subsequently provided to the Insured Driver and was in evidence before me. I will refer to the CCTV footage later.
At the commencement of her oral evidence at the assessment conference, the Insured Driver confirmed that the contents of her written statements were true and correct.
The Insured Driver’s relevant oral evidence at the assessment conference may be summarised as follows:
(a)    The Insured Driver stated that on the day of the motor accident she was on her way to work and was scheduled to start at 9.00 am. She was on time for work.
(b)    The Insured Driver stated that she could not recall what the Claimant had said whilst they were stopped side-by-side at a set of traffic lights. She then stated that all she could hear was muffled yelling but not what was said. She just wanted to get to work and she was a bit scared.
(c)    The Claimant’s vehicle made contact with the front left side of the bumper of the Insured Driver’s vehicle.
(d)    The Insured Driver stated that she was travelling between 60 km/h and 65 km/h. The Claimant did not look when she merged from lane 1 to lane 2. She only saw that the Claimant’s vehicle was merging for about five seconds. The Claimant had enough time to stop. The Claimant’s vehicle was in front of her “but not a lot in front”.
The Insured Driver’s relevant responses to questioning by the Claimant’s counsel in oral evidence at the assessment conference may be summarised as follows:
(a)    The Insured Driver confirmed that her vehicle sustained minor damage to the front left side of the bumper. The point of impact with the Claimant’s vehicle was on her back right passenger door.
(b)    The Insured Driver stated that the Claimant’s vehicle was a touch in front of her. She estimated that the Claimant’s vehicle was about half a car length ahead.
(c)    The Insured Driver was referred to her statement to the investigator from QuantumCorp and, in particular, that shortly prior to the collision she was aware that the Claimant was right beside her in lane 1. It was put to her that she knew there was a parked car ahead; did not see the Claimant brake or slow down; and knew that the Claimant had to change lanes. The Insured Driver did not deny the propositions put to her and responded that she had the right-of-way and that the Claimant could have slowed down and then, merged behind her.

NSW Police Force documents

The Insurer’s lawyers made an application to the NSW Police Force for access to documents under the Government Information (Public Access) Act 2009 (the GIPA Act). On 24 April 2020, the NSW Police Force responded to the GIPA Act application and produced the following documents, which are in evidence:
(a)    Event 72835916 in the Centralised Operational Policing System (the COPS report) dated 23 April 2020.
(b)    The police notebook of Constable Williamson.
(c)    The site diagram dated 27 March 2019.
(d)    10 accident site colour photographs.
I have already referred to the entries in Constable Williamson’s police notebook.
The site diagram is very rudimentary and provided little assistance. It roughly depicted the finishing positions of the subject motor vehicles following the collision. It incorrectly had both vehicles travelling in an easterly direction on Luxford Road. Luxford Road runs in a north/south direction.
The 10 accident site colour photographs are grainy and of poor quality. The photographs taken at the accident site and attached to the Quantumcorp investigation report are of far better quality.
There is a COPS report dated 30 August 2019 in evidence.[20] However, it does not contain the detail that appears in the later COPS report dated 23 April 2020.
[20] A4
The COPS report dated 23 April 2020 referred to the accident time and date as being 8.45 am on Wednesday, 27 March 2019. It referred to the accident location as being at the intersection of Luxford Road, Lethbridge Park and Ellsworth Drive, Tregear. It provided the particulars of the Claimant and the Insured Driver. The first part of the report appeared to summarise the Insured Driver’s police notebook statement to Constable Williamson. The report recorded that the rear offside panel of the Claimant’s vehicle collided with the front left bumper of the Insured Driver’s vehicle causing minor panel damage to each. The report went on to record that the Claimant lost control of her vehicle and that its front end collided with a power pole, causing it to fall over. As a result of that collision, the Claimant’s vehicle suffered major damage to its front end.
The COPS report dated 23 April 2020 recorded that police obtained a version of the motor accident from the Insured Driver but were unable to obtain a version from the Claimant as she accompanied her son to Nepean Hospital for treatment. The Claimant’s vehicle could not be moved due to the significant damage sustained and it had to be towed from the scene.
The COPS report dated 23 April 2020 recorded that on 4 April 2019, the Claimant attended Mount Druitt Police Station and provided Constable Williamson with her version of events. The report recorded that police assessed both driver versions and concluded that the damage was more consistent with the Insured Driver’s version and as a result, the Claimant was issued with a traffic infringement notice for Offence Code 83597, that is, not giving way when moving from a marked lane to another.

Quantumcorp investigation report

In evidence, there is a factual investigation report from Quantumcorp dated 12 August 2019 commissioned by the Insurer.
The Quantumcorp report provided an investigation summary that covered information about the Claimant and her motor vehicle; the Insured Driver and her motor vehicle; the collision scene; a summary of the Claimant’s statement; a summary of the Insured Driver’s statement; and a summary of observations of the damaged vehicles. The report attached, amongst other things, a signed statement, a marked-up Google map image and sketch plan by the Claimant; a signed statement, a marked-up Google map image and sketch plan by the Insured Driver; accident scene photographs of the vehicles and the subject roadway; accident scene diagrams prepared by an investigator; and the CCTV footage referred to below.
I have already referred to the statements provided by the Claimant and the Insured Driver to the Quantumcorp investigator.
The Claimant’s sketch plan of the accident scene did not depict the point of impact with the Insured Driver’s vehicle. In fact, it did not depict the Insured Driver’s vehicle on the plan. It showed the position of the parked vehicle between Bougainville Road and Ellsworth Drive. It showed the position of the impact with the tree on the median strip and the impact of the Claimant’s vehicle with the power pole near 330 Luxford Road.
The Insured Driver’s sketch plan of the accident scene depicted the front offside (driver’s side) of the Claimant’s vehicle colliding with the front nearside (kerbside) of the Insured Driver’s vehicle. It showed the position of the parked vehicle. It showed the position of impact with the tree on the median strip and the impact of the Claimant’s vehicle with the power pole near 330 Luxford Road.
The accident scene photographs of the Insured Driver’s vehicle relevantly showed scraping and scuffing to its nearside bumper from the bottom to about one third of the way up the bumper wheel arch.
The accident scene photographs of the Claimant’s vehicle relevantly showed significant front end damage; damage to the offside rear panel; and the offside rear door.

CCTV footage

In evidence, is a short clip of CCTV footage provided by the occupants of 324 Luxford Road, Tregear, depicting the aftermath of the subject motor accident. The CCTV footage was of little assistance as it did not show the lead-up to the collision, the collision itself, the impact with the tree or the impact with the power pole. It showed the Claimant’s damaged vehicle coming into view after it had struck the power pole and coming to a stop across both southbound lanes of Luxford Road.

The Mount Druitt Local Court Order Notice

In evidence, there is a Court Order Notice issued to the Claimant by the Local Court of NSW at Mount Druitt dated 22 October 2020. The Notice recorded that the charge brought against the Claimant for “not give way (move from marked lane to another)” was dismissed following a hearing by Magistrate M Antrum on 16 October 2020.

The property damage records

In evidence, there is an email summary of a motor vehicle property damage assessor’s report dated 26 April 2019 in respect of the Claimant’s motor vehicle. The document stated that the extensive damage to the Claimant’s vehicle was consistent with the incident description. It also stated that the vehicle had sustained non-repairable damage and calculated its market value at $1,200.
In evidence, there is a letter from QBE Insurance (Australia) Limited to the Claimant dated 1 May 2019 confirming the market value of her vehicle to be $1200 and that, after the deduction of the outstanding premium of $488.29, the settlement payable for her property damage claim came to $711.71.
In evidence, there is an email from QBE Insurance (Australia) Limited to the Claimant dated 9 May 2019[21] advising that it held the Insured Driver at fault in respect of the motor accident.
In evidence, there is a letter from QBE Insurance (Australia) Limited to the Claimant dated 7 November 2019 advising that it held the Insured Driver at fault in respect of the motor accident.

SUBMISSIONS

The Claimant provided written submissions on the substantive issues dated 6 January 2020 and 26 June 2020, supplemented by short oral submissions at the audio visual assessment conference.
The Claimant’s principal submissions may be summarised as follows:
(a)    The primary cause of the motor accident was excessive speed on the part of the Insured Driver and her failure to give way to a vehicle which was ahead of her and obviously in the process of a necessary lane change in order to avoid a parked car.
(b)    The Insured Driver was in breach of regulation 126 of the Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
(c)    There had clearly been interaction between the two subject vehicles prior to the impact between them. The Insured Driver acknowledged that the Claimant earlier had to change lanes because of a parked car. On that occasion, the Claimant merged behind her. Yet the Insured Driver applied her brakes and forced the Claimant to move into lane 1 once again.
(d)    Had the Insured Driver been driving with due attention and within the speed limit, she would have moderated the speed of her vehicle to enable the Claimant to safely complete her lane changing manoeuvre, ahead of her and thereby have avoided the collision. The Insured Driver had the advantage of seeing what was in front of her. She assumed that the Claimant would stop. She did not allow for the possibility of the Claimant having to merge. The Claimant had no choice but to get out of lane 1.
(e)    The Insured Driver’s evidence was that she was aware of the parked vehicle in lane 1 on Luxford Road, well before the Claimant approached that vehicle. Therefore, it follows that, it ought to have been reasonably foreseeable that it would be necessary for the Claimant to change lanes from lane 1 to lane 2, to avoid an impact with the parked vehicle. Despite being aware of the upcoming parked vehicle and the fact that the Claimant had sped up to enable her to change lanes in front of the Insured Driver, the latter took no action to give way to the Claimant, who very obviously had to change lanes once again. All the Insured Driver needed to do was to ease off the accelerator and gently apply her brakes. She did neither of these things.
(f)    The Claimant’s police statement demonstrated that she had taken proper account of the Insured Driver’s vehicle, which she observed to be about three car lengths behind her. Such distance would have been more than sufficient to allow a safe lane change, unless, as seems likely, the Insured Driver had actually increased her speed. The speed of the Insured Driver was an important factor. She must have been travelling faster than the Claimant. This was supported by Mr AAY’s evidence that the Insured Driver was seven to eight car lengths behind in lane 2 shortly before the Claimant had to commence the merging manoeuvre. The reasonable conclusion to be drawn from the police statements is that, at the relevant time, the Claimant’s vehicle was ahead of the Insured Driver’s vehicle. The latter driver should have given way to allow the safe merging of the Claimant’s vehicle.
(g)    The motor accident was not caused by the Claimant changing lanes and running into the Insured Driver’s vehicle. Had that occurred, the damage to the Claimant’s vehicle would have been to its front right corner and there would have been panel damage on the left side of the insured vehicle. The photograph depicting a side-on view of the Claimant’s vehicle clearly demonstrated that, the initial point of impact between the two vehicles was with the Insured Driver’s vehicle striking the rear driver’s side passenger door and rear guard. The conclusion to be drawn from the photograph is that, at the point of impact, more than 50% of the length of the Claimant’s vehicle had entered lane 2 of Luxford Road. The Claimant’s vehicle was already substantially into its lane changing manoeuvre when the Insured Driver’s vehicle ran into it.
(h)    The Claimant’s perception was that the Insured Driver’s vehicle was travelling above the prevailing 60 km/h speed limit shortly prior to the collision. The Insured Driver admitted that, earlier on in the journey, she had been driving at a speed of about 70 km/h to 75 km/h in a 60 km/h zone.
(i)    The Claimant denied that her driving was erratic as alleged by the Insurer. If anything, the insured driver’s driving was erratic. She was exceeding the speed limit and braking when she knew that the Claimant’s vehicle was immediately behind her.
(j)    The Claimant was prepared to concede that a finding of 15% contributory negligence against her would be appropriate in the circumstances, on the basis of the potential finding of partial fault for failing to continue to monitor the second lane immediately prior to and in the course of her lane change manoeuvre.
The Insurer provided written submissions on the substantive issues dated 28 February 2020 and 9 June 2020, supplemented by very short oral submissions at the audio visual assessment conference.
The Insurer’s principal submissions may be summarised as follows:
(a)    There was clearly some frustration between the Claimant and the Insured Driver about what had occurred whilst driving along Luxford Road. There was no dispute on the evidence of both the Claimant and the Insured Driver, that the Claimant had been offensive towards the Insured Driver in the lead up to the motor accident, having called the latter an “idiot” at the intersection of Palmyra Avenue and Luxford Road. The Claimant perceived that the Insured Driver had driven at an excessive speed through a school zone.
(b)    As a result of the Claimant’s offensive conduct towards the Insured Driver, the latter accelerated away from the intersection and conceded that she exceeded the speed limit of 60 km/h. However, she did slow her vehicle back to the speed limit whilst travelling along Luxford Road once she believed she had left the Claimant’s vehicle behind her. The Insurer disputed the internal review officer’s finding that the Insured Driver was speeding. The Claimant saw the Insured Driver’s vehicle slowing and incorrectly believed that this was due to a build-up of traffic.
(c)    There was little doubt that the Claimant was speeding. Whilst the speed at which the Claimant was travelling at the point of impact is a matter for expert evidence, the Claimant did not state that she applied her brakes at any stage prior to impact. The Claimant conceded in her police notebook statement that the Insured Driver’s vehicle was only about three car lengths behind her when she checked the rear-view mirror and blind spot. If the Claimant truly believed that the Insured Driver was travelling at 80 km/h, then she ought to have been even more cautious in attempting the merging manoeuvre. Whilst there was no expert evidence, it was self-evident that there was insufficient time for the Insured Driver to brake to avoid a collision, the latter only being three car lengths behind the Claimant’s vehicle.
(d)    The Insurer disputed that the Claimant provided an accurate account of what had occurred. The distance travelled from the point of impact to the position of rest of the Claimant’s vehicle did not support the Claimant’s evidence that she “slowly commenced merging”. The Claimant’s vehicle could not have hit the tree on the median strip head-on, as such a collision would have washed significant speed off the vehicle and slowed its momentum. Instead, the vehicle was still travelling at speed after striking the tree and diverted back across the roadway to strike a telegraph pole head on. The roadway at the point of impact was flat and straight. The Claimant would have had a clear view of the Insured Driver’s vehicle in her rear-view mirror had she kept a proper lookout, even if the Claimant was several hundred metres ahead of her by the time she commenced to merge. The Insured Driver was able to bring her vehicle to a stop within a short distance of impact and remained solely within lane 2 and was indicative that the Insured Driver was not speeding.
(e)    The Insured Driver’s statements are entirely consistent. No inference can be drawn that the Insured Driver was speeding because she had stated that she accelerated when the Claimant moved her vehicle into the left lane.
(f)    The Insured Driver’s vehicle did not come into contact with the driver’s side rear door of the Claimant’s vehicle as alleged. The collision between the two vehicles was minor, with the rear driver’s side bumper of the Claimant’s motor vehicle coming into contact with the front passenger side bumper of the Insured Driver’s vehicle. Such contact caused the Claimant’s vehicle to run out of control and, most likely, sideswipe the tree on the median strip with its driver’s side rear door and then divert back across the roadway to strike a telegraph pole head-on.
(g)    Both the Claimant and the Insured Driver observed the parked vehicle in lane 1 when it was about 300 metres in front of them. If the Claimant was travelling at 60 km/h, she ought to have been able to slow her vehicle and safely merge to her right once the Insured Driver’s vehicle had passed her. The Claimant should have given way to the Insured Driver.
(h)    The Insurer submitted that the Claimant’s degree of culpability for the motor accident far outweighed that of any on the part of the Insured Driver because:
(i)The Claimant was driving at an excessive speed in the circumstances.
(ii)The Claimant was driving in an aggressive manner with little, or no regard, for other road users such as the Insured Driver.
(iii)The Claimant was driving in a dangerous manner with little, or no regard, for other road users such as the Insured Driver.
(iv)The Claimant failed to keep a proper, or any, look out for the Insured Driver’s vehicle when attempting to merge to the right.
(v)The Claimant failed to brake or slowdown when approaching a parked vehicle and swerved to the right with little, or no regard, for the presence of the Insured Driver’s vehicle.
(i)    The Insurer submitted that the facts of the present case were analogous to those in the NSW Court of Appeal case of Aukuso v Tahan[22] (Aukuso), where liability was apportioned equally between the parties. However, the Insurer submitted that the facts in Aukuso could be distinguished on the basis that, in that case, each motor vehicle was travelling 20 km/h above the speed limit, when they effectively merged into each other at some point after observing a street sweeper ahead of them in the left lane.
(j)    The Insurer maintained that the Claimant was wholly or mostly at fault for the motor accident. She drove her motor vehicle at a speed and attempted to change lanes in front of the Insured Driver when it was unsafe to do so. There was nothing the Insured Driver could have done to avoid the accident as her vehicle was in close proximity to the rear of the Claimant’s vehicle when the latter commenced changing lanes.
(k)    Culpability for the motor accident rested with the Claimant. Even if it were accepted that the Insured Driver breached a duty of care owed to the Claimant (which was denied), then the weighing of culpability must result in a finding of, at least, 61% contributory negligence.

REASONS

[22] Aukuso v Tahan [2018] NSWCA 117

The relevant legislation and legal principles

Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
Section 3.11 and section 3.28 of the MAI Act relevantly provide that statutory benefits by way of weekly payments (section 3.11) and treatment and care expenses (section 3.28) are not payable beyond 26 weeks from the date of the motor accident in the event that the motor accident was caused wholly or mostly by the fault of the injured person.
Section 3.11(2) and section 3.28(2) of the MAI Act provide that 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 was greater than 61%.
Section 3.38(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
Section 3B(2)(a) of the Civil Liability Act 2002 (the CLA) provides that Divisions 1 - 4 and 8 of Part 1A (Negligence) of the CLA apply to motor accidents.
Section 5B(1) of the CLA provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and, the risk was not insignificant; and, in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Section 5B(2) of the CLA provides that in determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following (amongst other relevant things):
(a)    The probability that the harm would occur if care were not taken.
(b)    The likely seriousness of the harm.
(c)    The burden of taking precautions to avoid the risk of harm.
(d)    The social utility of the activity that creates the risk of harm.
Whether there is any contributory negligence requires, pursuant to section 5R of the CLA, a determination of whether a reasonable person in the Claimant’s position, would have changed lanes where and when she did, knowing what she did or what she ought to have known. Section 5R of the CLA imposes an objective test.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
In Podrebersek v Australian Iron and Steel Pty Ltd[23] (Podrebersek), the High Court of Australia confirmed that the following considerations should be made when determining the apportionment of culpability between parties:
(a)    The culpability of both parties; that is, the degree of departure and standard of care of the reasonable man; Pennington v Norris[24] (Pennington);
(b)    The relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd[25] (Stapley); Smith v McIntyre[26] (McIntyre) and Broadhurst v Millman[27] (Broadhurst); and
(c)    The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.
[23] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532-533.
[24] Pennington v Norris (1956) 96 CLR 10 at 16).
[25] Stapley v Gypsum Mines Ltd [1953] AC 663 at 682.
[26] Smith v McIntyre [1958] Tas SR 36 at 42-49.
[27] Broadhurst v Millman [1976] VR 208 at 219.
Ultimately, the apportionment becomes a matter of impression having regard to the circumstances of the location, the amount of traffic, the skill of the driver, the condition of the vehicle and any loss of its control: Hallowell v The Nominal Defendant[28] (Hallowell).
[28]Hallowell v The Nominal Defendant [1983] Qld R 266, per Jones J.
The Claimant referred to Regulation 126 of the Road Rules and submitted that the Claimant failed to comply with the Regulation. Regulation 126 of the Road Rules, relevantly provides that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so that the driver can, if necessary, stop safely to avoid a collision with the vehicle. The Insurer’s submissions did not address the Claimant’s submission in relation to Regulation 126 of the Road Rules.
The Insurer referred to Aukuso in its written submissions dated 28 February 2020. The Claimant’s submissions did not address the Insurer’s submission in relation to Aukuso. In Aukuso, the appellant and the respondent were travelling south on Wallgrove Road at Eastern Creek. The appellant was driving a Ford Falcon. The respondent was driving a Toyota Prado 4WD. A street sweeper was operating just north of where Wallgrove Road intersects with Wonderland Drive. An accompanying escort vehicle blocked the left lane (lane 1) and directed traffic to merge into the right lane (lane 2). At the time, Wallgrove Road consisted of two lanes in each direction with a right turning lane commencing 200 metres north of the intersection with Wonderland Drive. Notwithstanding the speed limit of 70 km/h, each vehicle was travelling at about 90 km/h. Having passed the escort vehicle, the vehicles collided in the centre of lane 2.
The respondent brought proceedings in the District Court of New South Wales claiming damages for the personal injury she suffered, which she asserted was caused by the negligent manner in which the appellant had controlled his vehicle.
At trial, all of the witnesses except the appellant (whose whereabouts were, by then, unknown) gave evidence. There were, broadly, two versions of events before the primary judge (though the two versions internally differed in detail). One version, given by the respondent and the driver of the escort vehicle, was that, by the time of the collision, the respondent had merged into lane 2 and the appellant was in the right turning lane, from which he sought to move into lane 2, causing the collision. A second version, given by the appellant and various other witnesses, was that the appellant was travelling in lane 2, the respondent in lane 1, from which she attempted to merge into lane 2, causing the collision. The primary judge accepted the evidence of the respondent and the driver of the escort vehicle and rejected that of the defence witnesses. The judge delivered judgment in favour of the respondent, finding that the collision was solely caused by the appellant’s negligence and declined to find that the respondent was guilty of any contributory negligence. Damages were awarded in an agreed sum.
The appellant appealed to the New South Wales Court of Appeal and the Court, allowing the appeal in part, relevantly held:
(a)    No single witness could be accepted as definitively describing what had occurred preceding and during the collision. Rather, it was necessary to form a view that best synthesised the various witness accounts and the objective evidence, notably the agreed point of contact.
(b)    On seeing the directional arrows on the escort vehicle, the respondent merged into lane 2. The appellant, possibly to avoid the respondent or to permit her to complete the merge, swerved to the right and into the right turning lane but immediately swerved back into lane 2, where the collision occurred. The speed of both vehicles was a major factor in the severity of the consequences of the collision.
(c)    The appellant’s actions were not an instantaneous or reflexive decision “in the agony of the moment”. There were measures (such as reducing speed) that an ordinary prudent driver would have taken, which the appellant failed to take.
(d)    Both the appellant and the respondent bore equal responsibility for the accident.

I will now consider the relevant evidence in this matter and apply the legislation and legal principles referred to above.

Consideration and findings

I give little weight to the evidence that the police issued the Claimant with a traffic infringement notice for Offence Code 83597, that is, not giving way when moving from a marked lane to another. Constable Williamson issued the infringement notice because he preferred the Insured Driver’s police notebook version of events over that of the Claimant, as her version was consistent with the damage to the vehicles. There was no explanation recorded as to what he meant by that observation. There was no record of interview by an investigator with Constable Williamson, as is often the case in these matters. I must assess the contributions of the respective parties based on the evidence before me and by applying the relevant legislation and legal principles to that evidence.
I give no weight to the Quantumcorp report investigation summary. It is my task to assess the contributions of the respective parties based on the evidence before me and by applying the relevant legislation and legal principles to that evidence. For the same reasons, I give no weight to the Mount Druitt Local Court Order Notice dismissing the police charge brought against the Claimant in respect of the motor accident or to the QBE Insurance (Australia) Limited correspondence to the Claimant advising her that it held the Insured Driver at fault in respect of the motor accident.
The unchallenged evidence is that, at all material times, the Claimant and the Insured Driver were driving their respective vehicles in a southerly direction along Luxford Road, Tregear. The Claimant was driving a blue Holden Astra automatic hatchback and the Insured Driver was driving a white Mazda 3 hatchback. There were three passengers in the Claimant’s vehicle, namely, her husband and their two children. There were no passengers in the Insured Driver’s vehicle. The roadway was lit by natural daylight and visibility was good. The weather was fine. The bitumen roadway was dry, straight, flat and in good condition. There were two southbound lanes in Luxford Road that were marked by single white painted broken lines. The speed limit at the site of the motor accident was 60 km/h. Both drivers were very familiar with the roadway because they drove along it on a daily basis.
In the lead up to the motor accident, there had been some interaction between the two vehicles. Relevant to this interaction was the Claimant’s belief that the Insured Driver had been speeding through a school zone.
The Claimant’s evidence was that she first noticed the Insured Driver’s vehicle on Luxford Road outside Shalvey High School as the latter approached her from behind at a speed of about 60 km/h in a school zone. The Insured Driver moved into lane 1, overtook the Claimant very quickly and then moved in front of her in lane 2 very quickly without activating her indicator, leaving only about half a car space in front of the Claimant. Neither Mr AAY nor the Insured Driver referred to the latter incident in their evidence. Although, Mr AAY did refer to the Insured Driver’s vehicle moving in and out of the lanes on the roadway.
The Claimant’s evidence was that the Insured Driver stopped her vehicle at the red traffic lights at the intersection of Palmyra Avenue in lane 2. The Claimant, who was still behind the Insured Driver, merged into lane 1 and pulled her vehicle up at the red traffic lights next to the Insured Driver’s vehicle. The Claimant, annoyed at the Insured Driver for speeding in the school zone, opened her car window, called her “an idiot” and swore at her. The Claimant did not refer to the latter mentioned interaction in her police notebook statement. Mr AAY’s evidence was that the Claimant and the Insured Driver had an exchange through their car windows at the traffic lights shortly prior to the motor accident. However, he did not identify the intersection at which it took place. The Insured Driver’s evidence was that the above-mentioned encounter took place at traffic lights at the intersection of Bougainville Road (not Palmyra Avenue) and that she ignored the Claimant whilst stationary at the traffic lights.
The Insured Driver’s evidence, in relation to that which occurred at the intersection of Palmyra Avenue, was that she came to a stop behind the Claimant’s vehicle in lane 1. When the traffic lights changed to green, the Insured Driver began to move forward. The Claimant’s vehicle did not move and the Insured Driver’s vehicle had to stop very close behind the Claimant. She observed the Claimant looking in her mirror at her. The Claimant moved her vehicle forward into the intersection by a few metres and the Insured Driver started to move off again. However, the Claimant suddenly slammed on her brakes and came to a stop for no apparent reason. The Insured Driver had to stop behind her again. The Insured Driver described the Claimant’s actions in this regard as “brake checking”. The Insured Driver did not refer to the brake checking incident in her police notebook statement. Neither the Claimant, nor Mr AAY referred to the latter mentioned incident in their evidence.
In her statement to the Insurer’s investigator, the Claimant’s evidence was that when the traffic lights changed to green at the Palmyra Avenue intersection, the Insured Driver took off very fast. She could see a build-up of traffic in lane 2, moved into lane 1 and drove past the Insured Driver. In her police notebook statement, the Claimant stated that, as the traffic started to flow after the intersection, she saw a gap appear in lane 1 and sped up, reaching 50 km/h to 60 km/h. She then saw vehicles in lane 1 ahead of her and merged back into lane 2. As she merged into lane 2, she observed the Insured Driver speeding towards her and close in right behind her. She then saw another opening ahead of her in lane 1 and merged back into lane 1.
The Insured Driver’s evidence was that after she had taken off from the intersection of Bougainville Road, she observed that the Claimant needed to merge from lane 1 to lane 2 because of a parked car in lane 1. The Insured Driver gained speed in order to get away from the Claimant. At that time, the Insured Driver was travelling at about 65 km/h to 70 km/h. The Insured Driver checked her rear view mirror and observed the Claimant to be about 30 metres behind her. The Insured Driver opined that the Claimant was travelling at about 70 km/h, when, suddenly, she observed the Claimant merge behind her. The Insured Driver applied her brakes and she observed the Claimant immediately merge back into lane 1 to overtake her. This was consistent with Mr AAY’s evidence that the Insured Driver was “tail braking” the Claimant. The Insured Driver accelerated and as both drivers approached Ellsworth Drive, she observed a parked vehicle in lane 1 ahead of them. There was no explanation by the Insured Driver as to why she applied her brakes and then accelerated on the approach to Ellsworth Drive. I do not accept the Insured Driver’s assertion that she was “scared”.
Whilst there were the inconsistencies in the evidence referred to above in respect of the interaction between the two vehicles in the lead-up to the motor accident, I am satisfied that, on the balance of probabilities, the Claimant and the Insured Driver were engaged in a kind of duel along Luxford Road prior to the motor accident, in that, each was endeavouring to get ahead of the other as a result of their respective perceptions of each other’s driving conduct. Their conduct in this regard was material to the events immediately prior to the motor accident.
On their approaches to the intersection with Ellsworth Drive, the Claimant’s vehicle was travelling in lane 1 and the Insured Driver’s vehicle was travelling in lane 2. Both drivers observed a vehicle parked in lane 1 of Luxford Road ahead of them. The Claimant’s evidence was that she observed the parked vehicle when she was about 200 metres to 300 metres away from it and that she was travelling at about 62 km/h to 65 km/h. Although, in the Claimant’s application for personal injury benefits she stated that she observed the parked vehicle 150 metres ahead of her. The Insured Driver’s evidence was that she observed the parked vehicle when she was about 300 metres from it.
On their approaches to the intersection with Ellsworth Drive, the Claimant’s vehicle, travelling in lane ,1 had overtaken the Insured Driver’s vehicle travelling in lane 2. Mr AAY’s oral evidence at the assessment conference was that the Claimant had travelled more or less than 60 metres ahead of the Insured Driver’s vehicle, which was consistent with his written statement. In the Claimant’s application for personal injury benefits she stated that the Insured Driver’s vehicle was 200 metres behind her when she commenced to merge from lane 1 to lane 2. On questioning by her counsel, the Claimant stated that the Insured Driver’s vehicle was four car lengths behind her when she commenced to merge. On questioning by the Insurer’s counsel, the Claimant stated that she had miscalculated the distance of 200 metres when completing her application for personal injury benefits and that the Insured Driver’s vehicle was three car lengths behind her when she commenced the merging manoeuvre.
The Insured Driver’s evidence was that the Claimant, still travelling in lane 1, sped up alongside her. The Insured Driver increased her speed to about 60 km/h and stated that the Claimant’s vehicle was alongside her for about 250 metres to 300 metres up to the vehicle parked in lane 1. Although, in oral evidence she conceded that the Claimant’s vehicle was about half a car length in front of her when she commenced the merging manoeuvre.
In relation to the merging manoeuvre, the Claimant’s evidence was that she activated her indicator, checked her right mirror, rear mirror and performed an over the shoulder check when she was about 50 metres from the parked vehicle. At that point, the Insured Driver was not there. She then merged and the collision occurred. Mr AAY’s evidence corroborated the checks performed by the Claimant prior to commencing the merging manoeuvre. Mr AAY estimated that the Claimant’s vehicle was travelling at a speed of 60 km/h to 65 km/h just prior to the motor accident. The Insured Driver’s evidence was that about five metres or less before reaching the parked vehicle, the Claimant swerved to avoid hitting it and collided with the Insured Driver’s side bumper. The Insured Driver stated that she was travelling between 60 km/h and 65 km/h immediately prior to the motor accident.
In relation to the collision between the two vehicles, the Claimant’s evidence was that the Insured Driver’s vehicle was speeding up behind her and she was unable to swerve back to her left because of the parked vehicle which, by that stage, was only about 20 metres or less away from her. In her police notebook statement, the Claimant stated that she needed to accelerate to make it into the right lane. The Claimant’s evidence was that the front passenger side bumper of the Insured Driver’s vehicle collided with the rear driver’s side end of her vehicle, pushing her forward and causing the vehicle to mount the median strip, strike a tree, shoot off to the left to collide head-on with a power pole and then bounce off the pole to come to rest in the centre of both lanes facing west. In her oral evidence at the assessment conference, the Claimant agreed that there had been no damage to the rear of her vehicle in the motor accident. Mr AAY’s evidence was that the Claimant’s vehicle was about three quarters of the way into lane 2, when it was hit in the back right hand side by the Insured Driver’s vehicle.
In her police notebook statement, the Insured Driver stated that the front end of the Claimant’s vehicle collided with her left front bumper causing minor damage to the bumper. In her statement to the Insurer’s investigator, the Insured Driver stated that the Claimant’s vehicle only just clipped/scraped the Insured Driver’s vehicle. In the Insured Driver’s oral evidence at the assessment conference, she confirmed that the Claimant’s vehicle made contact with the front left side of her bumper and stated that the point of impact was with the Claimant’s back right passenger door.
When it was put to her, the Insured Driver accepted that she knew that there was a parked car ahead; that she did not see the Claimant brake or slow down; and knew that the Claimant had to change lanes. However, she responded that it was she who had the right-of-way and that the Claimant could have slowed down and then, merged behind her.
In its submissions, the Insurer provided calculations in respect of speed and distance and perception and reaction time. There is no evidence by an accident reconstruction expert in this case and I do not intend to carry out mathematical calculations as to speed and distance and perception and reaction time. That is a matter for an expert. I must consider the conflicting evidence I have identified and bear in mind that the Insurer bears the onus of proof in this dispute.
I make the following findings in relation to the motor accident:
(a)    I am satisfied that, on the balance of probabilities, the Claimant and the Insured Driver were engaged in a kind of duel along Luxford Road prior to the motor accident, in that, each was endeavouring to get ahead of the other as a result of their respective perceptions of each other’s driving conduct.
(b)    Between the intersection of Bougainville Road in Luxford Road and the point of the collision, both vehicles were being driven at an excessive speed in the circumstances at various points and, in particular, immediately prior to the collision, with each endeavouring to get ahead of and move away from the other.
(c)    Between the intersection of Bougainville Road in Luxford Road and the point of the collision, both vehicles were being driven in an aggressive and dangerous manner, with each endeavouring to get ahead of and move away from the other.
(d)    Between the intersection of Bougainville Road in Luxford Road and the point of the collision, the Claimant increased her speed and passed the Insured Driver’s vehicle.
(e)    I prefer the Claimant’s evidence that, at the time she commenced her merging manoeuvre, the Insured Driver’s vehicle was three to four car lengths behind in lane 2 and closing in fast. I do so because I find that, on the Insured Driver’s oral evidence at the assessment hearing, the latter’s front left bumper impacted the Claimant’s back right passenger door. If, as the Insured Driver said in her oral evidence, she was half a car length behind when the Claimant commenced her merging manoeuvre, one would have expected the impact to have taken place further to the front of the right side of the Claimant’s vehicle. The Claimant’s vehicle was already substantially into its merging manoeuvre when the collision occurred.
(f)    The Claimant failed to keep a proper look out for the Insured Driver’s vehicle when attempting to merge from lane 1 to lane 2.
(g)    The Claimant failed to brake or slow down when approaching the parked vehicle and allow the Insured Driver to pass her before commencing a merging manoeuvre.
(h)    The Insured Driver failed to brake or slow down to allow the Claimant to safely complete a merging manoeuvre, despite being aware that there was a parked car ahead of the Claimant; that she did not observe the Claimant brake or slow down; and knew that the Claimant had to change lanes. The Insured Driver wrongly assumed that the Claimant would stop and failed to allow for the possibility of her having to merge, particularly in circumstances where the Claimant had to change lanes because of a parked car only a short while earlier.
(i)    The Claimant was determined to move ahead of the Insured driver and complete her merging manoeuvre. A reasonable person in the Claimant’s position, would not have changed lanes where and when she did, knowing what she did or what she ought to have known. The Insured driver was determined that she had the right-of-way and increased her speed in an attempt to get past the Claimant before she commenced her merging manoeuvre. A reasonable person in the Insured Driver’s position, would not have attempted to pass the Claimant where and when she did, knowing what she did or what she ought to have known.
(j)    Each driver had some responsibility for the collision.
(k) Contrary to the Claimant’s submissions I find that Regulation 126 of the Road Rules is not relevant to the factual circumstances in this case.
(l)    I have considered the decision in Aukuso, the relevant details of which I have referred to above.
I have weighed up the respective acts of negligence of the parties involved and referred to above. On the evidence, I am not satisfied that the Insurer has discharged its onus and established that the motor accident was caused wholly or mostly by the fault of the Claimant within the meaning of sections 3.11(2) and 3.28(2) of the MAI Act for the reasons stated above.

LEGAL COSTS AND DISBURSEMENTS

Section 8.10 of the MAI Act relevantly provides:
“8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(1)    A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)    The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)    A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4)     The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that –
(a)the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.”
Section 8.10 of the MAI Act confers a costs power on a Member of the Commission not previously held by CARS assessors under the Motor Accidents Compensation Act 1999 (the MAC Act).
Schedule 1 Part 1, Clause 3(2)(a) - (m) of the Motor Accident Injuries Regulation 2017 (the Regulation). sets the maximum costs recoverable for legal services in various miscellaneous claims assessment matters. Schedule 1 Part 1, Clause 3(1) of the Regulation 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 MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim).
The Insurer sought costs for legal services in addition to those provided for in Schedule 1 Part 1, Clause 3 of the Regulation and made written submissions, which may be summarised as follows:
(a) Both parties are entitled to the fee for representation at an assessment conference in Schedule 1, Part 1 (4) of the Regulation.
(b) Claims Assessment falls under Division 7.6 of the MAI Act and is defined in section 7.30 (1) and means the assessment of a claim under this Division. A member of the Commission may assess claims in subdivision 2 (damages) and subdivision 3 (miscellaneous claims assessment) of Division 7.6 of the MAI Act.
(c)    The term “miscellaneous claims assessment” is not separately defined.
(d) The powers of a member of the Commission are set out in subdivision 4 of Division 7.6 of the MAI Act. However, I note that subdivision 4 has been repealed since the assessment conference in this matter.
(e)    Section 7.46 defined proceedings to mean “a conference held before a member”. There is no distinction between a conference for miscellaneous claims assessment and a conference for general claims assessment. I note that the current section 7.46 is now found in Division 7.7.
(f) Putting the above into context with the Regulation, Part one of Schedule 1 of the Regulation refers to “Dispute Resolution”. While clause 3 (1) sets the maximum costs for legal services in connection with an assessment under Division 7.6 of the MAI Act, clause 4 is also within this Part and is headed “Claims Assessment”.
(g) Because “Claims Assessment” is in Part 1 of Schedule 1 and not Part 2 dealing with claims for damages, the fee must be recoverable in a dispute that proceeds to a conference (be it for miscellaneous for general assessment) otherwise the clause would have no work to do. Further, the Table Part 1, clause 4 refers specifically back to an assessment conference under section 7.46 of the Act.
(h)    The submission made above is consistent with the approach adopted at CARS for many years in relation to the recovery of the maximum for legal costs and the representation fee on assessment. If a conference was required for either special assessment or general assessment, the representation fee was payable. Simply because this is a miscellaneous assessment matter and not a general assessment matter, it should not detract from each party having proper representation.

The Claimant did not wish to be heard in relation to the costs submissions made on behalf of the Insurer.
I do not accept the Insurer’s submissions that both parties are entitled to the fee for representation at an assessment conference in Schedule 1, Part 1 (4) of the Regulation. Schedule 1 Part 1, Clause 3(2)(a) - (m) of the Regulation explicitly sets the maximum costs recoverable for legal services in various miscellaneous claims assessment matters. Schedule 1 Part 1, Clause 3(1) of the Regulation 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 MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim). Schedule 1 Part 1, Clause 4 of the Regulation applies to claims assessments, not miscellaneous claims assessments. Accordingly, I find that the parties are not entitled to the fee for representation at an assessment conference in Schedule 1, Part 1 (4) of the Regulation.
The Claimant’s application has been successful. My referral from the DRS, as it then was (now the Commission) referred to two miscellaneous claims assessment matters that required my assessment, namely, whether for the purposes of section 3.11 the motor accident was caused wholly or mostly by the fault of the injured person and whether for the purposes of section 3.28 the motor accident was caused wholly or mostly by the fault of the injured person.
Under Schedule 1, Part 1, Clause 3 of the Regulation, the Claimant is entitled to the costs in each dispute for determination subject to the cap of 60 monetary units.
Accordingly, I am satisfied that the Claimant is entitled to the payment of legal costs at the regulated maximum in each dispute. In accordance with section 8.3(4) and section 8.10(3) of the MAI Act, I permit the Claimant to recover from the Insurer the reasonable and necessary costs associated with the statutory benefits claim as allowed under the Regulation on each of the disputes in this matter as follows:
(a) Dispute under Schedule 1, Part 1, Clause 3(2)(d) of the Regulation:
16 monetary units or $1,660 plus GST.
(b) Dispute under Schedule 1, Part 1, Clause 3(2)(e) of the Regulation:
16 monetary units or $1,660 plus GST.
Therefore, I allow costs in the total sum of $3,320 plus GST (being $3,652 inclusive of GST).

LEGISLATION

In making my decision, I have considered the following legislation and guidelines:
(a)    The MAI Act.
(b)    The Regulation.
(c)    Motor Accident Guidelines 2017 (the Guidelines).
(d)    The CLA.
(e)    The Road Rules.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of section 3.11 of the MAI Act, the motor accident was not caused wholly or mostly by the fault of the Claimant.
(b) For the purposes of section 3.28 of the MAI Act, the motor accident was not caused wholly or mostly by the fault of the Claimant.
(c) Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Regulation is $3,652 inclusive of GST.

[2021] NSWPIC 142

24 May 2021